2001 Supreme(SC) 1428

2001(7) Supreme 479
SUPREME COURT OF INDIA
(From Orissa High Court)
Dr. A.S. Anand, CJI., R.C. Lahoti and Ashok Bhan, JJ.
Ananga Uday Singh Deo -Appellant
versus
Ranga Nath Mishra & Ors. -Respondents
Civil Appeal No. 6658 of 2000
Decided on 12-10-2001
Counsel for the Parties :
For the Appellant : P.N.Lekhi and Ashok Kumar Panda, Sr.Advocates, Ajit Kumar Bawa, Atishi Dipankar, Advocates.
For the Respondent Nos.1 and 3 : P.P. Rao, Sr. Advocate, K. Ram Kumar and B. Sridhar, Advocates.
For the Respondent No. 2 : Ms. Anjani Aiyagari, Advocate.
For the Respondent No. 4 : P.K. Ray, Ms. M. Sarada and R.K. Mehta, Advocates.

IMPORTANT POINT
High Court rightly held that there is no bar under Article 124(7) of the Consittution of India on a retired Judge of the High Court or the Supreme Court from contesting the elections to Rajya Sabha.

Headnote:(i) Representation of the People Act, 1951-Section 83-Election petition alleging vaguely corrupt practice of undue influence-No proper pleadings-Court below taking evidence-Whether proper? (No)-Law stated-High Court finally holding that there was no cross voting by horse trading of opposition votes-Whether correct ? (Yes).

       Held : It has been held in a number of cases by this Court that the petition lacking in material facts and material particulars as provided under Section 83 is required to be dismissed. Allegations of corrupt practice is a serious allegation which entails serious consequence of disqualifying the candidate from contesting the election for a period which may extend up to six years. The charge of corrupt practice is to be proved like a criminal charge requiring the standard of proof to be beyond reasonable doubt. (Para 28)

       After referring case law

       Held : This apart we are in agreement with the finding recorded by the High Court on issue No.4. It is true that the congress had only 80 members in legislagtive assembly whereas it polled 107 votes i.e. 27 more than its strength in the assembly. But this by itself does not mean that there was a cross voting due to any inducement on the part of respondent No. 1. On facts it has not been proved that respondent No.1 or any other person with his consent or the consent of his agent had indulged in cross voting by horse trading. The finding recorded by the High Court that respondent No.1 was not sitting with J.B. Patnaik in his room when J.B. Patnaik gave instructions to congress MLAs to vote in a particular manner and that the office where J.B.Patnaik was sitting was within 200 yards of the polling station where the polling took place is also affirmed. Counsel for the appellant could not putforth any plausible argument to set aside the finding of the High Court on facts. As already noticed, there was no pleading at all, except some vague assertion in the grounds, with regard to the allegation of corrupt practice relating to alleged bribery indulged by respondent No. 1. No issue had been framed, as rightly none could be framed in that respect on the basis of vague and incomplete pleadings. The learned designated Judge, however, permitted evidence to be led during the trial by the appellant, relating to the allegations of bribery. No such evidence could have been permitted to be led. The learned designated Judge appears to have ignored salutary principles that evidence can only be permitted to be led on a plea-properly raised and issue framed. A designated Judge trying an election petition must be careful to see that irrelevant, impermissible and inadmissible evidence is not allowed to brought on the record. Let alone allowing evidence to be led, for which there were no pleadings, even respondent No. 1 was subjected to unnecessary cross-examination on the allegations of bribery, which of course he stoutly denied. The evidence led in the case was inadmissible and should have been excluded and not allowed to form a part of the record. The designated Judge trying the electron petition appears to have lost control over the proceedings and conducted the trial of the election petition in a manner not acceptable in law. In so far as the allegations relating to the charge of horse trading and bribery are concerned, we must in fairness to Mr. P.N.A. Lekhi, learned senior counsel appearing for the appellant, record that he did not pursue this charge before us any further. (Paras 38 and 39)

       (ii) Conduct of Election Rules, 1961-Rules 79, 80, 81-Whether counting was conducted according to law and result was declared lawfully in the impugned election to the Rajya Sabha? (Yes)-System of proportional representation by means of a single transferable vote-Transfer of surplus in favour of respondent 3 whether properly done? (Yes)-High Court was right in its finding on these issues.

       Held : Rule 79 comes into operation in case a candidate or more than one candidate has received more votes than the required quota. If at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus shall be transferred in accordance with the provisions of this rule, to the continuing candidates indicated on the ballot papers of that candidate as being next in order of the elector s preference. After working out the surplus votes in order of preference in favour of the remaining candidates, the surplus votes are transferred to the remaining candidates and added to the value of votes polled by that candidate. In this exercise if any candidate reaches the requisite quota, then he is declared elected. If no candidate wins on transfer of the surplus votes obtained by him from the surplus of votes from the candidate who is already declared elected, then the provision of exclusion of candidates lowest on polled votes as provided under Rule 80 comes into operation. The returning officer then excludes from the poll the candidate lowest on the poll and distributes his unexhausted ballot papers among the continuing candidates according to the next preference recorded thereon. The process is continued till the total number of vacancies is filled up. If even by this process the total number of vacancies are not filled up then Rule 81 comes into operation. Case put forth by learned counsel for the appellant is that as only two candidates remained in the field after declaring respondent Nos. 1 and 2 elected and only one vacancy remained unfilled, then the counting should have proceeded under Rule 81(2) and not under Rule 79 as has been done by the returning Officer since the appellant had polled more first preference of votes in the first count, then respondent No. 3. The appellant should have been declared elected. The proposition put forth by the counsel for the appellant is not acceptable. It goes against the scheme of proportional representation by single transferable vote. As pointed out earlier, each elector has only one vote in the sense that it will be capable of electing one candidate only but that vote will not be wasted in case the candidate whom he wishes to elect has got more than the required number of votes, called the quota. As the elector is required to indicate his multiple preferences his vote which is surplus in the hands of the elected candidate gets transferred to the next candidate. If the contention of learned counsel for the appellant is to be accepted, then the surplus votes in the hands of respondent Nos. 1 and 2 would never be counted. Rules 79 to 81 which are in consonance with the scheme of proportional representation by single transferable votes provide that firstly the surplus votes in the hands of elected candidates have to be transferred under Rule 79. If on the transfer of surplus votes no candidate reaches the quota, then the procedure provided under Rule 80 of exclusion of candidates obtaining the least number of votes is to be followed. On his exclusion his first preference are transferred to the remaining candidates in order of preference indicated by the electors. If even by this process the required number of seats are not filled and no candidate reaches the quota then resort to be made to Rule 81. Rule 81 envisages three situations. Firstly when the number of candidates is reduced to the number of vacancies remaining unfilled. Sub-rule (1) of Rule 81 provides that in such situations the continuing candidates shall be declared elected. Sub-rule (2) of Rule 81 operates in a factual situation when at the end of any count only one vacancy remains unfilled and "the value of papers of one candidate exceeds , the total value of papers of all the continuing candidates together with all the surplus not transferred", then that candidate shall be declared elected. This sub-rule cannot be pressed into service in the present factual situation. The value of votes in the hands of the appellant did not exceed the value of votes of the remaining candidate together with the transferred surplus votes. Sub-rule (3) of Rule 81 provides that when at the end of any count only one vacancy remains unfilled and there are only two continuing candidates and each of them has the same value of votes and no surplus remains capable of transfer, the returning officer shall decided by lot which of them shall be excluded; and after excluding him in the manner aforesaid, declare the other candidate to be elected. In the present case the returning officer after declaring respondent Nos. 1 and 2 elected, they having reached their quota resorted to the procedure provided in Rule 79. On transfer of the surplus votes of respondents 1 and 2 in favour of the remaining candidates, it was found that respondent No. 3 had secured the required quota of votes. Respondent Nos. 1 and 2 had surplus of 444 value of votes after obtaining their required quota. Second preference in all these ballot papers was indicated in favour of respondent No. 3. By transfer of the value of 444 votes each from respondent Nos. 1 and 2 in favour of respondent No. 3 his value of votes came to cross the required quota of value of votes. He had obtained 2700 value of votes and by adding the surplus value of 888 to the value of votes, already obtained, his total value of votes came to 3558. The value of votes of the appellant remained static at 3500. Once respondent No. 3 was declared elected after following the procedure under Rule 79, the reference to the procedure provided under Rules 80 and 81 was unnecessary. In our view, the returning officer followed the correct procedure in counting the votes and declaring respondent No. 3 elected; he having polled the requisite quota of value votes. (Paras 46 to 51)

       (iii) Constitution of India-Art.124(7)-Nomination of respondent No.1 who was a retired Judge of High Court and Supreme Court -Whether barred u/A 124(7)? High Court holding No -Whether correct? (Yes)-Appeal dismissed.

       Held : Thus, the challenge based on Article 124(7) which failed in the High Court in so far as respondent No. 1 is concerned was also not pursued before us. (Para 52)

       In view of the above, we do not find any merit in this appeal and dismiss it with costs. (Para 54)