435

and for being a member of cither House of Parliament or ;he Legislative Assembly or Legislative Council

of a Sta<e or Union Territory for a period of three years from the date of this order :—

TABLE

Particulars of Election

Bye-Election to the

Legislative Assembly,

2000

-do-

S. No. & Name of Assembly

Constituency

74-Shahcrkotda (SC)

-do-

Name & Address nf Contest-

ing Candidates

Sh. Parmar Pjyushbhai

Naranbhai,

609/3885, Gujarat Housing

Board, Near Police Station,

Bapunagar, Ahcmdubad-

380024, Gujarat.

Sh. Solanki Jagdishbhai

Kalidas (Jagabluii Papervalu)

15/125, Government 'G'

Colony, Near Lalmill,

Sukhramnagar,

Ahmedabad-21,

Gujarat.

Reasons of disquali-

fication

.^Account not lodged.

-do-

[No.

76/GJ/2001/W. S. I ]

By Order,

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

the

436

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-

11,30 A.M.

nation papers

8-6-1998

(iii) Withdrawal of

Before

3.00

P.M.

nomination papers

10-6-1998

(iv) Polling if necessary

Between

10.00

A.M.

and

2.00

P.M.

18-6-1998

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

India,

respondent

No.

disqualiiied

act

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.

(6) At the material point of time, the Indian

National

Congress

had

only

Members

the

Orissa

Legislative

Assembly

against

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.

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.

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 I2i'7) of the Cons-

titution. He gave foui examples whcie person holding

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.

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.

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

439

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 ?

(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

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

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 ?

The appellant examined¹ five Members of the Orissa

Legislative Assembly in addition to himself as wit-

nesses is support of his case. Respondent Nos. 1, 3

and 4 examined themselves ar, witnesses in support of

the respect of the case put forth by them.

Issue No. 1 was decided in favour of the appellant.

It was held that the ebction petition, as laid,

was

maintainable.

Issue No. 2 was decided in favour ot

respondents and it was held that the written statements

of the respondents wese in accordance with law. Issue

No. 3 was decided in favour of respondent Ne. 1. Tt

was held that Art. 124(7) of the Constitution of India

did not constitute a bar on a retired Judge of the High

Court or the Supreme Court from contesting the elec-

tions and therefore nomination of respondent No. 1

had been validly accepted. Issue Nos. 4 and 5 were

also decided in favour of the respondents.

Issue Nos. 1 and 4 are interlinked. Respondents in

their written statement had taken the objection that the

petition was not maintainable as it did not disclosed

the cause of action and also lacked in "material facts"

and "material particulars", that the petition was not

filed in conformity with section 83 of the Act.

Election of Respondent No. 1 had been challenged

on the grounds that respondent No. 1 being a former

Tud.ee

and

Chief Justice

India-

was de-

barred

from

contesting the flection

in view of

the bar created by Article 124(7) of the Constitu-

tion of India. Respondent No. 1 not being a con-

gressman a whip could not be issued by the congress

rartv to its members to vote in his favour and that

Shri J. R Patnaik th? then Chief Minister of Orissn

while sitting in his office alonswitfo resnonent No. 1

in the "round floor which was within 200 vards of

the polling station called the congress MLAs

and

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

indulge in horse trading by appropriating the opposi-

tion votes by which :he congres* could \\m all the three

seats.

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.

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.

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

follows:

"When Ranga Nath MUhnv was imposed

O'PCC from Delhi, J, B. Patnaik prepared

a master plan to prove his strength to Delhi.

As per its own strength, Congress could only

get 2 seats from out of the 3 existing vacan-

cies.

.T. B. Pafiifi.ik ninnned for a "Cross-

voting" and induced Ransn Nath (Sonia's

candidature) to indulge in horse-trading of

appropriate number of npnosiiion votes by

v/hich Congress could win all the

thres

seats."

Allegation

made in this paragraph

reto'es to n

correct practice.

Section 83 reads :

"83.

Contents

petition—(1)

election

petition:—

(a) shall contain a concise statement of the ma-

terial facts on which the petitioner relies;

(b) shall set forth full particulars of a<nv corrupt

practice that the petitioner rileged including

as full a statement as possible of the nfimes

of the parties alleged to have committed

such

corrupt

practice

nnd

the

date

place of the commission of each such prac-

tice; and

fied in the manner '"iH down in the Code

of Civil Procedure. 1908 (5 of IQQ81

for

the verification of pleadings:

Provided that where the petitioner SIWPS ;>in-

corrupt practice, the Petition shall a'so b?

ncromnnnied by an aflfir'fvit ir> the n»--<;."r>'~

bed

form in svtpnort of t'v< ^legation ~f

sucH corrupt practice

and !he pnrt'rviars

thereof.

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.

Shri P. N. Lekhi strenuously contended that a libe-

ral and purposive construction should be put on the

pleadings to serve the lamer purpose of iradicating

corruption from the electoral system of the coun'ry

and not a⁺echnical approach which would defeat the

purpose of electoral reforms.

As against this, it is

contended by Shri P. P. Rao, learned senior counsel

appearing for respondent No. 1 that compliance with

the provisions

of Section

83 is mandatory.

The

charge of corrupt practice in election petition is to

be proved like a criminal charge and the standard¹ of

proof required is beyontl reasonable

doubt it can

entail the serious consequences of disqualifying the

candidate from contesting the election in future for

n certain period of time.

That the court belrw had

erred 'n t plane evidence on ,\ point on which ther^

were no proper pleading?

This

Court in Ram

Sharan

Yadav v. Thakur

Muneshwar Nath Singh (1984) 4 SCC 649, has taken

the view tha* the charge of a corrupt practice is in the

nature of a criminal chame which if proved, entails

a very heavy penally in the form of disqualification.

Therefore,, a verv cautious approach must be made in

order to prove the charge of undue influence levelled

bv the defeated candidate,

ft is for the party who

sets ur> the plea of 'undue influence' to prove it 1^

the hilt be.yond reasonable rloubt and th;° manner of

proof should be the same as for an offence in

criminal case.

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

criminal case.

This is more so because

once it is proved to the satisfaction of

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 candida^fe.

4. Another well settled principle is that before

the allegation of 'undue influence' can

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* admissibleⁱⁿ ' ^{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

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

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.

Atma Ram Mittal v. Ishwar Singh Punia 11988)

4 SCC 284.

Administrator, Municipal Corporation v. Datiatraya

Dahankar (1992) 1 SCC 361.

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.

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.

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

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.

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>roccedinn

443

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

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

appeal and dismiss it with costs,

Sd]-

Cn.

Sd|- } ,

[R. C. LAHOT1]

Sd|- T.

I'ASHOK BHAN]

New Delhi,

October 12, 2001

['No. 82|CS-OR|1|9S]2000]

by Order.

SHARAN PAL SINGH, Secy.

New Delhi, the 20th November, 2001

O.N. 156,—In

exercise

the

powers

conferred by sub-section (1)

if Section 13A

of the Representation of the People Act, 1950

(43 of 1950), the Election

Commission of

India in consultation with the Administration

of the Union Territory of Lakshadweep hereby

nominates

Shri

Sandeep

Kumar.

IAS

(AGMU : 1997).

Collector-cum-Devclop-

merit Commissioner,

Union

Territory

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

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