TaxTMI 
TaxTMI 
1977 (4) TMI 173
X X X X Extracts X X X X
X X X X Extracts X X X X
....ws: 1. Shri Khadar Sha .. 3500 2. Shri Khaja Mohideen .. 3700 3. Shri V. Subrahmanyam .. 300 4. Shri C.D. Natarajan .. 3500 5. Shri R. Mohanarangam .. Nil 6 .Shri S. Ranaganathan .. 4100 7. G. Lakshmanan .. 3600 8. D.C. John @ Valampuri John .. 3700 The requisite quota to secure the election of a candidate was fixed at 22,400/(6+1) +1 =3201 and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were declared elected. Two Election Petitions were filed by the unsuccessful candidates. Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam. The petitioners prayed that the election of Shri D.C. John be declared void and set aside under s. 100 of the Representation of the People Act, 1951. Each of the petitioners claimed that in the event of Shri John's election being set aside, he be declared elected under s. 101 of the Act. In addition to the Returning Officer, the Electoral Registration Officer and the Chief Election Commissioner, all the seven contestants were impleaded as respondents. The election of Shri John was assailed on the ground that on March 9, 1974, the date of the scrutiny of his nomination, he w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s no less than a dozen previous admissions and declarations made by Shri John himself about his age, between March 1964 and July 1973. These documents containing such declarations constituting Shri John's admissions are: (i) Ex.P.7--Application for Pre-University Examination. (ii) Ex.P-9--Application for B.A. Examination. (iii) Ex. P-l4--Application for appearing in University Examination. (iv) Ex.P-l5--Application for the first B.G.L. Examination. (v) Ex.P-l7--Application for admission to B.G.L. Examination. (vi) Ex.P-l8--Application for second B.G.L. Examination April 1972. (vii) Ex.P-19--Application for second BGL Examination, October 1972. (viii) Ex.P-21--Application for admission into Law College. (iv) Ex.-22--Application for B.L. Degree Examination. (x) Ex.P-23(a), (b) & (c)--Applications dated 23-71973 for enrolment as Advocate submitted to the Bar Council. (xi) Ex.P-27--Voters Card containing declaration of his age as 28 years signed by Shri John. (xii) Ex.P-87--a Book written by Shri John, containing a passage on its page 18 suggesting the inference that Shri John was born in 1946. All these documents aforesaid contain admissions made by Shri John ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n admission register of the College, 5. Bar Council Records relating to Ex. 'P-23. 6. Marriage Register, Ex.P-29, containing in the column captioned "Age" as against the name of Shri John, the entry "26 years" and the date of his baptism as 19-10-1946. 7. Ex.P.30, Periodical report from the Churches regarding marriages solemnised therein, required under the Indian Christian Marriage Act 1872, showing that Shri John's marriage was solemnised in St. Francis Xavier's Church' Madras, on 6-4-1972 by Fr. G.K. Swami, and that on the date of this marriage he was 26 years of age. 8. Exhibits P11, P-11(a), P-12 and P-l2(a) records T.E.L.C. Kabis High School showing Shri John's date of birth as 14-6-1946. 9. Ex.p-28-Book--Varalatril Kalaignar Written by Shri John containing biographical sketch. Therein, his date of birth is mentioned as 14-10-1946. The petitioner had also examined witnesses who testified with regard to these documents and the facts appearing therein. The learned trial Judge has carefully discussed and evaluated this documentary and oral evidence. No material error or illegality on the part of the learned Judge in appreciating this evidence has ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the date of the baptism of Shri John, takes us to the evidence produced by him. Shri John brought on the record three documents, R1, R2 and R4. R-1 is an extract from the Baptism Register kept by the Ovari-Tuticorin Diocese. The document R-1 according to the High Court was inducted in a questionable manner, without even an application for it. This was issued by the Parish Priest, Peter Royan (RW 5), and purports to be a copy of an entry in the Baptism Register, which according to the admission wrung out from RW 5, had itself been re-written and copied from the original. The Parish Priest conceded that he had burnt the original because it was in a very bad condition. The High Court found and we think rightly--that this explanation of nonproduction of the original was thoroughly unsatisfactory, and unbecoming of any Christian, more so, one connected with Church affairs, that by this 'unholy act' of burning the register which was a violation of. Canon 777, Paragraph 676, the witness (RW 5) had done great disservice to Christianity and greater disservice to the cause of truth". Since R-1 was only a copy of a copy (R 4), the preparation of which was itself suspect and the explanat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f 30 years." Shri John was further questioned by the Counsel: "Then what happened ?" He replied: "My eldest brother was one among those who were assembled there. He told me along with another elderly gentleman, whose name I am not able to recollect now: "What non-sense are you talking? You have compleated 30 years positively." Moreover they told me in adition : We have to refer to the Registers kept in the Church' ". With this idea put into his head, the witness next morning along with his brother visited the village Church and met Rev. Fr. Peter (R.W. 5) and asked for the Baptism Register relating to the witness. Rev. Fr. Peter took out the Register, Ex. R-4, and turned .the leaves, and to the surprise of the witness, he saw his date of birth noted therein as 14-5-1943. Thereafter, Shri John approached the Chief Electoral Officer, Madras, and made an application (Ex.P.23) on 26-2-1974 for correction and change of the date of his birth, as noted in the Electoral Roll, from '14-5-1946' to '14-5-1943'. His application was allowed and the entry in the Electoral Roll as to age wag amended accordingly on the 6th or 7th March 1974. On fu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the election for the Rajya Sabha. His nomination was therefore improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it concerned the returned candidate, Shri John, materially affected the result of the election. Shri John's election was thus rightly set aside by the High Court. Now we come to the second question, whether Shri V. Subramanyan, appellant in C.A. 1907 of 1974, is entitled to be declared elected in lieu of Shri John whose election has been set aside ? Shri Ramaswami, learned Counsel for this appellant, has advanced alternative arguments. It is submitted that since Shri Mohana Rangam did not secure any vote at all, he had ceased to be a continuing candidate and stood' automatically excluded, leaving only Shri Subramanyam, sole continuing candidate in the field. It is emphasised that Shri Rangam has not filed any recriminatory petition. In this situation, it is maintained, Shri Subramanyam would be deemed to have been elected, although he had secured only 300 votes. Reference in this connection has been made to Rule 81(2) of the Conduct of Election Rules, 1961. The alternative argument of Shri Ramaswami is that since Shri John w....
X X X X Extracts X X X X
X X X X Extracts X X X X
....another. The ballot paper bears the names of the candidates, and the elector marks on it his preferences for the candidates by denoting it with the figures 1, 2, 3, 4 and so on against the names chosen by him and this denotation is understood to be alternative in the order indicated (vide Aiyar's The Single Transferable Vote), The figure 1 set by the elector opposite the name of a candidate means "first preference"; the figure 2 set opposite the name of a candidate, the "second preference", and so on [Rule 71(ii)]. The minimum number of valid votes requisite to secure the return of a candidate at the election is called the quota. At an election where only one seat is to be filled, every ballot paper is deemed to be of the value of 1 at each count, and the quota is determined by adding the values credit to all the candidates, and dividing the total by 2, and adding 1 to the quotient, ignoring the remainder, if any, and the resulting number is the quota, vide, Rule 75 (1 ). At an election where more than one seat is to be filled, every ballot paper is deemed of the value of 100 and the quota is determined by adding the values credited to all the candidates, and di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rder of magnitude, but every surplus arising on the first count is dealt with before those arising on the second count and so on. Where there are more surpluses than one to distribute and two or more surpluses are equal, regard shall be had to the original votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the values of their original votes are equal,. the returning officer decides by lot which candidate shall have his surplus first distributed. [Sub-rules (2) & (3) of Rule 78]. "Original Vote", in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate. If the surplus of any candidate to be transferred arises from original votes only, the returning officer shall examine all the papers in the parcel belonging to that candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon and make a separate sub-parcel of the exhausted papers [Clause (a) of sub-rule (4) of Rule 78]. "Exhausted paper" means a ballot paper on which no further preference is recorded for a con....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r of papers, the value of votes obtained by a candidate is equal to or greater than the quota, the count then proceeding shall be completed but no further papers shall be transferred to him. (6) The process directed by this rule shall be repeated on the successive exclusion one after another of the candidates lowest on the poll until such vacancy is filled either by the election of a candidate with the quota or as hereinafter provided. (7) If at any time it becomes necessary to exclude a candidate and two or more candidates have the same value of votes and are the lowest on the poll, regard shall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded shall be excluded; and if the values of their original votes are equal the candidate with the smallest value at the earliest count at which these candidates had unequal values shall be excluded. (8) If two or more candidates are lowest on the poll and each has the same value of votes at all counts the returning officer shall decide by lot which candidate shall be excluded." Rule 81 deals with the filling of the last vacancies. It may also be extracted in full because a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... an election to fill more than one seat, requires or empowers the returning officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, he has not secured any valid vote. SubRule (3) of Rule 75, to which reference was made at one stage, has no application to the instant case. That sub-rule---which requires the returning officer to exclude from the poll a candidate whose score is the lowest--governs the counting of votes where only one seat is to be filled and at the end of any count, no candidate can be declared elected. Such is not the case before us. Rule 80 also can have no application because it comes into operation at a stage "after all surpluses have been transferred". That stage never arrived in the instant case because in the first counting itself, all the six seats were filled up, six candidates (including Shri John) having secured the requisite quota of first preference votes. Nor did the stage for applying Rule 81 arise, because at the end of the first count, no vacancy remained unfilled. We therefore, repel the contention of the learned counsel and hold that Shri Mohana Rangam did not get automatically exc....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... this corrupt practiee to the polling booths, the result of the election had been materially affected In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would 'be speculating to decide how many of the voters were brought to the polling booths in car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated." The position in the instant case is no better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subramanyan. was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared elected. The dict....