Madras High Court
V.Sahadevan vs C.Ayyakalai on 10 September, 2008
Author: V. Ramasubramanian
Bench: V. Ramasubramanian
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 10/09/2008 CORAM THE HON'BLE MR.JUSTICE V. RAMASUBRAMANIAN C.R.P.(NPD)(MD)No.848 of 2008 and M.P.(MD) No.1 of 2008 V.Sahadevan ...Petitioner Vs. 1.C.Ayyakalai 2.P.Veeranan 3.A.Ramachandran 4.V.Valakaruppan 5.Ayyavoo 6.P.Ramasamy 7.S.Arumugam 8.The Returning Officer cum The Commissioner, Madurai East Panchayath Union, Madurai. 9.The District election cum The District Collector, Madurai District, Madurai. 10.The Tamil Nadu Election Commission, represented by its Secretary, 100 feet Road, Kodambakkam, Chennai. ...Respondents PRAYER Petition filed under Article 227 of the Constitution of India against the fair and decretal order dated 8.4.2008 in E.O.P.No.14 of 2006 on the file of the First Additional District Judge, Madurai. !For Petitioner ... Mr.M.Vallinayagam ^For Respondent-1 ... Mr.G.Ethirajulu For Respondent-4 ... Mr.Rajkumar For Respondent-6 ... Mr.Pethu Rajesh For Respondents-8to 10... Addl. Govt. Pleader. :ORDER
This Civil Revision Petition, under Article 227 of the Constitution, arises out of an order passed by the Election Tribunal (First Additional District Judge, Madurai), setting aside the election of the petitioner as President of Poyyakkaraipatti Village Panchayat on 13.10.2006 as null and void and further declaring the first respondent herein as the successful candidate in the election.
2. I have Heard Mr.M.Vallinayagam, learned counsel for the petitioner, Mr.G.Ethirajulu, learned counsel for the first respondent, Mr.Rajkumar, learned counsel for the fourth respondent, Mr.Pethu Rajesh, learned counsel for the sixth respondent and the learned Additional Government Pleader for the respondents 8 to 10.
3. Elections to the Local Bodies in the State of Tamil Nadu were held in October 2006. The petitioner and the respondents 1 to 7 contested the election for the post of President of Poyyakkaraipatti Village Panchayat. The election schedule was as follows:-
Publication of Election Notice - 20.9.2006 Last date for Nominations - 27.9.2006 Scrutiny of Nominations - 28.9.2006 Withdrawal of Nominations - 30.9.2006 Date of election - 13.10.2006 Date of counting and declaration of result - 18.10.2006
4. In the final tally, the petitioner herein was declared to have secured 472 votes and the first respondent herein was declared to have secured 470 votes. As a person, who had secured the highest number of votes, the petitioner herein was declared elected as the President of the Poyyakkaraipatti Village Panchayat.
5. Within a few days, the first respondent herein filed an Election Petition in EOP No.14 of 2006 under Section 258 (1) of the Tamil Nadu Panchayats Act, 1994 r/w Rules 122 and 133 of the Tamil Nadu Panchayats (Election) Rules 1995, on the file of the Principal District Court, Madurai. Three issues were raised before the Election Tribunal namely, (i) that the petitioner was disqualified from contesting the elections, (ii) that the petitioner was guilty of corrupt practices and (iii) that the votes polled in three booths required recounting.
6. After enquiry, the Election Tribunal passed an order holding that the petitioner herein was disqualified from contesting the election. However, the Tribunal held the second issue in favour of the petitioner holding that the allegations of corrupt practices were not proved. On the third issue, the Election Tribunal held that there was no need for recounting, in view of the finding on the first issue that the petitioner was disqualified from contesting the election. Therefore, by an order dated 8.4.2008, the Election Tribunal allowed the petition filed by the first respondent, declaring the election of the petitioner, as the President of the Village Panchayat, as null and void and declaring the first respondent to be the duly elected successful candidate. It is against the said order that the petitioner has come up with the present Civil Revision Petition under Article 227 of the Constitution.
7. Before getting into the controversies raised in a Civil Revision Petition, it is to be noted that though the petitioner came up with the present Civil Revision Petition immediately after the order of the Election Tribunal, the first respondent was sworn in as the President of the Village Panchayat, on 30.4.2008 and hence no interim order was passed in favour of the petitioner. Therefore, as on date, the first respondent is functioning as the President of the Village Panchayat.
8. I have been saved of the botheration of considering the second and third issues raised in the Election Petition namely, the allegation of corrupt practice and the request for recounting, since the second issue was answered by the Tribunal in favour of the petitioner and the third issue was not gone into by the Election Tribunal on account of its finding on the first issue and the first respondent has not challenged those findings.
9. Therefore only two issues are raised before me, namely, (i) whether the petitioner could be considered to be a candidate disqualified from contesting the election and (ii) whether the Election Tribunal was right in declaring the first respondent to be the successful candidate, after setting aside the election of the petitioner.
Issue of disqualification:
10. By a notification bearing No.36 dated 5.1.2004, published in Tamil Nadu Government Gazette Extraordinary dated 6.2.2004, a lot of candidates, who had earlier contested Panchayat Elections, were declared as disqualified for a period of 3 years, on account of failure to submit an account of the election expenses incurred by them earlier, as per Rule 120 of the Tamil Nadu Panchayats (Election) Rules 1995. The name of the petitioner was found at Serial No.297 of the said notification published in the Gazette, since the petitioner admittedly contested an election in the year 2001 and failed to submit the accounts.
11. Against the said notification, the petitioner filed a writ petition in W.P.No.8986 of 2006 on the file of this Court. Pending writ petition, the petitioner sought interim stay of the notification declaring him as disqualified, in Miscellaneous Petition No.2 of 2006. In the said petition for stay, this Court passed an order on 27.9.2006, to the following effect:-
"Notice for admission.
2. The petitioner challenges the Government Notification No.36 issued on 5.1.2004 and published in Government Gazette on 6.2.2004 whereunder he has been disqualified. The petitioner's name finds place at Serial No.297 (Madurai District list) in the election notification. It is stated in the affidavit and by the counsel on record that the show cause notice has not been served on the petitioner and the order disqualifying the petitioner in terms of Gazette Notification has not been communicated to the petitioner. Therefore, no opportunity has been given to the petitioner. Hence, on the ground of violation of principles of natural justice, the petitioner has sought for stay.
3. Heard Mrs.V.Chellammal, learned Special Government Pleader appearing for the respondents. She would submit that all the procedure prescribed under the Act have been followed. It was submitted that interim orders were passed by the Principal Bench in similar matters pending the writ petition. The counsel for the petitioner is emphatic in his stand that no show cause notice has been served on the petitioners. He further submits that if it is shown by the respondents that show cause notice had in fact been served on the petitioner he will not seek extension of the interim order. Therefore, pending verification of all the claims, there will be an order of ad interim stay till 10.10.2006. The election result will however be subject to the result of the writ petition. Post the matter on 9.10.2006 for counter."
12. By virtue of the above stay order, granted on 27-9-2006, the petitioner filed his nomination on the same day, namely 27-9-2006 and the same was also accepted and he was permitted to contest the election. The order of stay was extended from time to time, but ultimately, on 13.2.2007, this Court passed the following order:-
"Considering the facts and circumstances of the case, the order of interim stay is vacated."
13. By the time the interim stay was vacated on 13.2.2007, the election had taken place on 13.10.2006 and the petitioner had been declared elected on 18.10.2006 and he had also assumed office. But the Election O.P., filed by the first respondent herein was pending before the Tribunal.
14. Since a batch of similar cases were pending before this Court, challenging the notification of disqualification of several candidates, I took them for disposal and disposed them of by a common order dated 1.10.2007, the operative portion of which reads as follows:-
"5. In so far as the petitioners who contested elections in October 2006 and who lost, are concerned, there is nothing that survives for adjudication in these writ petitions, since the period of disqualification had already come to an end and they did not get elected, when the period of disqualification was in force. But in so far as the candidates who succeeded in the election are concerned, unless their election had been challenged before the appropriate District Court in a duly instituted election petition, I do not think that the issue can any more be agitated. Even if the disqualification of any petitioner, who got elected is upheld, the unselected candidates ought to have challenged the election by way of election O.P before the District Court without which, the determination of the issue in the writ petition would be a meaningless exercise. Therefore all the writ petitions are dismissed. In so far as the candidates who succeeded in the elections held in October 2006 are concerned, if any election petition is pending, the issue of disqualification may also be raised therein as independent issue. If no election petition is pending, the decision in the writ petition is not really going to affect their elections. In so far as the candidates who contested and did not get elected in the elections held in October 2006 and in so far as the candidates who never contested in the election held in October 2006 are concerned, the period of disqualification is already over. Therefore, all the writ petitions are dismissed."
15. Though the writ petition filed by the petitioner herein in W.P.No.8986 of 2006 did not form part of the batch of cases disposed of as above, the first respondent cited the above decision before the Election Tribunal and contended that in view of the vacation of the interim stay order on 13.2.2007 and the observations of this Court in the final order passed in the batch of cases, the petitioner should be treated as a candidate disqualified for contesting the election. This contention was accepted by the Election Tribunal and the original petition was ordered.
16. There is no dispute about the fact that due to non submission of accounts of the expenses incurred in the previous election, the petitioner was declared to be disqualified for a period of 3 years, by the Notification No.36 published on 6.2.2004. The disqualification was to be for a period of 3 years upto 5.2.2007. Therefore the petitioner could not have contested the election, but for the interim stay granted by this Court on 27.9.2006. The interim stay enabled the petitioner to file his nomination on 27.9.2006. It also enabled the Returning Officer to accept his nomination.
17. There is also no dispute about the fact that the interim stay was vacated by this Court on 13.2.2007. Therefore the disqualification that the petitioner suffered on the date of filing the nomination, stood revived with the stay getting vacated. The interim stay was only an umbrella cover on the disqualification suffered by the petitioner and once the cover was removed, the petitioner stood exposed to the sunshine of disqualification. In such circumstances, I cannot find fault with the finding of the Election Tribunal in respect of issue No.1 that the petitioner was disqualified from contesting the election.
18. Moreover, it was made clear in the decision rendered in the batch of cases on 1.10.2007 that in so far as the candidates who succeeded in the election, the issue of disqualification may also be raised as an independent issue, if any election petition was pending. This enabled the first respondent to raise the issue of disqualification and the Election Tribunal could answer the issue only in the way in which it has done.
19. Mr.M.Vallinayagam, learned counsel for the petitioner attempted to put up a brave defence, by contending that on the date on which the election petition was filed, the petitioner was protected by an order of stay and that therefore there was no cause of action for the first respondent to raise the plea of disqualification. But such a contention cannot be accepted in view of the statutory provisions and also in view of what is meant by cause of action. Section 258 of the Tamil Nadu Panchayats Act, 1994 fixes a time limit of 45 days from the date of publication of the result of an election, for calling in question, the election of a President or Chairman or Member. Section 259(1)(a) empowers the District Judge (Election Tribunal) to declare the election of the returned candidate as void, if he is of the opinion that on the date of his election, he was disqualified to be chosen as a member. Therefore, the cause of action for a person to file a petition under Section 258, is the election itself and not the disqualification suffered nor the stay order granted nor even the vacation of the stay order. The disqualification of a person, the stay obtained by him and the vacation of the stay are all matters which would have paled into insignificance, if that candidate had lost the race. It is only the contest of a person in an election and his success, that gives a substantial cause of action for a person. Moreover, the first respondent challenged the election of the petitioner not merely on the ground of disqualification but also on the allegations of corrupt practices. Therefore the first respondent certainly had a cause of action to challenge the election of the petitioner herein on the date of filing the election O.P. The stay order merely kept the issue of disqualification under cloud on the date of filing the election O.P. The vacation of the stay cleared the sky on the issue and hence I cannot accept the contention of the learned counsel for the petitioner that there was no cause of action for the first respondent to file the election O.P. Therefore the finding on issue No.1 by the Election Tribunal that the petitioner was a disqualified person, is perfectly in order and it does not call for any interference. Consequently the order of the Tribunal setting aside the election of the petitioner is also in order and cannot be interfered with.
Issue of declaring the first respondent as elected candidate:
20. Mr.M.Vallinayagam, learned counsel for the petitioner contended that the Tribunal committed a serious irregularity in declaring the first respondent to be duly elected. According to the learned counsel for the petitioner, even if Election Tribunal found the petitioner to be disqualified, the Election Tribunal could have only ordered a repoll and not declared the first respondent as the successful candidate. In order to test the correctness of the said contention, it is relevant to scan the provisions of the Tamil Panchayats Act, 1994 and the Tamil Nadu Panchayats (Election) Rules 1995.
21. Section 33 of the Tamil Nadu Panchayats Act, 1994, hereinafter referred to as the 'Act', speaks of the qualification of candidates for election as Member or President of a Panchayat. Section 34 disqualifies Government Servants and others similarly placed from being elected as a Member or from holding Office as a Member. Section 35 disqualifies persons convicted of certain offences under the Act or under the IPC from being elected or from holding Office. Section 36 speaks of disqualification of voters. Section 37 enlists the disqualifications of candidates. For our present purpose, Sub Section (4) of Section 37 is of relevance and it reads as follows:-
"(4) If the Tamil Nadu State Election Commission is satisfied that a person, --
(a) has failed to lodge an account of election expenses within the time and in the manner required by or under this Act, and
(b) has no good reason or justification for the failure, the Tamil Nadu State Election Commission shall, by order published in the Tamil Nadu Government Gazette, declare him to be disqualified for being chosen as, and for being, a Member or President, as the case may be, and any such person shall be disqualified for a period of three years from the date of the order."
22. Section 38 deals with disqualification of elected members upon certain contingencies. Section 41 prescribes the authority and the manner in which such authority shall decide questions of disqualification of elected members. It reads as follows:-
"41. Authority to decide questions of disqualification of members.--(1) Whenever it is alleged that any person who has been elected as a member of a Panchayat or who becomes a Member of a Panchayat is not qualified or has become disqualified under Sections 33, 35, 37, 38 and 40, the Executive Authority or the Commissioner or the Secretary as the case may be, shall, by notice in writing inform such member of the allegation and place the matter at the next meeting of the Panchayat concerned. If before the date of the expiry of two months from the date of receipt of such notice, such member does not apply to the prescribed judicial authority under Sub Section (2), he shall become not qualified or disqualified from such date of expiry of the said two months. (2) The Executive Authority or the Commissioner or the Secretary, as the case may be, if so directed by the Panchayat or by the Tamil Nadu State Election Commissioner, shall, or any such member or any other member may apply to the prescribed judicial authority whose decision on such allegation shall be final. (3) Where an application has been made under Sub Section (2), the member shall, pending on such application be entitled to act as if he is qualified or was not disqualified.
(4) Nothing contained in this Section shall be deemed to affect the provisions of Section 39."
23. As stated earlier, Section 258 (1) bars the election of a President or Chairman or Member from being called in question except by way of an Election Petition presented to the District Judge within 45 days. Sub Section (2) of Section 258 prescribes that an Election Petition may be presented on any one or more of the grounds specified in Section 259. Sub-Section (1) of Section 259 alone is of relevance for the present discussion and hence it is extracted as follows:-
"259. Grounds for declaring elections to be void.--(1) Subject to the provisions of Sub Section (2), if the District Judge is of opinion ---
(a) that on the date of his election a returned candidate was not qualified or was disqualified, to be chosen as a member under this Act, or,
(b) that any corrupt practice has been committed by a returned candidate or his agent or by any other person with the consent of a returned candidate or his agent, or
(c) that any nomination paper has been improperly rejected, or
(d) that the result of the election insofar as it concerns a returned candidate has been materially affected ---
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by a person other than that candidate or his agent or a person acting with the consent of such candidate or agent, or
(iii) by the improper acceptance or refusal of any vote or reception of any vote which is void; or
(iv) by the non-compliance with the provisions of this Act or of any rules or orders made thereunder, the Court shall declare the election of the returned candidate to be void."
24. Rule 127 of the Tamil Nadu Panchayats (Election) Rules 1995 indicates the relief that a person is entitled to seek in an Election Petition. Rule 127 reads as follows:-
"127. Relief that may be claimed by the petitioner.--
A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."
25. The orders that could be passed by an Election Court are enlisted in Rule 134, which reads as follows:-
"134. Decision of the Election Court.--
At the conclusion of the trial of an election petition, the Election Court shall make an order--
(a) dismissing the election petition; or
(b) declaring the election of all or any of the returned candidates to be void; or
(c) declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected."
26. The grounds for declaring the election of a person to be void are specified in Rule 136. Similarly the grounds on which a candidate other than a returned candidate may be declared as elected, are provided in Rule 137. Rules 136 and 137 read as follows:-
"136. Grounds for declaring election to be void.---
If the Election Court is of opinion--
(1) that the existence of all or any of the grounds specified in Section 259 of the Act, has been established, or (2) that on the date of his election, a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under this Act, then the Court may declare the election of the returned candidate to be void."
"137. Grounds on which a candidate other than the returned candidate may be declared to have been elected.--
If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the Election Court is of opinion--
-
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, the Election Court shall, after declaring the election of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be, to have been duly elected."
27. A perusal of the Act and the Rules, would show that the Act itself does not contain a provision enabling a person to seek a declaration that he is the successful candidate. Section 259 (1) of the Act empowers the Court only to declare the election of the returned candidate to be void. Section 259 (2) of the Act empowers the Court to declare that the election of the returned candidate is not void. Thus the Act does not contain any provision for declaring any candidate other than the returned candidate to be the successful candidate by the Election Court.
28. The Tamil Nadu Panchayats (Election) Rules 1995 have been issued in exercise of the powers conferred by Section 242 of the Act. Section 242 (2) empowers the Government to make Rules relating to matters enlisted thereunder, one of them being "adjudication of disputes arising out of election, by the District Judge having jurisdiction".
29. If the above provisions of the Tamil Nadu Panchayats Act, 1994 and the Tamil Nadu Panchayats (Election) Rules 1995 are compared with similar provisions in the Representation of the People Act, 1951, it is seen that Section 84 of the Representation of the People Act, 1951 itself enables a person to claim the relief of declaring him to be the successful candidate. Section 84 of the Representation of the People Act, reads as follows:-
"84. Relief that may be claimed by the petitioner:-
A petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected."
The language of Rule 127 of the Tamil Nadu Panchayats (Election) Rules, 1995 is borrowed from the above Section 84.
30. Similarly Section 98 of the Representation of the People Act, 1951 lists out the type of orders that could be passed by the High Court in the Election Petition. The language of Rule 134 of the Tamil Nadu Panchayats (Election) Rules 1995 is in pari materia with Section 98 of the Representation of the People Act, 1951. Section 98 reads as follows:-
"98. Decision of the High Court:-At the conclusion of the trial of the an election petition the High Court shall make an order --
(a) Dismissing the election petition; or
(b) Declaring the election of all or any of the returned candidates to be void; or
(c) Declaring the election of all or any of the returned candidates to be void and the petitioner or any other candidate to have been duly elected."
31. Section 100 of the Representation of the People Act, 1951 is similar to Section 259. Section 101 is in pari materia with Rule 137 of the Tamil Nadu Panchayats (Election) Rules 1995. Section 101 of the Representation of the People Act, 1951 reads as follows:-
"101. Grounds for which a candidate other than the returned candidate may be declared to have been elected:-If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion --
(a) that in fact the petitioner or such other candidate received a majority of the valid votes; or
(b) that but for the votes obtained by the returned candidate by corrupt practices the petitioners or such other candidate would have obtained a majority of the valid votes, the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have been duly elected."
Thus the power of a High Court to declare the petitioner or anyone else as the successful candidate, in an Election Petition under the Representation of the People Act sprouts from the very statute itself.
32. Since the language of Rule 137 of the Tamil Nadu Panchayats (Election) Rules 1995 appears to have been borrowed from Section 101 of the Representation of the People Act, 1951, an interpretation given to Section 101 by the Constitution Bench of the Apex Court is of importance. It was in Vishwanatha Reddy Vs. Konappa Rudrappa Nadgouda {AIR 1969 SC 604}. In that case, the election of a person to the Legislative Assembly was challenged on the ground that the returned candidate was disqualified from contesting. Though the High Court dismissed the Election Petition, the Supreme Court allowed the appeal and held the returned candidate to be disqualified on the date of contesting the election. As a consequence, the Supreme Court declared the petitioner under Section 101 of the Representation of the People Act, 1951 to be the successful candidate. However, the said decision was later reviewed in view of the decision of the Apex Court in an earlier case and after allowing the review, the appeal was placed before the Constitution Bench.
33. After extracting the provisions of Sections 84 and 101 of the Representation of the People Act, 1951 and after considering the earlier decision in Keshav Laxman Borkar's case {AIR 1960 SC 131}, the Supreme Court held in paragraphs 12 and 13 of the decision as follows:-
"12. But in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country. Section 53 of the Representation of the People Act renders a poll necessary only if there are more candidates contesting the election than the number of seats contested. If the number of candidates validly nominated is equal to the number of seats to be filled, no poll is necessary. Where by an erroneous order of the Returning Officer poll is held which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared elected. The rule enunciated by the Courts in the United Kingdom has only the merit of antiquity. But the rule cannot be extended to the trial of disputes under our election law, for it is not consistent with our statute law, and in any case the conditions prevailing in our country do not justify the application of that rule. If the rule is applied in our country, the provisions of Section 84 read with Section 101 (a) would practically be nugatory. Apart from the immense cost of intimating each voter in the vast electorate in the constituencies the rule that a defeated candidate may be declared elected only if he pleads and proves that the voters had notice of the disqualification would render the exception in the context of prevailing illiteracy and ignorance of large sections of the electorate in our country, a dead letter. A very large percentage of the electorate in our country is, unfortunately illiterate and sections thereof not infrequently speak a language different from the language of the Majority. It would be well-nigh impossible to give information of the disqualification of a candidate in a medium which the illiterate electors understand. We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated but who is in truth disqualified, could still be treated as valid votes, for the purposes of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.
13. The view that we are taking is consistent with the implication of Clause (b) of Section 101. When in an Election Petition which complies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained a majority of votes. In cases falling under Clause (b) of Section 101 the Act requires merely proof of corrupt practice, and obtaining votes by corrupt practice: it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice. If for the application of the rule contained in Clause (b) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause (a). The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of filing of the nomination paper."
34. The "Doctrine of thrown away votes", propounded in Vishwanatha Reddy's case was again examined by a Three Member Bench of the Supreme Court in Thiru John Vs. Subrahmanyan {AIR 1977 SC 1724}. In that case, nominations were called for filling up 6 vacancies to the Rajya Sabha from the State of Tamil Nadu in March 1974. Though 11 candidates filed nominations, 3 withdrew leaving 8 in the field. The poll was held on 21.3.1974. Naturally 6 out of 8 in the fray got elected. The unsuccessful candidates by name R.Mohanarangam and V.Subrahmanyan filed Election Petitions, for declaring the election of one D.C.John to be void. Both the unsuccessful candidates also claimed a further declaration under Section 101 of the Act that they be declared as successful candidates. R.Mohanarangam, apart from his Election Petition, also filed a Recriminatory Petition against V.Subrahmanyan. The High Court found that D.C.John was less than 30 years of age on the date of election and was not qualified to contest the election. Consequently, the High Court set aside his election, but declined to grant a further declaration under Section 101 in favour of either of the election petitioners. Both D.C.John and V.Subrahmanyan filed the appeals. The appeals filed by D.C.John were dismissed on the basis of the evidence on record that he was under aged for contesting the election on the relevant date. While considering the appeal filed by V.Subrahmanyan, the Apex Court considered the doctrine of thrown away votes as propounded in Vishwanatha Reddy's case and held in paragraphs-53 to 60 as follows:-
"53. This takes us to the next question. Should all the votes that had polled in favour of the candidate (Shri John) who has been found by the Court to be statutorily disqualified for election, be regarded as thrown away, and in consequence, the appellant, Shri Subrahmanyan, who secured 300 votes as against none obtained by Shri Mohanarangam, be declared elected?
54. Again, the answer to this question, in our opinion, must be in the negative. It is nobody's case that the electors who voted for Shri John had at the time of election, knowledge or notice of the statutory disqualification of this candidate. On the contrary, they must have been under the impression that Shri John was a candidate whose nomination had been validly accepted by the Returning Officer. Had the electors notice' of Shri John's disqualification how many of them would have voted for him and how many for the other continuing candidates, including Sarv-Shri Subrahmanyan and Mohanarangam, and in what preferential order, remains a question in the realm of speculation and unpredictability.
55. In the view we take, we are fortified by the observations in this Court's decision in R.M.Seshadri Vs. G.V.Pai, AIR 1969 SC 692 at page 701. In that case, the election of R.M.Seshadri to the Madras Legislative Council was set aside on the ground that he was guilty of the corrupt practice of hiring or procuring motor vehicles to carry voters. The total votes polled were 12,153. Since the voting was by a single transferable vote, three out of the five candidates were eliminated at different counts with the result that their votes were transferred to the second candidate named in the ballot. At the final count Seshadri received 5643 votes and his nearest rival G.V.Pai received 5388 votes. The number of voters who were carried in the hired or procured vehicles could not be ascertained.
56. Before this Court, it was contended that the election of Seshadri having been set aside, G.V.Pai, who had polled the next highest number of votes should be declared elected. Hidayatullah C.J., speaking for the Court, rejected this contention with these observations:
"This (question) will depend on our reaching the conclusion that but for the fact that voters were brought through this corrupt practice to the polling booths, the result of the election had been materially affected. In a single transferable vote, it is very difficult to say how the voting would have gone, because if all the votes which Seshadri had got, had gone to one of the other candidates who got eliminated at the earlier counts, those candidates would have won. We cannot order a recount because those voters were not free from complicity. It would be speculating to decide how many of the voters were brought to the polling booths in a car. We think that we are not in a position to declare Vasanta Pai as elected, because that would be merely a guess or surmise as to the nature of the voting which would have taken place if this corrupt practice had not been perpetrated."
57. The position in the instant case is not better. It is extremely difficult, if not impossible, to predicate what the voting pattern would have been if the electors knew at the time of election, that Shri John was not qualified to contest the election. In any case, Shri Subrahmanyan was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared elected.
58. The dictum of this Court in Vishwanatha Vs. Konappa (AIR 1969 SC 604) (supra) does not advance the case of the appellant, Shri Subrahmanyan. In that case, the election in question was not held according to the system of a single transferable vote. There were only two candidates, in the field for a single seat, and one of them was under a statutory disqualification. Shah J. (as he then was) @ page-SC 1735 speaking for the Court, held that the votes cast in favour of the disqualified candidate may be regarded as thrown away, even if the voters who had voted for him were unaware of the disqualification, and the candidate securing the next highest number of votes was declared elected. The learned Judge was however careful enough to add:
"This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification, have voted for the disqualified candidate."
59. The ratio decidendi of Vishwanatha Vs. Konappa (AIR 1969 SC 604) is applicable only where (a) there are two contesting candidates and one of them is disqualified, (b) and the election is on the basis of single non-transferable vote. Both these conditions do not exist in the present case. As already discussed, Shri Subrahmanyan appellant was not the sole surviving continuing candidate left in the field, after exclusion of the disqualified candidate, Shri John. The election in question was not held by mode of single transferable vote, according to which a simple majority of votes secured ensures the success of a candidate, but by proportional representation with single transferable vote, under which system the success of a candidate normally depends on his securing the requisite quota.
60. However, the principle underlying the obiter in Vishwanatha Vs. Konappa (AIR 1969 SC 604) which we have extracted, is applicable to the instant case because here after the exclusion of the disqualified candidate, two continuing candidates were left in the field."
35. A Division Bench of the Calcutta High Court also had an occasion to consider the doctrine of thrown away votes, much before the Apex Court did in Vishwanatha Reddy's case. In the said decision, Jagadananda Roy Vs. Rabindra Nath Sikdar {AIR 1958 Calcutta 533}, it was held in paragraphs-18 and 20 to 22 as follows:-
"18. The doctrine of 'thrown away' votes is based on the principle of a fair inference of wilful perverseness on the part of the electors, voting for the disqualified candidate. That inference, however, is permissible only under certain circumstances, namely, where the voters, "before the voting, having had or must be deemed to have had notice of the facts, creating the candidate's disqualification", or, in other words, actual or constructive notice of the same, which may arise from the notoriety of the particular fact or facts or otherwise. Votes, given without such notice, would be good votes. Neither the case cited by Mr.Kar, namely, Beresford-Hope Vs. Lady Sandhurst {(1889) 23 QBD 79 (A)}, nor the passages, cited by him from Halsbury's Laws of England, namely, the first part of Section 549, p. 305, vol. 14, 3rd Edition, would support any other conclusion.
The question of thrown away votes would not and cannot arise unless the votes were cast in favour of the disqualified candidate with notice or knowledge of the disqualification or of the facts, creating the same. Such notice or knowledge may be actual or constructive and may arise from the notoriety of the fact, on which the disqualification is based, or otherwise. But, where the votes are cast without notice or knowledge of the basic fact of the particular disqualification, they would be good votes and would not be thrown away. Possibly, notice of the law would not be necessary as every voter may be presumed to know the law, {Vide Gosling Vs. Veley, {(1847) 7 QB 406 at p.439 (B) and {(1889) 23 QBD 79 at p.85 (A)}. See also Halsbury's Laws of England, 3rd Edition, vol. 14, page 305, Sec.549, citing Fermanagh and South Tyrone Division Case (1955), cited in 105 L. Jo. 594), although, at one time, a different view appears to have prevailed on the point, vide Reg Vs. Mayor of Tewkesbury, {(1868) 3 QB 629 (C)}. This latter case, however, is regarded as overruled by Lady Sandhurst's case (A), cited above {vide Rogers on Elections, Vol. II, page 83 and Vol. III, pages 86 and 87}. The preponderant view also seems to be that it is not in respect of every disqualification that the question would arise of 'thrown away' votes, even where the votes are cast with notice or knowledge of the disqualification or of the facts, creating it, but that it arises only where the qualification is founded on some positive and definite fact, existing or established at the time of the poll" and the passages, cited by Mr.Kar from Halsbury's Laws of England, have reference to that aspect of the matter. Those passages, however, state only part of the law on the point and it is an incomplete statement of the same without the subsequent passages which run as follows:
"For the votes, given for a candidate, to be thrown away the voters must, before voting, either have had or be deemed to have had notice of the facts, creating the candidate's disqualification. It is not necessary to show that the elector was aware of the legal result that such a fact entailed disqualification. Votes given without such notice are good."
and which are followed by the very significant passage to the effect that "if, after deducting the votes, given after such notice, from the total number of votes, given for the disqualified candidate, he remains in a majority, the minority candidate cannot be seated and there must be a fresh election." This passage, last quoted above, unmistakably shows that the law is not as contended for by Mr.Kar but that it has been correctly set out by us above. In Rogers on Elections also, we find a similar statement of the law, so far as the requirement of notice or knowledge is concerned, where the learned author says that "votes may be lost or thrown away by voting for a candidate, who is disqualified, after notice of disqualification or with knowledge of the disqualification or of the fact, creating it", vide Vol.II (Parliamentary Elections), page 80, and Vol. III (Municipal and other Elections), page 84, and, in the course of discussion, all the relevant cases on the point including Lady Sandhurst's case, cited and relied on by Mr.Kar, are discussed and commented upon and explained by the learned author and he then sums up the 'knowledge' part of the law as follows:
"The result of the above decisions is that an elector, who votes for a disqualified candidate, with knowledge either of the disqualification or of the facts, creating the disqualification, throws away his vote; and such knowledge will be presumed where the disqualification or the facts, creating the disqualification, are notorious."
We do not think that the law is different where there is notice in place of knowledge and the foregoing discussion will amply bear that out.
21. For our present purpose, it is unnecessary to prolong the discussion. We would only add that, in {(1889) 23 QBD 79 (A)}, the notorious fact that the candidate was a woman was per se notice of the same and the Court proceeded upon the view that that fact was known to all the voters concerned {Vide pages 94 and 99 of the Report; vide also Hobbs Vs. Morey {(1904) 1 KB 74 at pages 78-79 (D)} and, for a concise statement of the relevant law, we would refer to {(1847) 7 QB 406 at p. 439 (B), where Lord Denman, C.J., in delivering the judgment of the Court, observed inter alia as follows:
"Where the disqualification depends upon a fact which may be unknown to the elector he is entitled to notice, for, without that, the inference of assent (which is essential for inferring wilful perverseness on the part of the elector) could not be fairly drawn nor would the consequence as to the vote (that is, of its being thrown away) be just. But, if the disqualification be of a sort whereof notice is to be presumed, none need expressly be given; no one can doubt that, if an elector would nominate and vote only for a woman, to fill the office of mayor or burges in Parliament, his vote would be thrown away; there the fact would be notorious and every man would be presumed to know the law upon that fact.
22.What we have said above is enough for our present purpose but, to complete reference to important cases on the subject, we would cite Claridge Vs. Evelyn {(1821) 5 B & Ald 81 (E)} and Drinkwater Vs. Deakin {(1874) 9 CP 626 (F)}, which latter case is definitely against Mr.Kar's contention, and we would conclude by pointing out that in Lady Sandhurst's case (A), Drinkwater's case (F), was accepted as containing a correct statement of the law on the point and that the former case was really decided upon the view of notice, presumed or implied from notoriety of the basic fact. This, indeed, is clear from the Master of the Rolls Lord Esher's judgment and also from the passages, which follow the citation of Mr.Kar, in Lord Coleridge's judgment at page 94 of the Report."
36. In Prakash Khandre Vs. Dr. Vijay Kumar Khandre and Others {(2002) 5 SCC 568}, a three Member Bench of the Apex Court considered the very same question as has arisen in the present case. The question formulated by the Supreme Court for consideration, as found in paragraph-1 of the decision, reads as follows:-
"1. In an election petition under the Representation of the People Act, 1951 (hereinafter referred to as "the Act"), when contest for election to the post of MLA is by more than two candidates for one seat and a candidate, who was disqualified to contest the election, is elected - whether the Court can declare a candidate who has secured next higher votes as elected?"
After analysing the case law, from the decision of the Constitution Bench in Vishwanatha Reddy's case and the decision in Thiru John's case and R.M.Seshadri's case, the Supreme Court held in paragraphs 14 and 24 as follows:-
"14. However, in an election where the elected candidate is declared to be disqualified to contest election and there are more than two candidates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disqualified elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disqualified candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than the other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, declaring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected."
"24. In view of the aforesaid settled legal position, in our view, the impugned order passed by the High Court declaring the election petitioner as elected on the ground that the votes cast in favour of the elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konappa case {(1969) 2 SCR 90 : AIR 1969 SC 604} that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as "thrown away" only if the voters had noticed before the poll the disqualification of the candidate, has no application in our country and has only merit of antiquity. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case, for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that the elected candidate was disqualified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disqualification to contest the election and what would have been the voting pattern. Therefore, order passed by the High Court declaring the election petitioner Dr.Vijay Kumar Khandre as elected requires to be set aside."
37. On a careful reading of the ratio laid down by the Constitution Bench in Vishwanatha Reddy's case and later explained by a Three Member Bench in Thiru John's case and recently confirmed by another Three Member Bench in Prakash Khandre's case, the following principles emerge:-
(a) Where the contest is limited only to two candidates and one of them is found by the Court, in an election petition, to have been disqualified on the date of the election, it is permissible for a Court to declare the other candidate as the successful candidate. In such circumstances, the "Doctrine of thrown away votes" can be invoked. This is on account of the fact that if the Returning Officer himself had rejected the nomination of such a candidate on the basis of the disqualification, only one candidate would have been left in the fray. If only one candidate is left in the fray, the election would have been an uncontested election, covered by Section 53 (2) of the Representation of the People Act, or Rule 32 (1)(a) of the Tamil Nadu Panchayats (Election Rules) 1995.
(b) But if there are more than two contesting candidates, the mere declaration of the election of the returned candidate as void, will not by itself entitle the election petitioner or any other candidate to be declared as elected. This is in view of the ratio laid down in Lata Devi (Mali) Vs. Haru Rajwar {1989 4 SCC 733} quoted with approval in paragraph-22 of Prakash Khandre's case.
(c) When there are more than two candidates in the contest and one of them is declared by the Court in an election petition as having been disqualified on the date of the election, it does not necessarily follow as a corollary that all the votes cast in favour of the returned candidate were "invalid votes" or "thrown away votes". To treat all the votes polled in favour of the returned candidate as invalid or thrown away votes, it must be established that the voters had knowledge of such disqualification and yet voted in the manner that they did. Law presumes knowledge on the part of the electors in respect of some types of disqualification. The Courts have assigned the term "notoriety of basic fact" for such types of disqualification. The Division Bench of the Calcutta High Court in Jagadananda Roy's case {AIR 1958 CALCUTTA 533} referred to the famous English decision in Beresford-Hope Vs. Lady Sandhurst {(1889) 23 QBD 79}, where a woman contested the election though men alone were allowed to contest.
The fact that the returned candidate was a woman not entitled to contest, is a fact of which the electors were presumed to have had knowledge, since it was obvious. In cases where the disqualification is not so notorious as to raise a presumption of knowledge on the part of the electors, the votes polled in favour of the returned candidate, cannot be treated as invalid or thrown away votes.
(d) Where the disqualification of the returned candidate is kept suspended by orders of stay or injunction granted by a Court, the votes polled in favour of such a candidate cannot be treated as invalid or thrown away votes. The order of stay of the disqualification granted by the Court, is itself a message sufficient for the electors to presume that such a candidate is entitled to have their votes. Therefore the question of discarding their votes as invalid post facto would infringe upon the freedom of choice available to the electors in a democratic republic.
(e) Rule 29 of the Tamil Nadu Panchayats (Elections) Rules, 1995 prescribes a detailed procedure for scrutiny of nominations. As per the said Rule, the Returning Officer should take up the scrutiny of nominations on the date and hour already notified, at the place fixed for the purpose. Every candidate is entitled to be present thereat, along with one of his proposers and one other person duly authorised by him. The Returning Officer is obliged to give all reasonable facilities for all candidates to examine the nomination papers of all the candidates. If any person objects to any nomination, either orally or in writing, the Returning Officer should examine the nomination papers and decide one by one and ward by ward, all objections and may even reject the nomination of any of the candidates. One of the grounds on which the Returning Officer is entitled to reject the nomination of a candidate under Rule 29 (3)(a) is the lack of qualification or the disqualification on the part of the candidate. The proviso to Rule 29(7) empowers the Returning Officer to allow the candidate whose nomination is objected to, sufficient time to rebut the objections. Thereafter the Returning Officer is to give his decision and endorse on each nomination paper, as per Rule 29(8), his decision accepting or rejecting the same. If a nomination is rejected, he is obliged to record reasons and to furnish a copy to the candidate concerned. After these formalities are completed, the Returning Officer is obliged under Rule 29(9) to prepare a list of validly nominated candidates in Form 6 and publish a copy thereof at the place notified for receipt of nominations. Interestingly, Rule 29(9) as it originally stood merely spoke about a list in Form 6 containing the list of "nominated candidates". But by an amendment issued in G.O.Ms.No.282, Rural Development Department, dated 30.10.2000, the word "validly" is inserted along with the words "nominated candidates". Therefore the list published in Form 6 by the Returning Officer, is a list of "validly nominated candidates". Hence when the electors go to poll, on the basis of the list published by the Returning Officer, the electors are entitled to presume that the names found in the list are that of "validly nominated candidates". Consequently, the votes polled by the electors in favour of one of those candidates cannot be so easily treated as "thrown away or invalid votes" except under special circumstances, as the one arising out of "notoriety of basic fact".
(f) Rule 137 (a) of the Tamil Nadu Panchayats (Elections) Rules, 1995 (which is in pari materia with Section 101 (a) of the Representation of People Act, 1951) enables the Court to declare the election petitioner or any other person as duly elected, if the Court is of the opinion that he had received a "majority of the valid votes". The Rule is carefully worded inasmuch as it does not use the phrase "candidate who secured the next highest number of votes". The legislature has not treated the election as a race or a sporting event, where if the winner is declared disqualified, the runner would automatically get elevated. This is why the Supreme Court took pains to explain in paragraph-24 of Prakash Khandre's case that it is not possible for the Court to predict or guess in whose favour the voters would have voted if they were aware of the disqualification of the elected candidate. The very language of Rule 137 (a) or Section 101 (a) does not permit of such a guess work.
(g) Even in cases falling under the category of Rule 137 (b) of the Tamil Nadu Panchayats (Elections) Rules, 1995, where an election is set aside on the ground of corrupt practices, the Supreme Court did not allow such a guess work as to whether the votes procured by the returned candidate by adopting such practices, would have gone the other way about. This is why the observations of Hidayatullah, C.J., in R.M.Seshadri Vs. G.Vasantha Pai {1969 (1) SCC 27} were extracted with approval in Prakash Khandre's case.
38. Mr.G.Ethirajulu, learned counsel appearing for the first respondent submitted that the disqualification suffered by the petitioner due to non submission of accounts of election expenses (in terms of Rule 120) was notified in the Government Gazette and that therefore the members of the public are deemed to have had knowledge by virtue of the provisions of Section 21 of the Tamil Nadu General Clauses Act. Therefore the learned counsel contended that the votes polled in favour of the returned candidate (the petitioner herein) should be treated as invalid or thrown away votes, since the electors had knowledge of the disqualification and yet chose to vote for him. The learned counsel also submitted that the post in question is that of the President of a Village Panchayat, whose constituency itself is very small, comprising of only about 2000 electors and that the electorate had greater chance of acquiring knowledge of the disqualification of the petitioner.
39. But unfortunately for the first respondent, the Gazette Notification declaring the petitioner as disqualified, was admittedly stayed by this Court in the writ petition filed by the petitioner. Therefore, the electors were entitled not to act on such a knowledge, even if they had the knowledge. As a matter of fact, the Returning Officer himself became bound by the stay granted by this Court, of the Gazette Notification relating to the disqualification of the petitioner. This is why the Returning Officer accepted the nomination. It is too much to expect the electorate to act on the basis of a deemed knowledge (by virtue of the Gazette Notification) overlooking the stay granted by this Court and also overlooking the acceptance of the nomination by the Returning Officer. Therefore, I am unable to countenance the submission of the learned counsel for the first respondent, relating to the knowledge on the part of the electors.
40. In fine, I find the order of the District Judge, declaring the election of the petitioner to be void on account of disqualification, to be perfectly justified in view of the stay of disqualification having been vacated later. However, the order of the District Judge declaring the first respondent herein to be the successful candidate, is not in accordance with the law laid down by the Supreme Court right from Vishwanatha Reddy's case upto Prakash Khandre's case, since there were more than two candidates in the fray.
41. Therefore this Civil Revision Petition is partly allowed and the order of the First Additional District Judge, Madurai, in Election O.P.No.14 of 2006 dated 8.4.2008 is set aside to the limited extent, in so far as it declares the first respondent herein as the duly elected candidate. In other words, the order of the District Judge setting aside the election of the petitioner herein, is upheld, but the order declaring the first respondent as the successful candidate is set aside. Consequently, the first respondent herein cannot continue in Office, which he has assumed in pursuance of the order of the District Judge under revision. There shall be no order as to costs. Consequently the connected miscellaneous petition is closed.
Svn To The First Additional District Judge, Madurai.