PETITIONER:
THIRU JOHN & ANR.
Vs.
RESPONDENT:
RETURNING OFFICER & ORS.
DATE OF JUDGMENT12/04/1977
BENCH:
SARKARIA, RANJIT SINGH
KRISHNAIYER, V.R.
SINGH, JASWANT
CITATION:
1977 AIR 1724 1977 SCR (3) 538
1977 SCC (3) 540
ACT
Constitution of India, Article 84(b)--Appellant who was
underaged to contest Rajya Sabha elections of 1974 gets his
age in the electoral Roll alone altered but not in other
documents from 14-5-1946 to 14-5-1943 by producing an ex-
tract of the Baptism Register--Whether the result of the
election materially affected on the improper acceptance of
nomination--Representation of the People Act (Act 43),
1951, Sections 83, 97, 100 and 101.
Proof of disqualifications in an election petition--Onus
lies on the petitioner initially.
Evidence Act (Act I), 1872--Sections 17, 18, 19, 20 and
21--Admissions made in several documents ante litem
motam--Burden of proof shifts on the maker to show that they
are erroneous.
"Continuing candidate"--Requisites to be a continuing candi-
date--Whether non-allotment of a "basket" or "parcel" under
Rule 74 automatically excludes him---Conduct of Election
Rules, 1961--Rules 71(1), 74 and 75(3), 79, 80 and 81(2).
HEADNOTE
In the biennial elections of 1974 for filling six vacancies
to the Rajya Sabha from the State of Tamil Nadu, there were
eight contestants, including both the appellants and one R.
Mohanarangam, the petitioner in Election Petition No. 1 of
1974. The requisite quota to secure the election of a
candidate was fixed at (22400 +1)/6+1 +1 =3201 and the
appellant John secured 3700 votes. While the appellant
Subrahmanyam secured 300 votes, Mohanarangam failed to
secure any. The rest of them secured more than the quota,
thus leaving "surplus votes" for transfer within the mean-
ing of Rule 71 (6) of the Conduct of Election Rules.
In the election petitions filed by Mohanarangam and
Subrahmanyam, the election of Sri John was assailed on the
ground that on March 12, 1974, the date of the scrutiny of
the nominations, he was less than 30 years of age and as
such he did not possess the qualifications as to age laid
down under Art. 84(b) of the Constitution that the improper
acceptance of John’s nomination has materially affected the
election. The petitioners prayed that the election of Sri
John be declared void and set aside under s. 100 of the
Representation of Peoples Act, 1951. Each of the petition-
ers claimed that in the event of Sri John’s election being
set aside, he be declared elected under s. 101 of the Act. A
recrimination petition No. 1/74 under s. 97 read with s. 83
of the Representation of Peoples Act was also filed by the
appellant Subramanyam, opposing Mohanarangam’s relief for
the declaration under s. 101 of the Act, alleging that
since the petitioner Mohanarangam in E.P. 1/74 had not
secured any vote, he, in the event of the election of Sri
John being set aside, was not entitled to be declared elect-
ed in the place of John.
The trial Judge of the High Court held that on the date
of the scrutiny of nominations Sri 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 and
accepting the election petition pro tanto set aside John s
election. The trial Judge, however, declined t.o grant
further declaration under s. 101 in favour of either of the
election petitioner.
Dismissing the appeals, the Court,
HELD: (1) From the evidence on record it stood clearly
established that on the date of the scrutiny of nominations
Sri John was less than 30 years of age
539
and in view of Art. 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 Re-
turning Officer, and this improper acceptance has, in so far
as’ it concerned the returned candidate, Sri John materially
affected the result of the election. [547 F-G]
(2) The onus of proving that on the date fixed for the
scrutiny of nominations, a contestant was less than 30 years
of age was on the election petitioners. In the instant case,
the petitioners had amply discharged this onus by bringing
on record over-whelming documentary evidence of a cogent and
convincing character. This documentary evidence includes no
less than a dozen previous admissions and declarations made
between March 1964 and July 1973 by Sri John himself about
his age, to the effect that he was born in 1946 and that his
date of birth was 14.5.1946. Apart from the evidence of
these prior admissions the election petitioners had brought
other documentary evidence viz., the school record purport-
edly signed by John’s guardian, Secondary School Leaving
Certificate ’and various other documents of the educational
institutions, Marriage Register Bar Council Record and
Church records etc. pointing to the conclusion that Sri John
was born on 14.5.1946 and not on 14-5-1943. [542 D-H, 543
A-B- F]
(3) It is well-settled that a party’s admission as de-
fined in sections 17 to 20 fulfilling the requirements of
section 21, Evidence Act is substantive evidence proprio
vigore. An admission, if clearly and unequivocally
made is the best evidence against the party making it and
though not conclusive, shifts the onus on to the maker on
the principle that "what a party himself admits to be true
may reasonably be presumed to be so" and until the presump-
tion was rebutted the fact admitted must be taken to be
established. In the instant case, there are a number of
clear admissions in prior declarations precisely and delib-
erately made in solemn documents by Shri John. These admis-
sions 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 appel-
lant had miserably failed to show that these admissions were
incorrect. [543 C-E]
(4) Under Rule 71(1) of the Conduct of Election Rules,
1961, "Continuing candidate" means any candidate not elected
and not excluded from the poll at any given time. Two
elements must, therefore, be satisfied before a candidate
can be said to be a Continuing candidate. He should be a
"candidate not elected" and further he must not be excluded
from the poll at any given time. In the instant case Sri
Mohanarangam fulfils both these conditions. [550 B, 552 C]
(5) The contention that an essential prerequisite to
the continuance of a candidate is the allotment of a "bas-
ket" or "parcel" under Rule 74 and only such candidate is
entitled to the allotment of a basket who at the end of the
count gets some vote to his credit and opens his account,
and since Mohanarangam did not get any vote whatever he
stood automatically excluded is not correct. There is
nothing in Rule 74 or any other Rule which, at an election
to fill more than one seat, requires or empowers the Return-
ing Officer to exclude a candidate from the poll merely on
the ground that in the counting of the first preferences, he
has not received any valid vote. [552 E-H]
(6) Sub-Rule (3) of Rule 75 which requires the Return-
ing 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 candidate can be declared elected. Sub-Rule (3) of Rule
75 has no application to the instant case. [552 G]
(7) Rule 80 can have n6 application because, it comes into
operation at a stage "after all surpluses have been trans-
ferred. 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 received 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 untitled. In the instant
case, shri Mohanarangam did not get automatically excluded.
Both he and Sri Subrahmanyam were continuing candidates.
Sri Subrahmanyam could not be declared elected as he had
not obtained the required quota of 3201 votes. [522 H; 553
A]
540
(8) The ratio decidendi of Viswanatha v. Konappa is applica-
ble 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. In the instant case
the election in question was not held by mode of single
non-transferable vote according to which a simple majority
of votes secured ensures the success candidate, but by
proportional representation with single transferable yore
under which system the success of a candidate normally
depends on his securing the requisite quota. Shri Subrah-
manyam was not the sole surviving continuing candidate left
in the field, after exclusion of the disqualified candi-
date, Shri John. [554 G-H, 555 A]
Wiswanatha v. Konappa AIR 1969 S.C. 604, distinguished.
All the votes that had polled in favour of Shri John who has
been found by the court to be statutorily disqualified for
election cannot be regarded as thrown away and in conse-
quence, the appellant Shri Subrahmanyam who secure 300 votes
as against none obtained by Shri Mohanarangam cannot be
declared elected. Shri Subrahmanyam was neither the sole
continuing candidate not had be secured the requisite quota
of votes. 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 continu-
ing candidates including Sarvashri Subrahmanyam and Mohana-
rangam and in what preferential order, remains a question in
the realm of speculation and unpredictability. [553 B-E]
R.M. Seshadri v.G.V. Pai AIR 1969 SC 692 @ p. 701, fol-
lowed.
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1895-
1896 1907 of 1974.
(From the Judgment and Decree dated the 14-10-1974 of
the Madras High Court in Election Petitions Nos. 1 and 2 of
1974).
R. N. Choudhary and Mrs. V.D. Khanna, for the appellant
in CAs 1896/74.
Y.S. Chitley, T.N.S. Srinivasavaradacharya & G. Ramas-
wamy, C. Lakshminarain, S.R.L. Narain and Vineet Kumar, for
the appellant in CA 1907/74.
T.N.C. Srinivasavaradacharya, S.C. Lakshminarain,
S.R.L.Narayan, M.S. Narasimahan, for respondent No. 10 in
CA 1895, Resp. No. 6 in CA 1896 and respondent No. 7 in CA
1907.
A. V. Rangam and Miss A. Subshashini, for respondent No. 1
in all the appeals and for respondent No. 2 in 1907.
J. M. Khanna, for respondent No. 8 in CAs. 1895-1896.
The Judgment of the Court was delivered by
SARKARIA, J. The basic facts giving rise to these
appeals being common, the same will be disposed of under one
judgment.
Notice 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
541
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 .. 3500
2. Shri Khaja Mohideen .. 3700
3. Shri V. Subrahmanyam .. 300
4. Shri C.D. Natarajan .. 3500
5. Shri R. Mohanarangam .. Nil
6 .Shri S. Ranaganathan .. 4100
7. G. Lakshmanan .. 3600
8. D.C. John @ Valampuri John .. 3700
The 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 elected.
Two 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 John’s elec-
tion being set aside, he be declared elected under s. 101 of
the Act. In addition to the Returning Officer, the Elec-
toral Registration Officer and the Chief Election Commis-
sioner, all the seven contestants were impleaded as respond-
ents.
The election of Shri John was assailed on 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 affected.
A 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 Rangam’s 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 John.
The learned trial Judge of the High Court tried all the
three petitions together and decided them by a common judg-
ment.
8--502SCI/77
542
The 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-petitioners.
Aggrieved by that judgment, Shri John, has filed in this
Court Civil Appeals 1895-1896 of 1974, and Shri V. Subrah-
manyam Civil Appeal 1907 of 1974.
The first question that fails to be determined in these
appeals is: Whether Shri John Was born on May 14, 1946, as
has been found by the Court below, or on May 14, 1943 as
contended by him ?
Mr. Chowdhary appearing for the appellant (Shri John)
contends that the burden of proving that Shri John, was at
the material date below 30 years of age was on the elec-
tion-petitioner and that the latter had failed to discharge
such burden. Further grievance of Shri Chowdhary is
that the High Court had wrongly rejected the oral and docu-
mentary evidence produced by Shri John.
We find these contentions wholly devoid of merit.
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 yea.rs of age, was on the election-petitioners,
they had amply discharged this onus by bringing on record
overwhelming documentary evidence of a cogent and convinc-
ing 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
1973. These documents containing such declarations consti-
tuting Shri John’s admissions are:
(i) Ex.P.7--Application for Pre-University Examination.
(ii) Ex.P-9--Application for B.A. Examination.
(iii) Ex. P-l4--Application for appearing in University
Examination.
(iv) Ex.P-l5--Application for the first B.G.L. Examination.
(v) Ex.P-l7--Application for admission to B.G.L. Examina-
tion.
(vi) Ex.P-l8--Application for second B.G.L. Examination
April 1972.
(vii) Ex.P-19--Application for second BGL Examination, Octo-
ber 1972.
(viii) Ex.P-21--Application for admission into Law Col-
lege.
(iv) Ex.-22--Application for B.L. Degree Examination.
543
(x) Ex.P-23(a), (b) & (c)--Applications dated 23-71973
for enrolment as Advocate submitted to the Bar Council.
(xi) Ex.P-27--Voters Card containing declaration of his age
as 28 years signed by Shri John.
(xii) Ex.P-87--a Book written by Shri John, containing a
passage on its page 18 suggesting the inference that Shri
John was born in 1946.
All these documents aforesaid contain admissions made
by Shri John that he was born in 1946. In several of these
documents he declared 14-5-1946 as his date of birth.
It is well settled that a party’s admission as defined
in Sees. 17 to 20, fulfilling the requirements of Sec. 21,
Evidence Act, is substantive evidence proprio vigore. An
admission, if clearly and unequivocally made, is the best
evidence against the party making it and though not conclu-
sive, shifts the onus on to the maker on the principle that
"what a party himself admits to be true may reasonably be
presumed to be so" and until the presumption was rebutted
the fact admitted must be taken to be established.
The 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 incor-
rect.
Apart from the evidence of these prior admissions the
election petitioners had brought other documentary evidence,
also, pointing to the conclusion that Shri John was born on
14-5-1946 and not 14-5-1943.
This evidence consisted of-
1. (a) Exhibit P-1 an entry in the records of
St. Xavier’s College School, wherein the date
of Shri John’s birth is recorded as 14-5-1946;
(b) Ex.P.3 which purports to have been
signed by the guardian of Shri John, declar-
ing his age as 14-5-1946;
(c) Ex.P-2, the E.Ss.L.C. signed by Rama
Prabhu, the Secretary to the Commission for
Government Examinations. This Certificate was
issued under the authority of law.
2. Ex.P-4 Secondary School Leaving Certifi-
cate wherein Shri John’s date of birth is
entered as 14-5-1946.
544
3. Ex.P-50, copy of the Fort St. George
Gazette, dated 19-2-1964 showing Shri John’s
date of birth as 14-5-1946.
4. (a)Ex.P-5 the transfer certificate issued
by the St. Xavier’s High School.
(b) Ex.P-10 transfer certificate issued by
the Principal of the College.
(c) Ex.P-13 entry in the admission register
of the College for joining the first year
B.G.L.
(d) Ex.P-16--entry in the admission regis-
ter of the College, for admission to
second year B.G.L. Class.
(e) Ex. P-10--entry in admission register
of the College,
5. Bar Council Records relating to Ex. ’P-23.
6. Marriage Register, Ex.P-29, containing in
the column captioned "Age" as against the
name of Shri John, the entry "26 years" and
the date of his baptism as 19-10-1946.
7. Ex.P.30, Periodical report from the Church-
es regarding marriages solemnised therein,
required under the Indian Christian Marriage
Act 1872, showing that Shri John’s marriage
was solemnised in St. Francis Xavier’s Church’
Madras, on 6-4-1972 by Fr. G.K. Swami, and
that on the date of this marriage he was 26
years of age.
8. Exhibits P11, P-11(a), P-12 and P-l2(a)
records T.E.L.C. Kabis High School showing
Shri John’s date of birth as 14-6-1946.
9. Ex.p-28-Book--Varalatril Kalaignar Writ-
ten by Shri John containing biographical
sketch. Therein, his date of birth is men-
tioned as 14-10-1946.
The petitioner had also examined witnesses who testi-
fied with regard to these documents and the facts appear-
ing therein. The learned trial Judge has carefully dis-
cussed and evaluated this documentary and oral evidence. No
material error or illegality on the part of the learned
Judge in appreciating this evidence has been pointed out.
The learned Judge found that the entries, Ex.P.29, in
the Marriage Register are of great evidentiary value. Mr.
Chaudhury assails this finding. According to him, no legal
provision or rule of practice requires that the date of
Baptism should be entered in such Register. Secondly, it is
urged that the date of baptism given therein is 19-10-1946,
which stands falsified by the evidence of Rev. Fr. Rosario,
the Parish Priest who had baptised Shri John about 7 days
after his birth in 1943. It is further argued that the best
evidence as to Shri John’s date of birth could be that of
the entry in the Public Birth Register maintained under
authority of law and that the election-petitioner on whom
the onus lay, did not produce that evidence.
545
We 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 Register. They however, con-
tended that the information about the date of baptism was
not supplied by them to the Priest who solemnised the mar-
riage and made this entry. The eider brother (RW. 3) howev-
er, admitted that they had signed the Register, notwith-
standing the fact that the age of Shri John was mentioned
therein as 26 years. Both the brothers however, admitted
that Shri John’s marriage was solemnised in St. Francis
Xavier Church on 6-4-1972. 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.
As regards the Birth Register of 1946, the election-
petitioner made repeated attempts to get the same summoned
and produced in Court. The process issued by the Court was
returned with the report that the Register of 1946 was
untraceable. Thereafter, a direction was issued by the
Court to trace and produce it. A search for this record was
made by the record remained untraceable. The Election-
Petitioner contended before the High Court that Shri John
had by the exercise of his influence, prevented the produc-
tion of this record. The High Court found this charge to be
incorrect. Nevertheless, it held that the Public Birth
Register of 1946 had been lost long ago. This being the
case, the non-production of the Birth Register of 1946, must
be held to be a neutral circumstance.
The discrepancy pointed out by Shri Choudhury as to the
date of the baptism of Shri John, takes us to the evidence
produced by him. Shri John brought on the record three
documents, R1, R2 and R4. R-1 is an extract from the Bap-
tism Register kept by the Ovari-Tuticorin Diocese.
The document R-1 according to the High Court was induct-
ed in a questionable manner, without even an application for
it. This was issued by the Parish Priest, Peter Royan (RW
5), and purports to be a copy of an entry in the Baptism
Register, which according to the admission wrung out from RW
5, had itself been re-written and copied from the original.
The Parish Priest conceded that he had burnt the original
because it was in a very bad condition. The High Court
found and we think rightly--that this explanation of non-
production of the original was thoroughly unsatisfactory,
and unbecoming of any Christian, more so, one connected
with Church affairs, that by this ’unholy act’ of burning
the register which was a violation of. Canon 777, Paragraph
676, the witness (RW 5) had done great disservice to
Christianity and greater disservice to the cause of truth".
Since R-1 was only a copy of a copy (R 4), the prepara-
tion of which was itself suspect and the explanation about
the non-production of the original was palpably unbelieva-
ble, these documents were rightly ruled out of evidence.
R.W. 2, Rev. Fr. Rosario stated that he positively
remembered that in the year 1943 when he was the Parish
Priest, he had baptised Shri John. The witness was an old
man. He had no Baptism Regis-
546
ter or any other contemporaneous record to refresh his
memory with regard to an event which took place more than a
quarter of a century back. He was deposing to a fact in
issue merely from memory. Human memory being fallible, it
was hazardous to accept his ipse dixit.The oral evidence of
the witness could not be preferred to the entry in the
Marriage Register, Ex. P 29, showing that Shri John on the
date of his marriage, which took place in 1972, was 26 year
old and had been baptised in 1946. It is true that there is
a slight discrepancy between the date of his baptism as
entered in the Marriage Register and the date of his birth
as admitted by him in the various applications he submitted
for admission to various classes in College or for enrolment
as an Advocate. But there is no discrepancy with regard to
the year of birth as well as baptism being 1946. In Ex.P.
29, the date of his baptism is entered as 19-10-1946. The
biodata appearing in the book Ex.P.28, which, according to
the publisher, RW-4, was entered by him on the basis of
information derived from Shri John, gives his date of birth
as 14-10-1946, while all the numerous public records, the
declarations constituting the prior admissions of Shri John,
produced in evidence by the Election-Petitioner, consistent-
ly show Shri John’s date of birth as 24-5-1946.
We have been taken through the oral evidence rendered by
Shri John (RW 1) and his eider brother (RW 3). Their inter-
ested testimony makes interesting reading.
Shri John was asked in cross-examination to state how he
came to contest the Rajya Sabha elections ? He replied
that, as usual, in his village Ovari, he was having a dis-
cussion with the members of his community to settle a
dispute between owners of catamaran and mechanised boats. A
suggestion was made to him that he should contest an elec-
tion to Parliament as a representative of the fishermen
community. Shri John told them that "..an election to the
Council of States is fast approaching and the only thing is
I cannot enter the Rajya Sabha, because I have not complet-
ed the age of 30 years."
Shri John was further questioned by the
Counsel:
"Then what happened ?"
He replied:
"My eldest brother was one among those
who were assembled there. He told me along
with another elderly gentleman, whose name I
am not able to recollect now:
"What non-sense are you talking? You have
compleated 30 years positively." Moreover they
told me in adition :
We have to refer to the Registers kept in the
Church’ ".
With this idea put into his head, the witness next
morning along with his brother visited the village Church
and met Rev. Fr. Peter (R.W. 5) and asked for the Baptism
Register relating to the witness. Rev. Fr. Peter took out
the Register, Ex. R-4, and turned .the leaves, and to the
surprise of the witness, he saw his date of birth noted
therein as 14-5-1943. Thereafter, Shri John approached the
Chief
547
Electoral Officer, Madras, and made an application
(Ex.P.23) on 26-2-1974 for correction and change of the
date of his birth, as noted in the Electoral Roll, from
’14-5-1946’ to ’14-5-1943’. His application was allowed and
the entry in the Electoral Roll as to age wag amended
accordingly on the 6th or 7th March 1974. On further
cross-examination, Shri John frankly conceded that before
seeing the Baptism Register in the second week of February
1974, he had all along been under the genuine impression
that he was born on 14-5-1946. It was only on seeing
the Register that he came to believe that he was born in
1943.
It is to be remembered that this Baptism Register (R. 4)
is the same, which was found by the High Court to be a
suspicious record, prepared in suspicious circumstances,
wholly unworthy of reliance.
RW. 3, the eider brother of Shri John also stated that
when the elders of the village asked him to contest the
election, he replied that he had not attained the proper
age, i.e. "31 years" which was necessary to contest the
election. Immediately, the witness intervened: "What non-
sense you are talking ? You have attained the proper
age ......you must go and refer in the Church". About
their going to Priest Rev. Fr. Peter Royan at the village
Church and scrutinising the Baptism Register his version
is more or less the same as of RW-1. This witness, as
already noticed, admitted that at the time of his broth-
er, Shri John’s marriage, he had also signed the entry,
Ex.P-29, in the Marriage Register on 6-4-1972. He further
conceded that in this entry Ex. P-29, the age of the bride-
groom, Shri John, was mentioned as 26 years. He further
conceded that in Ex. P. 29, the date of Shri John’s baptism
is noted as 19-10-1946. But the witness, wanted the Court to
have it believed that he had signed this entry without
looking into it. This version was too incredible to be
swallowed without demur. The conclusion was inescapable
that on 6-4-1972, Shri J.D. Mohan, RW-3, the eldest brother
of Shri John, whose parents were dead, knew that the
particulars of this entry. showing his age to be 26 years on
6-4-1972, and the date of his baptism in 1946, were true.
That is why he and his brother John, without raising any
objection, affixed their signatures thereto in token of
its correctness.
We need not dilate on the question of Shri John’s age
further. All 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 elec-
tion 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 John’s election was thus rightly set aside by the High
Court.
Now we come to the second question, whether Shri V.
Subramanyan, appellant in C.A. 1907 of 1974, is entitled to
be declared elected in lieu of Shri John whose election has
been set aside ?
548
Shri Ramaswami, learned Counsel for this appellant, has
advanced alternative arguments. It is submitted that since
Shri Mohana Rangam did not secure any vote at all, he had
ceased to be a continuing candidate and stood’ automatically
excluded, leaving only Shri Subramanyam, sole continuing
candidate in the field. It is emphasised that Shri Rangam
has not filed any recriminatory petition. In this situa-
tion, it is maintained, Shri Subramanyam would be deemed to
have been elected, although he had secured only 300 votes.
Reference in this connection has been made to Rule 81(2) of
the Conduct of Election Rules, 1961.
The alternative argument of Shri Ramaswami is that
since Shri John was not a qualified candidate, the votes
cast in his favour have to be treated as thrown away, and
even if both Shri Mohan Rangam and Shri Subramanyam are
assumed to be continuing_ candidates, the surplus votes cast
in favour of the five successful candidates had to be trans-
ferred and redistributed in favour of these continuing
candidates. It is urged that for this purpose the Court
should send for and scrutinise the ballot papers for
further counting. Shri Ramaswami further pointed out that
the observations of this Court in Viswanatha Reddy v. Konap-
pa Rudrappa Nadganda(1) to the effect, that the votes cast
in favour of the disqualified candidate are to be treated
as thrown away, are equally applicable to the elections for
filling vacant seats in the Council of States, notwithstand-
ing the fact that these elections are held according to the
system of proportional representation with a single trans-
ferable vote whereunder there is no question of obtaining
majority of valid votes, but only the required quota.
In support of his contentions Shri Ramaswami has copi-
ously referred to the treatise, the Single Transferable Vote
by K.V. Krishnaswamy Aiyar published in 1946, and the rele-
vant provisions of the Conduct of Election Rules, 1961 (for
short, referred to as the Election Rules).
The provisions material for our purpose are contained.in
Part VII of the Election Rules. Shri K.V. Krishnaswamy
Aiyar m his book,The Single Transferable Vote (1946 Edn.)
page 23, sums up the general principles of this mode of
election, thus:
"The single vote is transferable from one
nominee to another and that takes place in two
contingencies where there would otherwise be a
wastage of votes.
They are:
(1 ) when a candidate obtains more than
what is required for his success and therefore
has an unnecessary surplus;
(2) When a candidate polls so few votes
that he has absolutely no chance and therefore
the votes nominating him are liable to be
wasted."
Relevant Rules in Part VII of the Election Rules are
modulated on the principles enunciated by Shri Aiyar in the
aforesaid book. The
(1) A.I.R. 1969 S.C. 604.
549
material provisions are contained in Rule 2(1)(c), 67, 70,
71, 73 to 81 and 85.
Under the scheme and system envisaged by these Election
Rules, each elector has only one vote, irrespective of the
number of seats to be filled. But that single vote is
transferable from one candidate to another. The ballot
paper bears the names of the candidates, and the elector
marks on it his preferences for the candidates by denoting
it with the figures 1, 2, 3, 4 and so on against the names
chosen by him and this denotation is understood to be alter-
native in the order indicated (vide Aiyar’s The Single
Transferable Vote), The figure 1 set by the elector opposite
the name of a candidate means "first preference"; the figure
2 set opposite the name of a candidate, the "second prefer-
ence", and so on [Rule 71(ii)]. The minimum number of
valid votes requisite to secure the return of a candidate at
the election is called the quota. At an election where
only one seat is to be filled, every ballot paper is deemed
to be of the value of 1 at each count, and the quota is
determined by adding the values credit to all the candi-
dates, and dividing the total by 2, and adding 1 to the
quotient, ignoring the remainder, if any, and the resulting
number is the quota, vide, Rule 75 (1 ). At an election
where more than one seat is to be filled, every ballot paper
is deemed of the value of 100 and the quota is determined by
adding the values credited to all the candidates, and divid-
ing the total by a number which exceeds by 1 the number of
vacancies to be filled, and adding 1 to the quotient ignor-
ing the remainder, if any, and the resulting number is the
quota (Rule 76).
The computation in the preliminary process is
as under:
The returning officer first deals with the
covers containing the postal ballot papers,
and then opens the ballot boxes, counts the
ballot papers and sorts out and rejects the
ballot papers found invalid. A ballot paper
is deemed invalid on which--
(a) the figure 1 is not marked; or
(b) the figure 1 is set opposite the name of
more than one candidate or is so placed as to
render it doubtful to which candidate it is
intended to apply; or
(c) the figure 1 and some other figures
are set opposite the name of the same candi-
date; or
(d) there is any mark or writing by which
the elector can be identified (Rule 73).
After rejecting the invalid papers, the returning officer
(a) arranges the remaining ballot papers in parcels accord-
ing to the first preference recorded for each candidate; (b)
counts and records the number of papers in each parcel and
the total number; and (c) credits to each candidate the
value of the papers in his parcel. He then determines the
quota in accordance with Rule 75(1), or Rule 76, if the
election is to fill one seat or more than one seat, as the
case may be.
550
If (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 great-
er 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 indicat-
ed in the ballot papers of that candidate as 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
first and the others in order of magnitude, but every sur-
plus 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 votes are equal,. the returning
officer decides by lot which candidate shall have his sur-
plus 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 exam-
ine all the papers in the parcel belonging to that candi-
date, divide the unexhausted papers into sub-parcels accord-
ing 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 marked 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 shall 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].
551
Rule 80 speaks of exclusion of candidates lowest on the
poll. It reads:
"80. Exclusion of candidates lowest on
the poll. (1) If after all surpluses have been
transferred as hereinbefore provided, the
number of candidates elected is less than
the required number,, the returning officer
shall exclude from the poll the candidate
lowest on the poll and shall distribute his
unexhausted papers among the continuing candi-
dates according to the next preferences re-
corded thereon; and any exhausted papers shall
be set apart as finally dealt with.
(2) The papers containing original votes
of an excluded candidate shall first be trans-
ferred, the transfer value of each paper being
one hundred.
(3 ) The papers containing transferred
votes of an excluded candidate shall then be
transferred in the order of the transfers in
which, and at the value at which, he obtained
them.
(4) Each of such transfers shall be
deemed to be a separate transfer but not a
separate count.
(5) If, as a result of the transfer of
papers, the value of votes obtained by a
candidate is equal to or greater than the
quota, the count then proceeding shall be
completed but no further papers shall be
transferred to him.
(6) The process directed by this rule
shall be repeated on the successive exclusion
one after another of the candidates lowest on
the poll until such vacancy is filled either
by the election of a candidate with the quota
or as hereinafter provided.
(7) If at any time it becomes necessary
to exclude a candidate and two or more candi-
dates have the same value of votes and are the
lowest on the poll, regard shall be had to
the original votes of each candidate and the
candidate for whom fewest original votes are
recorded shall be excluded; and if the values
of their original votes are equal the candi-
date with the smallest value at the earliest
count at which these candidates had unequal
values shall be excluded.
(8) If two or more candidates are lowest
on the poll and each has the same value of
votes at all counts the returning officer
shall decide by lot which candidate shall be
excluded."
Rule 81 deals with the filling of the last
vacancies. It may also be extracted in full
because a good deal of argument is founded on
it. It provides:
"81. Filling the last vacancies.--(1)
When at the end of any count the number of
continuing candidates is reduced to the number
of vacancies remaining unfilled, the continu-
ing candidates shall be declared elected.
552
(2) When at the end of any count only
one vacancy remains unfilled and the value of
the papers of some one candidate exceeds the
total value of the papers of all the other
continuing candidates together with any sur-
plus not transferred, that candidate shall be
declared elected.
(3 ) When at the end of any count only
one vacancy remains unfilled and there are
only two continuing candidates and each of
them has the same value of votes and no sur-
plus remains capable of transfer, the return-
ing officer shall decide by lot which of them
shall be excluded; and after excluding him in
the manner aforesaid, declare the other candi-
date. to be elected."
The stage is now set for dealing with the contentions
canvassed before us. The first question that falls to be
considered is: Whether Shri Mohana Rangam, on account of his
failure to secure any vote in the first count is to be
treated as excluded from the poll ? In other words, had he
ceased to be a ’continuing candidate’ within the contempla-
tion of the Election Rules ?
We have already referred to the definition of ’Continuing
Candidate’ in Rule 71(1). The definition has two elements
which must be satisfied before a candidate can be said to be
a continuing candidate. He should be a "candidate not
elected" and further. he must not have been excluded from
the poll at any given time. Shri Mohann Rangam fulfils
both these conditions.
Shri Ramaswami however,, contended that this definition
is to be interpreted and applied in the light of what has
been said in Rules 74 and 81. The argument is that an
essential pre-requisite to the continuance of a candidate is
the allotment of a "basket" or "parcel" under Rule 74, and
only such candidate is entitled to the allotment of a ’ba-
sket’ who at the end of the count, gets some vote to his
credit and opens his account. Since Shri Rangam--proceeds
the argument-- did not get any vote whatever, he stood auto-
matically excluded and no question of allotting any "parcel"
to him arose.
The contention must be repelled.
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. SubRule (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 candidate 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 sur-
pluses 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
553
(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 unfilled.
We therefore, repel the contention of the learned coun-
sel and hold that Shri Mohana Rangam did not get automati-
cally excluded. Both he and Shri Subramanyan were ’contin-
uing 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 disquali-
fied 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 nobody’s case that the electors
who voted for Shri John, had at the time of election, knowl-
edge 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 Subramanyan and
Mohan Rangam, and in what preferential order, remains a
question in the realm of speculation and unpredictability.
In the view we take, we are fortified by the observa-
tions in this Court’s decision in R.M. Seshadri v.G.V. Pai
(1). 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 ascertained.
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 cor-
rupt practiee 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,
AIR. 1969 S.C. 692, at page 701
554
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 elected.
The 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 disqualifica-
tion, 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 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 disquali-
fied, on proof of disqualification all the
votes cast in his favour will be discard-
ed 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 condi-
tions do not exist in the present case. As already dis-
cussed, Shri Subramanyan appellant was not the sole surviv-
ing 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 en-
sures the success of a candidate, but by proportional repre-
sentation with single transferable vote, under which system
the success of a candidate normally depends on his securing
the requisite quota.
555
However, the principle underlying the obiter in
Viswanatha v. Konappa, which we have extracted, is. applica-
ble to the instant case because here, after the exclusion
of the disqualified candidate, two continuing candidates
were left in the field.
For all the reasons aforesaid, the appeals fail and are
dismissed. In the peculiar circumstances of the ease the
parties are left to their own
S.R. Appeals dismissed
556