TaxTMI 
TaxTMI 
2004 (4) TMI 603
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 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 elec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....(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....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nuing 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 A = 12 B = 11 C = 7 D = 5 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 parcel of C an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng 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 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 sufficien....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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. 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 Chap....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t 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 forma....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n 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 alde....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d: "Introduction This annotation supplements that in 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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 reelection 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 const....
X X X X Extracts X X X X
X X X X Extracts X X X X
....at 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 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 mi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ciple 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....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 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." 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 i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d 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 ti....