TMI Blog2004 (4) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the Legislative Council of the State, where they are registered as electors within (i) a Panchayat area at the intermediate level, in Panchayat at the intermediate level; (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 reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et 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 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 appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lot paper, voter has to rank all or any of the competing candidates giving them preferences 1,2,3 and so on. A quota is fixed which is the minimum number of votes which cannot be secured by more candidates than the number of seats. When a candidate secures votes equal to this quota, he is declared elected. If a candidate receives more votes than the quota, then he is declared elected and his surplus votes (votes exceeding the quota) are transferred to other candidates in proportion of second preference indicated in his ballot papers. After surplus votes of all candidates are transferred, if all seats are not filled in then candidate who has polled lowest votes is eliminated and are continuing (are not elected or eliminated). This process goes on till all seats are filled in by completion of quota or candidates remaining do not exceed seats still to be filled in. This system ensures actual use of maximum number of votes polled. 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 transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecimal) 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onality. 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 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) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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 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 absurdit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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