Case: Thiru John and Another Vs. Returning Officer and Others

The basic facts giving rise to these appeals being common, the same will be disposed of under one judgmentNotice calling for nominations to be filed before 3 P.M. 11-3-1974, for filling six vacancies to the Rajya Sabha from the State of Tamil Nadu in the biennial elections was issued on March 4, 1974, Eleven candidates filed their nominations. On scrutiny which was held on March 12, 1974. all those nominations were found to be valid. On 14-3-1974, which was the last date fixed for withdrawal, three candidates withdrew their nominations leaving eight in the field. The poll was held on 21-3-1974. Counting of votes took place on the same date. The result was published, according to which, the contesting candidates secured the votes noted against their names as follows:1. Shri Khadar Sha .. 35002. Shri Khaja Mohideen .. 37003. Shri V. Subrahmanyam .. 3004. Shri C.D. Natarajan .. 35005. Shri R. Mohanarangam .. Nil6. Shri S. Ranaganathan .. 41007. G. Lakshmanan .. 36008. D.C. John @ Valampuri John .. 3700The requisite quota to secure the election of a candidate was fixed at 22, 400/(6+1) +1 =3201 and candidates mentioned at serial Nos. 1, 2, 4, 6, 7 and 8 were declared electedTwo Election Petitions were filed by the unsuccessful candidates. Election Petition 1 of 1974 was filed by Shri R. Mohan Rangam and Election Petition 2 of 1974 by Shri V. Subrahmanyam. The petitioners prayed that the election of Shri D.C. John be declared void and set aside under s. 100 of the Representation of the People Act, 1951. Each of the petitioners claimed that in the event of Shri Johns election being set aside, he be declared elected under s. 101 of the Act. In addition to the Returning Officer, the Electoral Registration Officer and the Chief Election Commissioner, all the seven contestants were impleaded as respondents.The election of Shri John was assailed o n the ground that on March 9, 1974, the date of the scrutiny of his nomination, he was less than 30 years of age and as such, did not possess the qualification as to age laid down in Article 84(b) of the Constitution. On these premises it was pleaded that the nomination of Shri John was improperly accepted and in consequence thereof, the result of the election has been materially affectedA recriminatory petition No. 1/74 under s. 97 read with s. 83 of the Act was also filed by Shri V. Subrahmanyam petitioner in E.P. 2/ 74, opposing Mohana Rangams relief for declaration under s. 101. The recriminator alleged that since the petitioner in E.P. 1/74 had not secured any vote, he. in the event of the election of Shri John being set aside, was entitled to be declared elected in the place of Shri JohnThe learned trial Judge of the High Court tried all the three petitions together and decided them by a common judgmentThe trial Court held that on the date of the scrutiny of his nomination, Shri John being less than 30 years of age, was not qualified under Art. 84(b) of the Constitution, to contest the election to the Rajya Sabha. On this short ground his election was set aside and the Election Petitions were accepted pro tanto. The trial Court, however, declined to grant the further declaration under s. 101 in favour of either of the election-petitionersAggrieved by that judgment, Shri John, has filed in this Court Civil Appeals 1895-1896 of 1974, and Shri V. Subrahmanyam Civil Appeal 1907 of 1974.

Reasoning:
While it is true that the onus of proving that on the date fixed for the scrutiny of nominations, Shri John was less than 30 years of age, w as on the election-petitioners, they had amply discharged this onus by bringing on record overwhelming documentary evidence of a cogent and convincing character. This documentary evidence includes no less than a dozen previous admissions and declarations made by Shri John himself about his age, between March 1964 and July 1973All aspects of this issue have been discussed threadbare by the High Court. Suffice it to say, that from the evidence on record it stood clearly established that on the date of the scrutiny of the nominations, Shri John was less than 30 years of are and in view of Article 84(b) of the Constitution he was not competent to contest the election for the Rajya Sabha. His nomination was therefore improperly accepted by the Returning Officer, and this improper acceptance has, in so far as it concerned the returned candidate, Shri John, materially affected the result of the election.Shri Johns election was thus rightly set aside by the High CourtIf (at any election held for filling more than one seat) at the end of any count or at the end of the transfer of any parcel or sub- parcel of an excluded candidate the value of ballot papers credited to a candidate is equal to, or greater than the quota, that candidate shall be declared elected (Rule 78). if at the end of any count the value of the ballot papers credited to a candidate is greater than the quota, the surplus is transferred in accordance with the provisions of Rule 79, to the continuing candidates indicated in the ballot papers of that candidate a s being next in order of the electors preference [Sub-Rule (1 ) of Rule79] "Surplus" means the number by which the value of the votes original and transferred, of any candidate exceed the quota [Sub-rule (6) of Rule 71 ]. "Continuing candidate" means any candidate not elected and not excluded from the poll at any given time [Sub-rule (1 ) of Rule 71]. If more than one candidate have a surplus, the largest surplus is dealt with firs t and the others in order of magnitude, but every surplus arising on the first count is dealt with before those arising on the second count and so on. Where there are more surpluses than one to distribute and two or more surpluses are equal, regard shall be had to the original votes of each candidate and the candidate for whom most original votes are recorded shall have his surplus first distributed; and if the values of their original vote s are equal, . the returning officer decides by lot which candidate shall have his surplus first distributed. [Sub-rules (2) &(3) of Rule 78]. "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.If the surplus of any candidate to be transferred arises from original votes only, the returning officer shall examine all the papers in t he parcel belonging to that candidate, divide the unexhausted papers into sub-parcels according to the next preferences recorded thereon and make a separate sub-parcel of the exhausted papers [Clause (a) of sub- rule (4) of Rule 78]. "Exhausted paper" means a ballot paper on which no further preference is recorded for a continuing candidate, provided that a paper shall 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 mar ked by a figure not falling consecutively after some other figure on the ballot paper or by two or more figures [Sub-Rule (3) of Rule 71]. The Returning Officer has to ascertain the value of the papers in each sub- parcel and of all the unexhausted papers. If the value of the unexhausted papers is equal or less than the surplus, he shall transfer all the unexhausted papers at the value at which they were received by the candidate whose surplus is being transferred. If the value of the unex- hausted paVers is greater than the surplus, he shall trans- fer the sub-parcels of unexhausted papers and the value at which each paper shall be transferred sha ll be ascertained by dividing the surplus by the total number of unexhausted Papers [Sub-Rule (4) of Rule 78]. Sub-Rule (5) indicates the procedure where the surplus of any candidate to be transferred arises from transferred as well as orginal votes; All papers in the parcel or sub-parcel of an elected candidate not tansferred under this rule have to set apart as finally dealt with [Sub-Rule (7) of Rule 78]There is nothing in Rule 74 or any other Rule which, at an election to fill more than one seat, requires or empowers the returning officer to exclude a candidate from the poll merely on the ground that in the counting of the first preferences, he has not secured any valid vote. Sub Rule (3) of Rule 75, to which reference was made at one stage, has no application to the instant case. That sub-rule---which requires the returning officer to exclude from the poll a candidate whose score is the lowest--governs the counting of votes where only one seat is to be filled and at the end of any count, no candid ate can be declared elected. Such is not the case before us. Rule 80 also can have no application because it comes into operation at a stage "after all surpluses have been transferred". That stage never arrived in the instant case because in the first counting itself, all the six seats were filled up, six candidates (including Shri John) having secured the requisite quota of first preference votes. Nor did the stage for applying Rule 81 arise, because at the end of the first count, no vacancy remained unfilledWe therefore, repel the contention of the learned counsel and hold that Shri Mohana Rangam did not get automatically excluded. Both he and Shri Subramanyan were continuing candidates. Shri Subramanyan could not be declared elected as he had not obtained the required quota of 3, 201 votes. 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 Subramanyan, who secured 300 votes as against none obtained by Shri Mohana Rangam, be declared elected ?Again, the answer to this question, in our opinion, must be in tire negative. It is nobodys 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 Johns disqualification, how many of them would have voted for him and how many for the other continuing candidates, including Sarv Shri Subramanyan and Mohan Rangam, and in what preferential order, remains a question in the realm of speculation and unpredictabilityIn the view we take, we are fortified by the observations in this Courts decision in R.M. Seshadri v. G.V. Pai (AIR. 1969 S.C. 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. Pal received 5388 votes. The number of the voters who were carried in the hired or procured vehicles could not be ascertainedBefore 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 practise 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 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."The position in the instant case is no 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 Subramanyan. was neither the sole continuing candidate, nor had he secured the requisite quota of votes. He cannot therefore, be declared electedThe dictum of this Court in Viswanatha v. Konappa (supra) does not advance the case of the appellant, Shri Subramanyan. 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) 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 tos 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"The ratio decidendi of Viswanatha v. Konappa 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 Subramanyan 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 sing le transferable vote, under which system the success of a candidate normally depends on his securing the requisite quotaHowever, the principle underlying the obiter in Viswanatha v. Konappa, 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 fieldWe find these contentions wholly devoid of meritThe above principle will apply with greater force in the instant case. Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight. They had shifted the burden on the appellant (Shri John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were incorrectWe find no substance in these contentions. In the witness box both Shri John (RW. 1 ) and his eider brother (RW 3 )admitted their respective signatures on this entry (Ex.P. 29) in the Marriage RegisterThe eider brother (RW. 3) however, admitted that they had signed the Register, notwithstanding the fact that the age of Shri John was mentioned therein as 26 years. Both the brothers however, admitted that Shri Johns marriage was solemnised in St . Francis Xavier Church on. In view of the admissions of RWs 1 and 3, the High Court was right in holding that Ex.P.29 stood proved, and the entries therein were entitled to great weight.