Mohan Pandey Vs. Pooran Singh & Ors  Insc 321 (27 April 2004)
S.B. Sinha & S.H. Kapadia.
S.L.P. (CIVIL) NO. 19748/2003) S.B. SINHA, J:
of 'Hare System' in Municipal Election is the question involved in this appeal
which arises out of a common judgment and order dated 30.09.2003 passed by the
High Court of Uttaranchal at Nainital in A.O. No. 196 of 2003.
election was held for the post of Adhyaksha, Zila Panchayat Champawat situated
in the State of Uttaranchal.
appellant, the first respondent and one Bhagirath Bhatt contested therefor. The
appellant got six first preference votes; whereas the first respondent got five
first preference votes and the said Bhagirath Bhatt received one.
elimination of Bhagirath Bhatt, the appellant and the first respondent obtained
six votes each. The election was held on the basis of proportionate
representation purported to be by means of a single transferable vote by
reason of an order dated 24.5.2003, the Returning Officer declared the said
office to be vacant on the purported ground that both the contesting candidates
received equal votes as also on the ground that none of them secured the quota
which was said to be mandatory in nature.
election petition questioning the said decision was filed before the District
Judge, Champawat, which was allowed. Aggrieved by and dissatisfied therewith,
an appeal was filed thereagainst by the Respondent herein before the High Court
of Uttaranchal at Nainital which by reason of the impugned judgment has been
election to the said post is governed by the provisions of Section 237 of the
Uttar Pradesh Kshettra Panchayats and Zila Panchayats Adhiniyam, 1961 (for
short 'the Act'). The Act has been adopted by the State of Uttaranchal. The rules known as Uttar Pradesh Zila
Panchayats (Election of Adhyaksha and Up-Adhyaksha and Settlement of Election
Disputes) rules, 1994 (for short 'the Rules') were framed under the provisions
of Section 237 of the Act. Chapter IV of the Rules relates to election of Adhyaksha.
In terms of Rule 33, an election petition calling in question the election of Adhyaksha
or Up- Adhyaksha may be presented to the Judge at any time within 30 days from
the date of result of the election. Rule 34 provides for requirements to
specify the ground (s) on which the election petition of the returned candidate
can be filed which includes giving of a summary of the circumstances seeking to
justify the same. Rule 35 of the Rules enables the election petitioner to claim
for the following declaration:-
that the election of the returned candidate is void.
the election of the returned candidate is void and that he himself or any other
candidate has been duly elected."
AND STATUTORY PROVISIONS:
243C of the Constitution of India reads thus:
Composition of Panchayats.—
Subject to the provisions of this Part, the Legislature of a State may, by law,
make provisions with respect to the composition of Panchayats;
that the ratio between the population of the territorial area of a Panchayat at
any level and the number of seats in such Panchayat to be filled by election
shall, so far as practicable, be the same throughout the State,
All the seats in a Panchayat shall be filled by persons chosen by direct
election from territorial constituencies in the Panchayat area and, for this
purpose, each Panchayat area shall be divided into territorial constituencies
in such manner that the ratio between the population of each constituency and
the number of seats allotted to it shall, so far as practicable, be the same
throughout the Panchayat area.
The Legislature of a State may, by law, provide for the representation—
the Chairpersons of the Panchayats at the village level, in the Panchayats at
the intermediate level or, in the case of a State not having Panchayats at the
intermediate level, in the Panchayats at the district level;
the Chairpersons of the Panchayats at the intermediate level, in the Panchayats
at the district level;
the members of the House of the People and the members of the Legislative
Assembly of the State representing constituencies which comprise wholly or
partly a Panchayat area at a level other than the village level, in such Panchayat;
the members of the Council of States and the members of the Legislative Council
of the State, where they are registered as electors within
(i) a Panchayat
area at the intermediate level, in Panchayat at the intermediate level;
Panchayat area at the district level, in Panchayat at the district level.
The Chairperson of a Panchayat and other members of a Panchayat whether or not
chosen by direct election from territorial constituencies in the Panchayat area
shall have the right to vote in the meetings of the Panchayats.
The Chairperson of—
at the village level shall be elected in such manner as the Legislature of a
State may, by law, provide; and
(b) a Panchayat
at the intermediate level or district level, shall be elected by, and from
amongst, the elected members thereof."
38 provides for the procedure for holding election. Rule 40 empowers the
District Judge to pass a final order on an election petition. Rule 43 specifies
the procedure in case of equality of votes. Rule 47 provides for appeal.
26 of the Rules reads as under:
all the valid ballot papers have been arranged in parcels according to the
first preference recorded for each candidate, the Returning Officer shall
proceed to determine the result of the voting in accordance with the
instructions contained in Schedule II to these rules." The relevant
clauses of Schedule II read as under:
the expression "first preference" means the number 1 set opposite the
name of any candidate, the expression "second preference" similarly
means the number 2, the expression "third preference" the number 3,
and so on;
expression "next available preference" means the second or subsequent
preference recorded in consecutive numerical order for a continuing candidate,
preferences for candidates already excluded being ignored;
expression "unexhausted paper" means a ballot paper on which a
further preference is recorded for a continuing candidate:
that a paper shall be deemed to be exhausted in any case in which
names of two or more candidates whether continuing or not are marked with the
same figure, and are next in order of preference; or
name of the candidate next in order of preference whether continuing or not, is
marked by a number not following consecutively after some other number on the
ballot paper or by two or more numbers.
Ascertain the number of first preference votes secured by each candidate and
credit him with that number.
up the numbers so credited to all the candidates, divide the total by two and
add one to the quotient disregarding any remainder. The resulting number is the
quota sufficient to secure the return of a candidate at the election.
If there are only two contesting candidates then
one candidate gets larger number of first preference votes than the other,
declare the former as elected, or
both the candidates get equal number of first preference votes, determine the
result by drawing of lots. Exclude the candidate on whom the lot falls and
declare the other candidate as elected.
there are more than two candidates then
one of them is found to secure first preference votes equal to or more than the
quota determined under instruction No. 3, declare him as elected, or
none of them secures first preference votes equal to or more than the quota
aforesaid, proceed according to the instructions hereinafter taking into
consideration second and subsequent preferences as may be necessary.
at the end of the first or any subsequent count the total number of votes
credited to any candidate is equal to, or greater than the quota, or there is
only one continuing candidate, that candidate is declared elected."
Illustration appended to Schedule II reads as under:
Suppose there are four candidates A, B, C and D and the number of first
preference votes secured by them are A = 12 B = 11 C = 7 D = 5 35 The quota
will be = 35/2+1 = 18.
candidate having obtained votes equal to or over the quota at the first count
the candidate having the lowest votes, namely, D will be excluded.
there are second preferences marked on all four ballot papers in the parcel of
D as below:
A = 2
B = 2 The fifth ballot paper will be placed in the sub-parcel of exhausted
papers and the two papers recording second preference for A and B each will be
placed in separate sub-parcels for A and B; each of them will be credited with
two additional votes. The votes for A,B and C will now be A=12+2 B=11+2 C=7
Since at the end of the second count no candidate be declared elected, the
candidate C having the lowest votes out of the three continuing candidates will
now be excluded and his votes transferred to other continuing candidates A and
second preferences are recorded in all the ballot papers in the parcel of C and
are as below:
A = 4
B = 3 After crediting A and B with their additional votes A would have secured
18 votes, that is equal to the quota and B 16 votes. A will therefore be
declared elected." In Clause 3 of the Schedule it is provided how the
quota will be fixed. It also provides that the resulting number which is the
quota sufficient to secure the return of candidates at the election. It is a
mandatory provision but the same would apply when one can be declared elected
under clause 3 of Schedule II. Clauses 4,5 and 6 provide procedure for
elimination of candidates and counting of votes in first, second and third
rounds etc. The illustration appended to clause 5 also demonstrates that for
the purpose of achieving the ultimate result, adherence to quota rule is not
illustration itself shows that a situation may arise where none of the
candidates secure the requisite number of first preference votes so as to
fulfill the criteria or quota. In the illustration itself the quota was fixed
at 18, none of the 4 candidates had secured quota.
the continued processes are required to be undertaken which should result in
declaration of election.
the High Court a question of maintainability of the election petition and
consequently that of appeal was raised. The High Court held that the provisions
of the Act and the Rules relating to filing of the election petition and the
appeal should receive benevolent construction. The High Court, however, proceeded
on the basis that whether the election petition before the District Judge was
maintainable or not or whether the appeal filed thereagainst in the High Court
was maintainable or not; as two wrongs do not make one right; the appeal was to
be decided by the High Court on merit. Relying on or on the basis of the
decision of this [(2000) 3 SCC 154] over the decision of this Court in Others
[(1972) 3 SCC 186] the High Court allowed the appeal and set aside the impugned
order dated 28.07.2003 passed by the District Judge holding that the Returning
Officer was right in declaring the post to be vacant.
Dwivedi, learned senior counsel appearing on behalf of the appellant would
submit that the High Court committed a manifest error in interpreting the
provisions of the Second Schedule. According to the learned counsel, the Second
Schedule provides for election of a candidate and, thus, the quota rule as
adumbrated in the Second Schedule may not be applicable in a case of this
nature where one or more candidates is a continuing candidate.
process of elimination, Mr. Dwivedi would submit, should continue till the last
pursuant whereto the candidate who had secured lowest number of first
preference votes should be excluded and only when the number of first
preference votes secured by two or more candidates are the same, a decision is
to be taken by lot as to which of them shall be excluded.
Vasdev, learned senior counsel appearing on behalf of the first respondent, on
the other hand, would support the judgment of the High Court contending that in
this case neither the appellant nor the first respondent obtained the required
quota. It was urged that right of a candidate to contest an election being a
statutory right, the procedure laid down therein must be scrupulously complied
with. Clause (3) of the Schedule, Mr. Vasdev would submit, is mandatory in
nature and, thus, unless the candidate receives sufficient votes to fulfil the
requirement of quota as is required under the Rule, he cannot be declared
elected. The illustration appended to the Second Schedule, the learned counsel
would urge, does not provide for declaration of a candidate to be successful in
election who has not secured any quota and in that view of the matter, the
impugned judgment cannot be faulted with.
AND LEGISLATIVE SCHEME:
73rd Amendment Act, 1992 was enacted with a view to provide for democracy at
the grass-root level. 'Panchayat' is an institution of self-governance at the
village, intermediate and district levels. It is required to be constituted in
accordance with Part IX of the Constitution of India. Article 243C (3) of the
Constitution provides that the Legislature of a State may by law provide for
the representation of a Chairperson of the Panchayats at the village level, in
the Panchayats at the intermediate level or in the case of a State not having Panchayats
at the intermediate level, in the Panchayats at the district level.
Panchayat at the district level is to be elected by and from amongst the
elected members. The provisions providing for procedures for holding the
election must be construed having regard to the necessity of establishing
democracy at the grass-root level, being a constitutional requirement. The
State Act and the rules applicable therefor must, therefore, be interpreted
having regard to the constitutional scheme.
AND CLARK PRINCIPLE:
the election of office by majority is the normal rule, a single transferable
vote system was developed in Denmark and Britain and is known as Hare system, named
after Thomas Hare, an Englishman one of its developers.
Inglis Clark, Tasmanian Attorney-General 1888 and a member of the Tasmanian
Parliament, introduced a modified version of the Hare system into Tasmanian law
in 1896. This system is now known as the Hare-Clark electoral system.
voter under the Hare system has a single vote.
ballot paper, voter has to rank all or any of the competing candidates giving
them preferences 1,2,3 and so on. A quota is fixed which is the minimum number
of votes which cannot be secured by more candidates than the number of seats.
When a candidate secures votes equal to this quota, he is declared elected. If
a candidate receives more votes than the quota, then he is declared elected and
his surplus votes (votes exceeding the quota) are transferred to other candidates
in proportion of second preference indicated in his ballot papers. After
surplus votes of all candidates are transferred, if all seats are not filled in
then candidate who has polled lowest votes is eliminated and are continuing
(are not elected or eliminated). This process goes on till all seats are filled
in by completion of quota or candidates remaining do not exceed seats still to
be filled in. This system ensures actual use of maximum number of votes polled.
system poses a complex system and difficult for use where large number of
voters are illiterate. In a complex society like India where divergent
religious, linguist or cultural groups and large number of political parties
exist, use of single transferable system in elections to legislatures and other
bodies is although advocated but the method of voting and computations in this
system sometimes renders it unsuitable for an election involving masses. One
does not know if feeling of segregation from other groups which is already
there may be aggravated if this system is employed. (See Law of Elections by Narendra
Chapalgaonker, 2nd edition) The purpose of the Hare system is intended to
secure representation of every shade of the electorate's opinion in direct
proportion to its numerical strength.
OF THE RULE:
Hare-Clark electoral system is a type of proportional representation system
also known as the Single Transferable Vote (S.T.V.) method. Under this system,
electors vote by showing preferences for individual candidates. In order to be
elected, a candidate needs to receive a quota votes. Each elector has a single
vote, which can be transferred from candidate to candidate according to the
preferences shown, until all the vacancies are filled.
how Single Transferable Vote works, has been explained by Vernon Bogdanor at
page 81 of his book title "What is Proportional Representation/" as follows
that system, voters mark preferences for candidates in the order of their
choice by using the numbers 1,2, 3, 4, 5 and so on. If there are five
vacancies, voters are instructed to show five preferences; if there are seven
vacancies, voters are instructed to show seven preferences.
order to get elected a candidate has to receive a quota of votes. However, he
may be elected without a quota.
can happen when the number of candidates remaining in the count, who have not
been elected or excluded (continuing candidate) is equal to the number of
vacancies that remain to be filed. Suppose there are two vacancies. For the
said two vacancies, suppose there are five candidates. One of them attains the
exact quota, then he stands elected. However, the remaining candidates do not
secure the quota. Therefore, one vacancy out of two remains unfilled. For that
vacancy, the candidate with the smallest number of votes is excluded and his
votes are distributed to continuing candidates according to the remaining
preferences. The eliminated candidate with smallest number of votes is called
"excluded candidate". Votes of such excluded candidates are
distributed to the continuing candidates. If in the process, any continuing
candidate secures the quota, he fills up the remaining vacancy.
if despite the addition of transferred votes, the remaining continuing
candidates do not secure the quota then Returning Officer has to continue to
apply the principles of elimination till the number of continuing candidates in
the count is equal to the vacancy that remains to be filled. Therefore, even
under the Hare system, a candidate can be elected without a quota. It operates
at two levels. In cases where a candidate receives votes in excess of the quota
the said system prevents wastage of surplus votes by transfer of surplus in favour
of continuing candidates. In cases where the quota cannot be attained, it
eliminates the candidates having least number of votes, by principle of
elimination and the votes of such excluded candidates are distributed to the
remaining continuing candidates so that the resultant number is equal to the
vacancy which remains to be filled.
short, the Hare system works on two principles, namely, transfer of surplus
votes and transfer of votes of eliminated candidates. In the present case, we
are concerned with only one vacancy and three candidates and therefore the principle
of transferring the votes of eliminated candidates alone is applicable.
a candidate elected? A candidate is elected when his/her total number of votes
equals or exceeds the quota.
is the quota? The quota is the lowest number of votes a candidate needs to be
certain of election.
calculate the quota, the number of formal votes is divided by one more than the
number of candidates to be elected (rounded up to the next whole number).
five candidates each receive a quota (just over one sixth of the formal vote)
then less than one quota of the votes remain.
quota rule mandatory? The system states that it is always not necessary to get
House of Assembly elections, it is common that the last elected member in a
division is elected without obtaining a quota. In some cases the last two
elected members in a division are elected without each obtaining a quota.
the distribution of preferences, some votes are "lost" from the
count. A small number are lost due to rounding of fractional numbers. A more
significant number of votes are "exhausted" toward the end of the
count, as many ballot papers do not show a preference for any remaining
the contest for the last seat is close, it is common for the remaining two
candidates to both have less than a quota. The candidate with the least votes
is excluded, and the other candidate elected without reaching the quota. The
more votes that are lost during the scrutiny, the more likely that not all
elected members will obtain the quota.
common situation occurs where remaining three candidates are contesting the
last two seats. In this case, the candidate with the least votes is excluded,
and the other two candidates elected without either reaching the quota.
Values Ballot papers and votes are different.
papers are the medium from which candidates receive votes. The original value
of a ballot paper is 1 vote, however, this can change during a scrutiny.
distribute surplus votes the last parcel of ballot papers must have a new
(reduced) transfer value. This fractional transfer value is calculated as
Value= Surplus Votes Number of ballot papers in the last parcel (truncate to
four decimal) After each count, the total number of votes counted to each
continuing candidate is recalculated. Any continuing candidate who has reached
the quota is declared elected and does not continue in the scrutiny.
next count When more than one candidate is elected with a surplus, each surplus
is redistributed in order of election as separate counts.
all surpluses have been distributed, the candidate with the fewest total votes
is declared excluded, withdrawn from the scrutiny and all of his/her ballot
papers are redistributed to continuing candidates.
candidates The exclusion of a candidate can take many counts to complete.
candidate is excluded, ballot papers are redistributed in the order, and at the
same transfer value, they were received by the excluded candidate. Each parcel
of ballot papers is distributed as a new count.
each count, each continuing candidate's total number of votes is recalculated.
Where a continuing candidate reaches the quota, he/she is declared elected and
withdrawn from the scrutiny before the next count commences.
the exclusion is complete, distribute the surplus of any candidate(s) elected
during the exclusion (in order of election). Otherwise exclude the continuing
candidate with the fewest total number of votes.
does a Hare-Clark scrutiny stop? The process of distributing surplus votes from
elected candidates and excluding the candidate with the fewest votes continues
until all vacancies are filled.
case of the Tasmanian House of Assembly, the scrutiny stops as soon as five
candidates are declared elected.
of an alderman of a county council or a Mayor depends upon the Statute
governing the field. Section 14 (1) & (2) of the Local Government
(Miscellaneous and Previous Act, 1953) by way of example lays down the
procedure for an alderman of a county council had been laid down thus:
person entitled to vote may vote for any number of persons, not exceeding the
number of vacancies to be filled, by signing and delivering at the meeting to
the persons presiding thereat a voting paper containing the full names and
places of residence and descriptions of the persons for whom he votes.
procedure of declaring the result of an aldermanic election was altered by
section 14 of the Local Government (Miscellaneous Provisions) Act, 1953,
formerly all the voting papers had to be read out in full but the new procedure
is as follows.
person presiding must ascertain the votes given to each person and in the
minutes of the meeting there must be included the full names, residences and
descriptions of the persons to whom votes were given and the names of the
persons by whom the votes were given.
case of equality of votes, the person presiding at the meeting, whether or not
entitled to vote in the first instance, shall have a casting vote. This
includes the chairman, even though an alderman.
many persons as there are vacancies to be filled, being the persons who have
the greatest number of votes, shall be declared by the person presiding at the
meeting to be elected." (See Local Government Elections by Schofield,
Fourth edition) It is interesting to note that the proportional representation
doctrine in some jurisdiction has been declared ultra vires by the American
Courts. In 123 American Law Reports (1939), page 235, it is stated:
Section 35 proportional representation- constitutionality.
of proposed legislation for establishment of system of proportional
representation (known as Hare system) for electing nine members of city
council, which in effect allows to the elector only one effective vote for only
one councilman are repugnant to the constitutional provisions guaranteeing
right of citizens under conditions of qualification specified therein to vote
in the election of all civil officers and on all questions in all legally organised
town, ward, or district meetings." At page 252 of the said book, by way of
Annotation, it is stated:
This annotation supplements that in 110 ALR 1521.
Mechanics of the Hare System, which appears to be the only system of
proportional representation which has come before the courts of last resort of
this country up to the present time, are outlined in the original annotation in
110 ALR on pp.1521 and 1522, and readers interested in the details of the
systems are referred to the pages cited.
annotation in 110 ALR 1522) Prior to the decision s in OPINION TO THE GOVERNOR
(R.I.) (reported herewith) ante, 235, the courts were apparently evenly divided
on the question of constitutionality of statutes making provisions for
proportional representation in elections. As will be observed, the Supreme
Court of Rhode Island in that case distinguished the New York decision
upholding the validity of the statute and took the view that the Hare System of
proportional representation, which the legislature was seeking to incorporate
into an amendment to the charter of the City of Providence, was violative of a section
of the state Constitution providing that citizens meeting certain residence
qualifications should "have a right to vote in the elections of all civil
officers and on all questions in all legally organized town, ward or district
meetings." The position taken by the new York Court of Appeals in Johnson v. New York (1937) 274 N.Y. 411, 9 N.E.
(2d) 30, 110 ALR 1502, the case to which the original annotation is appended,
that there is nothing in the provisions of the New York Constitution relating
to elections which render invalid the proportional representation method of
electing municipal officials was reaffirmed in Johnson v. Etkin (1938) 279
N.Y.1, 17 N.E. (2d) 401, in connection with a proposed change of the charter of
the City of Schenectady which introduced the proportional representation system
to that municipality. The primary controversy in this case, however, revolved
around the power of a municipality which had adopted a plan of government
offered under the Optional City Government Law to amend its charter within a
certain time after the adoption of such plan by means of a local law adopted
under the Home Rule Amendment to the Constitution, or by proper steps taken
under the City Home Rule Law.
Section 273 of American Jurisprudence 2d, it is stated:
expression "proportional representation" is a generic term and
applies to different systems of voting which, while similar to each other in
essentials, vary considerably in detail.
system, commonly known as the single transferable vote or "Hare
system", is usually applied to the election of a legislative board of
body. Under this system candidates are not elected by their obtaining a
majority or plurality of the votes cast, but by their obtaining a quota of a
designated number of votes or a certain proportion of the entire vote in which
electors are permitted to express second, third, or additional choices. So that
an elector would not waste his vote, if the candidate for whom he has expressed
his first choice does not need his vote, the surplus votes are distributed in
accordance with the indicated second choices among candidates whose quotas have
not been filled. If enough candidates are not elected by this process, the
candidate with the smallest number of first choices is then dropped and his
votes are distributed in the same way. This process of elimination goes on
until enough candidates have filled their quotas or until the successive
eliminations have left no more than enough to fill the vacant positions. This
system of voting has been upheld in some jurisdictions against constitutional
objections. But in others it has been held to contravene constitutional
provisions relating to the right of suffrage. For example, it has been held
that by allowing only one effect vote for one officer in an election of several
such officers, proportional representation is repugnant to a constitutional
provisions guaranteeing qualified citizens the right to vote in the election of
all civil officers and on all questions in all legally organised town, ward, or
the Courts should read the system:
Hare system of proportional representation has been made applicable in the
instant case, the Court has to bear in mind that only one candidate is required
to be elected whereafter only a District Panchayat would be constituted. The
scheme of the Constitution and the statute is not that in case of persons
securing equal votes, a re- election shall be held which may also yield similar
show that even after holding repeated elections, the same problem of two
candidates securing same number of votes may be felt as a result whereof
constitution of a District Panchayat would become a difficult task. The
mechanism to elect a Chairman is a delicate task.
provisions made in the Rules provide for different methods to be adopted at
different stages. Securing of the quota may be necessary at one stage but may
not be so necessary at a subsequent stage to which we would advert to a little
now well-settled that object of the Act must be given effect to. The object of
the Act being to elect an Adhyaksha, constructions of the rules should be made
in such a manner which would not negate the same. An interpretation of the
rules which would lead to election of one of the candidates should be adhered
to and for that purpose, if necessary, the doctrine of purposive construction
may be taken recourse to.
trite that for the purpose of interpretation a statute is to be read in its entirety
and all efforts must be made to give effect to the statutory scheme. [See High
& Ors. [JT 2003 (3) SC 50], Indian Handicrafts Emporium and Others vs.
Union of India and Others [(2003) 7 SCC 589], Ameer Trading Corporation Ltd.
vs. Shapoorji Data Processing Ltd. [JT 2003 (9) SC 109 = 2003 (9) SCALE 713],Ashok
Leyland Insurance Co. Ltd. Baroda [2004 (3) SCALE 546] and Secretary,
Department of Excise & Commercial Taxes and Another [(2004) 3 SCC 185].
object underlying the statute is required to be given effect to by applying the
principles of purposive construction.
Bennion in his treatise 'Statutory Interpretation' at page 810 described
purposive construction in the following manner:- "A purposive construction
of an enactment is one which gives effect to the legislative purpose by
the literal meaning of the enactment where that meaning is in accordance with
the legislative purpose (in this Code called a purposive-and-literal
a strained meaning where the literal meaning is not in accordance with the
legislative purpose (in the Code called a purposive-and-strained
of elections in a District Panchayat is mandatory. The right to contest an
election although flows from a statute and regulated thereby, it would not be
correct to contend that a strict construction of the statutory provisions is
principle of literal interpretation to the provisions of the rules and
procedures laid down therein cannot be applied for more than one reason.
statute must be construed having regard to the legislative intent. It has to be
meaningful. A construction which leads to manifest absurdity must not be
preferred to a construction which would fulfill the object and purport of the
question as to when there can be a tie between two candidates leading to a
deadlock must be judged on the fact situation obtaining in a particular case.
If by a process of interpretation such consequences can be avoided, the same
should be preferred to application of any other principle of interpretation of
must also be borne in mind that elector's votes are not to be wasted. The
possibility of a tie would be very high if strict interpretation of the rule is
proper construction of a statute the Courts must also take into consideration
the social milieau. The courts cannot ignore that local, caste and political
affinity play a major role in our electoral system.
furthermore that unreasonable result or result which create uncertainty has to
Araria and Others [AIR 1978 Patna 86], it
was stated in this way by Parke B.:
a very useful rule, in the construction of a statute, to adhere to the ordinary
meaning of the words used, and to the grammatical construction, unless that is
at variance with the intention of the legislature, to be collected from the
statute itself, or leads to any manifest absurdity or repugnance, in which case
the language may be varied or modified, so as to avoid such inconvenience, but
no further.' 'If', said Brett L.J. 'the inconvenience is not only great, but
what I may call an absurd inconvenience, by reading an enactment in its
ordinary sense, whereas if you read it in a manner in which it is capable
though not its ordinary sense, there would not be any inconvenience at all,
there would be reason why you should not read it according to its ordinary
grammatical meaning." Even a construction which would make the provisions
more effective and workable must be adopted and to see if it is possible to be
done without doing too much violence of the language used.
clause of a section should be construed with reference to the context and other
clauses thereof so that the construction to be put on a particular provision
makes a consistent enactment of the whole statute.
would be more so if literal construction of a particular clause leads to
manifestly absurdity or anomalous results which could not have been intended by
the Legislature. "An intention to produce an unreasonable result",
said Danckwerts, L.J., in Artemiou v. Procopiou [ 1966 1 QB 878] " is not
to be imputed to a statute if there some other construction available".
Where to apply words literally would "defeat the obvious intention of the
legislation and produce a wholly unreasonable result: we must "do some
violence to the words" and so achieve that obvious intention and produce a
SHOULD WE INTERPRET?
of a provision as regard electoral process framed to make certain conditions
requires construction of principles having regard to the backdrop thereof.
Principle was made applicable when a large number of posts were required to be
filled up. The authorities available as regards the applicability of said
principle, some of which are noticed hereinbefore do not suggest that the said
principles are applied in a case where the number of voters are limited and
only one post is to be filled up.
also appears that the Legislatures of different countries had laid down
different procedures for holding election which necessarily would depend upon
the need of the electoral college. The court cannot also ignore the fact that
questions have been raised as regards the suitability of the said process in
election involving illiterate masses.
some jurisdictions, as noticed, the Hare principle has also been declared
continuing candidate has been defined to mean not elected and not excluded from
the poll at any given time.
expression "at any given time", in our opinion, should mean at all
point of times which in turn would mean that till that time when the results
can be declared. Clause (3), of course, provides for a minimum quota but
applicability thereof should not be stretched to all stages of election. Clause
(4) as such does not speak of quota.
speaks of declaration of a candidate who gets larger number of first preference
votes than the other and in case both get equal number of first preference
votes, one candidate has to be excluded on whom the lot falls and the other
candidate is required to be elected.
clause (5) two different situations have been taken care of :
at the end of the first or any subsequent round, the total number of votes credited
is equal to or greater than the quota and (ii) When there is only one
continuing candidate that candidate is declared elected.
not conjunctive but disjunctive. A continuing candidate may, therefore, also be
elected who might not be credited equal to or greater number of votes than the
(6) provides for the formula as to how an exclusion can take place.
(a), (b) and (c) of Clause (6) are disjunctive although the expression 'and'
has been used.
(6) again provides for exclusion by application of different formulae which
would appear from the subsequent paragraph which is as follows:
when a candidate has to be excluded under clause (a) above, two or more
candidates have been credited with the same number of votes and stand lowest on
the poll, exclude that candidate who had secured the lowest number of first
preference votes, and if that number also was the same in the case of two or
more candidates, decide by lot which of them shall be excluded." Sub
Clause (a) of clause 6 does not speak of a quota.
when a candidate has to be excluded who up to that stage has been credited with
the lowest number of votes, two or more candidates might have been credited
with the same number of votes and they may stand lowest on the poll then one of
the candidates has to be excluded who had secured the lowest number of first
preference votes. Only in the event, the first preference votes secured by both
the candidates are the same then and then only the determination by the lot has
to be taken for the purpose of exclusion.
illustration appended to the rules does not envisage such situation.
Illustration although are of relevance and have some value in the construction
of the text of the sections but they cannot have the effect of modifying the
language of the statute and they cannot either curtail or expand the ambit of
404], the law has been stated in the following terms:
We recognise that an illustration does not exhaust the full content of the
section which it illustrate but equally it can neither curtail nor expand its
ambit; and if knowledge of certain facts is as much available to the
prosecution, should it choose exercise due diligence, as to the accused, the
facts cannot be said to be especially" within the knowledge of the
is a section which must be considered in a common sense way; and the balance of
convenience and the disproportion of labour that would be involved in finding
out and proving certain facts balanced against the triviality of the issue at
stake and the ease with which the accused could prove them, are all matters
that must be taken into consideration. The section cannot be used to undermine
the well established rule of law that save in a very exceptional class of case,
the burden is on the prosecution and never shifts." Rules, if given the
aforementioned meaning, in our opinion, would subserve the object of the Act
and, thus, would fulfil the constitutional and statutory scheme. In the end,
the result for which an election is held must be achieved.
OF THE RULE:
In University of Poona (supra) a 3-Judge Bench of this Court held:
Election by Proportional representation by means of a single transferable vote
by ballot is often described as the Hare system of proportional representation
named after the English Political reformer Thomas Hare. This system of election
is based on a quota determined by the following formula. The total votes cast
is divided by the number of seats to be filled plus one, and one is added to
100,000 votes are cast and 4 seats are to be filled, divide by 5 to get a
quotient of 20,000, then add 1 to get 20,001, which is the quota. A candidate
receiving the quota of first-choice of votes is elected. Under this system
electors express first second; third or additional choices according to the
number of candidates. An elector does not waste his vote. If the candidate for
whom he has expressed his choice, does not need his vote, the surplus votes are
distributed in accordance with the indicated second choices among candidates
whose quotas have not been filled. If enough candidates are not elected by this
process the candidate with the smallest number of choices is then excluded and
his votes are distributed in the same way. This process of exclusion or
elimination goes on until enough candidates have filled their quotas or until
the successive elimination's have left no more than enough to fill the
vacancies." (Underlining is ours for emphasis) Under the system, voters
are required to express First, Second, Third or additional choices according to
the number of candidates. If the candidate, for whom a voter has expressed his
choice, does not need his vote, the surplus votes are distributed as per the
second choice. Only when enough candidates are elected by this process, the
candidate with the smallest number of choice is eliminated and his votes are
distributed in the same way for the next round.
University of Poona (supra) states that the process of elimination must go on.
This decision is an authority for two propositions
process of exclusion or elimination goes on until enough candidates fill their
until the successive eliminations leave behind one continuing candidate, which
would be enough to fill vacancy. No. 1021 (M/B) of 2003 disposed of on 14th November, 2003, one of us (Kapadia, J.) held:
have given the facts of Poona University case (supra) for two reasons.
it indicates the manner in which votes should be counted under the system of
Proportional Representation by means of single transferable vote by ballot. The
case of Poona University (supra) was a case of counting of votes where one seat was
to be filled.
the above facts in the case of Poona University (supra) show that difficulties in
declaring results normally arise in cases where two or more continuing
candidates secure equal number of votes. However, in our case, that is not the
position. The judgment of the Supreme Court in Poona University's case (supra) is relied upon by us
because it explains the meaning of the words "Election by Proportional
Representation by means of single transferable vote by ballot." It also
indicates that under the system of Proportional Representation by means of single
transferable vote by ballot, the idea of Quota and the rule of Elimination are
in-built. The judgment of the Supreme Court in Poona University's case (supra)
further shows that the rule of Elimination should be continuously applied till
the candidates fill their quota or until successive eliminations leave behind
one continuing candidate, which would be enough to fill the vacancy. " It
may be true that in that case there was no question of tie and in that view of
the matter it was observed:
object is to see that votes do not get wasted. It is important to note that
under the above system, votes would not get wasted because the transferred
votes, which are carried forward from first count to the second count and so
on, are added to the original votes.
in case of tie, there might be a dead-lock. In our case, there is no such tie.
Therefore, the Returning Officer was required to go down the line, try to
ascertain whether any candidate fills the quota or apply the rule of Successive
Elimination till one candidate remains to fill-in one vacancy. We may clarify
that if there were two vacancies and if by rule of Elimination two candidates
would remain, then they could be declared elected even if there was no
quota." Despite the same the Court emphasized the need to see that by rule
of elimination, the left over candidates in the fray are enough to fill
ensures results of an election.
said system does not only rely upon quota. It also provides for an alternative.
This alternative contemplates rule of Elimination by which the remaining
candidates would be sufficient to fill the vacancies.
it is important to note that elections under this system is by Proportional
Representation by means of single transferable vote by ballot." We may
notice that a Special Leave Petition against the Sharma & Ors. (SLP(C) No.
22672/2003) has been dismissed by this Court by an order dated 12.12.2003.
Singh (supra) this Court did not have the occasion to consider these aspects of
the matter. The decision does not contain detailed reasons. The principles of
literal interpretation was applied therein without noticing the consequence therefor.
interesting to note that the impugned judgment was delivered by Ghildiyal, J.
on 30th September, 2003 wherein he relied upon Jaidrath Singh (supra). He is
also a party to the decision in Umesh Sharma (supra) which was delivered on
14th November, 2003. We have noticed hereinbefore that the Division Bench in Umesh
Sharma (supra) has dealt with the legal position more elaborately wherein
emphasis has been laid on the decision of University of Poona (supra).
the decision of University of Poona (supra) having been rendered by a 3-Judge
Bench should be favoured in preference to the decision of Jaidrath Singh
(supra) which has been rendered by 2-Judge Bench.
is no detailed examination of the principles and the constitutional scheme in
the said judgment although University of Poona (supra) had been referred to but
the ratio of that decision had not been applied.
THE ELECTION PETITION IS MAINTAINABLE:
first flush it may appear that the election petition was not maintainable as no
result in the election had been declared. The provisions of Rules 33 and 34
must be interpreted having regard to the maxim 'ubi jus ibi remedium'. An
election dispute would be adjudicated upon by the election tribunal specially
constituted for that purpose. A candidate may, having regard to the fact
situation obtaining therein make a prayer that he himself or any other
candidate has been duly elected in the said case.
he makes out a case of being entitled to obtain the aforementioned declaration,
it goes without saying that he has a right to question the order of the
Returning Officer in terms whereof he was not declared elected. A fortiorari he
has also a right to question the correctness of the order of the Returning
Officer as a result whereof he had not been declared elected. An election
petition, therefore, would be maintainable.
are, therefore, of the opinion that the High Court committed an error in
interpreting the statutory provisions laying down procedures for declaration of
result on the election of Adhyaksha Panchayat at district level. Applying the
law as we have interpreted, the appellant should have been declared elected.
the reasons aforementioned, we are of the opinion that in the instant case the
appellant herein had received the highest number of first preference votes and
in that view of the matter he should have been declared elected.
appeal is allowed.
Pages: 1 2