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Supreme Court of India
Jaidrath Singh & Anr vs Jivendra Kumar & Ors on 15 February, 2000
Author: Bharucha
Bench: Ruma Pal, S.P.Bharucha
           PETITIONER:
JAIDRATH SINGH & ANR.

	Vs.

RESPONDENT:
JIVENDRA KUMAR & ORS.

DATE OF JUDGMENT:	15/02/2000

BENCH:
Ruma Pal, S.P.Bharucha




JUDGMENT:

BHARUCHA, J.

The issue in the appeals and in the special leave
petition is the correctness of the result, as declared, of
the election to the post of Adhyaksha/ President of the Zila
Parishad, Shahjahanpur. The election was held under the
provisions of the U.P. Zila Parishads (Election of
Adhyaksha and Up-Adhyaksha and Settlement of Election
Disputes) Rules, 1963 framed under the provisions of Section
237 of the Uttar Pradesh Kshettra Panchayats and Zila
Panchayats Adhiniyam, 1961. Rule 26 of the said Rules
states that Schedule II thereof sets out the instructions
for determining the result of elections.

The candidates at the concerned election, held on 22nd
May, 1995, were Jivendra, Manvendra and Smt. Gayatri Verma.
There were 31 electors, all of whom voted. Jivendra got 10
first preference votes, Manvendra got 14 first preference
votes and Gayatri got 7 first preference votes. By reason
of the provisions of Schedule II to the said Rules the quota
for securing a result was 16, which none of the three
candidates secured. Gayatri, having secured the lowest
number of first preference votes, was eliminated and the
second preference votes on her ballot papers were
considered. Jivendra got 5 more votes and Manvendra got 1
more . This meant that the number of votes secured on the
second count by Jivendra and Manvendra was 15 each.
Accordingly, the Returning Officer decided to draw lots, and
by reason thereof Jivendra was declared elected.

Manvendra filed an election petition challenging
Jivendras election. The election petition succeeded and
appeals therefrom were filed before the High Court. The
maintainability of the appeals was challenged in proceedings
with which we are not concerned. Ultimately, the High Court
was required to hear and decide the appeals on their merits.
The High Court, on a construction of Schedule II, noted that
neither Jivendra nor Manvendra had, on the second count,
secured the quota of 16. It held that no lots could have
been drawn; also that Manvendra could not be declared as
elected on the basis that he had secured a larger number of
first preference votes for the reason that he had been
unable to secure the mandatory quota. Accordingly, the High
Court declared that a casual vacancy in the office of the
Adhyaksh had been created.

What is called for is an analysis of Schedule II. The
relevant portion thereof may be quoted : 2. Ascertain the
number of first preference votes secured by each candidate
and credit him with that number.

3. Add up the numbers so credited to all the
candidates, divide the total by two and add one to the
quotient disregarding any remainder. The resulting number
is the quota sufficient to secure the return of candidates
at the election.

4(1). If there are only two contesting candidates
then:

(a) If one candidate gets larger number of first
preference votes than the other, declare the former as
elected; or

(b) If both the candidates get equal number of first
preference votes, determine the result by drawing of lots.
Exclude the candidate on whom the lot falls and declare the
other candidates as elected.

(2). If there are more than two candidates, then-

(a) If one of them is found to secure first preference
votes equal to or more than the quota determined under
Instruction no.3, declare him as elected; or

(b) If none of them secure first preference votes
equal to or more than the quota aforesaid proceed according
to the instruction hereinafter taking into consideration
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.

6. If at the end of any count, no candidate can be
declared elected :

(a) exclude the candidate who up to that stage has
been credited with the lowest number of votes;

(b) examine all the ballot papers in his parcel and
sub-parcel, arrange the unexhausted papers in sub-parcels
according to the next available preferences recorded thereon
for the continuing candidates, count the number of votes in
each such sub- parcel and credit it to the candidate for
whom such preference is recorded, transfer the sub-parcel to
that candidate and make a separate sub-parcel of all the
exhausted papers; and

(c) see whether any of the continuing candidate has,
after such transfer and credit, secured the quota.

If, when a candidate has to be excluded under clause

(a) above, two or more candidates have been credited with
the same number of votes and stand lowest on the poll
exclude that candidate who had secured the lowest number of
first preference votes and if that number also was the same
in the case of two or more candidates decide by lot which of
them shall be excluded.

All the sub-parcels of exhausted paper referred to in
clause (b) above shall be set apart as finally dealt with
and the vote recorded thereon shall not thereafter be taken
into account.

Schedule II requires that each candidate shall be
credited with the number of first preference votes that are
secured by him. The total number of first preference votes
secured by all the candidates shall be added, the aggregate
thereof divided by two and the resultant figure increased by
one, disregarding any fraction. The resultant figure is the
quota sufficient to secure the return of candidates at the
election; that is to say that a candidate who secures
votes equal to or larger than the quota shall be declared
elected.

Now, if there are only two candidates at the election,
the candidate who gets the larger number of first preference
votes is to be declared elected. It is only if the two
candidates get an equal number of first preference votes
that the result is to be determined by drawing of lots.

If there are more than two candidates at the election
and one of them secures enough first preference votes to
meet the quota, he shall be declared elected. If none of
the candidates secures first preference votes equal to the
quota then the candidate who has secured the lowest number
of first preference votes shall be eliminated. His ballot
papers shall then to be examined for second preference votes
and such second preference votes shall be credited to the
concerned candidates. It shall then be seen whether any
candidate has secured the quota and, if so, he shall be
declared elected. If not, the process of exclusion and
addition of votes on his ballot papers shall be continued.
When a candidate has to be excluded and two or more
candidates have been credited with the same number of votes
and stand lowest, that candidate shall be eliminated who has
secured the lowest number of first preference votes and
should that number also be the same in the case of the other
candidate, a lot shall be drawn to determine which of them
is to be excluded.

There is a general provision in paragraph (5) of the
Schedule which requires the Returning Officer to check at
the end of the first or any subsequent count the total
number of votes credited to each of the candidates; if any
one of them secures the quota he shall be declared elected.
It also provides that if at the end of any subsequent count
there is only one continuing candidate, that candidate shall
be declared elected.

The first question, therefore, is whether for the
purposes of being elected every candidate must secure the
quota. Where there are only two candidates, the quota plays
no part. Paragraph (4) of the Schedule states that the
candidate who secures more first preference votes than the
other shall be declared elected, and where both get an equal
number of first preference votes lots shall be drawn. The
quota plays a part when there are more than two candidates.
In that event successive counts shall be held until either a
candidate secures the quota or only one candidate remains.

In the case before us, there were three candidates so
that the quota was relevant. The first preference votes
were cast thus : 14 in favour of Manvendra, 10 in favour of
Jivendra and 7 in favour of Gayatri, aggregating to 31. The
quota had to arrived at thus: 31/2 + 1 = 16 (disregarding
the fraction). None of the three candidates secured 16
first preference votes. Gayatri, having secured the least
number of first preference votes, was eliminated and the
second preference votes on her ballot papers were
scrutinised. Manvendra secured 1 and Jivendra secured 5
second preference votes. Their tally on the second count,
therefore, was equal: 15 votes each. Neither of them had
secured the quota.

There is no provision in the Schedule to meet a
situation such as this.

In the Memorandum of Appeal reference has been made to
three judgments of the Allahabad High Court and it has been
submitted that these cases hold, relying upon paragraph (6)
of the Schedule, that where both continuing candidates
secure an equal number of votes on the second count and one
of them had secured a lesser number of first preference
votes, he should be eliminated and the candidate who had
secured the higher number of first preference votes should
be declared elected.

The first of these judgments of the Allahabad High
Court, all delivered by learned Single Judges, is in the
case of Nanak Chand vs. Vachaspati and another [1968(66)
Allahabad Law Journal 29]. The judgment refers to Rule 26
of the Rules, which lays down that 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 the
Schedule. The Schedule, the learned Judge notes, makes no
provision as to how the result should be declared where the
last two candidates after exclusion of others are found to
have received an equal number of votes, counting both the
first and the second preference votes together. The
Schedule does make provision, however, for a situation,
where it is found that there are two or more candidates
receiving the lowest number of votes; in that event
paragraph (6) of the Schedule provides that that candidate
shall be excluded who had secured the lower number of first
preference votes. For this reason the learned Judge finds
that preference is to be given to first preference votes.
He says:

It is only when there is equality of first preference
votes that the exclusion of a candidate is determined by
drawing of lot. Rule 26 also refers to first preference. I
am thus of opinion that in the election of the Adhyaksha and
Up-Adhyaksha the drawing of lot shall not ordinarily
determine the result of the election in case two candidates
are found to have secured the same number of votes. The
rule adopted shall be that out of the two candidates
securing the same number of votes, the one who secured
greater number of first preference votes is to be declared
elected; but if they secured not only the same number of
votes but also the same number of first preference votes,
the lot shall determine the candidate to be excluded, in
other words, the candidate not drawing the lot shall be
declared to have been elected.

The judgment in Jagat Singh vs. Dharam Pal Singh
[1984(82) Allahabad Law Journal 859] states:

There being a variance in the number of first
preference votes secured by the appellant on the one hand
and the respondent No.1 on the other, that becomes, in my
view, decisive in the ultimate analysis of the prescribed
manner of counting for the purpose of being declared elected
or the result being determined.

The judgment holds that paragraph (6) of the Schedule
clearly envisages the determination of the result on the
basis of the strength of first preference votes where there
is equality of votes in favour of the two continuing
candidates on taking their second preference votes into
account. The last judgment of the Allahabad High Court on
the point is in Genda Singh vs. Distt. Judge, Aligarh and
others [1985(83) Allahabad Law Journal 436] and it follows
the judgment in Jagat Singhs case (supra).

We find some difficulty in reading paragraph 6 of the
Schedule in the manner in which it has been done by the
learned Judges of the Allahabad High Court in the cases
aforementioned.

Paragraph (6) of the Schedule can, in any event, not
apply to facts such as those of the case in hand for the
simple reason that under the provisions of that paragraph
only a candidate who has secured the quota can be declared
elected. To use as illustration the votes secured in this
case, even if, on the second count, Jivendra Kumar was to be
excluded by reason of the fact that he had secured 10 first
preference votes as against Manvendras 14 first preference
votes, Manvendra could not be declared elected because he
had not secured the quota of 16. In our view, therefore,
the High Court was right in holding that Manvendra could not
be declared elected.

The provision in paragraph (4) for the drawing of lots
operates only when both candidates get an equal number of
first preference votes. The provision in paragraph (6) for
the drawing of lots is applicable only to determine which
out of two or more candidates who have secured the same
number of votes at a count subsequent to the first count
shall be eliminated; if these candidates happen to have
secured the same number of first preference votes it shall
be decided by lots which of them is to be eliminated. The
instructions to the Returning Officer in the Schedule are
detailed and he is obliged by Rule 26 to follow them. They
tell him when he may resort to the drawing of lots but the
contingency of the two continuing candidates having the same
number of votes, counting both first and second preference
votes, is not covered thereby. No resort to the drawing of
lots could have been made in the absence of an instruction
in that behalf in the Schedule (see University of Poona &
Ors. vs. Shankar Narhar Ageshe & Ors.,
(1971) Supp.
S.C.R. 597). We are of the opinion, in the circumstances,
that the Returning Officer was not entitled to draw lots
between Jivendra and Manvendra. The High Court was,
therefore, right in holding that the election of Jivendra by
the draw of lots was invalid.

Accordingly, the declaration of the High Court that
there was a vacancy in the office of the Adhyaksh was
justified.

The appeals and the special leave petition are
dismissed.

No order as to costs.


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