Uday Singh Deo Vs. Ranga Nath Mishra & Ors  Insc 547 (12 October 2001)
R.C. Lahoti & Ashok Bhan Ashok Bhan, J.
appeal is directed against the judgment and order dated 4th August, 2000 passed
by the High Court of Orissa at Cuttack dismissing the election petition filed
by the appellant challenging the election of respondent Nos.1 and 3 as Members
of Council of States (hereinafter referred to as Rajya Sabha) in the election
held on 18th June, 1998.
facts leading to the points raised in this appeal are as follows:- The
President of India issued a notification, which was published in the Gazette of
India on 30th May, 1998, calling upon the Members of the Electoral College of
some of the States to elect Members to the Rajya Sabha in accordance with the
provisions of The Representation of the People Act, 1951 (for short The Act).
Pursuant to the aforesaid Presidential Notification, the Election Commission of
India by a Notification of the same date called upon the elected Members of the
Orissa Legislative Assembly to elect three Members to the Rajya Sabha.
consultation with the Government of Orissa, the Election Commission also issued
another notification appointing the Secretary of the Orissa Legislative
Assembly as the Returning Officer and the Joint Secretary of the Orissa
Legislative Assembly as the Assistant Returning Officer for the said election.
Returning Officer issued notice of election as per the following programme:
Filing of nomination papers Between 11.00 A.M. and 3.00 PM on any day(other than public holidays) not later than
Scrutiny of nomination At 11.30 A.M. on
of nomination Before 3.00
P.M. on papers
Polling, if necessary Between 10.00 A.M. and 2.00 P.M. on 18.6.1998 in Room No.54 of the Orissa Legislative Assembly Secretarial Building.
to the above notification, four persons, i.e., the appellant and respondents 1
to 3 filed nomination papers. The appellants candidature was sponsored by Biju Janata
Dal (hereinafter referred to as BJD) and that of respondents 1 to 3 was
sponsored by the Indian National Congress Party (hereinafter referred to as The
On 6th June, 1998, the Returning Officer published a
list of nominated candidates indicating the names of the aforesaid four
scrutiny of nomination papers, the Returning Officer issued a list in Form No.4
on 8th June, 1998 indicating therein that the
aforesaid four persons were the validly nominated candidates for the election
to the Rajya Sabha, 1998 by the elected members of Orissa Legislative Assembly.
After the time for withdrawal was over on 10th June, 1998 and none of the candidates had
withdrawn his candidature, the Returning Officer issued the list of contesting
candidates indicating the aforesaid four names and the political parties which
sponsored their candidature.
polling took place on 18th
June, 1998 in which
the candidates polled the following value of votes (value of each vote being
assessed at 100).
Vijay Singh Deo (appellant) - 3500
Nath Mishra (Respondent No.1) - 4000
Chandra Khuntia (Respondent No.2)- 4000
Das (Respondent No.3) - 2700 __________ Total 14200 __________ The Orrisa
Legislative Assembly has got 147 members and it seems from the aforesaid that
in all 142 members had validly cast their votes in the election held on 18th June, 1998. In view of the total valid votes
tendered, as per calculation, a person having polled votes valued at 3551 or
more could be declared elected. As Respondent No. 1 and Rama Chandra Khuntia,
Respondent No. 2, got 4000 value of votes each in their favour, they were
declared elected in the first round, leaving Ananga Uday Singh Deo, appellant
and Manmath Das, respondent No.3 for the subsequent rounds. The Returning
Officer transferred the excess votes polled by Respondent No. 1 and Respondent
No. 2, Rama Chandra Khuntia as per the second preference in favour of
respondent No.3 Manmath Nath Das. As a result, 444 value of votes were transferred
from Respondent No. 1 and 444 value of votes were transferred from Rama Chandra
Khuntia. After such transfer, the value of votes polled by Manmath Nath Das
stood at 3588. This having exceeded the cut off point i.e., 3551 value of
votes, respondent No.3 was declared elected.
appellant could not get any more vote in the second round. Thus, the value of
votes polled by him remained at 3500, which was less than the cut off number,
and, therefore, could not be elected.
appellant challenged the election of respondent nos.1 and 3 on the following
grounds :- (
Long before the scrutiny fixed on 8.6.1998, and the withdrawal fixed on
10.6.1998, the Returning Officer not only pre-judged the validity of each of
the nominations but also grossly violated the mandatory provisions contained in
Section 30(8) of the Act and rule 8 of the Conduct of Election Rules in
publishing the list of validly nominated candidates on 6.6.1998. Thus, the
Returning Officer rendered the provisions of scrutiny nugatory.
Although the rules and guidelines issued by the Election Commission prohibit
electioneering within a stipulated distance of the polling premises, Janki Ballave
Patnaik, the then Chief Minister of Orissa, and the Ranga Nath Mishra,
respondent No.1, while sitting in the office of the Chief Minister in the
Assembly Premises, which is very close to the polling room, compelled each and
every Member of the Legislative Assembly to cast their votes as per their
instruction. Before casting votes, each and every Congress M.L.A. entered the
office of the Chief Minister. Each of them was given a token, written in the
hand of the Chief Minster himself, indicating the preferences to be endorsed
(in favour of Congress candidates) in the ballot papers.
the said tokens, the elector-Members of the Legislative Assembly entered the
polling booth to cast their votes indicating their preferences as per the
direction of the Chief Minister. This has resulted in materially affecting the
Respondent No.1 Ranga Nath Mishra had held the office of a judge of high Court
of Orissa and also the office of the Chief Justice of the said High Court.
Thereafter, on, he had held the office of a judge of Supreme court of India and had also become the Chief
Justice of India. On retirement, he had also held the office of Chairman, Human
Rights Commission of India. As per the constitutional mandate incorporated in
Article 124 (7) of the Constitution of India, respondent No.1 is disqualified
to act or plead. The constitutional bar renders him disqualified under the Act
to be chosen/elected to fill up the seat of the Rajya Sabha. As such,
acceptance of his nomination paper for the Rajya Sabha election held in June,
1998 was improper and has materially affected the election. Had the candidature
of respondent No.1 been rejected, the other three candidates (including the
petitioner) would have been automatically elected against the three vacancies.
per the petitioner had polled 3500 value of votes out of the total of 14200
value of votes (total valid votes polled 142), the Returning Officer was not
correct in declaring Returning Officer and the officer assisting him for
counting votes committed gross irregularities and acted in violation of the
provisions of rules 71 to 85 of the Conduct of Election Rules.
After Ranga Nath Mishra and Rama Chandra Khuntia (respondents 1 and 2
respectively) had been declared elected in the first round the petitioner
having received higher value of votes than respondent No.3 (petitioner polled
3500/35 votes whereas respondent No.3 polled 2700/27 votes) should have been
declared elected. Transfer of votes in favour of respondent No.3 is violative
of Rule 81 of the Conduct of Election Rules. Declaration of respondent No.3 as
elected by the purported transfer of surplus votes is vitiated, which has
materially affected the election.
the material point of time, the Indian National Congress had only 80 Members in
the Orissa Legislative Assembly as against 66 Members belonging to various
Mishra was never a member of the congress Party as per its rules and bye-laws.
His name was not there in the list of proposed candidates prepared by the
Pradesh Congress Committee, Orissa. However, he was imposed on the Pradesh
Congress Committee by the Congress High Command from Delhi. Thereafter, Janaki Ballave Patnaik
prepared a master plan to prove his strength before the High Command and
planned for a cross-voting and induced respondent No.1 to indulge in
horse-trading of appropriate number of opposition votes by which Congress could
win all the three seats. Therefore, election of respondent No.1 is void.
aforesaid pleadings, it was prayed that the election of Respondent No. 1 be
declared as void and consequently to declare the appellant to be duly elected.
In the alternative, it was prayed to declare the election of Manmath Nath Das,
respondent No.3, to be void and consequently to declare the appellant as
elected. Prayer was also made to allow inspection and counting of all used
ballots and to call for all other relevant documents regarding account of
No.1 in his written statement challenged the maintainability of the election
petition in view of the provisions of Section 81 and 82 of the Act. It was
stated that as no cause of action had arisen, the election petition was liable
to be dismissed as no ground under Sections 100 and 101 of the Act had been
made out to set aside the election. Each of the grounds taken by the appellant
to set aside the election were specifically controverted. It was denied that
the Returning Officer had acted in violation of provisions of law in issuance
of the validly nominated candidates on 6th June, 1998 as alleged in the petition.
that respondent No.1 sat in the Office of the Chief Minster in the Assembly
premises and every member of the Assembly was instructed by the Chief Minister
to cast votes in the manner as per his direction were denied. It was stated
that respondent No.1 did not carry on any canvassing within the prohibited area
of the polling. It was also stated that respondent No.1 absolutely had no
knowledge about the Chief Minister issuing any instructions to any M.L.A. from
his office room in the Assembly premises. He did not meet the Chief Minister on
18th June, 1998 in his office room or elsewhere
until the entire process of counting of votes was over. That the office of the
Chief Minister in the Assembly premises is in the ground floor of the building
and quite at a distance from the place of polling, i.e., Room No.54 which is in
the first floor of the building. It was denied that respondent No.1 was
disqualified to be member of the Parliament in view of the alleged
constitutional bar under Article 124 (7) of the Constitution. He gave four
examples where person holding offices of the Judge in the High Court and
Supreme Court had been elected as Members of the Legislative Assembly as well
as the Parliament.
denied by respondent No.1 that there was any irregularity in the counting and transfer
of votes and drew the attention of the Court to Article 80 (4) of the
Constitution. It was submitted that the appellant having secured votes valued
at 3500, which was less than the required value of votes of 3551, had rightly
been declared as not elected. The procedure followed by the Returning Officer
was in accordance with law and, therefore, the declaration of result in Form
No.23B was not vitiated for any illegal manipulated entries as alleged by the
appellant. That the transfer of surplus votes from him as well as from respondent
no.2 in favour of respondent No.3 was in accordance with law.
upon respondent No.1 having been invited by the President of the Indian
National Congress to accept the sponsorship of her party to become a Member of
the Rajya Sabha, he filed his nominations. The rules and the bye-laws of the
Indian National Congress could not be utilized by the appellant to seek his
disqualification. It was denied that he had been imposed by the Central
leadership of the Congress on the Pradesh Congress Committee of the State of Orissa. Allegation that Shir Janki Ballave
Patnaik who was then the Chief Minister of Orissa had prepared a master plan
for his (Ranga Nath Mishras) election and indulging in cross-voting,
horse-trading, etc. was denied. Maintainability of the aforesaid grounds to
challenge the election was questioned in the absence of material facts pleaded
in the election petition.
Chandra Khuntia, respondent No.2 also filed his written statement, though no
prayer had been made for setting aside his election.
also denied the correctness of the grounds for challenging the election of
respondent nos.1 and 3.
Nath Das, respondent No.3, in his written statement raised the preliminary
objection regarding maintainability of the election petition and stated that
the appellant had no cause of action to file the petition. That the election
petition was bad for non-joinder of necessary parties. The allegations
regarding presence of Janaki Ballave Patnaik and Respondent No. 1, in the
office of the Chief Minister inside the Assembly premises to compel each and
every Member of the Orissa Legislative Assembly for casting their votes as per
the instruction of the Chief Minister and the allegation of written tokens
given by the Chief Minister indicating the preferences to be endorsed in the
ballot papers were denied. It was prayed that the appellant be put to strict
proof thereof. With regard to transfer of votes in his favour, respondent No.3
stated that the same was done in accordance with rules and the declaration of
result consequent upon such transfer of votes was in accordance with law.
No.4 also filed his written statement and controverted the facts alleged in the
election petition. He submitted that the filing of nominations, scrutiny of
nominations and counting of votes were regulated under the provisions of the
Constitution of India, the Act and the Rules made thereunder, the Registration
of Elections Rules, the Parliament (Prevention of Disqualification) Act, and
the Prohibition of Simultaneous Membership Rules. He further submitted that the
allegation with regard to the delay in supplying the documents was not correct.
There was no irregularity or illegality in declaring the validly nominated
candidates as the same was done in accordance with law on 8.6.1998.
the above pleadings, the following issues were framed at the trial of the
election petition:- (1) Whether the Election Petition as laid is maintainable?
Whether the written statements of the respondents are in accordance with law?
Whether respondent No.1 Ranganath Mishra is qualified to contest election to
Parliament, and whether Article 124 (7) of the Constitution of India, 1950
constituted a bar for such contest, and whether his nomination was improperly
there was any cross-voting by horse-trading of opposition votes?
Whether the counting was conducted according to law and result was declared
Whether the petitioner is entitled to any other relief?
appellant examined five Members of the Orissa Legislative Assembly in addition
to himself as witnesses in support of his case.
Nos.1, 3 and 4 examined themselves as witnesses in support of the respect of
the case put forth by them.
No.1 was decided in favour of the appellant. It was held that the election
petition, as laid, was maintainable. Issue No.2 was decided in favour of
respondents and it was held that the written statements of the respondents were
in accordance with law. Issue No.3 was decided in favour of respondent No.1. It
was held that Article 124 (7) of the Constitution of India did not constitute a
bar on a retired Judge of the High Court or the Supreme Court from contesting
the elections and therefore nomination of respondent No.1 had been validly accepted.
Nos. 4 & 5 were also decided in favour of the respondents.
Nos.1 and 4 are interlinked. Respondents in their written statement had taken
the objection that the petition was not maintainable as it did not disclose the
cause of action and also lacked in material facts and material particulars;
that the petition was not filed in conformity with section 83 of the Act.
of Respondent No.1 had been challenged on the grounds that respondent No.1
being a former Judge and Chief Justice of India was debarred from contesting
the election in view of the bar created by Article 124 (7) of the Constitution
of India. Respondent No.1 not being a congressman a whip could not be issued by
the congress party to its members to vote in his favour and that Shri J.B.Patnaik
the then Chief Minister of Orissa while sitting in his office alongwith
respondent No.1 in the ground floor which was within 200 yards of the polling
station called the congress MLAs and issued instructions to cast their votes in
the manner indicated by J.B.Patnaik. Shri J.B.Patnaik planned for cross voting
and induced respondent No.1 to indulge in horse trading by appropriating the
opposition votes by which the congress could win all the three seats.
of Respondent No.3 was challenged on the ground of wrong procedure adopted in
the counting of votes. According to the appellant afterdeclaring respondent
Nos. 1 & 2 elected, they having secured more votes than the minimum quota
required, only two candidates having being left in the arena, further, counting
should have been carried under rule 81(2) and not under Rule 79.
Issue No.1 & 4 the only point to be considered is whether the appellant had
disclosed material facts and material particulars of the corrupt practice
indulged in by Respondent No.1 in securing the votes and if not so to what
effect. In so far as the other grounds of challenge to the election of
respondent No.1 is concerned, the same have not been pressed in this case and
left open for some future case. In so far as the procedure adopted in counting
of votes, the same would be discussed under issue no.5.
in the Statement of Facts given in the petition, the fact that respondent No.1
had indulged in horse trading or inducing the voters to cross vote is not mentioned
but in the grounds the following statement is made in para 14(iii) which reads
Nath Mishra was imposed on OPCC from Delhi, J.B.Patnaik prepared a master plan
to prove his strength to Delhi. As per its own strength, Congress could only
get 2 seats from out of the 3 existing vacancies. J.B.Patnaik planned for a
Cross-voting and induced Ranga Nath (Sonias candidature) to indulge in
horse-trading of appropriate number of opposition votes by which Congress could
win all the three seats.
made in this paragraph relates to a corrupt practice.
of petition(1) An election petition
contain a concise statement of the material facts on which the petitioner
shall set forth full particulars of any corrupt practice that the petitioner
alleged including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date and place of the
commission of each such practice; and
be signed by the petitioner and verified in the manner laid down in the Code of
Civil Procedure, 1908 (5 of 1908) for the verification of pleadings:
that where the petitioner alleges any corrupt practice, the petition shall also
be accompanied by an affidavit in the prescribed form in support of the
allegation of such corrupt practice and the particulars thereof.
Any schedule or annexure to the petition shall also be signed by the petitioner
and verified in the same manner as the petition.
section provides that the petition shall contain a concise statement of the
material facts and set forth full particulars of any corrupt practice that the
petitioner alleges including as full a statement as possible of the names of
the parties alleged to have committed such practice and the date and place of
the commission of such corrupt practice. It has to be verified in the manner
laid down in the Code of Civil Procedure and wherever the election petitioner
alleges any corrupt practice the petition shall also to be accompanied by an
affidavit in the prescribed form in support of the allegation of such corrupt
practice and particulars thereof. In the petition the particulars of the
corrupt practice of the allegation made, the names of the parties alleged to
have committed such corrupt practice, the date and place of commission of
corrupt practice have not been given.
leading evidence the petitioner produced besides appearing himself as PW6, PWs
1, 2 3, 4 & 5. PWs 1,2 3,4 & 5 are the sitting Members of Legislative
Assembly of Orissa. They have deposed that respondent No.1 had met them and
tried to persuade and induce them by offering bribe to cross vote.
been held in a number of cases by this Court that the petition lacking in
material facts and material particulars as provided under section 83 is
required to be dismissed. Allegations of corrupt practice is a serious
allegation which entails serious consequence of disqualifying the candidate
from contesting the election for a period which may extend up to six years. The
charge of corrupt practice is to be proved like a criminal charge requiring the
standard of proof to be beyond reasonable doubt.
strenuously contended that a liberal and purposive construction should be put
on the pleadings to serve the larger purpose of eradicating corruption from the
electoral system of the country and not a technical approach which would defeat
the purpose of electoral reforms.
against this, it is contended by Shri P.P.Rao, learned senior counsel appearing
for respondent No.1 that compliance with the provisions of section 83 is
mandatory. The charge of corrupt practice in election petition is to be proved
like a criminal charge and the standard of proof required is beyond reasonable
doubt. It can entail the serious consequences of disqualifying the candidate
from contesting the election in future for a certain period of time. That the
court below had erred in taking evidence on a point on which there were no
Court in Ram Sharan Yadav v. Thakur Muneshwar Nath Singh (1984) 4 SCC 649, has
taken the view that the charge of a corrupt practice is in the nature of a
criminal charge which if proved, entails a very heavy penalty in the form of
disqualification. Therefore, a very cautious approach must be made in order to
prove the charge of undue influence leveled by the defeated candidate. It is
for the party who sets up the plea of undue influence to prove it to the hilt
beyond reasonable doubt and the manner of proof should be the same as for an
offence in a criminal case.
referring to the case law it was held by this Court:
sum and substance of these decisions is that a charge of corrupt practice has
to be proved by convincing evidence and not merely be preponderance of
probabilities. As the charge of a corrupt practice is in the nature of a
criminal charge, it is for the party who sets up the plea of undue influence to
prove it to the hilt beyond reasonable doubt and the manner of proof should be
the same as for an offence in a criminal case. This is more so because once it
is proved to the satisfaction of a court that a candidate has been guilty of
undue influence then he is likely to be disqualified for a period of six years
or such other period as the authority concerned under Section 8-A of the Act
may think fit.
as the charge, if proved, entails a very heavy penalty in the form of
disqualification, this Court has held that a very cautious approach must be
made in order to prove the charge of undue influence levelled by the defeated
Another well settled principle is that before the allegation of undue influence
can be proved, it must be shown that undue influence proceeds either from the
candidate himself or through his agent or by any other person either with his
consent or with the consent of his election agent so as to prevent or cloud the
very exercise of any electoral right.
same effect is another judgment of this Court in Quamarul Islam v. S.K.Kanta
and Others 1994 Supp (3) SCC 5. After observing that there is an increase of
electoral malpractices and the Courts owe a duty to the nation to see that such
objectionable assaults wounding the purity of elections during the election
propaganda are not allowed to go unpunished it was held that:
maintenance of purity of elections is indeed essential but the court must be
clear in its approach and appreciate that the proof of commission of corrupt
practices must be clear, cogent, specific and reliable as the charge of a
corrupt practice is almost like a criminal charge and the one who brings forth
that charge has the obligation to discharge the onus of proof by leading
reliable, trustworthy and satisfactory evidence. Election cannot be set aside
on mere probabilities but only if the allegations of the corrupt practice, as
alleged in the petition, are satisfactorily proved, which in the instant case
is found hopelessly wanting. In this case the pleadings are so vague and the
evidence so scanty, unsatisfactory and unreliable, besides being partly
inadmissible, that it is not possible to connect the appellant, the returned
candidate or his election agent with any of the corrupt practices alleged in
High Court before invalidating the election and upsetting the verdict of the
electorate, in its zeal to maintain purity of elections, ignored not only the
defects in the pleadings in the election petition but also failed to analyse
the evidence in its proper perspective and even relied upon such evidence as is
not admissible in law. It has been informed that the High Court has not framed
any rule for trial of the election petitions. If that be so the Chief Justice
of the High Court is requested to look into it and frame rules for proper trial
of election petitions.
recent decision this Court in V. Narayanaswamy v. C.P. Thirunavukkarasu, (2000)
2 SCC 294, after analysing the entire case law on the subject has held that
exercise of undue influence is also deemed to be a corrupt practice. Under
sub-section (2) of Section 123 undue influence means any direct or indirect
interference or attempt to interfere on the part of the candidate or his agent,
or of any other person with the consent of the candidate or his election agent,
with the free exercise of any electoral right. Material facts and material
particulars certainly connote two different things. Material facts are those
facts which constitute the cause of action. In a petition based on the
allegation of corrupt practices the cause of action cannot be equated with the
cause of action as is normally understood because of the consequences that
follow in a petition based on the allegations of corrupt practices. An election
petition seeking a challenge to the election of a candidate on the allegation
of corrupt practices is a serious matter; if proved, not only does the
candidate suffer ignominy, he also suffers disqualification from standing for
election for a period that may extend to six years.
Court summed up:-
will be thus seen that an election petition is based on the rights, which are
purely the creature of a statute, and if the statute renders any particular
requirement mandatory, the court cannot exercise dispensing powers to waive
non-compliance. For the purpose of considering a preliminary objection as to
the maintainability of the election petition the averments in the petition
should be assumed to be true and the court has to find out whether these
averments disclose a cause of action or a triable issue as such. Sections 81,
83(1)(C) and 86 read with Rule 94-A of the rules and Form 25 are to be read
conjointly as an integral scheme. When so read if the court finds
non-compliance it has to uphold the preliminary objection and has no option
except to dismiss the petition. There is difference between material facts and
material particulars. While the failure to plead material facts is fatal to the
election petition the absence of material particulars can be cured at a later
stage by an appropriate amendment. Material facts mean the entire bundle of
facts, which would constitute a complete cause of action and these must be
concisely stated in the election petition, i.e., clause (a) of sub-section (1)
of Section 83. Then under clause (b) of sub-section (1) of Section 83 the
election petition must contain full particulars of any corrupt practice. These
particulars are obviously different from material facts on which the petition
is founded. A petition levelling a charge of corrupt practice is required by
law to be supported by an affidavit and the election petitioner is obliged to
disclose his source of information in respect of the commission of corrupt
practice. He must state which of the allegations are true to his knowledge and
which to his belief on information received and believed by him to be true. It
is not the form of the affidavit but its substance that matters. To plead
corrupt practice as contemplated by law it has to be specifically alleged that
the corrupt practices were committed with the consent of the candidate and that
a particular electoral right of a person was affected. It cannot be left to
time, chance or conjecture for the court to draw inference by adopting an
involved process of reasoning. Where the alleged corrupt practice is open to
two equal possible inferences the pleadings of corrupt practice must fail.
Where several paragraphs of the election petition alleging corrupt practices
remain unaffirmed under the verification clause as well as the affidavit, the unsworn
allegation could have no legal existence and the court could not take
cognizance thereof. Charge of corrupt practice being quasi-criminal in nature
the court must always insist on strict compliance with the provisions of law.
In such a case it is equally essential that the particulars of the charge of
allegations are clearly and precisely stated in the petition. It is the
violation of the provisions of Section 81 of the Act which can attract the
application of the doctrine of substantial compliance. The defect of the type
provided in Section 83 of the Act on the other hand can be dealt with under the
doctrine of curability, on the principles contained in the Code of Civil
with the provisions of Section 83 may lead to dismissal of the petition if the
matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the
Code of Civil Procedure. Where neither the verification in the petition nor the
affidavit gives any indication of the sources of information of the petitioner
as to the facts stated in the petition which are not to his knowledge and the
petitioner persists that the verification is correct and the affidavit in the
form prescribed does not suffer from any defect the allegations of corrupt
practices cannot be inquired and tried at all. In such a case the petition has
to be rejected on the threshold for non-compliance with the mandatory
provisions of law as to pleadings. It is no part of the duty of the court suo motu
even to direct furnishing of better particulars when objection is raised by the
other side. Where the petition does not disclose any cause of action it has to
be rejected. The court, however, cannot dissect the pleadings into several
parts and consider whether each one of them discloses a cause of action. The
petition has to be considered as a whole.
cannot be a partial rejection of the petition.
entire case law has been discussed in V. Narayanaswamys case (supra), we need
not refer to other cases on the subject which were cited before us at the bar.
for the appellant had referred to the following decisions to press the point
that liberal and purposive construction should be put on the pleadings in order
to do substantial justice.
Ram Mittal v. Ishwar Singh Punia (1988) 4 SCC 284.
Administrator, Municipal Corporation v. Dattatraya Dahankar (1992) 1 SCC 361.
Dhawan v. Shaw Brothers (1992) 1 SCC 534.
of these judgments are applicable to the facts of the present case and the law
pertaining to the election petition in which the allegation of corrupt
practices have been made. Atma Ram Mittal v. Ishwar Singh Punia (supra) deals
with a case under the Rent Control and Eviction Act.
in Administrator, Municipal Corporation v. Dattatraya Dahankar (1992) 1 SCC
361, this Court was interpreting Section 127- A(2)(b) of the M.P.
Municipalities Act, 1961, regarding imposition of property tax. In the context
of that case, it was observed that the mechanical approach to construction is
altogether out of step with the modern positive approach. The ratio of the said
case would have no applicability to the present case. Likewise, in Shrisht Dhawan
v. Shaw Brothers (1992) 1 SCC 534, again the Court was dealing with a case
under the Delhi Rent Control Act, 1958. In view of the specific provisions of
the Representation Act regarding the pleadings and the standard of proof
required to prove the corrupt practices, the ratio of any of these cases would
have no applicability.
apart we are in agreement with the finding recorded by the High Court on issue
No.4. It is true that the congress had only 80 members in legislagtive assembly
whereas it polled 107 votes i.e.27 more than its strength in the assembly. But
this by itself does not mean that there was a cross voting due to any
inducement on the part of respondent No.1. on facts it has not been proved that
respondent No.1 or any other person with his consent or the consent of his
agent had indulged in cross voting by horse trading. The finding recorded by
the High Court that respondent No.1 was not sitting with J.B.Patnaik in his
room when J.B.Patnaik gave instructions to congress MLAs to vote in a
particular manner and that the office where J.B.Patnaik was sitting was within
200 yards of the polling station where the polling took place is also affirmed.
for the appellant could not putforth any plausible argument to set aside the
finding of the High Court on facts.
already noticed, there was no pleading at all, except some vague assertion in
the grounds, with regard to the allegation of corrupt practice relating to
alleged bribery indulged by respondent No. 1. No issue had been framed, as
rightly none could be framed in that respect on the basis of vague and
incomplete pleadings. The learned designated Judge, however, permitted evidence
to be led during the trial by the appellant, relating to the allegations of
bribery. No such evidence could have been permitted to be led. The learned
designated Judge appears to have ignored salutary principles that evidence can
only be permitted to be led on a plea-properly raised and issue framed. A
designated Judge trying an election petition must be careful to see that
irrelevant, impermissible and inadmissible evidence is not allowed to brought
on the record. Let alone allowing evidence to be led, for which there were no
pleadings, even respondent No. 1 was subjected to unnecessary cross-
examination on the allegations of bribery, which of course he stoutly denied.
The evidence led in the case was inadmissible and should have been excluded and
not allowed to form a part of the record. The designated Judge trying the election
petition appears to have lost control over the proceedings and conducted the
trial of the election petition in a manner not acceptable in law. In so far as
the allegations relating to the charge of horse trading and bribery are
concerned, we must in fairness to Mr. P.N.Lekhi, learned senior counsel
appearing for the appellant, record that he did not pursue this charge before
us any further.
now to the last on issue No.5 it may be stated that Election to the Rajya Sabha
from Legislative Assemblies of the States as per Article 80(4) is held under a
system known as proportional representation by means of a single transferable
vote. The system of voting by secret ballot on the system of proportional
representation by means of the single transferable vote is adopted from the
Constitution of Eire. The object of introducing proportional representation in
these elections is to give each minority group an effective share as per its
system of proportional representation by single transferable vote comes into
operation only if there is more than one candidate to be elected. The election
is held by multi member constituencies. All the candidates who compete for the
seats allotted to a constituency have their names printed on one ballot paper.
Each elector has only one vote in the sense that it will be capable of electing
one candidate only. But that vote will not be wasted in case the candidate whom
he wishes to elect has got more than the required number of votes, called the
quota. The elector is required to indicate his multiple preferences by placing
the figures, 1, 2 and 3 in order of preferences. The surplus votes in the hands
of the candidates declared elected are transferred to the then candidates.
procedure of counting of votes is enumerated in Rules 71 to 85 of The Conduct
of Election Rules, 1961 (hereinafter referred to as The Rules).
74 provides that the Returning Officer after rejecting the ballot papers which
are invalid arrange the remaining ballot papers in parcels according to the
first preference recorded for each candidate;
and record the number of papers in each parcel and the total number; and credit
to each candidate the value of the papers in his parcel.
76 provides for ascertainment of quota. It provides that at any election where
more than one seat is to be filled, every valid ballot paper shall be deemed to
be of the value of 100, and the quota sufficient to secure the return of a
candidate at the election shall be determined by adding the value credited to
all the candidates and then dividing the total by a number which exceeds by one
the number of vacancies to be filled and then to add one to the quotient
ignoring the remainder, if any, and the resulting number is the quota. In
simple words it would work as under:- Total number of valid ballot papers +1 =
of members to be elected +1 Rule 78 provides that if at the end of any count or
at the end of the transfer of any parcel or sub-parcel of an excluded candidate
the value of ballot papers credited to a candidate is equal to, or greater than
the quota, that candidate shall be declared elected.
vacancy remains to be filled, then the procedure required to be followed is
given in Rules 79, 80 and 81. Rules 79, 80 and 81 read thus:-
at the end of any count the value of the ballot papers credited to a candidate
is greater than the quota, the surplus shall be transferred, in accordance with
the provisions of this rule, to the continuing candidates indicated on the
ballot papers of that candidate as being next in order of the electors
more than one candidate have a surplus, the largest surplus shall be dealt with
first and the others in order of magnitude:
that every surplus arising on the first count shall be dealt with before those
arising on the second count and so on.
Where there are more surpluses, than one to distribute and two or more
surpluses are equal, regard shall be had to the original votes of each
candidate and the candidate for whom most original votes are recorded shall
have his surplus first distributed; and if the values of their original votes
are equal, the returning officer shall decide by lot which candidate shall have
his surplus first distributed.
If the surplus of any candidate to be transferred arises from original votes
only, the returning officer shall examine all the papers in the parcel
belonging to that candidate, divide the unexhausted papers into sub-parcels
according to the next preferences recorded thereon and make a separate
sub-parcel of the exhausted papers.
shall ascertain the value of the papers in each sub- parcel and of all the
the value of the unexhausted papers is equal to or less than the surplus, he
shall transfer all the unexhausted papers at the value at which they were
received by the candidate whose surplus is being transferred.
the value of the unexhausted papers is greater than the surplus, he shall
transfer the sub-parcels of unexhausted papers and the value at which each
paper shall be transferred shall be ascertained by dividing the surplus by the
total number of unexhausted papers.
the surplus of any candidate to be transferred arises from transferred as well
as original votes, the returning officer shall re-examine all the papers in the
sub-parcel last transferred to the candidate, divide the unexhausted papers
into sub-parcels according to the next preferences recorded thereon, and then
deal with the sub-parcels in the same manner as is provided in the case of
sub-parcels referred to in sub-rule (4).
The papers transferred to each candidate shall be added in the form of a
sub-parcel to the papers already belonging to such candidate.
All papers in the parcel or sub-parcel of an elected candidate not transferred
under this rule shall be set apart as finally dealt with.
Exclusion of candidates lowest on the poll. (1) If after all surpluses have
been transferred as hereinbefore provided, the number of candidates elected is
less than the required number, the returning officer shall exclude from the
poll the candidate lowest on the poll and shall distribute his unexhausted
papers among the continuing candidates according to the next preferences
recorded thereon; and any exhausted papers shall be set apart as finally dealt
The papers containing original votes of an excluded candidate shall first be
transferred, the transfer value of each paper being one hundred.
The papers containing transferred votes of an excluded candidate shall then be
transferred in the order of the transfers in which, and at the value at which,
he obtained them.
Each of such transfers shall be deemed to be a separate transfer but not a
If, as a result of the transfer of papers, the value of votes obtained by the
candidate is equal to or greater than the quota, the count then proceeding
shall be completed but no further paper shall be transferred to him.
The process directed by this rule shall be repeated on the successive
exclusions one after another of the candidates lowest on the poll until such
vacancy is filled either by the election of a candidate with the quota or as
at any time it becomes necessary to exclude a candidate and two or more
candidates have the same value of votes and are the lowest on the poll, regards
hall be had to the original votes of each candidate and the candidate for whom
fewest original votes are recorded shall be excluded; and if the values of
their original votes are equal the candidates with the smallest value at the
earliest count at which these candidates had unequal values shall be excluded.
two or more candidates are lowest on the poll and each has the same value of
votes at all counts the returning officer shall decide by lot which candidate
shall be excluded.
Filling the last vacancies. (1) When at the end of any count the number of
continuing candidates is reduced to the number of vacancies remaining unfilled,
the continuing candidates shall be declared elected.
When at the end of any count only one vacancy remains unfilled and the value of
the papers of some one candidate exceeds the total value of the papers of all
the other continuing candidates together with any surplus not transferred, that
candidate shall be declared elected.
When at the end of any count only one vacancy remains unfilled and there are
only two continuing candidates and each of them has the same value of votes and
no surplus remains capable of transfer, the returning officer shall decide by
lot which of them shall be excluded; and after excluding him in the manner
aforesaid, declare the other candidate to be elected.
79 comes into operation in case a candidate or more than one candidate has
received more votes than the required quota. If at the end of any count the
value of the ballot papers credited to a candidate is greater than the quota,
the surplus shall be transferred in accordance with the provisions of this
rule, to the continuing candidates indicated on the ballot papers of that
candidate as being next in order of the electors preference. After working out
the surplus votes in order of preference in favour of the remaining candidates,
the surplus votes are transferred to the remaining candidates and added to the
value of votes polled by that candidate. In this exercise if any candidate
reaches the requisite quota, then he is declared elected.
candidate wins on transfer of the surplus votes obtained by him from the
surplus of votes from the candidate who is already declared elected, then the
provision of exclusion of candidates lowest on polled votes as provided under
Rule 80 comes into operation. The returning officer then excludes from the poll
the candidate lowest on the poll and distributes his unexhausted ballot papers
among the continuing candidates according to the next preference recorded
thereon. The process is continued till the total number of vacancies is filled
even by this process the total number of vacancies are not filled up then Rule
81 comes into operation. Case put forth by learned counsel for the appellant is
that as only two candidates remained in the field after declaring respondent
nos. 1 and 2 elected and only one vacancy remained unfilled, then the counting
should have proceeded under Rule 81 (2) and not under Rule 79 as has been done
by the returning Officer since the appellant had polled more first preference
of votes in the first count, then respondent no.3. The appellant should have
been declared elected.
proposition put forth by the counsel for the appellant is not acceptable. It
goes against the scheme of proportional representation by single transferable
vote. As pointed out earlier, each elector has only one vote in the sense that
it will be capable of electing one candidate only but that vote will not be
wasted in case the candidate whom he wishes to elect has got more than the
required number of votes, called the quota.
elector is required to indicate his multiple preferences his vote which is
surplus in the hands of the elected candidate gets transferred to the next
candidate. If the contention of learned counsel for the appellant is to be
accepted, then the surplus votes in the hands of respondent nos. 1 and 2 would
never be counted. Rules 79 to 81 which are in consonance with the scheme of
proportional representation by single transferable votes provide that firstly
the surplus votes in the hands of elected candidates have to be transferred
under Rule 79. If on the transfer of surplus votes no candidate reaches the
quota, then the procedure provided under Rule 80 of exclusion of candidates
obtaining the least number of votes is to be followed. On his exclusion his
first preference are transferred to the remaining candidates in order of
preference indicated by the electors. If even by this process the required number
of seats are not filled and no candidate reaches the quota then resort to be
made to Rule 81.
81 envisages three situations. Firstly when the number of candidates is reduced
to the number of vacancies remaining unfilled.
(1) of Rule 81 provides that in such situations the continuing candidates shall
be declared elected. Sub-rule (2) of Rule 81 operates in a factual situation
when at the end of any count only one vacancy remains unfilled and the value of
papers of one candidate exceeds, the total value of papers of all the
continuing candidates together with all the surplus not transferred, then that
candidate shall be declared elected.
sub-rule cannot be pressed into service in the present factual situation. The
value of votes in the hands of the appellant did not exceed the value of votes
of the remaining candidate together with the transferred surplus votes.
Sub-rule (3) of Rule 81 provides that when at the end of any count only one
vacancy remains unfilled and there are only two continuing candidates and each
of them has the same value of votes and no surplus remains capable of transfer,
the returning officer shall decide by lot which of them shall be excluded; and
after excluding him in the manner aforesaid, declare the other candidate to be
present case the returning officer after declaring respondent nos. 1 and 2
elected, they having reached their quota resorted to the procedure provided in
Rule 79. On transfer of the surplus votes of respondents 1 and 2 in favour of
the remaining candidates, it was found that respondent no.3 had secured the
required quota of votes. Respondent nos.1 and 2 had surplus of 444 value of
votes after obtaining their required quota. Second preference in all these
ballot papers was indicated in favour of respondent no.3. By transfer of the
value of 444 votes each from respondent nos. 1 and 2 in favour of respondent
no.3 his value of votes came to cross the required quota of value of votes. He
had obtained 2700 value of votes and by adding the surplus value of 888 to the
value of votes, already obtained, his total value of votes came to 3558. The
value of votes of the appellant remained static at 3500. Once respondent No.3
was declared elected after following the procedure under Rule 79, the reference
to the procedure provided under Rule 80 and 81 was unnecessary. In our view,
the returning officer followed the correct procedure in counting the votes and
declaring respondent no.3 elected; he having polled the requisite quota of
P.N. Lekhi, learned senior counsel submitted that in the judgment under appeal
most of discussion has taken place regarding scope of Article 124 (7) of the
Constitution of India and whether it constituted a bar for contesting election
by respondent No.1. Learned counsel did not question the correctness of the
findings recorded by the High Court on issue No. 3 but went on to submit that
he was not giving up challenge to the findings on issue No. 3 but he was not
addressing any arguments to question the correctness of these findings recorded
by the High Court either. Thus, the challenge based on Article 124 (7) which
failed in the High Court in so far as respondent No. 1 is concerned was also
not pursued before us.
other ground was urged by the learned counsel for the appellant.
view of the above, we do not find any merit in this appeal and dismiss it with
BHAN ] October 12, 2001.