IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Chapter VIII, Rule 32(2) (b)) Description of case Writ Petition No.1021 (M/B) 2003 Date of decision: 14th November, 2003 For the approval of:- Hon’ble Chief Justice S.H. Kapadia. Hon’ble Mr. Justice M. M. Ghildiyal, J. - Whether the order/judgment should be sent to the reports for reporting? (Yes) - Whether the reports be allowed to see the judgment ? (Yes) Gur IN THE HIGH COURT OF UTTARANCHAL AT NAINITAL Writ Petition No. 1021 (M/B) 2003 Umesh Sharma, S/o Shri Shiv Nandan Sharma, Sabhasad Nagar Nigam, Dehradun. …………. Petitioner Versus 1. State Election Commissioner, Uttaranchal, Dehradun. 2. District Election Officer/ District Magistrate, Dehradun. 3. Returning Officer/ Additional District Magistrate, Dehradun. 4. Rajesh Sharma S/o late Kunwar Sen, Sabhasad, Nagar Nigam, Dehradun 5. Sagar Singh, S/o Miken Singh, Sabhasad, Nagar Nigam, Dehradun. …………. Respondents. Mr. V.K. Bist, Mr. Alok Singh, Mr. Gopal Narain & Mr. A. Rab, Advocates for the Petitioner. Mr. S. Dhilia, Advocate for respondent No. 1 & 2. Mr. Arvind Vashishth, Advocate for respondent No. 2. Mr. A.K. Sharma, Advocate for respondent No. 5. Mr. N.B. Tewari, learned Chief Standing Counsel. Coram: Hon’ble S.H. Kapadia, C.J., Hon’ble M.M. Ghildiyal, J. Date: 14th November, 2003 ORAL JUDGMENT: [Per Hon’ble S.H. Kapadia,C.J.] 1. By this writ petition, Umesh Sharma, petitioner, who contested the elections of Upa Nagar Pramukh for Nagar Nigam, Dehradun has challenged the order dated 4th October 2003 passed by the Returning Officer / Additional District Magistrate, Dehradun as also the order dated 22nd October 2003 passed by State Election Commissioner, Uttaranchal, Dehradun. 2. FACTS: On 19th September 2003, State Election Commissioner issued Instructions to the Returning Officer in the matter of election to the post of Upa Nagar Pramukh, Nagar Nigam, Dehradun. Schedule 5 contained instructions for determination of the result. It defined the expressions Continuing Candidate; First Preference; Next Available Preference; Unexhausted Paper and Exhausted Paper. Under clause 19 of the Instructions, it was stipulated that at the end of the counting and determination of the result, the District Election Officer shall inform the result to the Commissioner and after seeking his permission, the result shall be declared. On 3rd October 2003 elections were held. In the First Round, petitioner secured 17 preference votes, Rajesh Sharma, respondent No. 4 secured 18 preference votes and Sagar Singh, respondent No. 5 secured 16 preference votes. Respondent No. 5 got eliminated in the First Round as he had secured lowest number of votes. In this case, we are concerned with system of proportional representation by means of single transferable votes by ballot. It is not in dispute that the requisite quota fixed was 26 votes. In the First Round, none of the candidates secured the quota. The ballot papers of Sagar Singh were recounted in order to ascertain Second Preference votes, In the Second Round, petitioner got in all 20 votes (17 original plus 3 being transferred votes). On the other hand, Rajesh Sharma, respondent No. 4, in the Second Round, did not secure any transferred votes and consequently, his total remained at 18, which represented the original votes of the First Round. In short, the result for the post of Upa Nagar Pramukh, Election 2003 for Nagar Nigam, Dehradun is indicated by the Chart, hereinbelow, reproduced: S. No. Name of candidate Votes secure d in first count Votes secured after First exclusion Sum of Col. 3 & 4 Votes secured after Second exclusion Sum of Col. 5 & 6 Votes secured after Col. 7 & 8 Sum of Col. 7 & 8 Votes secured after Fourth exclusion Sum of Col. 9 & 10 1 2 3 4 5 6 7 8 9 10 11 1 Umesh Sharma 17 3 20 2 Rajesh Sharma 18 - 18 3 Sagar Singh 16 After the first count, Sagar Singh secured lowest number of votes thus he was excluded and only 3 votes of second preference from his votes were credited to Umesh Sharma Total Number of Exhaust Vote: On 3rd October 2003, District Election Officer votes a letter to the State Election Commission stating that results could not be declared as none of the candidates had secured the requisite quota of 26 votes. The opinion was sought under the above Instruction No. 19. By letter dated 3rd October 2003, the State Election Commissioner asked the District Election Officer to go through the judgment of the Supreme Court in the case of Jaidrath Singh & another V/s Jivendra Kumar & other reported in 2000 (3) SCC 154 and passed appropriate orders in the light of the said judgment. Consequently, the impugned order was passed on 4th October 2003 by the Returning Officer stating that since none of the candidates had secured 26 votes, it was not possible to declare any candidate as duly elected. On 5th October 2003, petitioner moved a representation to the State Election Commission, inter alia, calling upon State Election Commission to give appropriate instructions to the Returning Officer under Instruction 19 and to declare the petitioner as duly elected as he had secured more votes than any other candidate though the petitioner had secured less than 26 votes. By the impugned order dated 22nd October 2003 passed by the State Election Commission, the petitioner’s representation was rejected. Therefore, the present writ petition has been filed. 3. BRIEF HISTORY OF VARIOUS ENACTMENTS: On 1st June 1993, part IX-A came to be introduced in the Constitution of India by 74th Amendment Act, 1992 with effect from 1st June 1993. Consequently, Article 243 ZA came to be inserted. After 74th Amendment to the Constitution sections 45 & 46 of U.P. Nagar Nigam Adhiniyam, 1959 came to be amended. Article 243 ZA and sections 45 and 46 as amended are quoted below: “243-ZA. Elections to the Municipalites.- (1) The superintendence, direction and control of the preparation of electoral rolls for, and the couduct, of all elections to the Municipalities shall be vested in the State Election Commission referred to in article 243K. (2) Subjection to provisions of the Constitution, the Legislature of a State may, be law, make provision with respect to all matters relating to, or in connection with, elections to the Municipalities. Section 45 superintendence etc. of the conduct of elections.- [(1) The superintendence, direction and control of the conduct of elections of the Nagar Pramukh, Up Nagar Pramukh and Sabhasads of the corporation shall be vested in the State Election Commission.] [(2) Subject to sub-section (1) the Chief Election Officer (Urban Local Bodies), referred to in sub- section (2) of Section 39, shall supervise the conduct of the elections of the Nagar Pramukh, Up Nagar Pramukh and Sabhasads of the Corporation.] 46. Other regarding conduct of elections.- In so far as provision with respect to any matter is not made by this Act, (the State Election Commission) may, by order, provide for matters concerning conduct of elections to the offices of Nagar Pramukh and Up Nagar Pramukh and to the seats of [ * * * ] Sabhasads that is to say- (a) [ * * * ]33 (b) the appointment, power and duties of Nirvachan Adhikaris (Returning Officers). Sahayak Nirvachan Adhikaris (Assistant Returning Officers) Nirvachan Adhyakshas (Presiding Officers) and Matdan Ahikaris (Polling Officers) and clerks. (c) appointment of dates for nomination, security, withdrawal and polling; (d) the manner of presentation and the requirements for valid nomination scrutiny of nominations and withdrawal of candidatures; (e) appointment and duties of election agents, polling agents and counting agents; (f) procedure at general elections including death of candidate before poll, procedure in contested and uncontested elections; [ * * * ]34 (g) identification of voters; (h) hours of polling; (i) adjournment of poll and fresh poll; (j) manner of voting at elections; (k) scrutiny and counting of votes including recount of votes and procedure to be followed in case of equality of votes and declaration of results; (l) the notification of the names of the persons elected as Sabhasads 35 [ * * * ] Nagar Pramukh and Up Nagar Pramukh. (m) Refund and forfeiture of deposits; (n) Manner in which votes are to be given by Nirvachan Adhyaksha (Presiding Officer), polling agent or any other person who being an elector for a ward is appointed for duty at a polling station at which he is not entitled to votes; (o) The procedure to be followed in respect of the tender of vote by person representing himself to be an elector after another person has voted as such elector; (p) The safe custody of ballot boxes, ballot papers and other election papers, the period for which such papers shall be preserved and the inspection and production of such papers; (q) [ * * * ]36 (r) issue of copies of election papers and fixing of charges for such copies; (s) maintaining of list of 37[Electorates referred to in sub-section (3) of Section 12] 38[ * * * ] for the purposes of 39[elections of] 40[ * * * ] (f) generally on all matters relating to conduct of elections. From the perusal of Article 243 ZA read with sections 45 & 46 of U.P. Nagar Nigam Adhiniyam, 1959 as amended, it is clear that State Election Commission is the only authority to conduct, supervise and control municipal elections and that the State Election Commission is the only authority, who could give directions in that regard. Accordingly, in this case, the State Election Commission gave instructions to the Returning Officer (District Election Officer, respondent No. 3 vide letter dated 19th September 2003 containing Instruction No. 19. We may also mention that with the introduction of Article 243 ZA in the Constitution of India and after the 74th Amendment Act, U.P. Nagar Mahapalika Adhiniyam, 1959 became U.P. Nagar Nigam Adhiniyam, 1959. There is one more aspect, which needs to be mentioned. Schedule 5 to the Instructions issued by the State Election Commission, in this case dated 19th September 2003 is identical to U.P. Kshetriya Panchayat and Zila Panchayat Election Rules 1994 (Scheduled II) framed under U.P. Kshetriya Panchayat & ZP Act, 1961. 4. SCOPE OF SCHEDULE 5:- In this case, we are concerned with counting of votes, where one seat is to be filled. In this case, we are not concerned with counting of votes, where more than one seat is to be filled. For the purposes of determination of the issues involved in this writ petition, Schedule 5 needs to be interpreted. Schedule 5 refers to determination of the results. Clause 1(1) defines the expression Continuing Candidate to mean any candidate not elected and not excluded from the poll at any given time. Under clause 1(2) the expression First Preference is defined to mean figure 1 mentioned opposite the name of any candidate, whereas the expression Second Preference is defined to mean figure 2 mentioned opposite the name of any candidate and so on & so forth. Under clause 1(3) the expression Next Available Preference is defined to mean subsequent preference recorded in consecutive numerical order for a continuing candidate. Under clause 1(4) the expression Unexhausted Paper is defined to mean a ballot paper, on which further preference is recorded for a continuing candidate. Under clause 1(5) the expression Exhausted Paper is defined to mean a ballot paper on which no further preference is recorded for a continuing candidate. Under clause 2 the Returning Officer is directed to ascertain the number of First Preference votes (original votes) secured by each candidate and give credit to him for that number. Under clause 3, fixation of quota is stipulated. A formula is prescribed. In this case, quota is fixed at 26 votes. For the purposes of deciding this writ petition, clauses 4, 5 & 6 of the Instructions, as applicable to the facts of this case, needs to be quoted: “4. A. If there are only two candidates then- (a) If one candidate gets larger number of first preference votes than the other, declare the former as elected, or (b) If both the candidates get equal number of first preference votes, exclude one of them by drawing of lot and declare the other as elected. B. If there are more than two candidates then- (a) If one of them is found to secure first preference votes equal to or more than the quota determined under instruction no. 3, declare him as elected, or (b) If none of the candidates secures first preference votes equal to more than the quota aforesaid, proceed according to the instruction hereinafter taking into consideration second and subsequent preference as may be necessary. 5. If at the end of the first or any subsequent count the total number of votes credited to any candidate is equal to, or greater than the quota, or there is only one continuing candidate, that candidate can be declared elected. 6. If at the end of any count, no candidate can be declared elected- (a) Exclude the candidate who up to that stage has been credited with the lowest number of votes; (b) Examine all the ballot papers in his parcel and sub- parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to that candidate and make a separate sub-parcel of all the exhausted papers, and (c) See whether any of the continuing candidates has, after such transfer and credit, secured the quota. If, when a candidate has to be exclude under clause(a) above two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decide by lot which of them shall be excluded. All the sub-parcels of exhausted papers preferred to in clause (b) above shall be set apart as finally dealt with and the votes recorded thereon shall not thereafter be taken into account.” In the Instructions, the State Election Commission has also given an illustration, which demonstrates how Rule 4, 5 & 6 of the Instructions are to be applied. The said illustration is quoted below: “Illustration- Suppose there are four candidates A, B, C and D and the number of first preference votes secured by them are- A = 12 B = 11 C = 7 D = 5 35 The quota will be -35/2 + 1 = 18 No candidate have obtained votes equal to or over the quota at the first count, the candidate having the lowest votes, namely, D will be excluded. Suppose there are second preference marked on only four ballot papers in the parcel of D as below: A = 2 B = 2 The fifth ballot paper will be placed in the sub-parcel of exhausted papers and the two papers recording second preference for A and B each will be placed in separate sub- parcels for A and B each of them will credited with two additional votes. The votes for A, B and C will now be : A = 12+2 B = 11+2 C = 7 Since at the end of the second count no candidate can be declared elected, the candidate C having the lowest votes out three continuing candidate will now be excluded and the votes will be transferred to other continuing candidates A and B. Suppose second preferences are recorded in all the ballot papers in the parcel of C and are as below: A = 4 B = 3 After crediting A and B with these additional A would have votes secured 18 votes, that is, equal to the quota and B 16 votes. A will therefore be declared elected.” The above Instructions No. 1, 4, 5 & 6 of Schedule 5 are similar to Rule 71 and Rule 75 of the Conduct of Election Rules 1961. For the sake of convenience Rule 71 and Rule 75 are quoted hereinbelow: “71. Definitions.- In this Part:- (1) “continuing candidate” means any candidate not elected and not excluded from the poll at any given time; (2) “count” means (a) all the operations involved in the counting of the first preferences recorded for candidates; or (b) all the operations involved in the transfer of the surplus of an elected candidate; or (c) all the operations, involved, in the transfer of the total value of votes of an excluded candidate; (3) “exhausted paper” means a ballot paper on which no further preference is recorded for a continuing candidates, provided that a paper shall also be deemed to have become exhausted whenever- (a) the names of two or more candidates, whether continuing or not, are marked with the same figure and are next in order of preference; or (b) the name of the candidate next in order of preference, whether continuing or not, is marked by a figure not following consecutively after some other figure on the ballot paper or by two or more figures; (4) “first preference” means the figure 1 set opposite the name of a candidate; “second preference” means the figure 2 set opposite the name of a candidate, “third preference” means the figure 3 set opposite the name of a candidate; and so on; (5) “original vote”, in relation to any candidate, means a vote derived from a ballot paper on which a first preference is recorded, for such candidate; (6) “surplus” means the number by which the value of the votes, original and transferred, of any candidate exceeds the quota; (7) “transferred vote” in relation to any candidate, means a vote the value or the part of the value of which is credited to such candidate and which is derived from a ballot paper on which a second or a subsequent preference is recorded for such candidate; and (8) “unexhausted paper” means a ballot paper on which a further preference is recorded for a continuing candidate. 75. Counting of votes where only one seat is to be filled- (1) At any election where only one seat is to be filled, every valid ballot paper shall be deemed to be of the value of 1 at each count, and the quota sufficient to secure the return of a candidate at the election shall be determined as follows: (a) add the values credited to all the candidates under clause (c) of rule 74. (b) divide the total by 2; and (c) add I to the quotient ignoring the remainder, if any and the resulting number is the quota. (2) If, at the end of the first or any subsequent count, the total value of the ballot papers credited to any candidate is equal to, or greater than, the quota or there is only one continuing candidate, that candidate shall be declared elected. (3) If, at the end of any count, no candidate can be declared elected, the returning officer shall – (a) exclude from the poll the candidate who up to that stage has been credited with the lowest value; (b) examine all the ballot papers in his parcels and sub- parcels, arrange the unexhausted papers in sub-parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of papers in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub-parcel to that candidate and make a separate sub- parcel of all the exhausted papers; and (c) see whether any of the continuing candidates has, after such transfer and credit, secured the quota. (4) If, when a candidate has to be excluded under clause (a) of sub-rule (3), two or more candidates have been credited with the same value and stand lowest on the poll, the candidate for whom the lowest number of original votes are recorded shall be excluded, and if this number also is the same in the case of two or more candidates, the returning officer shall decide by lot which of them shall be excluded,” In this case, we are concerned with the elections of Upa Nagar Pramukh for Nagar Nigam, Dehradun. Section 12(3) of U.P. Nagar Mahapalika Adhiniyam, 1959 (now known as U.P. Nagar Nigam Adhiniyam, 1959) reads as under:- “12. Election of Nagar Pramukh and Upa Nagar Pramukh – (3) The Nagar Pramukh and the Upa Nagar Pramukh shall be elected by the members 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.” 5. ISSUES: There issues are required to be decided in this petition. They are as follows:- a. Whether the Returning Officer was right in his conclusion “that declaration of any of the candidate to be elected is not possible” in view of the judgment of the Supreme Court in the case of Jaidrath Singh V/s Jivendra Kumar & others reported in 2000 (3) SCC 154? b. Whether the present writ petition is liable to be dismissed for not exhausting alternative remedy by way of raising Election Dispute? c. Whether this Court can, in facts and circumstances of the case, give directions to the State Election Commission at this stage of the matter namely when fresh elections are yet to be notified? 6. Concept of Proportional Representation by means of single transferable vote by ballot: As stated above, section 12(3) of U.P. Nagar Mahapalika Adhiniyam, 1959 (now known as U.P. Nagar Nigam Adhiniyam, 1959), inter alia, states that elections of Mayor and Deputy Mayor shall be in accordance with the system of Proportional Representation by means of single transferable vote and the voting at such election shall be by secret ballot. In this case, we are concerned with election to the post of Deputy Mayor (Upa Nagar Pramukh), Nagar Nigam, Dehradun. In the case of Poona University V/s S.N. Agashe reported in A.I.R. 1971 Supreme Court 1783, the concept of “Election by Proportional Representation by means of single transferable vote by ballot” has been explained. In this connection, para 11 of the said judgment reads as follows:- “11. Election by proportional representation by means of a single transferable vote by ballot is often described as the Hare system of proportional representation named after the English Political reformer Thomas Hare. This system of election is based on a quota determined by the following formula. The total votes cast is divided by the number of seats to be filled plus one, and one is added to the quotient. If 1000,000 votes are cast and 4 seats are to be filled, divide by 5 to get a quotient of 20,000, then add 1 to get 20,001, which is the quota. A candidate receiving the quota of first-choice of votes is elected. Under this system electors express first, second, third or additional choices according to the number of candidates. An elector does not waste his vote. If the candidate for whom he has expressed his choice, does not need his vote, the surplus votes are distributed in accordance with the indicated second choices among candidates whose quotas have not been filled. If enough candidates are not elected by this process the candidates with the smallest number of choices is then excluded and his votes are distributed in the same way. This process of exclusion or elimination goes on until enough candidates have filled their quotas or until the successive eliminations have left no more than enough to fill the vacancies.” Reading of paragraph 11 of the above judgment of the Apex Court indicates that under the system of Proportional Representation by means of a single transferable vote by ballot, a candidate receiving the quota of original votes (First Preference votes) is elected. Under the system voters are required to express First, Second, Third or additional choices according to the number of candidates. If the candidate, for whom a voter has expressed his choice, does not need his votes, the surplus votes are distributed as per the