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2004(3) Supreme 562
Supreme Court of India
(From Uttaranchal High Court)
V.N. Khare, CJI., S.B. Sinha & S.H. Kapadia, JJ.
Lalit Mohan Pandey -Appellant
versus
Pooran Singh & Ors. -Respondents
Civil Appeal No. 2717 of 2004
(Arising out of @ S.L.P. (Civil) No. 19748/2003)
Decided on 27-4-2004
Counsel for the Parties :
For the Appellant : Dinesh Dwivedi, Sr. Advocate, P.N. Gupta, Advocate.
For the Respondents : A.S. Rawat, Addl. Advocate General, Kailash Vasdev, Sr. Advocate, Chinmoy Khaladkar, S.K. Nandy and J.K. Bhatia, Advocates.
Held : 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 mechanism to elect a Chairman is a delicate task. (Para 49)
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. (Para 66)
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. (Para 71)
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. (Para 76)
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 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. (Para 86)
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. (Para 87)
(ii) Interpretation of Statutes-Object of the Act must be given effect to-For the purpose of interpretation a statute is to be read in the entirety-All efforts must be made to give effect to statutory scheme. (Paras 51 to 54)
Judgment
S.B. Sinha, J.-Leave granted.
2. 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 :
3. 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.
4. 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.
5. 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 :
6. 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 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 :
7. 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)
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