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2020 DIGILAW 356 (UTT)

Dhanpal Singh v. State of Uttarakhand

2020-09-30

MANOJ KUMAR TIWARI

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ORDER : Manoj Kumar Tiwari, J. 1. Heard learned counsel for the parties through video conferencing. 2. In this writ petition, the only question, which falls for consideration of this Court, is whether respondent No. 6 is rightly declared elected for the post of Jyestha Up-Pramukh, Kshetra Panchayat, Bhilangna, District Tehri Garhwal or not. 3. Admittedly, election to the said post was held according to the provisions contained in the Uttar Pradesh Kshetra Panchayats (Election of Pramukhs and Up- Pramukhs and Settlement of Election Disputes) Rules, 1994. Rule 27 of the said Rules read with Schedule-n, makes it clear that election for the said post is to be held according to Proportional Representation System, also known as 'Single Transferable Vote' System (S.T.V.). The said system is also known as 'HARE and CLARK Electoral System' and has been explained in great detail by Hon'ble Supreme Court in the case of Lalit Mohan Pandey v. Pooran Singh and others reported in (2004) 6 SCC 626 : (AIR Online 2004 SC 919). Paragraph Nos. 25 to 33 of the said judgment, where S.T.V. System has been explained, are extracted below:- "25. The Hare-Clark electoral system is a type of proportional representation system also known as the Single Transferable Vote (S.T.V.) method. Under this system, electors vote by showing preferences for individual-candidates. In order to be elected, a candidate needs to receive a quota votes. Each elector has a single vote, which can be transferred from candidate to candidate according to the preferences shown, until all the vacancies are filled. 26. As to how Single Transferable Vote works, has been explained by Vernon Bogdanor at page 81 of his book title "What is Proportional Representation/" as follows: a) In that system, voters mark preferences for candidates in the order of their choice by using the numbers 1, 2, 3, 4, 5 and so on. If there are five vacancies, voters are instructed to show five preferences; if there are seven vacancies, voters are instructed to show seven preferences. b) In order to get elected a candidate has to receive a quota of votes. However, he may be elected without a quota. This can happen when the number of candidates remaining in the count, who have not been elected or excluded (continuing candidate) is equal to the number of vacancies that remain to be filed. Suppose there are two vacancies. However, he may be elected without a quota. This can happen when the number of candidates remaining in the count, who have not been elected or excluded (continuing candidate) is equal to the number of vacancies that remain to be filed. Suppose there are two vacancies. For the said two vacancies, suppose there are five candidates. One of them attains the exact quota, then he stands elected. However, the remaining candidates do not secure the quota. Therefore, one vacancy out of two remains unfilled. For that vacancy, the candidate with the smallest number of votes is excluded and his votes are distributed to continuing candidates according to the remaining preferences. The eliminated candidate with smallest number of votes is called "excluded candidate". Votes of such excluded candidates are distributed to the continuing candidates. If in the process, any continuing candidate secures the quota, he fills up the remaining vacancy. However, if despite the addition of transferred; votes, the remaining continuing candidates do not secure the quota then Returning Officer has to continue to apply the principles of elimination till the number of continuing candidates in the count is equal to the vacancy that remains to be filled. Therefore, even under the Hare system, a candidate can be elected without a quota. It operates at two levels. In cases where a candidate receives votes in excess of the quota the said system prevents wastage of surplus votes by transfer of surplus in favour of continuing candidates. In cases where the quota cannot be attained, it eliminates the candidates having least number of votes, by principle of elimination and the votes of such excluded candidates are distributed to the remaining continuing candidates so that the resultant number is equal to the vacancy which remains to be filled. 27. In short, the Hare system works on two principles, namely, transfer of surplus votes and transfer of votes of eliminated candidates. In the present case, we are concerned with only one vacancy and three candidates and therefore the principle of transferring the votes of eliminated candidates alone is applicable. How is a candidate elected? 28. A candidate is elected when his/her total number of votes equals or exceeds the quota. What is the quota? 29. The quota is the lowest number of votes a candidate needs to be certain of election. 30. How is a candidate elected? 28. A candidate is elected when his/her total number of votes equals or exceeds the quota. What is the quota? 29. The quota is the lowest number of votes a candidate needs to be certain of election. 30. To calculate the quota, the number of formal votes is divided by one more than the number of candidates to be elected (rounded up to the next whole number). 31. If five candidates each receive a quota (just over one sixth of the formal vote) then less than one: quota of the votes remain. Is a quota rule mandatory? 32. The system states that it is always not necessary to get a quota. 33. In House of Assembly elections, it is common that the last elected member in a division is elected without obtaining a quota. In some cases the last two elected members in a division are elected without each obtaining a quota." 4. A careful perusal of the aforesaid judgment would reveal that the question, which fell for consideration before Hon'ble Supreme Court, was whether the appellant (Lalit Mohan Pandey), who was not able to achieve the quota, but, had secured highest first preference votes, in the election for the post of Adhyaksha, Zila Panchayat, should have been declared elected or not. The Returning Officer had declared the office of Adhyaksha, Zila Panchayat to be vacant, as the first respondent (Pooran Singh) got votes equal to the appellant upon elimination of the third candidate. Answer to these questions was given by Hon'ble Supreme Court in Paragraph No. 91 of the judgment, which is extracted below:- "91. For the reasons aforementioned, we are of the opinion that in the instant case the appellant herein had received the highest number of first preference votes and in that view of the matter he should have been declared elected." 5. In the present case, six candidates had submitted nomination form for the post of Jyestha Up-Pramuk, Block Bhilangna, District Tehri Garhwal, out of which, one candidate had withdrawn his nomination. Therefore, only five candidates were left in the fray. 6. Mr. Phincha Ram Chauhan, Sub Divisional Magistrate, who was appointed as Assistant Returning Officer under Rule 5 of the aforesaid Rules, has filed a counter affidavit stating that total 40 votes were cast, out of which two were declared invalid. Therefore, only five candidates were left in the fray. 6. Mr. Phincha Ram Chauhan, Sub Divisional Magistrate, who was appointed as Assistant Returning Officer under Rule 5 of the aforesaid Rules, has filed a counter affidavit stating that total 40 votes were cast, out of which two were declared invalid. Respondent No. 6 scored 12 first preference votes, which was highest; while, petitioner scored only 8 first preference votes. Schedule-II to the aforesaid Rules contains the instructions for determination of the result. Para No. 6 of Schedule-II of the aforesaid Rules is extracted below for ready reference:- "6. If at the end of any count, no candidate can be declared elected- (a) exclude the candidate who up to that stage has been credited with the lowest number of votes; (b) examine all the ballot papers in his parcel and sub-parcel, arrange the unexhausted papers in sub-parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to the 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. All the sub-parcels of exhausted papers referred to in clause (b) above shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account." 7. Admittedly, in the election in question, quota fixed was 20 and none of the candidates could achieve the quota. However, respondent No. 6 secured highest number of fist preference votes; therefore, he was rightly declared elected for the post of Jyestha Up-Pramukh, according to the procedure prescribed under Schedule-II read with Rule 27 of the aforesaid Rules. 8. Admittedly, in the election in question, quota fixed was 20 and none of the candidates could achieve the quota. However, respondent No. 6 secured highest number of fist preference votes; therefore, he was rightly declared elected for the post of Jyestha Up-Pramukh, according to the procedure prescribed under Schedule-II read with Rule 27 of the aforesaid Rules. 8. Learned counsel for the petitioner submits that since petitioner had also secured votes equal to respondent No. 6, after second round of counting and the Assistant Returning Officer had declared him elected by draw of lots, thus the Returning Officer could not have issued certificate of election in favour of respondent No. 6. 9. Petitioner has sought quashing of the certificate of election dated 18.11.2019 issued by the Returning Officer in favour, of respondent No. 6 and he has further sought a writ of mandamus commanding the Returning Officer to issue certificate of election in favour of petitioner. 10. Learned counsel for the, petitioner has relied upon a judgment rendered by Division Bench of Hon'ble Allahabad High Court in the case of Shambhoo Singh v. State Election Commission, reported in AIR 2001 All 39 , in support of his contention, that Returning Officer ceased to have any jurisdiction in the matter, once petitioner was declared elected. 11. Per contra, Mr. Dinesh Gahtori, learned counsel appearing for respondent No. 6 and Mr. Sanjay Bhatt, learned Counsel appearing for State Election Commission relied upon subsequent Division Bench judgment of Hon'ble Allahabad High Court rendered in the case of Ram Kishun, Gorakhpur v. State Election Commission and others reported in 2003 (3) AWC 2271 : (2003 AIHC 4849 (All) in support of the contention that determination of result under Rule 27 of the aforesaid Rules is not declaration of result and the Returning Officer has no jurisdiction to issue Form-VIII or any certificate till the declaration is made under Rule 29, after disposal of objection or application, if any, filed by any candidate. Paragraph No. 16 of the said judgment is extracted below:- "16. Paragraph No. 16 of the said judgment is extracted below:- "16. In view of the settled legal position, the election commences from issuance of the notification of the election and culminates in the declaration of the returned candidate and thereafter the State Election Commission, the District Magistrate and the Election Officer becomes functus officio and cease to have any jurisdiction over that election, and only authority, which can deal with and decide a complaint regarding the illegality or irregularity of the election is the Election Tribunal. However, in the case in hand, on the pleading of the parties and the material brought on record, it is difficult to hold that the petitioner was declared duly elected as prescribed under Rule 29. The alleged declaration: form produced by the petitioner, in our view, cannot be said to be a valid declaration as the same was issued at the stage of determination of result as provided under Rule 27 and not in the manner prescribed under Rule 29. Therefore, in the facts of the case, we are of the view that the alleged declaration by giving Form-VIII to the petitioner was not the declaration of result under Rule 29. That apart, the election of a Pramukh or Up Pramukh can be challenged by moving an election petition under Rule 35. Article 243(o) of the Constitution ousts the jurisdiction of every Court to entertain petition challenging the election except by an election petition presented to such authority and in such manner as provided for by or under any law made by the Legislature of a State and, therefore, the election of Pramukh can be questioned only in the manner provided under the law." 12. In view of the aforesaid legal position, this Court finds no error in the action taken by the Returning Officer. Since respondent No. 6 secured 12 first preference votes compared to 8 first preference votes secured by the petitioner, therefore, in view of provision contained in Rule 27 read with Schedule-VIII of the aforesaid Rules, respondent No. 6 was entitled to be declared elected. Reliance placed by learned counsel for the petitioner upon the Division Bench judgment of Hon'ble Allahabad High Court rendered in the case Sambhoo Sing (Supra) is misplaced. The Returning Officer becomes functus officio only when final result has been declared under Rule 29 after following the procedure under Rule 28. 13. Reliance placed by learned counsel for the petitioner upon the Division Bench judgment of Hon'ble Allahabad High Court rendered in the case Sambhoo Sing (Supra) is misplaced. The Returning Officer becomes functus officio only when final result has been declared under Rule 29 after following the procedure under Rule 28. 13. In the present case, the exercise contemplated under Rule 29 was not completed and what was done was determination of result under Rule 27. The Returning Officer was therefore justified in issuing certificate of election in favour of respondent No. 6, as held by Division Bench of Hon'ble Allahabad High Court in the case of Ram Kishun Gorakhpur (Supra). 14. In such view of the matter, there is no scope for interference in the matter. 15. Accordingly, the writ petition fails and is dismissed.