REGISTERED No. D.L. 33001/99 The Gazette of India
PUBLISHED BY AUTHORITY
No. 37] NEW DELHI, SATURDAY, DECEMBER 1, 2001/AGRAHAYANA 10, 1923 Separate Paging is given to this Part in order that it may be filed
as a separate compilation.
PART II—Section 3—Sub-section (iii)
Orders and Notifications issued by Central Authorities (other than the Administration of Union Territories)
(433)
3546 GI/2001 —1434 TIIL GAZLT1L OF JND.IA : DEC. 1, 2001 /AGRAHAYANA 10, 1923 [FARI H —S EC 3(iii)]
rLECTION COMMrSSION OF TNDIA
ORDER
New Delhi, the 7th November. 2001
O. N. 153.—Whereas, the Election Commission of India is satisfied that each of the contesting camlidaie specified iii column 4 of the Table below at the Bye-Election to the [Legislative Assembly in Gujarat S ate specified in column 2 and hold from the constituency specified in column 3 against his name has filed to lodge the account of his election expenses as shown in column 5 of the said Table as required by the Representation of the People Act, 1951 and the Rules' made thereunder;
And whereas, the said candidate has cither not furnished any reason or explanation for the said failure even after due notice by the Election Commission, or after considering the representation made by tliL-m, if any, the Election Commission is satisfied lhat he has no good reason or justification for the said failure ;
Now, therefore, in pursuance of section 10A of the said Act, the Election Commission hereby declares the persons specified in column 4 of the Table below to be disqualified for being chosen as435 and for being a member of cither House of Parliament or ;he Legislative Assembly or Legislative Council of a Sta
TABLE
Particulars of Election
Name & Address nf Contest- ing Candidates
Reasons of disquali- fication S. No. & Name of Assembly Constituency
4
3
2
1
.^Account not lodged. 74-Shahcrkotda (SC)
Bye-Election to the Legislative Assembly, 2000
Sh. Parmar Pjyushbhai Naranbhai, 609/3885, Gujarat Housing Board, Near Police Station, Bapunagar, Ahcmdubad- 380024, Gujarat.
-do-
-do-
-do-
Sh. Solanki Jagdishbhai Kalidas (Jagabluii Papervalu) 15/125, Government 'G' Colony, Near Lalmill, Sukhramnagar, Ahmedabad-21, Gujarat.
[No. 76/GJ/2001/W. S. I ]
By Order,
C. R. BRAHMAM, Secy.
ORDER
New Delhi, the 7th November, 2001
O.N. 154.—Whereas, the Election Com- mission is satisfied that Shri Amarnatha Shetty, S|o. Narayana Alva, Ulya Gutlui. P.O. Paduperor, Bajpe Mangalorc Taluk a Con- icsting candidate at the General Election to the Karnataka Legislative Assembly held in SeptemberJOct, 1999 from 151-Moodabidri Assembly Constituency has failed to lodge an account of his election expenses as requir- ed by the Representation of the People Act, 1951 and the Rules made there under;
And, whereas, the said candidate hay not furnished any reason or explanation for the436 THE GAZETTE OF INDIA : DEC. 1, 2001 /AGRAHAYANA 10, 1923 [FART II—SEC 3(iii)] said failure even after due notice, and the Election Commission is satisfied that he has no good reason or justification for the said failure;
Now, therefore, in pursuance of Section 10A of the said Act, the Election Commission here- by declares the said, Shri Amarnathu Shctty. to be disqualified for being chosen as and for being, a member of either House of the Parlia- ment or the Legislative Assembly or legisla- tive Council of State for a period of 3 years from the date of this order.
[No. 76| KT-LA 199]
By Order,
BABU RAM Secy.
New Delhi, the 20th November, 2001 O.N. 155.—In pursuance of clause (b) of sub-sec- tion (2) of Section 116C of the Representation of the People Act, 1951 (43 of 1951), the Election Com- mission of India hereby publishes the judgment of the Supreme Court of India dated 12th October, 2001 in Civil Appeal No. 6658, of 2Q0Q arising from the order dated 4-8-2000 of the High Court of Orjssa at Cuttack in Election Petition No. 1 of 1998 (Shri Ananga Udaya Singh Deo Vs. Shri Ranga Nath Mishra and Others). '
IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION Civil Appeal No. 6658. of 2000
Ananga Uday Singh Deo.
.. Appellant.
Versus
Ranga Nath Mishra and Ors. . . . Respondents.
JUDGMENT
Ashok Bhan, J.
This appeal is directed against the judgment and order dated 4th August, 2000 passed by the High Court of Orissa at Cuttack disinising the election peti- tion filed by the appellant challenging the election of respondent Nos. 1 and 3 as Members of Council of States (hereinafter referred to as "Rajya Sabha") in the election held on 18th June, 1998.
Brief facts leading to the points raised in this appeal are as follows :—
The President of India issued a notification, which was published in the Gazette of India on 30th May, 1998, calling upon the Members of the Electoral Col- lege of some of the States to elect Members to the Rajya Sabha in accordance with the provisions of the Representation of the People Act, 195J (for short "The Act"). Pursuant to the aforesaid Presidential Notification, the Election Commission of India by a Notfication of the same date called upon the elecled Members of the Orissa Legislative Assembly to elect three Members to the Rajya Sabha. Inconsultation with the Government of Orissa, the Election Com- mission also issued another notification appointing the Secretary of the Orissa Legislative Assembly as the Returning Officer and the Joint Secretary of the Orissa Legislative Assembly as the Assistant Returning Offi- cer for the said election.
The Returning Officer issued notice of election as per the following programme :
(i) Tiling of nomination 11.00 A.M. and 3.00 PM papers Between on. any day (other than public holiday?,) not later than 6-6-1998.
(ii) Scrutiny of" norm- At 11,30 A.M. on nation papers 8-6-1998 (iii) Withdrawal of Before 3.00 P.M. on nomination papers 10-6-1998 (iv) Polling if necessary Between 10.00 A.M. and 2.00 P.M. on 18-6-1998 in Room No. 54 of the Orissa Legislative Assembly Secretarial Building.
Pursuant to the above notification, four persons, i.e., the appellant and respondents 1 to 3 filed nomi- nation papers. The appellant's candidature was spon- sored by Biju Janata Dal (hereinafter referred to as 'BJD') and that of respondents 1 to 3 was sponsored by the, Indian National Congress Party (hereinafter referred to as The Congress').
On 6th June, 1998 the Returning Officer published a list of nominated candidates indicating the names of the aforesaid four persons. After scrutiny of nomi- nation papers, the Returning Officer issued a list in Form No. 4 on 8th June, 1998 indicating therein that the aforesaid four persons were the validly nomi- nated candidates for 1hc election to the Rajya Sabha,437 J998 by the elected members of Orissa Legislative Assembly. After the time for withdrawal was over on 10th June, 1998 and none of the candidates had withdrawn his candidature, the Returning Officer issued the list of contesting candidates indicative the aforesaid four names and the political pc iLc^ 'ch sponsored their candidature.
The polling took place on J8th June, J')JS ].\ ••!. eh the candidates polled the following va.uo of '.oi.es (value of each vote being assessed at 100).
1. Ananga Vijay Singh Deo (appellant) — 3500 2. Ranga Nath Mishra (Respondent
No. 1) — 4000 3. Rama Chandra Khuntia (Respondent
No. 2) — 4000 4. Manmath Das (Respondent No. 3) — 2700
Total 14200 The Orissa Legislative Assembly has got 147 mem- bers and it seems from the aforesaid that in all 142 members had validly cast their votes in the election held on 18th June. 1998. In view of the total valid votes tendered, as per calculation, a person having polled votes valued at 3551 or more could be declar- ed elected. As Respondent No. 1 and Rama Chandra, Khuntia, Respondent No. 2, got 4000 value of vue> each in their favour, they were declared elected in the first round, leaving Ananga Udya Singh Deo, ap • pellant and Manmath Das, respondent No. 3 for She subsequent rounds. The Returning Officer transferred the excess votes polled by Respondent No. 1 and Respondent No. 2, Rama Chandra Khuntia as per I he second preference in favour of respondent No. 3 Manmath Nath Das. As a result, 444 value of votes- were transferred from Respondent No. j and 444 value of votes were transferred from Rama Chandra Khuntia. After such transfer, the value of votes polled by Manmath Nath Das stood at 3588. This having exceeded the cut off point i.e. 3551 value of votes, respondent No. 3 was declared elected. The appellant could not get any more vote in the second round. Thus, the value of votes polled by him remained at 3500, which was less than the cut off number, and. therefore, could not be elected.
The appellant challenged the election of respondent Nos. 1 and 3 on the following grounds :—•
< I) Long before the scrutiny fixed on 8-6-1998, and the withdrawal fixed on 10-6-1998. the Returning Officer not only pre-judged the validity of each of the nominations but aiso grossly violated the mandatory provisions contained in Section 30(8) of the Act and Rule 8 of the Conduct of Election Rules in publishing the list of vapidly nominated candidates on 6-6-1998. Thus, the Return- ing Officer rendered the provisions of .scru- tiny nugatory.
(2) Although the rules and guidelines issued by the Election Commission prohibit elec- tioneering Vv i 111 i 11 a stipulated Jisiunce y'i the polling pi anises, Janki Balbve i'atnaik.
the then Chief Minister of Orissa, and the Ranga Nath Mishra, respondent No. 1, while silting in the office of the Chief Minis- ter in the Assembly Premises, which is very close to the polling room, compelled each and every Member of the Legislative Assem- bly to cast their votes as per their instruc- tion. Before casting votes, each and every Congress M.L.A. entered the office of the Chief Minister. Each of them was given a token, written iri the hand of the Chiel Minister himself, indicating the preferences to be endorsed (in favour of Congress can- didates) in the ballot papers. With the said tokens, the elector-Members of the Legisla- tive Assembly entered the polling booth to cast their votes indicating their preferences as per the direction of the Chief Minister. This has resulted in materially affecting the election.
(3) Respondent No. 1 Ranga Nath Mishra had held the office of a judge of High Court of Orissa and also the office of the Chief Jus- tice of the said High Court. Thereafter, on, he had held the office of a judge of Supreme Court of India and had also become the Chief Justice of India. On retirement, he had also held the office of Chairman, Human Rights Commission of India. As per the constitutional mandate incorporated in Arti- cle 124 (7) of the Constitution of India, respondent No. 1 is disqualiiied to act or plead. The constitutional bar renders him disqualified under the Act to be chosen/elected to fill up the seat of the Rajya Sabha. As such, acceptance of his nomination paper for the Rajya Sabha election held in June, 1998 was improper and has materially affected the election. Had the candidature of respondent No. 1 been rejected, the other three candidates (includ- ing the petitioner) would have been automa- tically elected against the three vacancies.
(4) As per the petitioner had polled 3500 value of votes out of the total of 14200 value of votes (total valid votes polled-142), the Returning Officer was not correct in declar- ing Returning Officer and the officer assist- ing him for counting votes committed gross irregularities and acted in violation of the provisions of rules 71 to 85 of the Conduct of Election Rules.
(5) After Ranga Nath Mishra and Rama Chandra Khuntia (respondents 1 and 2 res- pectively) had been declared elected in the first round the petitioner having received hitjher value of votes than respondent No. 3 (petitioner polled 3500/35 votes whereas respondent No. 3 polled 2700/27 votes) should have been declared elected. Trans- fer of votes in favour of respondent No. 3 is violative of Rule 81 of the Conduct of Elec- tion Rules. Declaration of respondent No.. 3 as elected by the purpoii^l tiansfer of .Miylns"8 THE GAZETTE OF INDIA : DEC. 1, 2001 /AGRAHAYANA 10, 1923 [FART II—SEC. 3(iii)] votes is vitiaied, which has materially affect- ed the election.
offices of the Judge in the High Court and Supreme Court iiad been elected as Members of the Legislative Assembly as well as the Parliament
It was denied by respondent No. 1 that there was any irreguiaiitv in the counting and transfer of votes and drew the attention of the Court to Article 80(4) of the Constitution, it was submitted that the appel- lant having secured votes valued at 3500, which was less than the, required value of votes of 3551, had rightly been declared as not elected. The procedure followed by the Returning Officer was in accordance with law and, therefore, the declaration oi result in Form No. 23B was not vitiated for any illegal mani- pulated entries as alleged by the appellant. That the transfer of surplus votes from him as well as from respondent No. 2 in favour of respondent No. 3 was in accordance with law.
(6) At the material point of time, the Indian National Congress had only 80 Members in the Orissa Legislative Assembly as against 66 members belonging tu various other parLcs. Ri:r,g-. Nath Mishra was never a member of the Congress Party as per its rules and bye-Jaws. His name was not there in the list of pro- posed candidates prepared by the Pradesh Congress Committee, Orissa. However, lie was imposed on the Pradesh Congress Com- mittee by the Congress High Command from Deihi. Thereafter, Janaki Ballave Patnaik prepared a master plan to prove iiis strength before the High Command and planned for a "cross-voting" and induced respondent No. 1 1o indulge in "horse-trading" of ap- propriate number of opposition votes by which Congress couid win all the three seats. Therefore, election of respondent No. 1 is void.
That upon respondent No. 1 having been invited by the President of the Indian National Congress to accept the sponsorship of her party to become a Mem- ber of the Rajya Sabha, he filed his nominations. The rules and the bye-laws of the Indian National Congress could not be utilized by the appellant to seek bis dis- qualification. It was denied that he had been imposed by the Central Leadership of the Congress on the Piadesh Congress Committee of the State of Orissa. Allegation that Shri Janki Ballave Patnaik who was then the Chief Minister of Orissa had prepared a master plan for hjs (Ranga Nath Mishra's) election and indulging in cross voting, horse-trading, etc. was denied. Maintainability of the aforesaid grounds to challenge the election was questioned in the absence of material facts pleaded in the election petition.
Rama Chandra Khuntia, respondent No. 2 also filed his written statement, though no prayer had been made for setting aside his election. He also denied the cor- rectness of the grounds for challenging the election of respondent Nos. 1 and 3.
On the aforesaid pleadings, it was prayed that the election of Respondent No. 1 be declared as void and consequently to declare the appellant to be duly elect- ed. In the alternative, it was prayed to declare the election of Manmaih Nath Das, respondent No. 3, to be void and consequently to declare the appellant as elected. Prayer was also made to allow inspection and counting of all used ballots and to call for all other relevant documents regarding account of ballots. "Respondent No. 1 in his wiitlcn statement chal- lenged the maintainability of the election petition in view of the provisions of Sections 81 and 82 of the Act. It was stated that as no cause of action had ;u iscn, the election petition was liable to be dismissed as no ground under Sections 100 and 101 of the Act had been made out to set aside the election. Each of the grounds taken by the appellant to set aside the election were specifically controverted. It was denied that the Returning Oflicer had acted in violation of provisions of law in issuance of the validly nominated candidates on 6th June, 1998 as alleged in the peti- tion.
Manmath Nath Das, respondent No. 3, *n his writ- ten statement raised the preliminary objection regarding maintainability of the election petition and stated that the appellant had no cause of action to file the peti- tion. That the election petition was bad for non- joinder of necessary parties. The allegations regarding presence of Janaki Ballave Patnaik and Respondent No. 1, in the office of the Chief Minister inside the Assembly premises to compel each and every Mem- ber of the Orissa Legislative Assembly for casting their votes as per the instruction of the Chief Minister and the allegation of written tokens given by the Chief Minister indicating the preferences to be endorsed in the ballot papers were denied. It was prayed that the appellant be put to strict proof thereof. With regard to transfer of votes in his favour, respondent No. 3 stated that the same was done in accordanc with rules and the declaration of result consequent upon such transfer of votes was in accordance with law.
Respondent No. 4 also filed his written statement and controverted the facts alleged in the election peti- tion. He submitted that the filing of nominations, scrutiny of nominations and counting of votes were regulated under the provisions of the Constitution of India, the Act and the Rules made thereunder, the Allegations that respondent No. 1 sat in the Office or the Chief Minister in the Assembly premises and every member of the Assembly was instructed by the Chief Minister to cast votes in the manner as per his direction Wv.ro denied. It was stated that respondent No. 1 did not carry on any canvassing within the pro- hibited area of the polling. It was also stated that respondent No. 1 absolutely had no knowledge aboul the Chief Minister issuing any instructions to any M.L.A. from his office room in the Assembly pre- mises. Ho did not meet the Chief Minister on 18th June. 1998 in his office room or elsewhere until the entire process of counting of votes was over. That the office of the Chief Minister in the Assembly pre- mises is in the ground floor of the building and quite ai a distance from the place of polling i.e., Room No. 54 which is in the first floor of the building. I) was denied that respondent No. 1 was disqualified io be member oi' He Pad;.,' T ' - ' lew of the alleged cniiNiiUiiionnl bar ninK-r Article I 2 i ' 7) of the Cons- titution. He gave foui examples whcie person holding439 issued instructions to cast their votes in the manner indicated by J. B. Patnaik. SJin J. B. Pmnaik planned for cross voting and induced respondent No. 1 to indulge in horse trading by appropriating the opposi- tion votes by which :he congres* could \\m all the three seats.
Registration of Elections Rules, the Parliament (Pre- vention of Disqualification) Act, and the Prohibition of Simultaneous Membership Rules. He further sub- mitted that the allegation with regard to the delay in supplying the documents was not correct. There was no irregularity or illegality in declaring the "validly nominated candidates" as the same was done in accordance with law on 8-6-1998.
From the above pleadings, the following issues were
framed at the trial of Jhe election petition :—
CD Whether the Election Petition as laid is
maintainable ?
Election of Respondent No. 3 was challenged on the ground of wrong procedure adapted in the counting of votes. According to the appellant after declaring respondent Nos. J and 2 elected, they having secured more votes that the minimum quota required, only two candidates having being left in the arena, further, counting should have been carried under rule 81 (2) not under Rule 79.
(2) Whether the written statements of the res- pondents are in accordance with law ?
(3) Whether respondent No. 1—Ranganath Mishra is qualified1 to contest election to Parliament and whether Article 124(7) of the Constitution of India, 1950 constituted a bar for such contest, and whether his
•nomination was improperly accepted ?
(4) Whether there was any cross-voting by
Under Issue Nos. 1 and 4 the only point to be consi- dered is whether the appellant had disclosed material facts and "material particulars*' of the conupt practice indulged in by Respondent No. ! in securing the votes and if not so to what effect. In so for as the other grounds of challenge to the election of responcfent No. 1 is concerned, (he same have not been pressed in this case and left open for some future case. In so far as the procedure adopled in counting of votes, the same would be discussed under issue No. 5.
horse-trading of opposition votes ?
(5) Whether the counting was conducted ac- cording to law and result was declared law- fully ?
(6) Whether the petitioner is entitled to any
other relief ?
Although in the Statement of Facts given in the petition the fact that respondent No. 1 hid indulged in horse trading or inducing the voters to cross vote is not mentioned but in the grounds th? f^low'nc statement is made in para I4(iii) which reads as follows:
440 THE GAZETTE OF INDIA : DEC. 1, 2001 /AGRAHAYANA 10, 1923 [PART H—Sec. 3(mV(2) Any schedule or annexum to the petition shall also be signed by he petitioner and verified in the same manner as the petition." This section provides that the petition shall contain a concise statement of the material facts and set forth fully particulars of any corrupt practice that the peti- tioner alleges including as full a statement as possible of the names of the parties alleged to have committed such practice and the date and place of the commis- sion of such corrupt practice. It has to be verified in the manner laid down in the Code of Civil Pro- cedure and wherever the election petitioner alleges any corrupt practice the peition shall also to be ac- companied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and particulars thereof. In the petition the pariculars of the corroupt practice of the allegation made, the names of the parties alleged to have committed such corrupt prrctice, the date and place of commission of corrupt practice have not been given.
While leading evidence the petitioner prcduc/d besides appearing himself as PW6, PWs 1, 2, 3. 4 & 5. PWs 1, 2, 3, 4 & 5 are the sitting Members of Legis- lative Assembly of Orissai. They have deposed1 that respondent No. 1 had met them and tried to persuade and induce them by offering bribe to cross vote.
It has been held in a number of cases by this Court that the petition lacking in'mate rial facts' and 'mate- rial particular' has provided under section 83 is requi- red to be dismissed. Allegations of corrupt practice is a seripus 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.
After referring to the caw law it was held by this Court:
"3. The sum and substance of these decisions is that a charge of corrupt practice has to be proved by convincing evidence arid not merely be preponderance of probabilities. As the charge of a corrupt practice is in the nature of a criminal charge, it is lor the party who sets up the plea of 'undue in- fluence* tv> prove it to the hilt beyond reasonable doubt und the manner of proof should be the same as for an offence in a criminal case. This is more so because once it is proved to the satisfaction of a court that a candidate has been guilty of 'undue influence' then he is likely to be disqualified for a period of six years or such other period as the authority concerned under Section 8-A of the Act may thinsc ftt. Therefore, as the charge, if proved, entails a very heavy penalty in the form of disqualification, this Court has held that a very cautious approach must be made in order to prove the charge of undue influence levelled by the defeated candidafe.
4. Another well settled principle is that before the allegation of 'undue influence' can be proved, it must be shown that 'undue in- fluence' proceeds either from the candidate himself or through his agent or by any other person either with his consent or with the consent of his election agent so as to pre- vent so or cloud the very exercise of any electoral right."
To the same effect is another judgment of this Court in Quamartil Islam v S. K. Kanta and o.'iers 1994 Supp (3) SCC 5. After observing that there is an increase of electoral malpractices and the Courts owe a duty to the nation to see that such objection- able assaults wounding the purity of elections during the election propaganda ate not allowed io go un- punished it was held that:
"The maintenance of purity of elections is indeed essen- tial but the court must be clear in its approach and appreciate tbf.t the proof of commission of corrupt practices must be clear, cogent, specific and reliable as the charge of a corrupt practice is amost like a criminal charge and the one who brings forth . that charge has the obligation to discharge the :>nus of proof bv leading reliable, trustworthy and satis- factory evidence. Election cannot be set aside on mere probabilities but only if the allegations of the corrupt practice, as alleged in the petition, are satisfactorily proved, which in the instant case is found hopelessly wantine. In this case the Dleadings are so vague and the evidence so Scanty, unsatisfac- tory and unreliable, besides. beifng psfttly inadmissi- ble, that it is not possible to connect the appellant, the returned candidate of his election agent with nnv of the corrunt nractice alleged in the petttion. The Hiffh Court before invalidating the election and up- setting the verdict of the electorate, in its 7eal to maintain purity of elections, ignored not only' the defects fn the pleadings "n the election petttion but also foiled to nnalvse the evidence in its proper perspective and even relied upon such evidence as .is no* admissible in 'a w- It has been informed that the High Court has not framed any rule for trial of tiT* election netitlons. Tf that be so the Chief Justice of the Hieb Court is reauested to look into - . it and frame rules for_proper trial of election peti- tions."441 In a recent decision this Court in V. Narayanaswamy v. C.P. Thirunavukkarasu, (200U) 2 SCC 294, after analysing the entire case law on the subject has held that exercise of undue influence is also deemed to be a coi rupi practice. Under Sub-section (2) of Section 123 "undue infiuece" means any direct or indirect interference or attempt to interfere on Ihc part of the candidate or his agent, or of any other person with the consent of the candidate or his election agent, with the free exercise of any electoral right. "Material facts" and "material particulars" certainly connote two different things. Material facts nre those facts which constitute the cause uf action. In ;i petition based on the allegation of corrupt practices the cnuse of action cannot be equated with the cause of action as is normally understood because of the consequences that follow in a petition based on the allega- tions of corrupt practices. As election petition seeking a challenge to the election of a candidate on the allegation of corrupt practices is a serious matter, if proved, not only does the candidate suffer ignominy, he also suffers disquali- fication from standing for election for a period that may extend to six years.
The Court summed up:—
"23 It will be thus seen that an election petition is
the principles contained in the Oode of Civil Pro- cedure. Non-compliance with the provisions of Sec- tion 83 may lead to dismissal of the petition if the matter falls within the scope of Order 6 Rule 16 and Order 7 Rule 11 of the Code of Civil Proce- dure. Where neither the verification in the peti- tion nor the affidavit gives any indication of the sources of information of the petitioner as to the facts stated in the petition which are not to his knowledge and the petitioner persists that the ven- fication is correct and the affidavit in the form pres- cribed does not suffer from any defect the allega- tions of corrupt practices cannot be inquired and tried at all. In such a case the petition has to be rejected on the threshold for non-compliance with the mandatory provisions Of law as to pleadings. It is no part of the duty of the court suo motu even to direct furnishing of better particulars when objection is raised by the other side. Where the petition does not disclose any cause of action it has to be rejected. The court, however, cannot dis- sect the pleadings into several parts and consider whether each one oi ihem discloses a cause of action. The petition has to be considered as a whole. There cannot be a partial rejection of the pettion.
As the entire case law has been discussed in V. Narayana- swamy's case (supra), wo need not refer to Other cases on thet subject which were cited before us ut the bar.
Counsel for the appellant had referred to tho following de- cisions to press the point that liberal and purposive const- ruction should be put on the pleadings in order to do sub- stantial justice.
1. Atma Ram Mittal v. Ishwar Singh Punia 11988)
4 SCC 284.
2. Administrator, Municipal Corporation v. Datiatraya
Dahankar (1992) 1 SCC 361.
3. Shrisht Dhawan v. Shaw Brothers (1992) 1 SCC 534,
None of these judgments are applicable to the facts of the present case and the law pertaining to the election petition in which the allegation of corrupt practices have been made. Atma Ram Mittal v, Ishwar Singh Punia (supra) deals with a case under the Rent Control and Eviction Act. Similarly, in Administrator, Municipal Corporation v. Dattatraya Dahankar (1992) 1 SCC 361, this Court was interpreting Section 127- A(2)(b) of the M.P. Municipalities Act, 1961, regarding imposition of property tax. In the context of that case, it was observed that the mechanical approach to construction is altogether out of step with the modern positive approach. Tho ratio of the said case would have no applicability to the present case. Likewise, in Shrisht Dhawan v. Shaw Brothers (1992) 1 SCC 534, again the Court was dealing with a case under the Delhi Rent Control Act, 1958. In view of the specific provisions of the Representation Act regarding the pleadings and the standard of proof required to prove the corrupt practices, the ratio of any of these cases would have no applicability.
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 Legislative 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 as a cross voting due to any inducement on the part of respondent No. I. On facts it has not been proved that respondent No. 1 or any other person with his consent or the consent of Ms anent had indulged in cross voling by horse trading. The finding recorded by the High Court that respondent No. 1 xvas not sitting with J. B. Patnaik in his room when J. B. Patnaik gave instructions lo 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 i^i also affirmed. Counsel for the appellant could not putforth any plausible argument to set aside the finding of the High Court on facts.
based on tho rights, which are purely the creature of " statute, and if the statute renders any particular requirement mandatory, the court cannot exercise dispensing powers to waive non-compliance. Foi the purpose of considering a preliminary objection as to the maintainability of the election petition the averments in the petition should be assumed to be true and the court has to find out whether these averments disclose a cause of action or a triable issue as such. Section 81 83(1)((G) and R6 read with Rule 94-A of the rules and Form 25 are to be r"ad conjointly as an integral scheme. When so read if the court finds non-compliance it has to uphold the preliminary objection and has no option except to dismiss the petition. There \K difference between "material facts" and "material particulars". While the failure to plead material facts is fatal to the election petition the absence of mate- rial particulars can be cured at a later stage bv an appropriate amendment. "Material facts'' mean the entire bundle of facts, which would constitute a complete cause of action and these must be conci- sely stated in the election petition, i.e., clause (a) of sub-section (1) of Section 83. Then under clause (b) of sub-section (1) of Section 83 the election petition must contain full particulars of any corrupt practice, These particulars are obviously different from material facts on which the petition Is found- ded, A petition levelling a charge of corrupt prac- tice is required by law to bo supported by an affi- davit and the election petitioner is obliged to dis- close his source of information in respect of the commission of corrupt practice. He must state which of the allegations are true to his know- ledge and which to his belief on information receiv- ed and believed by him to be true. It is not the form of the affidavit but its substance that matters. To plead corrupt practice as aOnteinplltJted by law it has to be specifically alleged that the corrapt practices were committed with the consent of the candidate and that a particular electoral right of a person was affected. Tt cannot be left to time, chance or conjecture for the court to draw inference by adop- ting an involved process of reasoning. Where the alleged corrupt practice is open to two equal possible inferences the pleadings of corrupt practice must fail. Where several paragraphs of the election petition alleging corrupt practices remains unafflrm- ed under the verification clause as well as the affi- davit, the unsworn allegation could have no legal existence and the court could not take cognizance thereof. Charge of corrupt practice being quasi- criminal in nature the court must always insist on strict compliance with the provisions of law. Tn such a case it is equally essential that the particulars of the charge of allegations are clearly and precisely staled in the petition. It in thr- violation nf the provisions of Section 8t of the Act which can attract the application of the doctrine of substan- tial compliance. The defect of the type provided in Section fH of the Act on the other hand can bv dealt with under the doctrine of curability, on
3546 GI/2001—2
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 indulg- ed by respondent No. I. No issue had boon framed, as rightly none could be framed in that respect on the basis of vague and Incomplete pleadings. The learned designated Judge,442 THE GAZETTE OF INDIA : DEC 1, 2001 ,'AGRAHAYANA 10, 1923 |FARI II—SEC. 3(iii)l however, permitted evidence to be led during the trial by the appellant, relating to the allegations of bribery. No such evidence could Irnve been permitted to be led. The learned designated Judge appears to have ignored salutary principles that evidence can only be permitted to bo led on a plea- properly raised and issue framed. A designated Judge trying an election petition must be careful to soe that irrelevant, impermissible and inadmissible evidence is not allowed lo brought on the record. Let alone allowing evidence to be led, for which there were no plcadingSj even respondent No. 1 was subjected to unnecessary cross-examination on the alle- gations 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 election 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 Lckhi, learned senior counsel appearing tor the appellant, record that he did not pursue this charge before us any further.
Coming now to the last on issue No. 5 it may be stated that Election to the Rajya Sabha from Legislative Assemblies of the States as per Article 80(4) is held under a system known as proportional representation by means of a single transferable vote. The system of voting by secret ballot on the system of proportional representation by means of the single transferable vote is adopted from the Constitution of Eire. The object of introducing proportional representation in these elections is to give each minority group an effective share as per its strength.
The system of proportional representation by single trans- ferable vote comes into operation only if there is more than one candidate to be elected. The election is held by multi member constituencies. All the candidates who compete for the seats allotted to a constituency have their names printed on one ballot paper. 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'. The elector is required to indicate his multiple preferences by placing [he figures, 1, 2 and 3 in order of preferences. The surplus votes in the hands of the candidates declared ejected are transferred to the then candidates.
The procedure of counting of votes is enumerated in Rules 71 to 83 of The Conduct of Election Rules, 1961 (hercinaftcr referred to as "The Rules").
Rule 74 provides that the Returning Officer after reacting the ballot papers which are invalid arrange the remaininR ballot papers in parcels according to the first preference re- corded for each candidate; count and record the number of papers in each parcel and the total number; and credit to each candidate the value of the papers in his parcel. Rule 76 provides for ascertainment of quota. It provides that at any election where more than one seat is to be filled, every valid ballot paper shall be deemed to be of the value of 100, and the quota sufficient to secure the return of a candidate at the election shall be determined by adding the value credited to all the candidates and then dividing the total by a number which exceeds by one the number of vacancies to bs filled and then to add one to the quotient ignoring the remainder, if any, and the resulting number is the quotH, In simple words it would work as under :—
Total number of valid ballot papers
t 1 = Quota Number of members to be elected+1
Rule 78 provides that if a! the end of any count or at the end of the transfer of any parcel or sub-pared of nn excluded candidate the value of ballot papers credited to u candidate- is equal to, or greater than the quota, that candidate shull be declared elected.
If any vacancy remains to be filled, then the procedure required to be followed is given in Rules 79, 80 and SI. Rules 79, 80 and 81 read thus : —
"79. Transfer,of surplus.—(1) 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 trans- ferred, in accordance with the provisions of this rule, to the continuing candidates indicated on the ballot papers of that candidate as being next in cider of the elector's preference.
(2) If more than one candidate have a surplus, die largest surplus shall be dealt with first and the others in order of magnitude :
Provided that every surplus arising on the first count shall be dealt with, before those arising on the second count and so on.
(3) Where there are more surpluses, than one to distri- bute and two or more surpluses are equal, regard shall be had to the original votes of each candidate and the candidate for whom most original voles are recorded shall have his surplus first distributed; and if the values of their original votes are equal, the returning officer shall decide by lot which candidate shall have his surplus first distributed.
(4) (a) If the surplus of any candidate to be transfcired arises from original votes only, the returning officer shall examine all the papers in the parcel belonging to that candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon and make a separate sub-parcel of the exhausted papers,
(b) He shall ascertain the value of the papers in each sub-parcel and of all the unexhausted papers.
(c) it the value of the unexhausted papers is equal to or less than the surplus, he shall transfer all the unexhausted papers at the value at which they were received by the candidate whose surplus is being transferred.
(d) If the value of the unexhausted papers is greater than the surplus, he shall transfer the sub-parcels of unexhausted papers and the value at which each paper shall be transferred shall be ascertained by dividing the surplus by the total number of un- exhausted papers.
(5) If the surplus of any candidate to bo transferred arises from transferred as well as original votes, the returning officer shall re-examine all the papers in the <;ub-parcel last transferred to the candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon, and then deal with the sub-parcels in the same manner as is pro- vided in the case of sub-parcels referred to in sub-rule (4).
(6) The papers transferred to each candidate shall be added in the form of a sub-parcel to the papers already belonging to such candidate.
(7) All papers in the parcel or sub-parcel of an elected candidate not transferred under this rule shall be set apart as finally dealt with.
80. Exclusion of candidates lowest on the poll.—(1) If after all surpluses have been transferred as hcrein- beforo provided, the number of candidate* elected is less than the required number, tho returning officer shall exclude from the poll tlie candidate lowest on the poll and shall distribute his unexhausted papers among the continuing candidates according to llv; next preferences recorded thereon; and any exhaiMij'J papers shall be set apart as finally dealt with (2) The rmncrs containing original votes of an excluded candidate shall first be transferred, the transfer value of each paper being one hundred.
(3) The papers containing transferred votes of an ex- cluded candidate shall then be transferred in irn order of (he transfers in which, and at the valur ;it which, he obtained them.
(4) Each of such transfers shall be deemed to be a separate transfer but not a separate count.
(5) Tf. as a result of the transfer of papers, the value of votes obtained by the candidate is eqnnl 'o cr greater than the quota, the count then T>roccedinn443 shall be completed but no further pnper shall be transferred to him.
(6) The process directed by (his rule shall be repeated on the successive exclusions one after another of the candidates lowest on the poll until such vacancy is filled cither by the election of a candidate with the quota or as hereinafter provided.
(7) II al any time it becomes necessary to exclude a candidate and two or more candidates have the same value of voles and are the lowest on the poll regards hall be had to the original votes of each candidate and the candidate for whom fewest original votes are recorded shall be excluded; and if the values to their original votes are equal the candidates with the smallest value at the earliest count at which these candidates had unequal values shall be excluded.
(8) If two or more candidates are lowest on the poll and each has the same value of votes at all counts the returning officer shall decide by lot which candidate shall be excluded.
81. Filling the last vacancies.—(1) When at the end of any count the number of continuing candidates is reduced to the number of vacancies rftjjpainini: unfilled, the continuing candidates shall be declared elected.
(2) When at the end of any count only one vacancy remains unfilled and the value of the papers of some one candidate exceeds the total value of the papers of all the other continuing candidates together with any surplus not transferred, that candidate shall be declared elected.
(3) 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 decide by lot which of them shall be excluded; and after excluding him in the manner aforesaid declare the other candi- date to be elected."
Rule 79 comes into operation in case a candidate or more than one candidate has received more votes than the re- quired 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 indi- cated on the ballot papers of that candidates as being next in order of the elector's preference. After working out the surplus votes in order of preference in favour of the re- maining candidates, the surplus votos are transferred to the remaining candidates and added to the value of votes polled by that candidate. Tn 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 can- didate 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 rc- cofded thereon, The process is continued till the total nurnber of vacancies is filled up.
If even by this process the total number of vacancies arc not filled up then Rule SI 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. Tt 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 candi- date. If the contention of learned counsel for the appellant is to be accepted, then the surplus votes in the hands of res- pondent Nos. 1 and 2 would never be counted. Rules 79 to 81 which are in consonance with the schemo of propor- tional representation by single transferable vote provide that firstly the surplus votes in the handc of elected candi- dates 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 BO of exclusion of candidates obtaining the least number of votes is to be followed. On his exclusion his first preference are transferred to the re- maining 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 remain- ing 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 to- gether with all the surplus not transferred", then that can- didate 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 re- mains unfilled and there are only two continuing eandidats and each of them has the same value of votes and no surplus remains capable of transfer, the returning officer shall decide by lot which of them shall be excluded: nnd after excluding him in the manner aforesaid, declare the other candidate to be elected.
In the present case the returning officer after declai ing 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 rcspodndent 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 res- pondent No. 3 was declared elected after following the pro- cedure under Rule 79, the reference to the procedure pro- vided under Rule 80 and 81 was unnecessary. Tn our view, the returning officer followed the correct procedure in count- inn the votes and declaring respondent No. 3 elected, he having polled the requisite quota of value votes.
Mr, P,N. Lckhi, learned senior counsel submitted that in the judgment under appeal most of discussion has taken place regarding scope of Article 124(7) of the Constitution i-f India and whether it constituted a bar for contesting election by respondent No. 1. Learned counsel did not question the correctness of the findings recorded by the High Court on issue No. 3 but went on to submit that 'he was not giving up' challenge to the findings on issue No. 3 but 'he was not addressing any arguments to question the correctness of these findings recorded by the High Court either'. Thus, the challenge based on Article 124(7) which failed in the Hiffh Court in so far ns respondent No. 1 is concerned was also not pursued before us.
No other ground was urged by the learned counsel for the appellant.
444 THE GAZETTE OF INDIA : DEC. 1, 2001 /AGRAHAYANA 10, 1923 [FART TI—SEC. 3(iii)]In view of the above, wo do not find uny merit in this
New Delhi, the 20th November, 2001 appeal and dismiss it with costs,
L
Sd]- Cn.
O.N. 156,—In exercise of the powers
Sd|- }, [R. C. LAHOT1] conferred by sub-section (1) if Section 13A
Sd|- T. of the Representation of the People Act, 1950
I'ASHOK BHAN]
(43 of 1950), the Election Commission of New Delhi, October 12, 2001
India in consultation with the Administration ['No. 82|CS-OR|1|9S]2000]
of the Union Territory of Lakshadweep hereby
by Order.
SHARAN PAL SINGH, Secy. nominates Shri Sandeep Kumar. IAS
(AGMU : 1997). Collector-cum-Devclop-
merit Commissioner, Union Territory of
Lakshadweep as the Chief Electoral Officer
for the Union Territory of Lakshadweep with
effect from the date he takes over charge and
until further orders.
2 The Commission is not insisting on a
full-time Chief Electoral Officer in the Union
Territory of Lakshadweep and has allowed
Shri Sandeep Kumar to retain his regular
additional charges.
[No. 154LKD|2001-P.Admn.]
By Order,
LALTT MOHAN, Under Secy.
Printed by the Manager, Govt. of India Press, Rinjj Road, New Delhi-l 10064 and Published by the Controller of Publications, DelhM 10*54, 2001