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CASE NO.: Appeal (civil)  2717 of 2004

PETITIONER: Lalit Mohan Pandey

RESPONDENT: Pooran Singh & Ors.

DATE OF JUDGMENT: 27/04/2004

BENCH: CJI, S.B. Sinha & S.H. Kapadia.

JUDGMENT: J U D G M E N T

(@ S.L.P. (CIVIL) NO. 19748/2003)

S.B. SINHA, J :

       Leave granted.

                Application 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.

BACKGROUND FACTS:

       An election was held for the post of Adhyaksha, Zila  Panchayat Champawat situated in the State of Uttaranchal.   The 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.   Upon 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 ballot.

       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.

       An 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 allowed.   

Hence this appeal.

ELECTORAL PROCEDURE:

       The election to the said post is governed by the

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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:-

"(a)    that the election of the returned  candidate is void. (b)     that the election of the returned  candidate is void and that he himself or  any other candidate has been duly  elected."

CONSTITUTIONAL AND STATUTORY PROVISIONS:

Article 243C of the Constitution of India reads thus: "243C. Composition of Panchayats.--(1)  Subject to the provisions of this Part,  the Legislature of a State may, by law,  make provisions with respect to the  composition of Panchayats; Provided 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,  (2) 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.  (3) The Legislature of a State may, by  law, provide for the representation-- (a)   of 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; (b)   if the Chairpersons of the  Panchayats at the intermediate  level, in the Panchayats at the

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district level;  (c)   of 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;  (d)   of the members of the  Council of States and the members  of the Legislative Council of the  State, where they are registered as  electors within\027  (i)  a Panchayat area at the  intermediate level, in Panchayat at the  intermediate level;   (ii) a Panchayat area at the district  level, in Panchayat at the district  level.  (4) 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. (5) The Chairperson of--  (a)    Panchayat 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."

       Rule 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.

       Rule 26 of the Rules reads as under:

"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 Schedule II to  these rules."

       The relevant clauses of Schedule II read as under:

"(2) 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;

(3) the expression "next available

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preference" means the second or  subsequent preference recorded in  consecutive numerical order for a  continuing candidate, preferences for  candidates already excluded being  ignored;

(4) the expression "unexhausted paper"  means a ballot paper on which a further  preference is recorded for a continuing  candidate:

Provided that a paper shall be deemed to  be exhausted in any case in which \026

(a)     the names of two or more  candidates whether continuing or  not are marked with the same  figure, and are next in order of  preference; or (b)     the 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.

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 a  candidate at the election.

4. (1) If there are only two  contesting candidates then \026  

(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 candidate as  elected.

(2) If there are more than two  candidates then \026 (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 secures first  preference votes equal to or

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more than the quota aforesaid,  proceed according to the  instructions 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."

       Illustration appended to Schedule II reads as under:

"Illustration \026 Suppose there are four  candidates A, B, C and D and the number  of first preference votes secured by  them are \026  

A = 12 B = 11 C =  7 D =  5          35

       The quota will be = 35/2+1 = 18.

       No 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.

       Suppose 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 B.

       Suppose second preferences are  recorded in all the ballot papers in the

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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 necessary.

       The 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.   Still the continued processes are required to be undertaken  which should result in declaration of election.

HIGH COURT:

       Before 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  Court in Jaidrath Singh & Anr. Vs. Jivendra Kumar & Ors.  [(2000) 3 SCC 154] over the decision of this Court in  University of Poona and Others Vs. Shankar Narhar Ageshe and  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.

SUBMISSIONS:         Mr. Dinesh 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.  

       The 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

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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.

       Mr. Kailash 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.

CONSTITUTIONAL AND LEGISLATIVE SCHEME:

       Constitution 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.

       The Adhyaksha 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.

HARE AND CLARK PRINCIPLE: Whereas 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.   Andrew 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.

       Every voter under the Hare system has a single vote.   On the 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

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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.   

       The 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.

APPLICATION OF THE RULE:         The 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.

       As to how Single Transferable Vote works, has been  explained by Vernon Bogdanor at page 81 of his book title  "What is Proportional Representation/" as follows :

a)      In 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. b)      In order to get elected a candidate has to receive  a quota of votes.  However, he may be elected  without a quota.  This 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

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are distributed to the continuing candidates.  If  in the process, any continuing candidate secures  the quota, he fills up the remaining vacancy.   However, 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.                   In 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.   How is a candidate elected?         A candidate is elected when his/her total number of  votes equals or exceeds the quota. What is the quota?         The quota is the lowest number of votes a candidate  needs to be certain of election.          To 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).  If five candidates each receive a quota (just over one  sixth of the formal vote) then less than one quota of the  votes remain. Is a quota rule mandatory?

       The system states that it is always not necessary to  get a quota.         In 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.         During 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  candidate.         Where 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.          A less common situation occurs where remaining three  candidates are contesting the last two seats. In this case,

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the candidate with the least votes is excluded, and the  other two candidates elected without either reaching the  quota. Transfer Values Ballot papers and votes are different.  Ballot 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. To distribute surplus votes the last parcel of ballot  papers must have a new (reduced) transfer value. This  fractional transfer value is calculated as follows:              Transfer 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. The next count When more than one candidate is elected with a surplus,  each surplus is redistributed in order of election as  separate counts. Once 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. Excluded candidates The exclusion of a candidate can take many counts to  complete. When a 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.  After 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. Once 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. When 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.         In the case of the Tasmanian House of Assembly, the  scrutiny stops as soon as five candidates are declared  elected.

Proportional Representations:

       Election 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:

"Every 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

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the persons for whom he votes.

The 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.

       The 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.

       In the 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.

       As 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:

"Elections, Section 35 \026 proportional  representation- constitutionality.

Provisions 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:   "Introduction This annotation supplements  that  in

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110 ALR 1521.

The 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.

Constitutionality-proportional  representation. (Supplementing 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.

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In Section 273 of American Jurisprudence 2d, it is  stated: "The 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.   One 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  district meetings.

How the Courts should read the system:

       Although 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 result.   Experiences 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

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mechanism to elect a Chairman is a delicate task.

       The 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 later. PRINCIPLES OF INTERPRETATION:

       It is 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.   

       It is 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  Court of Gujarat & Anr. Vs. Gujarat Kishan Mazdoor Panchayat  & 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  Vs. State of Tamil Nadu and Anr. [2004 (1) SCALE 224], State  of West Bengal and Ors. Vs. Sujit Kumar Rana [2004 (1) SCALE  641], Deepal Girishbhai Soni & Ors. Vs. United India  Insurance Co. Ltd. Baroda [2004 (3) SCALE 546] and  Secretary, Department of Excise & Commercial Taxes and  Others Vs. Sun Bright Marketing (P) Ltd., Chhattisgarh and  Another [(2004) 3 SCC 185].  

The object underlying the statute is required to be  given effect to by applying the principles of purposive  construction.   

Francis 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 \026

(a) following the literal meaning of the  enactment where that meaning is in accordance  with the legislative purpose (in this Code  called a purposive-and-literal construction),  or

(b) applying a strained meaning where  the literal meaning is not in accordance with  the legislative purpose (in the Code called a  purposive-and-strained construction)."

       Holding 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 called for.

       The principle of literal interpretation to the

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provisions of the rules and procedures laid down therein  cannot be applied for more than one reason.

       A 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 legislative intent.

       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 statute.

       It 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 resorted to.   For 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.

       It is furthermore that unreasonable result or result  which create uncertainty has to be eschewed.   

       In Mahadeo Oil Mills and Others Vs. Sub-Divisional  Magistrate Araria and Others [AIR 1978 Patna 86], it was  held: "It was stated in this way by Parke B.:  ’It is 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.

        Every 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.   

This would be more so if literal construction of a

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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 rational construction.

HOW SHOULD WE INTERPRET?

       Interpretation of a provision as regard electoral  process framed to make certain conditions requires  construction of principles having regard to the backdrop  thereof.                  Hare 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.   It 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.   In some jurisdictions, as noticed, the Hare principle has  also been declared unconstitutional.

       A continuing candidate has been defined to mean not  elected and not excluded from the poll at any given time.   The 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.   It 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.   

By clause (5) two different situations have been taken  care of :    (i)     If 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.

       It is 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 quota.   Clause (6) provides for the formula as to how an exclusion  can take place.  

       Sub-clauses (a), (b) and (c) of Clause (6) are  disjunctive although the expression ’and’ has been used.   Clause (6) again provides for exclusion by application of

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different formulae which would appear from the subsequent  paragraph which is as follows:

"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 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.   Thus, 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.

       The 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 the statute.

       In Shambhu Nath Mehra Vs. The State of Ajmer [AIR 1956  SC 404], the law has been stated in the following terms:

"13. 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 accused. This 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."

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       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.   

APPLICATION OF THE RULE:         In University of Poona (supra) a 3-Judge Bench of this  Court held:

"11. 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 the quotient.  If 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 (i) the process of exclusion or elimination  goes on until enough candidates fill their quota, (ii) until  the successive eliminations leave behind one continuing  candidate, which would be enough to fill vacancy.

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       In Umesh Sharma Vs. State Election Commissioner, W.P.  No. 1021 (M/B) of 2003 disposed of on 14th November, 2003,  one of us (Kapadia, J.) held:

"We have given the facts of Poona  University case (supra) for two reasons.   Firstly, 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.   Secondly, 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:

"The 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.   However, 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."

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       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 vacancies observing:

"It ensures results of an election.   The 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.   Secondly, 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  said decision of the High Court in Sagar Singh Vs. Umesh  Sharma & Ors. (SLP(C) No. 22672/2003) has been dismissed by  this Court by an order dated 12.12.2003.   

       In Jaidrath 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.

       It is 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).

       Furthermore, 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.

       There 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.

WHETHER THE ELECTION PETITION IS MAINTAINABLE:

       At the 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.   Once 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

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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.

CONCLUSION:

We 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.

       For 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.

       The appeal is allowed.