Uttarakhand High Court
District Election Officer And Another vs Mr. Govind Singh Danu And Others on 1 October, 2015
Author: U.C. Dhyani
Bench: U.C. Dhyani
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
A.O. No. 449 of 2014
Harish Chandra Singh Aithani ...... Appellant
versus
Govind Singh Danu & others ....... Respondents
Mr. V.B.S. Negi, Senior Advocate with Mr. Yogesh Pacholia and Mr.
Siddhartha Singh, Advocates for the appellant.
Mr. Sharad Sharma, Senior Advocate assisted by Ms. Indu Sharma,
Advocate for respondent no. 1.
Mr. Sanjay Bhatt, Advocate for respondent nos. 3 and 4.
With
A.O. No. 459 of 2014
District Election Officer & another ...... Appellants
versus
Mr. Govind Singh Danu & others ....... Respondents
Mr. Sanjay Bhatt, Advocate for the appellants.
Mr. Sharad Sharma, Senior Advocate assisted by Ms. Indu Sharma,
Advocate for respondent no. 1.
Mr. V.B.S. Negi, Senior Advocate with Mr. Yogesh Pacholia and Mr.
Siddhartha Singh,, Advocate for respondent no. 2.
U.C. Dhyani, J. (Oral)
Since both the above noted appeals from order arise out of common judgment, therefore, they are being decided by this common judgment and order for the sake of brevity and convenience.
2) Present appeals are being preferred against the judgment and order dated 13.10.2014, passed by learned District Judge, Bageshwar (here-in-after referred to as 2 Election Tribunal) in Election Petition no. 02 of 2014, titled as Govind Sngh Danu vs Harish Chandra Singh Aithani and others, whereby the Election Tribunal allowed the petition of the petitioner and set aside the selection of the appellant by declaring the election of appellant as Chairman, Zila Panchayat, Bageshwar, as illegal. The relief sought for by the appellant of A.O. no. 449 of 2014 is that the appellant be declared elected for the post of Adhyaksha, Zila Panchayat, Bageshwar from the date of declaration of the result.
3) In the connected Appeal from Order, the relief sought by the District Election Officer (Panchayat) and another is that impugned judgment and order dated 13.10.2014, passed by Election Tribunal in Election Petition no. 02 of 2014 be set aside and the election petition filed by respondent no. 1 Govind Singh Danu be dismissed with exemplary cost throughout.
4) The summary of the grounds taken by the appellant of A.O. no. 449 of 2014 are as follows:
(i) The Adhyaksha and Upadhyaksha of Zila Panchayats are elected by the single transferable vote, where second or any subsequent preference votes of only those candidates will be counted who has been eliminated or excluded in the end of any count and will be added in the account of those continuing candidates, who have scored the preference in the ballots of eliminated candidate.
(ii) There were three candidates in the fray and the eliminated candidate could not secure any vote 3 whereas the deponent and the respondent secured equal number of first preference votes. It was stated that the deponent and the respondent both therefore were continuing candidates as per Para 1(1) of Sechdule II to the Rules.
(iii) As per Instruction 3 of Schedule II of the aforesaid Rule the quota for the candidates was 11(20/2+1=11) and none of them obtained the quota at the stage of first or any subsequent count.
(iv) Due to the reason that neither of the candidates had secured the required quota, both the appellant and the respondent were continuing candidates and their first preference votes were exhausted votes to the extent that none of them were liable to be eliminated or excluded.
(v) The parcel of the first preference votes of the continuing candidates could not have been opened until anyone's exclusion by virtue of Rule 25(1)(c).
(vi) The trial court, without going to the root and essence of the system of election by way of proportional representation with single transferrable vote that is knows as Hare-Clark System, has cursorily rejected the Returning Officer's right verdict of declaring the result by way of lots.
(vii) Learned trial court has committed manifest error of law in deciding the case in the light of Instruction 5 of the Schedule II of the aforesaid Rules, whereas it should be decided in the light of Instruction nos. 4 and
6. It was stated that if a candidate at the end of first count or subsequent count, as prescribed under Instruction 6, obtains the votes is equal to quota or greater than the quota, he will be declared elected, as he has touched that magical figure, which is being 4 called here as "Quota' but if at the end of any count or subsequent count, none of the candidate has touched that magical figure called quota and obtained the same number of votes, in that case, the result will be determined by drawing of lots and in whose favour lot falls, he will be excluded and other candidate will be declared as elected.
5) If a person is challenging the election of Adhyaksha, Zila Panchayat, then it is mandatory for him to follow each and every provision of U.P. Zila Panchayats (Election of Adhyaksha and Upadhyaksha and Settlement of Election Disputes) Rules, 1994 (here-in-after referred to as Election Disputes Rules 1994). Learned counsel for the appellant of A.O. no. 449 of 2014 submitted that learned Election Tribunal has completely overlooked the provisions of Election Disputes Rules, 1994.
6) It is also contended that as per Rule 38 of the Election Disputes Rules, 1994, the procedure as prescribed under C.P.C., shall be applicable to the hearing of the election petition. In the instant case, no opportunity was afforded to the appellant to adduce oral or documentary evidence.
7) Learned counsel also submitted that the Election Tribunal has completely misinterpreted the provisions of Rules 25, 26, 43 and Schedule II(ii) of the Election Disputes Rules, 1994.
58) Adhyaksha and Upadyaksha of Zila Panchayats are elected by single transferable vote where second or any subsequent preference vote of only those candidates will be counted who have been eliminated or excluded at the end of every count and will be added in the account of those continuing candidates, who have secured the preference in the ballets of eliminated candidate.
9) There were three candidates in the fray. Eliminated candidate could not secure any vote. Appellant and respondent no. 1 secured equal number of first preference votes, i.e., 10 each. The appellant and respondent no. 1 were, therefore, continuing candidates as per paragraph 1(i) of Schedule II(ii) of the Election Disputes Rules, 1994.
10) As per Instruction 3 of Schedule II(ii) the quota for the candidate was: 20/2 + 1 = 11 and, admittedly, none of them obtained the quota at the stage of first or subsequent count.
11) Since neither the appellant or respondent no. 1 secured the required quota and, therefore, both the appellant and respondent no. 1 were continuing candidates and their first preference votes were exhausted votes to the extent that none of them was liable to be eliminated or excluded.
12) Learned counsel for the appellant also submitted that the Election Tribunal, without going into the root of the system of election by way of proportional 6 representation with single transferable vote, which is known as HARE - CLARK system, cursorily rejected the Returning Officer's correct verdict by declaring the result by drawing of lots.
13) As per Instruction 5 of the Schedule II(ii) of the Election Disputes Rules, 1994, the controversy ought to have been decided in the light of Instruction nos. 4 and 6. If a candidate, at the end of first count or subsequent count, as prescribed under Instruction 6 obtains the votes, which is equal to quota or greater than the quota, he will be declared elected, as he has touched that 'magical figure', but if at the end of any count or subsequent count, no candidate has touched that 'magical figure' and obtained the same number of votes, in that case, the result will be determined by drawing of lots and the candidate in whose favour the lot falls, he will be excluded. The result will be that other candidate will be declared as elected.
14) The appellant in A.O. no. 459 of 2014 has also taken almost the same grounds as were taken by the appellant of A.O. no. 449 of 2014. In addition to the above, an affidavit was filed on behalf of the appellant of A.O. no. 459 of 2014, indicating therein that in the first round of counting it was found that two candidates got 10 first preference votes each and third candidate could not secure even a single vote, therefore, after the first round of counting, the third candidate was excluded from counting and, therefore, there was no occasion to transfer his vote. Since both the remaining candidates secured 10 votes each 7 of first preference and there was no first preference or second preference vote secured by the third candidate, therefore, there was no occasion to transfer his vote to the continuing candidate and at the end of counting it was found that both the continuing candidates secured equal votes of first preference. Since all the possibilities were explained by the State Election Commission (here-in-after referred as SEC) in its instructions dated 28.07.2014, therefore, the counting was conducted in accordance with the aforesaid instruction issued by SEC under the provisions of Election Disputes Rules, 1994. Applying the principles of Instructions 5 and 6 of Schedule II(ii) of the Election Disputes Rules, 1994 read with instructions issued by the SEC, the result was declared on the basis of draw of lots. Before taking a final decision in the matter, a letter was sent to the SEC alongwith the tabulation attached thereto containing the entire details of votes received by all the contesting candidates. The letter of the District Magistrate was responded by SEC by giving its approval to declare the result as per Form 1-(1) containing the detailed illustrations. Consequently, under Rule 28 of the Election Disputes Rules 1994, the result was declared and the appellant of A.O. no. 449 of 2014 was declared successful.
15) Respondent no. 1 filed an election petition before learned Election Tribunal with the submission that since he received one second preference vote and both the candidates received equal votes of first preference, therefore, he ought to have been declared successful. As 8 stated above, the learned Election Tribunal upheld the contention of respondent no. 1.
16) As per the affidavit filed on behalf of the District Election Officer, Bageshwar, there were three 'contesting candidates' for the post of Adhyaksha, Zila Panchayat, Bageshwar. The total number of voters was 20. All the 20 voters cast their votes, which votes were found valid. As per instruction 3 to Schedule II of Election Disputes Rules, 1994, the 'quota sufficient' was 11, which was not secured by any of the contesting candidates in both rounds of counting. As per Rule 16 of the Election Disputes Rules, 1994, the election was to be held by means of 'single transferable vote'. Since there were three contesting candidates in the election, therefore, Instruction 4(i) to the Schedule II of the Election Disputes Rules, 1994 was not applicable in the instant case and the counting was to be undertaken as per Instruction 4(ii) read with Instruction 5 and 6 of the Schedule II of the Election Disputes Rules, 1994. In the first round of counting, two candidates secured 10 votes each of first preference and the third candidate could not secure any vote of preference, therefore, he was excluded from the counting and only two candidates remained as 'continuing candidates'. Therefore, as per Instructions 5 and 6 of Schedule II of the Election Disputes Rules, 1944, the result was declared on the basis of lots. Since the candidate who was excluded after the first round of counting did not secure even a single vote of first preference of subsequent preferences, therefore, there was no occasion to transfer his vote to the 9 continuing candidates. After the final round of counting, both the candidates secured 10 votes each of first preference and, therefore, the procedure, as instructed by the SEC, was valid. Learned counsel for the rival parties relied upon the decision of Hon'ble Apex Court in Lalit Mohan Pandey vs Pooran Singh and others, (2004) 6 SCC
626. Although a common ruling was cited by them, but with different interpretation.
17) Learned Senior Counsel representing respondent no. 1 drew attention of this Court towards paragraphs no. 14, 22, 26, 70, 78 and 82 of the aforesaid judgment. Learned Senior Counsel for the appellant of A.O. no. 449 of 2014 relied upon paragraphs no. 22, 26, 31, 32, 53, 54, 58, 59, 60, 61, 62, 65, 66, 70, 72, 74 of the aforesaid judgment.
18) Paragraphs no. 22, 26 and 70 of the Lalit Mohan Pandey's case (supra) are reproduced here-in-under for facility:
"Every voter under the Hare system has a single vote. On the ballot paper, the voter has to rank all or any of the competing candidates giving them preferences 1, 2, 3 and so on. A quota is fixed which is the minimum number of votes which cannot be secured by more candidates than the number of seats. When a candidate secures votes equal to this quota, he is declared elected. If a candidate receives more votes than the quota, then he is declared elected and his surplus votes (votes exceeding the quota) are transferred to other candidates in proportion of second preference indicated in his ballot 10 papers. After surplus votes of all candidates are transferred, if all seats are not filled in then the candidate who has polled lowest number of votes would be eliminated. This process goes on till all seats are filled in by the completion of quota or candidates remaining do not exceed seats still to be filled in. This system ensures actual use of maximum number of votes polled.
26. As to how single transferable vote works, has been explained by Vernon Bogdanor at p. 81 of his book titled 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 filled. 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 the smallest number of votes is called "excluded candidate". Votes of such excluded candidates are distributed to the continuing candidates. If 11 in the process, any continuing candidate secures the quota, he fills up the remaining continuing candidates did not secure the quota then the 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 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.
70. A continuing candidate has been defined to mean not elected and not excluded from the poll at any given time. The expression "at any given time", in our opinion, should mean at all points of time which in turn would mean till that time when the results can be declared. Clause 3, of course, provides for a minimum quota but applicability thereof should not be stretched to all stages of election. Clause 4 as such does not speak of quota. It speaks of declaration of a candidate who gets larger number of first-preference votes than the other and in case both get equal number of first-preference votes, one candidate has to be excluded on whom the lot falls and the other candidate is required to be elected.
1219) Rule 16 of the Election Disputes Rules, 1994 reads as under:
Manner of voting. -The election will be held in accordance with the system of proportional representation by means of a single transferable vote and the voting at such election shall be by secret ballot. Vote shall be cast in person and no votes shall be recorded by proxy.
20) Learned counsel for respondent no. 1 drew attention of this Court towards paragraphs no. 26 and 30 of the Madan Singh vs Madhwa Nand Joshi and another, 2000 (2) A.W.C. 1639 rendered by Hon'ble Allahabad High Court. The same read as under:
"26. The 1994 Election Disputes Rules prescribes in Rule 16 the manner of voting. It provides that elections shall be by secret ballot. In a democrary, the secrecy of the ballot is sacred and paramount. Even though when it comes to the Court, the Court is supposed to examine the ballot but still then there is some limitation for the Court. The Court can look into the ballot, itself, but it is not supposed to divulge what it has seen from the ballot having regard to the secrecy clause. The word 'secret' has been defined in Law Lexicon as to 'hide'. In the Shorter Oxford Dictionary, the word secret means 'kept from general knowledge', kept hidden or private from all or all but few. "Secret Ballot" is a ballot in which vote is cast secretly. Thus, when the law prescribes that vote shall be by secret ballot, then the vote is to be kept hidden. It cannot be divulged or made open or made to public. Though the Court is supposed to examine it, yet, it cannot divulge or make it public, even 13 in its judgment. The Court may explore the ballot but cannot expose it. It is not supposed to divulge at to who has voted for whom. The manner of poll is to cast the vote. Courts' jurisdiction may extend to decide the validity of a vote cast or its counting. It may examine as to in whose favour the vote is cast. But it cannot disclose or divulge the identity of the voter and expose the secret, i.e., what is hidden, even when deciding an election dispute. It cannot apply the test of presumption or otherwise in order to expose the identity of the voter. If a dispute arises whether a person is eligible to vote and if it is held, he is not, then the ballot paper through which such person has cast his vote is to be declared invalid. But there cannot be any question of disclosing or exposing as to who had voted for whom and that too, through presumption. The purpose, being to hide the identity of the voter, at no cost it can be disclosed."
30. Then again whether Jeevan Lal is a member of the Champawat Z.P. or not is disputed. The Membership Disputes Rules, 1994, covers the field of such disputes. The same could not be entered into by the learned District Judge exercising the power under the Election Disputes Act. Such disputes can be settled only by the authority under the Membership Disputes Rules. But then having regard to the clear position in law, there being no dispute with regard to membership, the contention of Mr. Negi has no relevance in the present case."
21) This Court, therefore, agrees with the contention of learned counsel for respondent no. 1 that the learned Election Tribunal did not commit any mistake in 14 examining the ballot papers, as has been aptly remarked in Madan Singh's case (supra) by Hon'ble Allahabad High Court that 'the Court may explore the ballot, but cannot expose it'. Thus, it is the prerogative of the Election Tribunal to scrutinize the ballot papers.
22) Learned counsel for respondent no. 1 also drew attention of this Court towards Rule 25 of the Election Disputes Rules, 1994 to argue that when a Principal Court of civil jurisdiction is seized with any election dispute, he decides the lis in the capacity of the Tribunal and not in the capacity of the District Judge. This Court agrees with such submission of learned counsel for respondent no. 1.
23) It will be pertinent to mention here sub-clause (3) of Article 55 of the Constitution of India. The same reads as under:
"The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot."
24) The language of Rule 16 of the Election Disputes Rules, 1996 is almost pari materia to the language used in sub-clause (3) of Article 55 of the Constitution of India. In both places, the words 'system of proportional representation by means of single transferable vote and the voting at such election shall be by secret ballot' have been used.
1525) The next most crucial question for decision of present A.Os. is whether the second preference vote given in favour of respondent no. 1 should be calculated, so as to make 11 votes in favour of the said respondent or not? Learned Election Tribunal was of the opinion that the second preference vote which was cast in favour of respondent no. 1 should be included. The Election Tribunal was, therefore, of the view that respondent no. 1 ought to have been declared elected and, therefore, the Tribunal allowed the election petition of the petitioner (who is respondent no. 1 in the present A.Os).
26) The aforesaid view, which was taken by learned Election Tribunal, is contrary to the scheme of things as envisaged in Election Disputes Rules, 1994. According to this Court, the second preference vote, which was cast in favour of respondent no. 1 cannot be counted as 11 in favour of the said respondent. The illustration appended to Schedule II of the Election Disputes Rules, 1994, nowhere gives this discretion to the Returning Officer.
27) It will be appropriate to reproduce here-in- below the order passed by the Co-ordinate Bench of this Court on 16.10.2014, while admitting A.O. no. 449 of 2014, as under:
"Having heard the learned senior counsel for appellant (Harish Chandra Singh Aithani) and learned senior counsel for caveator/respondent no.1 (Govind Singh Danu), it transpires that there were -20- Members of Zila Panchayat, Bageshwar, who had to elect one President amongst them. So, three candidates, for the top 16 post of Zila Panchayat, were in fray, namely, Govind Singh Danu, Harish Chandra Singh Aithani, and Bhagat Singh Dasila (hereinafter would be called as Mr. Danu, Mr. Aithani and Mr. Dasila respectively). Election was held wherein Mr. Danu and Mr. Aithani secured 10 votes each, which are of first preference, out of total 20 in number. Mr. Dasila, the third candidate, could not secure a single vote of first preference i.e. he did not cast vote of first preference even in his own favour to elect himself. Thus, it is clear that Mr. Dasila was not the contesting candidate, as envisaged under Instruction no.4(1) of Schedule-II of Rule 26 of U.P. Zila Panchayats (Election of Adhyaksha and U.P. Adhyaksha and Settlement of Election Disputes) Rules 1994. Rather, he was simply a 'continuing candidate' as contemplated under Instruction No.1(1) of Rule 26 of Schedule II of the aforesaid Rules. It is also clear that out of these secured -10- votes of each included the vote (favouring ballot paper) of a particular candidate in his own favour. The quota for being elected on the post was obviously -11-. The Returning Officer, in this eventuality, exercising the procedure as laid down under Instruction No.4(2)(b) of the above Schedule & Rules, drew a lot, on the basis whereof, Mr. Aithani was elected for the top post. Mr. Danu, feeling aggrieved, filed the election petition, as afore-stated. Learned District Judge, Bageshwar called on the ballots before him in the open Court and found that the equal number of first preference votes were secured by Mr. Aithani and Mr. Danu, as has been stated above, but he noted that one of the ballot also expressed the second preference vote to Mr. Danu. Thus, he arrived at a conclusion that in case the first preference was equal, then consideration of second preference is the determinative factor and by counting votes in favour of Mr. Danu to -11-, which is the magic number of quota, he declared Mr. Danu as elected with a direction to the Returning Officer to ensure the administration of oath to Mr. Danu on the top post of Zila Panchayat without any further delay.
This Court has heard the elaborate arguments of either side, which have been submitted on sundry scores but this time, it does not want to express its opinion on all of them.
Prima facie, I feel that the total number of votes i.e. the votes of first and second preference of all the candidates, cannot be more than twenty. If the second preference vote was taken into consideration by learned lower court, then it cannot be denied that the first 17 preference vote of that candidate was not considered. The second preference vote of a voter can be considered only when his first preference vote has not been taken into consideration. Since, only the single voter (may be anyone out of 10 including Mr. Dasila) has expressed his second preference on the ballot paper, besides his first preference, thus, it is clear that the first preference has already been considered to make it the total count of votes as --10- in favour of Mr. Danu. In such a case, the second preference of the same voter should not have been taken into consideration by the learned District Judge for the simple reason that when the first preference of a voter had been counted in favour of Mr. Danu, then the second preference, of that very voter, can never be taken into consideration.
So, in view of what has been stated above, without further elaboration of the merits of the case, I hereby stop the effect and operation of impugned judgment passed by the District Judge, Bageshwar."
28) This Court is duty bound to upset the findings of the learned Tribunal, for the following reasons:
(a) Instruction 6 of Schedule II of the Election Disputes Rules, 1944 says that if at the end of any count, no candidate could be declared elected, then the candidate who upto that stage has been credited with the lowest number of votes shall be excluded. In the instant case, the third candidate has to be excluded.
Further, Instruction 6 of Schedule II says that the ballot papers in his parcel shall be examined. The word 'his' connotes the third candidate in the instant case. The said Instruction (no. 6) also says that the ballot papers in his parcel shall be arranged according to the next available preferences recorded thereon for the continuing candidates. Here, the appellant and respondent no. 1 are the continuing candidates and 18 the third candidate has been excluded. So, according to the scheme of Instruction 6 (to Schedule II), the next available preferences recorded thereon for the continuing candidates shall be examined on the ballot papers of the third candidate, and not the continuing candidates. It, therefore, follows that the next available preference recorded for the continuing candidates in the ballot papers of the parcel of the third candidate shall be examined. It may be noted here that there was no next available preference recorded for the continuing candidates in the ballot papers of the parcel of the third candidate. That means, the next available preference recorded thereon for the continuing candidates, in the parcel of continuing candidates, shall not be examined and counted.
It is only the next available preference recorded thereon for the continuing candidates in the parcel of the ballot papers of third candidate which shall be examined. This fact is again underlined, at the cost of repetition, that there was no next available preference recorded for the continuing candidates in the parcel of the ballot papers of the third candidate.
(b) Applying the facts of this case with illustration to Schedule II of the Election Disputes Rules, 1994, the position would come as under :
A = 10 B = 10 C= 0 19 'C' did not get second preference vote and, therefore, the second preference vote of him being 'zero' cannot be transferred or even if it is transferred, the same will not add to the number of votes of continuing candidates, viz., 'A and B' in the instant case. Second preference vote in the parcel of A and B cannot be examined and counted. Here, learned Tribunal fell in error. Learned Tribunal fell in error because he counted the second preference vote in favour of respondent no. 1 to make the tally of his votes to 11 and thereby giving respondent no. 1 an edge over appellant of A.O. no. 449 of 2012.
(c) Although the Hon'ble Supreme Court has deprecated the practice of declaring the results on the basis of drawing of LOTS, in paragraph no. 20 of the University of Poona and others vs Shankar Narhar Agashe and others, (1972) 3 SCC 186, but the fact remains that the declaration of result by lots is inherent and inbuilt in Instruction 6 to Schedule II, which is part of the Statute book and reads as follows:
".... 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."20
The Rule itself is not under challenge before this Court and, therefore, this Court has to go by the intention of Legislature while enacting the U.P. Zila Panchayats (Election of Adhyaksha and Up- Adhyaksha and Settlement of Election Disputes) Rules, 1994 (as applicable to the State of Uttarakhand).
(d) The word 'contesting' as used in Instruction 4 for the determination of result has not been defined. The word 'continuing' has been defined in the Election Disputes Rules, 1994 to mean 'any candidate not elected and not excluded from the poll at any given time'.
In this case, there were three candidates in the fray. Whereas the first two got 10 votes each, the third one did not secure any vote. The quota sufficient to secure a return of a candidate at the election would be 11. Instruction 4(2)(b) says that if none of them (means candidates) secure first preference votes equal to or more than the quota aforesaid, (the Returning Officer shall) proceed according to the instruction hereinafter taking into consideration second and subsequent preferences as may be necessary.
Further, Instruction 6 provides, what has been discussed by this Court in one of the foregoing paragraphs of this judgment, that the next available preference recorded for the continuing candidates, in the parcel of the ballot paper of the third candidate only shall be examined and counted. Since there was 21 no second preference vote in favour of the third candidate (excluded candidate), therefore, the Returning Officer had not option but to determine the result by drawing of lots.
(e) The Returning Officer, therefore, did not commit any mistake in determining the result by draw of lots. As a matter of abundant precaution, the Returning Officer took guidance from the State Election Commission, who directed the said Officer in accordance with Instruction no. 6 and illustration appended thereto to Schedule II of the Election Disputes Rules, 1994.
(f) The learned Tribunal committed a mistake in counting the second preference vote given in favour of respondent no. 1 in the parcel of the ballot papers of continuing candidates. He ought not to have counted the second preference vote in favour of respondent no. 1 in the parcel of continuing candidates. Learned Tribunal would have been right had he examined and counted the second preference vote in the parcel of ballot papers of the excluded candidate, which was not applicable in the instant case.
(g) No doubt, no vote should go waste, as is the dictum of Hon'ble Apex Court in Lalit Mohan Pandey's case (supra), but a conjoint reading of paragraphs no. 22 and 53 of the aforesaid judgment would reveal that whatever the Returning Officer has done in the instant case, has done correctly and the directions of the Hon'ble Apex Court have not been put to breach.
2229) The Returning Officer, under the directions of State Election Commission, did not commit any mistake in declaring the appellant of A.O. no. 449 of 2014 as successful candidate. Learned Election Tribunal stretched the meaning of the word 'single transferable vote' to unfathomable limits.
30) On the basis of above discussion, both the appeals from order succeed and are allowed. Impugned judgment and order dated 13.10.2014, passed by learned District Judge / Election Tribunal, Bageshwar in Election Petition no. 02 of 2014 is hereby set aside. Harish Chandra Singh Aithani (appellant of A.O. no. 449 of 2014) is declared successful for the post of Chairman, Zila Panchayat, Bageshwar.
(U.C. Dhyani, J.) Dt. October 01, 2015 Negi 24 25