Sri Ram Saran Saxena, Pleader v. Sri Binda Prasad — 1958 DIGILAW 261 (ALL)

JUDGMENT Mootham, C.J. - This is a petition under Article 226 of the Constitution in which the petitioner, Sri Ram Saran Saxena, seeks to have quashed by a writ of certiorari the order of an Election Tribunal dated the 15th July 1958. 2. The circumstances in which this petition has been filed are these. The petitioner and the second respondent, Sri Binda Prasad and the 4th and 5th respondents were candidates for election to the office of president of the Municipal Board of Sultanpur. The 4th and 5th respondents withdrew from the contest, and at the election which was held on the 9th November, 1957, Sri Ram Saran Saxena was declared elected. The president of Municipal Board is elected by the member of the Board under the system of proportional representation by means of the single transferable vote. The number of members voting in the present case was 20 and the Returning Officer held that each of the contesting candidates had obtained 10 first preference he took into account the second preference votes of which two had been given in favour of Sri Ram Saran Saxena and one in favour of Sri Binda Prasad, and he accordingly declared Sri Ram Saxena duly elected. 3. The defeated candidate Sri Binda Prasad filed an Election petition in which he challenged the validity of Sri Ram Saran Saxena's election on two ground: First, that the Returning Officer had included among the votes counted for Sri Ram Saran Saxena votes which had been cast in favour of Sri Binda Prasad and votes which were invalid and, secondly, in the alternative, that the Returning Officer was wrong in taking the second preferences into consideration, his proper course in event of the candidates securing an equal number of first preferences being to decide by lot which of them should be excluded. That petition was allowed by the Election Tribunal by the order the validity of which is the subject of the present petition. The Tribunal was of opinion that the Returning Officer misdirected himself on the question of the validity of certain of the votes cast, and that upon a correct accounting Sri Ram Saran Saxena had obtained only five first preferences while Sri Binda Prasad had obtained ten. The Tribunal was of opinion that the Returning Officer misdirected himself on the question of the validity of certain of the votes cast, and that upon a correct accounting Sri Ram Saran Saxena had obtained only five first preferences while Sri Binda Prasad had obtained ten. The Tribunal was further of opinion that had the two candidates secured an equal number of first preferences the course followed by the Returning Officer of taking into account the second preferences was correct. The Tribunal accordingly allowed the petition, set aside the election of Sri Ram Saran Saxena, and declared Sri Binda Prasad duly elected. 4. Sri Ram Saran Saxena thereupon filed the petition which is now before us. The submissions made on behalf of Sri Ram Saran Saxena are two: first, it is contended that the Election Tribunal wrongly rejected first preferences in favour of that candidate on an erroneous interpretation of the U.P. Municipalities' (Conduct of Election of Presidents and Election Petitions) Order, 1955, and, secondly, that the election Tribunal had no jurisdiction to enquire into the question whether the votes given at the election had been wrongly counted by the Returning Officer. For Sri Binda Prasad it was argued that the Tribunal was entitled to go into the question whether the votes had been wrongly counted and that its interpretation of R. 24 of the aforesaid Order was correct. It was further urged that, in the event of the secured the same number of first preferences, the final selection must be determined by lot. 5. The Principal question argued before us has been with regard to the meaning and effect of Rs. 24 of the said order. That rule, so far as it is material, reads thus:- "(1) Every member shall have as many preferences as there are candidates, but no ballot paper shall be considered invalid solely on the ground that all such preferences are not marked. 24 of the said order. That rule, so far as it is material, reads thus:- "(1) Every member shall have as many preferences as there are candidates, but no ballot paper shall be considered invalid solely on the ground that all such preferences are not marked. (2) A member in giving his vote- (a) Shall place on his ballot paper the figure 1 in the space opposite the name of the candidate whom the chooses for his first preference; and (b) may, in addition, mark as many subsequent preferences as he wishes by placing on he wishes by placing on his ballot paper the figures 2, 3 4 and so on, in the space opposite the names of other candidates in order of preferences." With this rule must also be read R. 27 which provides that- "A ballot paper shall be invalid on which- (a) the figure 1 is not marked; or (b) the figure 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply; or (c) the figure 1 and some other figure are marked opposite the name of the same candidate; or (d) any mark is made by which the member may afterwards be identified." Rule 19 provides that ballot papers to be used at an election shall be in a prescribed form which (excluding the counterfoil) we reproduce: "Form of Ballot Paper ..........Municipality Election of President .......19....... Name Preferences 1. ........................................................................................... 2. ........................................................................................... 3. ........................................................................................... etc. Instructions. 1. The persons whose names are given on the ballot paper sent herewith have been nominated as candidate for election to the office of president of .........Municipality. "2. The vote shall be recorded by placing the figure 1 in the space opposite the name of the candidate whom the voter chooses for his first preference and the voter, may, in addition, mark as many subsequent preferences as he wishes by placing the figures 2, 3, 4 and so on in the space opposite the names of other candidates in order of preference." 6. Clause (2) of R. 24 provides that a member in giving his vote shall place on his ballot paper the figure 1 "in the space opposite the name of the candidate" whom he chooses for his first preference, and the main point of controversy is the meaning to be attached to the phrase "in the space opposite the name of the candidate." Learned counsel for Sri Binda Prasad stressed the use of the word "space," which he argued meant an area on the ballot paper wholly or partially enclosed. Now, under R. 18 the names of the candidates are to be inserted in the ballot paper in Hindi in alphabetical order, and accordingly in the ballot papers used at this election the name of Sri Binda Pd. was placed immediately below the line numbered 1 and that of Sri Ram Saran Saxena immediately below the line numbered 2. In these circumstances learned counsel for Sri Binda Prasad argued that the space opposite the name of his client means the space between lines 1 and 2, and the space opposite the name of his client means the space between lines 1 and 2, and the space opposite the name of Sri Ram Saran Saxena is the space between lines 2 and 3; and this was the meaning given to the phrase in question by the Tribunal. Learned counsel for Sri Ram Saran Saxena argued that the word "space" did not refer to any area delineated on the ballot paper but meant no more than that part of the ballot paper which can reasonably be described as being opposite the name of a candidate; and that in fact the ballot paper did not allot a space opposite the name of each candidate wherein the preferences of the voter are to be marked. This was the view taken by the Returning Officer. 7. In our opinion the second view is to be preferred. In the first place we consider that, in interpreting the phrase "the space opposite the name of the candidate," R. 24(2) must be read in conjunction with the prescribed form of the ballot paper. The word 'space' does not necessarily mean an enclosed area, and the phrase "the space opposite the name of the candidate" does not necessarily mean more than that part of the ballot paper which is opposite the candidate's name. The word 'space' does not necessarily mean an enclosed area, and the phrase "the space opposite the name of the candidate" does not necessarily mean more than that part of the ballot paper which is opposite the candidate's name. Had the ballot paper been in a form similar to that prescribed in schedule II of the English Ballot Act of 1872 there could have been no doubt as to the meaning of the word "space," for in that form the serial number of each candidate, the name of the candidate and the place at which the elector is required to make his mark are all enclosed in a rectangle. The form of the ballot paper which we have to consider is very different. Instead of the places where the name of each candidate and the preferences of the elector are to be inserted being enclosed in a rectangle they are indicated by a line, and the natural inference is that each preference is to be marked on or near the line allotted to the selected candidate. The form is, we think, not a very convenient one, for although the name of the candidate has to be inserted in Hindi and will therefore be immediately below the line, the number indicating the voter's preference may be in Arabic numerals and will then ordinarily be placed above the line. Secondly, it is clear that the form of ballot paper, containing as it does lines numbered 1, 2 and 3 is intended for use without any alteration or addition, in cases where there are three candidates and this object can be achieved on the assumption that the line opposite the candidate's name indicates the place where the preference recorded by the candidate is to be marked. Thirdly, Rr. 24 and 27 must be read together, and when so read it is we think clear that undue stress is not to be placed upon the word "space" in the former rule. Rule 27 enumerates the circumstances in which a ballot paper shall be invalid, and cl. Thirdly, Rr. 24 and 27 must be read together, and when so read it is we think clear that undue stress is not to be placed upon the word "space" in the former rule. Rule 27 enumerates the circumstances in which a ballot paper shall be invalid, and cl. (b) of this rule provides that a ballot paper shall be invalid on which "the figure 1' is marked opposite the name of more than one candidate or is so marked as to render doubtful as to which candidate it is intended to apply." The omission from this clause of the word "space" is significant, and leaves no room for doubt that the test of the validity of a ballot paper (so far as this clause is concerned) is the intention of the elector. If the intention is clear, the ballot paper is valid; otherwise it is not. 8. We think that is not in dispute that on this interpretation of R. 24 the finding of the Returning Officer that each of the two candidates received an equal number of first preferences, namely ten, is correct. We have ourselves examined the ballot papers and entertain no doubt that the choice of the voter in each instances has been clearly indicated and that each candidate obtained the same number of first preferences. We are clearly of opinion that the finding of the Tribunal to the contrary is erroneous. In these circumstances it is unnecessary for us to decide whether the Election Tribunal had jurisdiction to enquire into the question whether the votes given at the election had been wrongly counted by the Returning Officer. 9. For the reasons which we have stated we are of opinion that the Election Tribunal placed a wrong interpretation upon R. 24. We are also of opinion that the Election Tribunal erred in law in holding that where as in the present case, the only two candidates secured an equal number of first preferences the decision as to which of them should be elected has to be determined by taking into account the second preferences. 10. Rule 28 of the Order provides that the Returning Officer shall determine the result of the voting in accordance with the instructions contained in Schedule II to the Order. 10. Rule 28 of the Order provides that the Returning Officer shall determine the result of the voting in accordance with the instructions contained in Schedule II to the Order. The only part of that order which is material for our present purpose is clause 5 which, excluding the Illustration reads thus: "5. If at the end of any count, no candidate can be declared elected- (a) exclude the candidate who up to that stage has been credited with the lowest number of votes; (b) examine all the ballot papers in his parcel and sub-parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to that candidate and make a separate sub-parcel of all the exhausted papers, and (c) See whether any of the continuing candidates has, after such transfer and credit, secured the quota. If when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decide by lot which of them shall be excluded." 11. This clause, and indeed the entire Schedule, seems to presuppose and election at which there are at least three candidates, and there would have been no difficulty in applying this clause in the present case had there been, in addition to Sri Ram Saran Saxena and Sri Binda Prasad, a third candidate who had secured, say, eleven first preferences. In that event it would have been clear that Sri Ram Saran Saxena and Sri Binda Prasad together stood lowest on the poll and that one of them would necessarily have to be excluded by lot and thereafter the second preferences marked on the ballot papers of the excluded candidate would have been taken into consideration. In that event it would have been clear that Sri Ram Saran Saxena and Sri Binda Prasad together stood lowest on the poll and that one of them would necessarily have to be excluded by lot and thereafter the second preferences marked on the ballot papers of the excluded candidate would have been taken into consideration. The Schedule unfortunately makes no specific provision for the procedure which should be followed in the event of there being only two candidates who obtain an equal number of first preferences or in the event of the last two candidates securing an equal number of first preferences or in the event of the last two candidates securing an equal number of votes after the second preferences marked on the excluded candidates' ballot papers have been taken into account. It has not however been suggested to us that there are, in such circumstances, more than two alternatives. Either one of the candidates must be excluded by lot, or the second preferences marked on the ballot papers of both candidates must be taken into account. We are of opinion that the second of the two alternatives must be rejected as being wholly inconsistent with the principle underlying an election by the system of proportional representation by means of the single transferable vote. It is a fundamental feature of that system that the second preference of an elector is not taken into account unless and until the candidate who obtained his first preference has been excluded. The system does not contemplate any circumstances in which the first and second preferences of an elector are taken into account at the same time. Under this system not more than the preference of an elector can be counted in favour of any continuing candidate, and this is recognised in Cl. 5 of the schedule which makes it clear that it is only the best available preference of an excluded candidate which can be taken into account. In the case before us both candidates are continuing candidates; neither is an excluded candidate and accordingly no occasion has arisen for the taking into consideration of any second preference. 12. In our opinion the proper course to be followed in the case such as the present is to exclude one of the two candidates by lot. In the case before us both candidates are continuing candidates; neither is an excluded candidate and accordingly no occasion has arisen for the taking into consideration of any second preference. 12. In our opinion the proper course to be followed in the case such as the present is to exclude one of the two candidates by lot. Although the schedule does not, as we have pointed out, make any specific provision for the procedure to be followed in the event of there being only two candidates who obtain an equal number of first preferences, we think it does indicate the principles which is applicable. The Schedule contains instructions for Returning Officers for determining the result of an election, and it is to be presumed that such instructions are intended to cover all contingencies. Now it may happen that at an election at which there are a number of votes. How then is the of the election to be determined? Rule 5(a) provides that, if at the end of any count no candidate can be declared elected, the candidate who at that stage has been credited with the lowest number of votes is to be excluded, and if two candidates having been credited with the same number of votes stand lowest on the poll then one of them is to be excluded by lot. Now where at an election all the candidate except two have been excluded and the two continuing candidates have the same number of votes, both of them can in our opinion, without unduly stretching the language of the clause, be said to stand lowest on the poll just as both can be said to stand highest on the poll and if they can be said to stand lowest on the poll then clause 5 provides that the result of the election should be determined by lot. It is only be construing clause 5 in this manner that it is possible to provide for such a contingency, and we have no doubt that in such circumstances this is the course which the REturning Officer should follow. We are further of opinion that exactly the same procedure must be followed where there are only two candidates who obtain an equal number of first preferences. The proper course in such circumstances is for the Returning Officer to decide by lot which of the two candidates is to be excluded. We are further of opinion that exactly the same procedure must be followed where there are only two candidates who obtain an equal number of first preferences. The proper course in such circumstances is for the Returning Officer to decide by lot which of the two candidates is to be excluded. The Returning Officer in the present case was therefore in our opinion, wrong in determining the result of the election by taking into account the second preferences. 13. In the result therefore this petition succeeds, and we direct the issue of a writ in the nature of certiorari quashing the order of the Election Tribunal dated he 15th July, 1958. In the circumstances we make no order as to costs.