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PETITIONER: JAIDRATH SINGH & ANR.

       Vs.

RESPONDENT: JIVENDRA KUMAR & ORS.

DATE OF JUDGMENT:       15/02/2000

BENCH: Ruma Pal, S.P.Bharucha

JUDGMENT:

     BHARUCHA, J.

     The  issue  in  the appeals and in the  special  leave petition  is the correctness of the result, as declared,  of the election to the post of Adhyaksha/ President of the Zila Parishad,  Shahjahanpur.   The election was held  under  the provisions   of  the  U.P.    Zila  Parishads  (Election  of Adhyaksha  and  Up-Adhyaksha  and   Settlement  of  Election Disputes) Rules, 1963 framed under the provisions of Section 237  of  the  Uttar  Pradesh Kshettra  Panchayats  and  Zila Panchayats  Adhiniyam,  1961.   Rule 26 of  the  said  Rules states  that  Schedule II thereof sets out the  instructions for determining the result of elections.

     The candidates at the concerned election, held on 22nd May, 1995, were Jivendra, Manvendra and Smt.  Gayatri Verma. There  were 31 electors, all of whom voted.  Jivendra got 10 first  preference  votes, Manvendra got 14 first  preference votes  and Gayatri got 7 first preference votes.  By  reason of the provisions of Schedule II to the said Rules the quota for  securing  a  result  was 16, which none  of  the  three candidates  secured.   Gayatri,  having secured  the  lowest number  of  first preference votes, was eliminated  and  the second   preference   votes  on   her  ballot  papers   were considered.   Jivendra got 5 more votes and Manvendra got  1 more  .  This meant that the number of votes secured on  the second  count  by  Jivendra  and   Manvendra  was  15  each. Accordingly, the Returning Officer decided to draw lots, and by reason thereof Jivendra was declared elected.

     Manvendra  filed  an   election  petition  challenging Jivendras  election.   The election petition succeeded  and appeals  therefrom  were filed before the High  Court.   The maintainability of the appeals was challenged in proceedings with which we are not concerned.  Ultimately, the High Court was required to hear and decide the appeals on their merits. The High Court, on a construction of Schedule II, noted that neither  Jivendra  nor Manvendra had, on the  second  count, secured  the  quota of 16.  It held that no lots could  have been  drawn;   also that Manvendra could not be declared  as elected  on the basis that he had secured a larger number of first  preference  votes  for the reason that  he  had  been unable to secure the mandatory quota.  Accordingly, the High Court  declared  that a casual vacancy in the office of  the

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Adhyaksh had been created.

     What is called for is an analysis of Schedule II.  The relevant portion thereof may be quoted :  2.  Ascertain the number  of first preference votes secured by each  candidate and credit him with that number.

     3.   Add  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  candidates at the election.

     4(1).   If  there are only two  contesting  candidates then:

     (a)  If  one  candidate gets larger  number  of  first preference  votes  than  the other, declare  the  former  as elected;  or

     (b)  If 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 candidates as elected.

     (2).  If there are more than two candidates, then-

     (a) If 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

     (b)  If  none  of them secure first  preference  votes equal  to or more than the quota aforesaid proceed according to  the  instruction hereinafter taking  into  consideration second and subsequent preferences as may be necessary.

     5.  If 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.

     6.   If  at the end of any count, no candidate can  be declared elected :

     (a)  exclude  the candidate who up to that  stage  has been credited with the lowest number of votes;

     (b)  examine  all the ballot papers in his parcel  and sub-parcel,  arrange  the unexhausted papers in  sub-parcels according to the next available preferences recorded thereon for  the continuing candidates, count the number of votes in each  such  sub- parcel and credit it to the  candidate  for whom such preference is recorded, transfer the sub-parcel to that  candidate  and make a separate sub-parcel of  all  the exhausted papers;  and

     (c)  see whether any of the continuing candidate  has, after such transfer and credit, secured the quota.

     If,  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

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in the case of two or more candidates decide by lot which of them shall be excluded.

     All  the sub-parcels of exhausted paper referred to in clause  (b)  above shall be set apart as finally dealt  with and  the vote recorded thereon shall not thereafter be taken into account.

     Schedule  II  requires  that each candidate  shall  be credited  with the number of first preference votes that are secured  by him.  The total number of first preference votes secured  by all the candidates shall be added, the aggregate thereof divided by two and the resultant figure increased by one, disregarding any fraction.  The resultant figure is the quota  sufficient to secure the return of candidates at the election;   that  is  to say that a candidate  who  secures votes  equal  to or larger than the quota shall be  declared elected.

     Now, if there are only two candidates at the election, the candidate who gets the larger number of first preference votes  is  to  be declared elected.  It is only if  the  two candidates  get  an equal number of first  preference  votes that the result is to be determined by drawing of lots.

     If  there are more than two candidates at the election and  one  of them secures enough first preference  votes  to meet  the  quota, he shall be declared elected.  If none  of the  candidates secures first preference votes equal to  the quota  then the candidate who has secured the lowest  number of  first preference votes shall be eliminated.  His  ballot papers shall then to be examined for second preference votes and  such  second preference votes shall be credited to  the concerned  candidates.   It shall then be seen  whether  any candidate  has  secured  the quota and, if so, he  shall  be declared  elected.   If  not, the process of  exclusion  and addition  of votes on his ballot papers shall be  continued. When  a  candidate  has  to  be excluded  and  two  or  more candidates  have been credited with the same number of votes and stand lowest, that candidate shall be eliminated who has secured  the  lowest  number of first preference  votes  and should that number also be the same in the case of the other candidate,  a lot shall be drawn to determine which of  them is to be excluded.

     There  is a general provision in paragraph (5) of  the Schedule  which  requires the Returning Officer to check  at the  end  of  the first or any subsequent  count  the  total number  of votes credited to each of the candidates;  if any one  of them secures the quota he shall be declared elected. It  also provides that if at the end of any subsequent count there is only one continuing candidate, that candidate shall be declared elected.

     The  first  question,  therefore, is whether  for  the purposes  of  being elected every candidate must secure  the quota.  Where there are only two candidates, the quota plays no  part.   Paragraph  (4) of the Schedule states  that  the candidate  who secures more first preference votes than  the other shall be declared elected, and where both get an equal number  of first preference votes lots shall be drawn.   The quota  plays a part when there are more than two candidates. In that event successive counts shall be held until either a

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candidate secures the quota or only one candidate remains.

     In  the case before us, there were three candidates so that  the  quota was relevant.  The first  preference  votes were cast thus :  14 in favour of Manvendra, 10 in favour of Jivendra and 7 in favour of Gayatri, aggregating to 31.  The quota  had to arrived at thus:  31/2 + 1 = 16  (disregarding the  fraction).   None  of the three candidates  secured  16 first  preference votes.  Gayatri, having secured the  least number  of  first preference votes, was eliminated  and  the second   preference   votes  on   her  ballot  papers   were scrutinised.   Manvendra  secured 1 and Jivendra  secured  5 second  preference votes.  Their tally on the second  count, therefore,  was equal:  15 votes each.  Neither of them  had secured the quota.

     There  is  no  provision  in the Schedule  to  meet  a situation such as this.

     In the Memorandum of Appeal reference has been made to three  judgments of the Allahabad High Court and it has been submitted  that these cases hold, relying upon paragraph (6) of  the  Schedule,  that where  both  continuing  candidates secure  an equal number of votes on the second count and one of  them  had  secured a lesser number of  first  preference votes,  he  should be eliminated and the candidate  who  had secured  the higher number of first preference votes  should be declared elected.

     The  first  of these judgments of the  Allahabad  High Court,  all  delivered by learned Single Judges, is  in  the case  of  Nanak Chand vs.  Vachaspati and another  [1968(66) Allahabad  Law Journal 29].  The judgment refers to Rule  26 of  the  Rules,  which lays down that after  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  the Schedule.   The Schedule, the learned Judge notes, makes  no provision  as to how the result should be declared where the last  two candidates after exclusion of others are found  to have  received  an equal number of votes, counting both  the first  and  the  second   preference  votes  together.   The Schedule  does  make  provision, however, for  a  situation, where  it  is  found that there are two or  more  candidates receiving  the  lowest  number  of  votes;   in  that  event paragraph  (6) of the Schedule provides that that  candidate shall  be excluded who had secured the lower number of first preference  votes.  For this reason the learned Judge  finds that  preference  is to be given to first preference  votes. He says:

     It is only when there is equality of first preference votes  that  the exclusion of a candidate is  determined  by drawing of lot.  Rule 26 also refers to first preference.  I am thus of opinion that in the election of the Adhyaksha and Up-Adhyaksha  the  drawing  of   lot  shall  not  ordinarily determine  the result of the election in case two candidates are  found  to have secured the same number of  votes.   The rule  adopted  shall  be  that out  of  the  two  candidates securing  the  same  number of votes, the  one  who  secured greater  number of first preference votes is to be  declared elected;   but  if they secured not only the same number  of votes  but  also the same number of first preference  votes, the  lot  shall determine the candidate to be  excluded,  in

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other  words,  the  candidate not drawing the lot  shall  be declared to have been elected.

     The  judgment  in  Jagat Singh vs.  Dharam  Pal  Singh [1984(82) Allahabad Law Journal 859] states:

     There  being  a  variance  in  the  number  of  first preference  votes  secured by the appellant on the one  hand and  the  respondent No.1 on the other, that becomes, in  my view,  decisive  in the ultimate analysis of the  prescribed manner of counting for the purpose of being declared elected or the result being determined.

     The  judgment holds that paragraph (6) of the Schedule clearly  envisages  the determination of the result  on  the basis  of the strength of first preference votes where there is  equality  of  votes  in favour  of  the  two  continuing candidates  on  taking  their second preference  votes  into account.   The last judgment of the Allahabad High Court  on the  point is in Genda Singh vs.  Distt.  Judge, Aligarh and others  [1985(83) Allahabad Law Journal 436] and it  follows the judgment in Jagat Singhs case (supra).

     We  find some difficulty in reading paragraph 6 of the Schedule  in  the  manner in which it has been done  by  the learned  Judges  of  the Allahabad High Court in  the  cases aforementioned.

     Paragraph  (6) of the Schedule can, in any event,  not apply  to  facts such as those of the case in hand  for  the simple  reason  that under the provisions of that  paragraph only  a candidate who has secured the quota can be  declared elected.   To use as illustration the votes secured in  this case, even if, on the second count, Jivendra Kumar was to be excluded  by reason of the fact that he had secured 10 first preference  votes as against Manvendras 14 first preference votes,  Manvendra  could not be declared elected because  he had  not  secured the quota of 16.  In our view,  therefore, the High Court was right in holding that Manvendra could not be declared elected.

     The provision in paragraph (4) for the drawing of lots operates  only  when both candidates get an equal number  of first  preference votes.  The provision in paragraph (6) for the  drawing  of lots is applicable only to determine  which out  of  two  or more candidates who have secured  the  same number  of  votes at a count subsequent to the  first  count shall  be  eliminated;  if these candidates happen  to  have secured  the same number of first preference votes it  shall be  decided by lots which of them is to be eliminated.   The instructions  to  the Returning Officer in the Schedule  are detailed  and he is obliged by Rule 26 to follow them.  They tell  him when he may resort to the drawing of lots but  the contingency of the two continuing candidates having the same number  of votes, counting both first and second  preference votes,  is not covered thereby.  No resort to the drawing of lots  could have been made in the absence of an  instruction in  that  behalf in the Schedule (see University of Poona  & Ors.   vs.   Shankar  Narhar  Ageshe &  Ors.,  (1971)  Supp. S.C.R.   597).  We are of the opinion, in the circumstances, that  the  Returning Officer was not entitled to  draw  lots between  Jivendra  and  Manvendra.    The  High  Court  was, therefore, right in holding that the election of Jivendra by

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the draw of lots was invalid.

     Accordingly,  the  declaration of the High Court  that there  was  a  vacancy  in the office of  the  Adhyaksh  was justified.

     The  appeals  and  the   special  leave  petition  are dismissed.

     No order as to costs.