Krishnaswami Reddiar vs Nedukalayan and Another

S. Ramachandra Ayyar, C.J.—This appeal from the judgment of Balakrishna Ramachakdra Ayyab J., relates to the validity of an election of the president Ayyar, C.J. of the panchayat board, Muthiyampalayam in Tiruchirappalli district. The election was held on 12th September 1958, from among the fifteen members of the panchayat. Four of them, namely, Nedukalayan (first Respondent), Krishnaswami Reddiar (Appellant), Sholan and Subramaniam competed for the office. The number of votes secured by them were respectively 4, 8, 3 and 1. The returning officer declared Nedukalayan who had secured the largest number of votes duly elected. The election and the declaration that followed was, however, in complete disregard of Rule 5 of the rules relating to the Conduct of Election of President (and Vice-President) of Panchayats which provides a particular procedure for the election. According to the rule if more than two candidates compete, one who obtains the smallest number of votes will be eliminated first and votes will be taken again treating those that remain as competing candidates. This process has to be repeated till two candidates alone are left when votes will be taken for the last time and the candidate who secures the larger number of votes from among the two will be declared elected. In the present case there were four candidates for the office of the president of the panchayat. The declaration of the result could not have been made on the basis of the result of the first ballot alone. But after ascertaining the result of the first ballot Subramaniam should have been eliminated from the contest, and votes again taken as between the remaining three. The candidate who secures the least number of votes should have been eliminated and the votes again taken for the third time to ascertain which among the remaining two gets the larger number: he that secures the larger would be the properly elected candidate. All that was not done, with the result that there was no election according to rules.

The Appellant, Krishnaswami Reddiar, filed a petition to set aside the election of Nedukalayan before the Election Commissioner (District Munsif of Turaiyur). The Election Commissioner dismissed the petition holding that although there had been a non-compliance with the rules, the Appellant had not proved that the result of the election had been materially affected. This view was accepted by Balakrishna Ayyar, J., when the Appellant moved this Court Under Article 226 of the Constitution to quash the order of the Election Commissioner. Hence this appeal.

There can be little doubt that a serious contravention of the rules has taken place in this case. The grounds on which an election of the president of a panchayat can be set aside are contained in Rule 11 of the rules relating to the decision of election disputes. Clause (c) to that rule alone is relevant to the present case and it runs:

Rule 11. If in the opinion of the Election Commissioner...(c) result of the election has been materially affected by any irregularity in respect of a nomination paper or by the improper reception or refusal of nomination paper or vote or by any non-compliance with the provisions of the Act or the rules made there under the election of such returned candidate shall be void.

The short question that falls to be decided in the present case is whether the non-compliance with the formalities of the election can be said to have affected its result. Having regard to the fact that the result was declared at the intermediate stage without taking the two next ballots which alone could have revealed as to who would be the successful candidate, it will not be possible to decide this case by merely considering whether the Appellant would have obtained the majority of votes if the prescribed procedure had been adopted. To attempt to do so would only be to speculate. Balakrishna Ayyar, J., was conscious of this difficulty. The learned Judge observed:

It may be perhaps pointed out that if there had been only two candidates left, namely, the Petitioner and the first Respondent, it is impossible to say for whom the four voters referred to in the passage quoted above or some, of them would have voted. No doubt the Petitioner could have called them but then if they had been called and they had been questioned on the point they could have very truthfully said that they themselves did not know since they had not applied their minds to the question. That being so, the position is that it was practically impossible for the Petitioner to produce any satisfactory proof on the point.

But yet the learned Judge considered that it was obligatory under the rules to prove that fact and in the absence of such proof the election will have to stand. In our opinion, the matter has to be looked at from a different point of view altogether. Where an election as prescribed by the rules is held, any material irregularity in the same will not render it liable to be set aside unless there is proof that the result of that election hag been affected by the irregularity. That postulates the existence of a valid election and an irregularity therein. But where there is no election but a process is gone through by which the verdict of the majority cannot be said to have been ascertained, the result of such a process cannot be the result of a valid election. That result, must, therefore, be regarded as different from what the result would be, had the election been conducted in the manner prescribed by the rules. In such a case the result of the election must be taken as being materially affected without the necessity of any further proof. That does not mean that every infringement of a rule or infraction of the procedure would automatically render void the election. But where the infringement of rules is such that it can be said that the will of the majority has not been ascertained in the manner in which the statute or the rules prescribed to be done, the result of such an election cannot be regarded as the result of an election contemplated under the statute or the rules framed there under and must, therefore, be one different.

An election to a representative body is purely the creation of a statute, it being designed for the purpose of ascertaining the intention or will of the majority. It follows that where a statute prescribes that the intention should be expressed in a particular manner the election can be said to have taken place only if the intention of the electors is expressed in the manner prescribed by the statute.

In Hari Vishnu Kamath v. Syed Ahmad Ishaque and Ors. (1965) 1 S.C.R. 1104, 1132 Venkatarama Ayyar, J., observed:

...when the law prescribes that the intention should be expressed in a particular manner, it can be taken into account only if it is so expressed. An intention not duly expressed is, in a Court of law, in the same position as an intention not expressed at all.

The procedure adopted in the present case can hardly be said to express the intention of the majority of the members of the panchayat. The rules prescribe that the selection should be finally made only from among two candidates. The object of the rule is plain.

A president should enjoy the confidence of the majority, the only way of ascertaining at the time of election that the person to be chosen has that majority, is to restrict ultimately the competition to two and then ascertain the choice of the electorate, from among them. The course adopted by the officer in the present case can never achieve that result; for if the members who did not vote for Nedukalayan in the first instance (and there were seven of them) were to combine together against him he would perhaps have to vacate his office almost at the first meeting of the council. That consideration apart, it can only be said in the present case that the officer who conducted the election followed a rule of his own to ascertain the will of the majority. Even if one were to hold that the procedure adopted for ascertaining the result of the election was acquiesced in by all the candidates it would still be a case where there was no expression of the will of the electorate in the manner prescribed by the rules. It will be useful in this connection to refer to the classic passage in the judgment in Woodward v. Sarsons (1875) L.B. 10 C.P. 733, 744:

As to the second, i.e., that the election was not really conducted under the subsisting election laws at all we think that there was en election in the sense of there having been a selection by the will of the constituency, that the question must in a like manner be whether the departure from the prescribed method of election is so great that the Tribunal is satisfied as a matter of fact that the election was not an election under the existing law. It is not enough to say that great mistakes were made in carrying out the election under those laws. It is necessary to be able to say that either willfully or erroneously the election was not carried out under those laws but under some other method. For instance, if during the time of the old laws with the consent of a whole constituency a candidate had been selected by tossing up a coin or by the result of a horserace it might well have been said that the electors had exercised their free-will but it should have been held that they had exercised it under a law of their own invention and not under an existing election laws, which prescribed an election by voting.

Can it be said in the instant case that there was a real election in the sense that there was a choice of the president in the manner prescribed? Can it be said that the infringement of the rules was such that the substratum of an election according to the rules was there but there was only an irregularity therein? There can be only one answer to both the questions and that in the negative.

The transgression of the rules has obviously been so great that it cannot be said that the results of the first ballot really represented the will of the majority of the members in the way in which it should have been expressed under the rules.

Balakrishna Ayyar, J., appears to have thought that even in a case where there was such a gross breach of the rules so as to amount to there being no election at all it will really be Ayyar, C.J. A case of non-compliance with the rules and although what followed was an incomplete election it will still be a case of mere infringement of the rules and the conditions laid down in Rule 11(c) should be satisfied before it can be set aside. With great respect we are unable to agree with that view. There is a vital distinction between an infringement of rules which makes the election no election in the eye of law, and one where there is an irregularity in an otherwise valid election.

Mr. V.C. Veeraraghavan, learned Counsel appearing for the first Respondent, contends that as the Appellant had acquiesced in the procedure adopted by the returning officer, it should not be open to him to challenge the election. We fail to see how the mere acquiescence of a candidate, assuming that there was such acquiescence, can make the purported election held on 12th September 1958, other than what it was, namely, no election in the eye of the law. An election will be valid only if it conforms to the rules. There can be no estoppel if a contravention thereof takes place with the assent of the candidate, for there can be no estoppel against a statute or statutory rule. Nor can the candidates by their consent invent a new procedure for ascertaining the will of the majority.

Mr. Veeraraghavan then contends that even if the election officer had followed the prescribed procedure, it would be just possible that the Respondent might get elected and it is for the Appellant to show that the result would have been otherwise. The assumption that if the election had been conducted in the proper way the Respondent would be elected is a pure surmise. No such assumption can be made when the very procedure for ascertaining the will of the electorate has not been adopted. The rule, namely, that an election vitiated by a material irregularity can be set aside only if such irregularity is proved to have affected the result of the election, can apply only when there has been an election. In the present ease there has been no such election. The results have been declared even at the first stage. Learned Counsel seeks support for his contention from a decision of the Supreme Court in Vashit Narain Sharma Vs. Dev Chandra and Others, . In that case there were originally eight candidates who filed nominations for election to the Uttar Pradesh Legislative Assembly from a particular constituency. Three of them withdrew and the contest was confined between the remaining five persons. Vasishta Narain Sharma who secured the highest number of votes was declared duly elected. Three electors filed a petition for setting aside his election and for a declaration that the person who secured the next largest number of votes has been elected on the ground that the nomination of the fourth Respondent to the petition was improperly accepted by the returning officer and that the votes cast in his favour were wasted.

The Election Tribunal accepted the contention that the nomination of the fourth Respondent had been improperly accepted. It also held that the result of the election had thereby been materially affected and set aside the election. The Supreme Court reversed that decision on the ground that the result of the election had not been proved to be materially affected by the reason of the improper acceptance of the nomination as there was no proof that the wasted votes would have been distributed among the remaining candidates so as to bring about the defeat of Vasishta Narain Sharma. Referring to Section 100(1)(c) of the Representation of Peoples Act, it was observed:

We are of opinion that the language of Section 100(1)(e) is too clear for any speculation about possibilities. The section clearly lays down that improper acceptance is not to be regarded as fatal to the election unless the Tribunal is of opinion that the result has been materially affected. The number of wasted votes was 111. It is impossible to accept the ipse dixit of witnesses coming from one side or the other to say that all or some of the votes would have gone to one or the other on some supposed or imaginary ground. The question is one of fact and has to be proved by positive evidence. If the Petitioner is unable to adduce evidence in a case such as the present, the only inescapable conclusion to which the Tribunal can come is that the burden is not discharged and that the election must stand.

It will be seen from the judgment that in that case the transgression of the rules relating to election was not such that it can be said that there was no election in the eye of the law. There was undoubtedly an election in conformity with the rules but in the process of election an irregularity took place in that there was an improper acceptance of the nomination paper. The result of that irregularity was that certain votes were wasted. It was nothing short of speculation on the part of the aggrieved party to say to which of the remaining candidates the wasted votes would have gone if the nomination papers of the particular candidate had been rejected even at the inception.

In Palaniappa Pillai Vs. Sellappa Gounder and Others, , three of the five candidates who originally stood for election for the presidentship of a panchayat withdrew from the contest. The validity of their withdrawal depended upon notice being given by the candidates concerned before a particular date. But the withdrawals were made only after that date. Their names should, under the rule have beep on the voting paper. Ballot boxes were not provided for those candidates and the election was conducted among the remaining candidates alone. This contravention of the rules was relied on in an election petition as vitiating the election, it being contended that if ballot boxes had been provided for the two candidates who had withdrawn from the contest the votes would have been so distributed that the successful candidate would not have secured a majority of votes. Rajamannar, C.J., and Panchapakesa Ayyar, J., rejected that contention on the ground that it would be impossible to attach any value to the conjecture of one of the parties that if some one had stood, someone else would have got less number of votes. In this case also there was an election in the sense that the will of the voters was ascertained in the manner prescribed by the statute or the rules framed there under and such transgression of the rules as there was did not interfere with the ascertainment of the will of the majority in the way prescribed. But in the case before us, there has been no election under the existing law and consequently the purported result of the election that took place on 12th September 1958 must be held to have been one materially affected by reason of the non-compliance with the rules. That election must, therefore, be set aside and it is accordingly set aside. The appeal is allowed with costs.