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T.S. Rama Rao Vs. Registrar, Andhra Pradesh Agricultural University and anr. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petn No. 1712 of 1964
Judge
Reported inAIR1967AP376
ActsAndhra Pradesh Agricultural University Act, 1963 - Sections 19(2), 38 and 39(1)
AppellantT.S. Rama Rao
RespondentRegistrar, Andhra Pradesh Agricultural University and anr.
Appellant AdvocateA. Kuppu Swami and ;V. Venkata Ramanayya, Advs.
Respondent AdvocateGovt. Pleader, ;P. Ramachandra Reddy, ;K. Neeladri Raju, ;E. Ayyape Reddy and ;C. Muddulate Reddy, Advs.
Excerpt:
election - validity of ballot paper - sections 19 (2), 38 and 39 (1) of andhra pradesh agricultural university act, 1963 - question of validity of ballot papers raised - statue 40 (vii) of government order (go) provided that voter can mark his vote in order of preference to as many candidates as number of vacancies to be filled or less than that but in no circumstance to more than that number - third-preference also marked in ballot papers even though there were only two seats - non-compliance of statute 40 (vii) invalidates ballot paper under statute 40 (xi) (g) of go - first statutes of go not in conflict with provisions of section 19 (2) (e) - held, ballot papers invalid. - - these questions may be precisely stated thus: it means that the ballot paper shall conform to all the.....kumarayya, j.(1) this is a petition under article 226 of the constitution of india for quashing the order of the registrar, andhra pradesh agricultural university dated 19-10-1964 and for declaring the petitioner as one of the duly elected candidates for membership to the board of management in the elections held on 17-10-1964 from amongst the members of the andhra pradesh legislative council.(2) it involves mainly an election dispute raising for determination two questions of some importance - both of law one turning on the interpretation of the first statutes of 11th june 1964 made by the government under the andhra pradesh agricultural university act (act no. 24 of 1963) (hereinafter called the act) and the other on the invalidity thereof. these questions may be precisely stated thus:.....
Judgment:

Kumarayya, J.

(1) This is a petition under Article 226 of the Constitution of India for quashing the order of the Registrar, Andhra Pradesh Agricultural University dated 19-10-1964 and for declaring the petitioner as one of the duly elected candidates for membership to the Board of Management in the elections held on 17-10-1964 from amongst the members of the Andhra Pradesh Legislative Council.

(2) It involves mainly an election dispute raising for determination two questions of some importance - both of law one turning on the interpretation of the First Statutes of 11th June 1964 made by the Government under the Andhra Pradesh Agricultural University Act (Act No. 24 of 1963) (hereinafter called the Act) and the other on the invalidity thereof. These questions may be precisely stated thus: (1) Whether any ballot paper duly received by the Registrar in an election of members for the Board of Management of the Agricultural University. State of Andhra Pradesh from amongst the members of the Andhra Pradesh Legislative Council could be legitimately invalidated on the simple ground that the number of preferences marked by the voter exceeds the number of vacancies though not the number of contesting candidates and (2) in the case the first statutes made under the Act permit such a course, whether such statutes are liable to be struck down as abridging the freedom of the voter to express his preferences for all the contesting candidates or in other words for limiting the scope and extent of transferability of the vote of a voter contrary, either to the letter or to the spirit of the Act.

(3) For a proper appreciation of the points raised, we propose to notice first the relevant provisions of the Act and the statutes and then assess the merits of the rival contentions in the light thereof, of course after a review of the facts and circumstances of the case.

(4) The avowed object of the Act (Act 24 of 1963) is to provide for the establishment and incorporation of an Agricultural University in the State of Andhra Pradesh and for matters connected thereto Section 3 which deals with the constitution of the University says that it shall consist of a Chancellor, Vice-Chancellor, a Board of Management and an Academic Council Section 19 prescribes the mode of the constitution of the Board of Management Sub Section (1) thereof directs the Chancellor to take action for the constitution of the Board as early as possible after the first Vice-Chancellor has been appointed.

Section 19 (2) determines the total strength of its members at twenty, sets out in detail in sub-clauses (a) to (k) the relative strength of official and non-official element therein and the method of recruitment in each case, whether by appointment, nomination or election Sub-clause (e) which is material for our purpose says that two persons shall be elected from amongst themselves from the members of the Andhra Pradesh Legislative Council in accordance with the system of proportional representation by means of a single transferable vote Section 38 contemplates that the Statutes made under the Act shall provide inter alia the methods of election in respect of the authorities (in which is included the Board of Management as per Section 18) and the manner of resolving disputes Making of the Statutes, other than the first Statutes, is within the competence of the Board, and these it has to make only with the prior approval of the Government as per sub-section (2) of S. 39. The first Statutes as regards the matters set out in clauses (a) to (m) of S. 38 must of necessity be made under sub-section (1) of Sec. 39 only by Government Such First Statutes made under sub-section (1) as per sub-section (6) of S. 39 have to be laid before each of the houses of the State Legislature at the earliest possible opportunity for a period of 14 days and is liable to be modified or annulled at the will of the two houses. The acts already done under the Act however shall stand protected. In accordance with the provisions of S. 39 (1) the Government made its First Statutes on 11-6-1964 under G. O. Ms. No. 1577 (Food & Agriculture) and published them in the Gazette dated 12-6-1964 Chapter 4 thereof commencing from Statutes 37 deals with elections and the procedure relating thereto Statutes 39 and 40 relate to election of members from the Andhra Pradesh Legislative Assembly and Legislative Council. It is these Statutes which are germane to our purpose Statute 39 while referring to the procedure to be followed incorporates in itself the procedure laid down in statutes 37 and 38 (1) to (iv) (c) and also statutes 40. That means the Statutes 38 (iv) (d) to (xv) are not germane for our purpose except to the extent warranted by Statutes 40 (ix). We have therefore to look to these statutes alone for the provisions regulating the manner in which this particular election should be held Statutes 37 lay down the general rules of procedure. So also is the case with Statutes 38 (I) to (iv) Statutes 40 take up the thread from the stage of publication of the final list of the candidates validly nominated and embody in themselves the detailed procedure to be followed from that stage onwards as to the marking of the ballot papers etc. The last portion of the proviso to Statute 40 (vii) says that the number for whom each elector may vote may be less than or equal to but shall not be more than the vacancies to be filled. Statute No. 40 (x) reiterates the principle that each voter shall have one transferable vote. It is thus manifest that the voter who gives only one vote can mark his preference for as many candidates as there are vacancies to be filled. The Statute 40 (xi) in clauses (a) to (g) sets out the grounds on which a ballot paper shall be rejected as invalid. Clause (g) says that the ballor paper shall be rejected as invalid if it violates any other Stature. It means that the ballot paper shall conform to all the relevant statutes, failure whereof would entail the penalty of the ballot paper being rejected as invalid. Rejection of any vote as invalid is fraught with serious consequences inasmuch as the valid votes alone are taken into account in any recognised system of election. In proportional representation system by means of a single transferable vote which is the method to be followed in elections. Like these it is indisputable that the task of the returning officer is really arduous. After the valid votes are ascertained he has to determine the quota and transfer the surplus votes of each elected candidate to the continuing candidates by continual process of counting which is indeed cumbersome. The procedure to be followed, is set out in detail in Statutes 40 (xii) to 40 (xx). These in short are all the various provisions of the Act and the first Statutes in the light of which the points at issue are to be determined.

(5) Now we come to the facts and circumstances of the case. The petitioner Sri. T. S. Rama Rao, member of the Legislative Council of the State of Andhra Pradesh is one of the three contesting candidates for the two seats referred to in section 19 (2) (e) of the Act, the other two contestants being Sri K. Ramachandra Reddy, and Sri Padileti Venkataswamy Reddy. It is common ground that these elections took place under the First Statutes made by the Government It is also admitted that in this election it was the Registrar who was deputed to sit in the place of the Vice-Chancellor in respect of scrutiny of nominations, conduct of polling and declaration of election and that he was competent, in law, to act in that behalf. The case of the petitioner is that the total number of ballor papers received in that election were 87, that the petitioner obtained 34 first preference votes therein. Sri K. Ramachandro Reddy got 29 first preference votes, and the second respondent obtained even lesser number of votes. The returning officer on the objections of the 2nd respondent rejected 10 ballot papers as invalid on the ground that voters therein marked their third preference also even though the number of vacancies was only two. As a result, the petitioner's first-preference votes were reduced to 24 and he was unable to secure the quota in the first count. Even so though the 2nd respondent go less first preference votes than he as a result of process of transfer of surplus votes as prescribed by the Stature it was the 2nd respondent and not he who was ultimately declared elected. The petitioner contends that the rejection of the ten ballots was not warranted by Statutes and was wrong in law and the election therefore should be set aside. The case of the respondent is that of the 87 election covers received within time two covers were rejected and the number of total ballot papers then received was only 85 and not 87. Out of these 85, ten were rejected as invalid on the ground that third-preference was also marked therein thus violating Statutes 40 (vii). The result was that the number of valid ballot papers was only 75 out of which Sri. K. Ramachandra Reddy obtained 29 first-preference votes the petitioner got 24 and the 2nd respondent obtained 22 first preference votes respectively. The quota as fixed was 26 and not 29. The transfer of surplus votes was effected in accordance with the prescribed procedure with the result that the petitioner failed to get the quota and the 2nd respondent got the required quota and was declared elected.

(6) It is manifest that the parties are at variance on a question of fact as well as to what exactly was the number of ballor papers received and what was the quota determined. This question may not detain us as nothing substantial turns on it. The vital question hinges on the rejection of 10 ballot papers. It is common ground that 10 ballot papers were rejected as invalid on the basis that the voters marked their third preference thereon. If this action is wrong in law there can be little doubt that the rejection of those ballot papers has materially affected the result of the election. That is so even if only some of these papers showed the first preference in favour of the petitioner. In a system of proportional representation by means of single transferable vote the fortunes of the candidates, who do not get the quota in the very first count, are unoften subjected to grant fluctuations. So then, the first question that arises for consideration is whether, on a true interpretations of the relevant provisions of the Act law. Under the clear provisions of the Act contained in S. 19 (2) (e) the only system to be followed in a case like this is proportional representation by means of a single transferable vote. The Act does not give any further details, nor does it to the Statutes as provided in Section 39 (1). Indeed, that is the usual rule adopted by the Legislature While it lays down in the Act the main principle which is to be followed it leaves the details of procedure to the rule making authority. The First Statutes made by the Government prescribe in Statutes 39 and 40 the manner in which the election should be held. Statutes 39 incorporate in themselves Statutes 37 and part of 38 by reference to the general principles contained in Statutes 37 and 38 (I) to (iv) (c). We need not advert to these general rules for the purposes of this case. It also refers to Statutes 40. Statutes 38 are concerned with the election of registered graduates from among themselves within the meaning of section 19 (2) (h) of the Act and in its various provisions prescribe the procedure to be followed therefor. That procedure is bound to be largely different from the one to be followed in the case of persons to be elected under section 19 (2) (e) in view of the difference in the system to be followed. Statutes 40 are the relevant Statutes for our purpose. Statutes 40 (vii) at the end of the proviso, as already noticed, enjoins that the number for whom each elector may vote may be less than or equal to but shall not be more than the number of vacancies to be filled. This provision does not seem to be happily worded. Each voter can give only one vote, but that vote is transferable in the sense that it can be passed on from one candidate to the other according to the choice of the voter. In this context the provision must mean that the voter can mark his preference to as many candidates as there are vacancies to be filled and not more. If this provision is mandatory it should obeyed by the voter exactly. The case would be different if the provision is mere directory for it will then be sufficient if it is obeyed substantially. As observed in re: Thornbury Division case. (1886) 2 TLR 484, statutory provisions in general are directory where the thing to be done is to be done by an officer, but are mandatory where it is to be done by the voter (Sec Parker's Election Agent and Presiding Officer, 6th Edition Page 198). Here marking of preferences is essentially the duty of the voter. Under Statutes 40 (vii) it is open to him to mark his vote in order of preference to as many candidates as the number of vacancies to be filled or less than that but in no circumstance to more than that number. If he violates this provision by marking his preference for 3 candidates even though there are only two seats penalty under statute 40 (xi) will be attracted and his ballot paper shall be rejected as invalid. That again is a test of the statutes being mandatory and not mere directory for in case of the former the effects of non-compliance are usually provided. Penal provisions must be construed strictly. Their scope cannot be extended by analogy. They cannot attract cases which do not directly come within. Judged thus it is difficult to hold that the above mentioned violation is not within the ambit of sub-clause (g) The said provision so far as material reads thus:

'(xi) XX XX XX XX XX He shall then proceed to count the votes rejecting as invalid any ballot paper.

(G) If it violates any other statute. On every paper so rejected, the Returning Officer shall endorse the words 'Invalid' and such papers shall be kept in a separate bundle.'

The term 'any other statute' has necessarily a reference to Statute 40 (vii) as well. In fact each part of the main statute (40) is a statute by itself (40). That is what Statute 39 says when it refers to statute 40 as Statutes. Even Section 39 of the Act in sub-section (1) uses the word 'first statutes' showing thereby that each part of the first statutes is a distinct statute by itself. In that view of the matter statute 40 (vii) or the last portion of the proviso to the same in relation to Statute 40 (xi) (g) is a distinct and a separate statute or in other words is another Statute. So then if the ballor paper violates this Statute it comes within the mischief of stature 40 (xi). When the meaning of statute 40 (vii) is quite obvious and non-compliance or violation thereof invalidates the ballot paper under clear provisions of statute 40 (xi) (g), it is difficult to accept the contention that the ten ballot papers notwithstanding that they show 3 preferences instead of the maximum permitted two cannot be held invalid. We therefore answer the first question in the affirmative holding that on true interpretation of the Statutes the ten ballor papers marked by the voters against the clear instructions given to them and also provisions embodied in Statute 40 (vii) are invalid in law and have been rightly rejected.

(7) It is then necessary to turn to the next question. The argument of Sri. Kuppuswamy is that the Legislature in Section 19 (2) (e) of the Act has deliberately employed the term 'proportional representation by single transferable vote' without any qualifications or restrictions and therefore the First Statutes made by the Government cannot cut down the scope of this concept by putting limitations on the freedom of the individual voter to mark his preferences to as many candidates as he would like. It is urged that as the Statutes by doing so come in conflict with the main provisions in the Act itself they should be struck down as invalid. It is a well recognised principle of law that the Statutes made on any of the matters permitted in section 38 or section 39 cannot afford to be in conflict with the provisions of the Act. In fact the opening words of section 38 of the Act make it abundantly clear that they are to be made subject to the provisions of the Act. The question then is whether there is any inconsistency between the statute and the Act. It will be inconsistent if it goes beyond the Act or restricts the right given by the Act or contains provisions which cannot stand side by side with the Act.

The Act declares that the system of single transferable vote has to be adhered to. It means that the voter has only one vote however numerous the seats to be filled but if that vote is of little use to the person who the voter wishes most to have him as his representative by reason of its being in surplus of the quota required or otherwise, it should be transferable to the person of his next choice and so on; so that it may be made effective to the limit it is possibly. Statute 40 (x) clearly lays down that all voters would be entitled to vote and each voter shall have one transferable vote. It is manifest that the first statutes do not deny the voter the right of giving a single transferable vote. So far there is no difficulty whatsoever. Then the Statute 40 (vii) enjoins that the voter shall mark his preferences to as many candidates as there are vacancies but not more. The vote cast even under this provision can be transferability (i.e.) expression of choice in favour of the candidates, however, is regulated by the number of seats. The criterion is not the total number of candidates but the number of vacancies to be filled. Would that mean that basic departure from the system of single transferable vote? Does the method provided militate against the principle of proportional representation by means of single transferable vote contemplated by the Act? Be it noted the right to give vote is not a common law right. It is a creature of a special enactment, the manner of voting being invariably a matter of rules. While the rules cannot in providing the procedure deny the substance of right conferred by the Act, the voter cannot claim a higher right than that is given to him by the Act. Nor can be claim to exercise that right in a manner different from what the rules provide. His right necessarily depends on the language or clear intendment of the Act. The question therefore is whether single transferable vote vouchsafed to him in the context necessarily means transferability thereof to all the contesting candidates irrespective of the number of seats. The Act has simply referred to the system and provided in Section 39 that the first Statutes shall inter alia provide for the methods of election in respect of the authorities. In sub-clause (6) of the said section it is further provided that the first statute shall after it is made be laid before each house of the State Legislature and in case both the Houses agree in making any modification or in the annulment of the Statutes the Statutes shall have its operation only in a modified form in case of modification and in case of annulment shall stand annulled. It is obvious that after it is laid both the Houses of State Legislature did not propose to make any modifications in the Statute. The avowed purpose of imposing the condition of laying is obviously to ensure inter alia that the Statute is in accord with the Act and the intention of the Legislature is truly reflected therein. That is also clear from Legislative assembly rules.

(8) If the provisions of the Statutes were against the intendment of the Act which declares the system to be followed for the elections to the Board of Management the Legislature certainly would have modified them to the extent necessarily or annulled them. They had time and opportunity to do so for it is not disputed nor can it be presumed otherwise, that the Statutes were laid before both the Houses in compliance with the provisions of Section 39 (6) of the Act. It should therefore follow that the Legislature while making provisions in the Act did not intend the meaning and scope of the expressions used by them in relation to the system of election to be different from what is detailed in the Statutes concerned.

(9) Even so the learned counsel, Mr. Kuppuswamy, referred us to several text-books in support in his contention that proportional representation by single transferable vote as used in the Act must necessarily connote full and unqualified freedom to the voter to mark his preferences to all the candidates irrespective of the number of vacancies. As far as we could see these text books do not lay down any such rule of thumb. They do not show either that the system is too inelastic to be made applicable to various situations with some variations and combinations. On the other hand they show that it can be moulded to suit various situations in different countries which follow this system provided that essence thereof is maintained. While transferability of a single vote given by the voter is of the essence of the system it can certainly be regulated by number of seas. Though it is related to the candidates, in order to achieve the maximum effectiveness of the vote its extent can legitimately be determined in view of the number of seats. It is not as though it has no nexus with the vacancies to be filled. Indeed, it is for filling such vacancies alone this device is resorted to. Be it remembered that a singly transferable vote is one of the types of proportional representation system. A system of proportional representation according to Mackenzie (see p. 61 of Free Election by W. J. M. Meckenzie) may be defined as a system of voting which includes some device for allocating seats proportionately to the votes cast for each candidate (or affiliated groups of candidates) in the constituency concerned. It requires multimember constituencies; one seat cannot be divided proportionately. The larger the number of seats in the constituency the more exact is the proportionality that can be achieved. The element of proportionality that can be achieved in allocating two seats is trivial, it begins to be significant in a three member constituency electing the whole assembly together. The learned author proceeds to say further at page 61 that there are two main types of proportional representation. One is the single transferable vote and the other is the list system; that each has many varian and it is possible to combine them with or another or even to mix them ingeniously with the first past (sic) the post system. Thus it manifest that the system of proportional representation by means of single transferable vote is designed to make every vote given by the voter as effective as possible and this system can be effectively employed only in multimember constituencies where though each voter has only one vote to give, he is assured of the greatest possible freedom and effectiveness in its use by its being passed on as may be necessary from the candidates he has marked 1 to the candidate he has marked 2 and so on. As observed by this court in P. Venkatanarayana v. G. V. Sudhakar Rao, : AIR1967AP111 .

'This system gives ample scope to the electors to take part as freely and fully as possible in the selection of their own representatives by choosing between candidates on personal as well as party grounds with the assurances that all or nearly all the votes cast by them are made effective by being passed on as may be necessary from the candidates they have marked 1 to the candidates they have marked 2 and so on.'

One characteristic feature of this system is that each successful candidate is elected not by majority of votes but by a quota that quota being one vote more than the number of valid votes by one more than the number of seats to be filled. This is popularly known as Droop quota as distinct from Hare quota and in fact is but an improvement on Hare Quota. The system was originally devised in or about the year 1850 by a Danish Politician, C. C. G. Andrae, and by a London Barrister, Thomas Hare. The system advocated by Thomas Hare caught the attention of John Start Mill who eulogised the benefits of this system in his book 'Considerations on Representative Government'. The system as originally designed or developed has undergone several refinements in matters of details. Judged as a whole it is an elegant device for enabling the individuals to express themselves through the electoral process in a manner that the outcome of their voting bears a logical relationship to the votes cast. The elected body as a rule reflects within limits of a few per cent the strength of political parties or other groups of opinion among the voters. The element of gamble is largely eliminated therein. What is more it provides ample scope for minorities being adequately represented which is an essential trait of true democracy. It is to these characteristic features, that in certain elections in India this system has been adopted. The Constitution of India has adopted this method in Art. 171(4) for the election to the Legislative Council. The Act likewise has provided for the said method for election of two persons from amongst the members of the Legislative Council to the Board of Management. The Representation of the People Act 1951 (Act 43 of 1951) in Section 15A speaks of election of members of the council in accordance with the provisions of that Act and also of the rules and orders made thereunder. Part 6 of Conduct of Election Rules 1961 in the substituted rule 37A provides for the method of voting. It declares that every elector shall have only one vote at an election irrespective of the number of seats to be filled. As regards the method of voting it provides that the elector shall place the figure 1 against the name of the candidates who he wishes most and may in addition mark the figure 2 or 2 and 3 or 2, 3, 4 and so on opposite the names of the other candidates in the order of preference. That shows while marking of figure 1 is obligatory the marking of the other preferences is left to the will of the elector. In part 7 which relates to counting of votes the procedure therefor is laid down in detail. Rule 75 relates to a case where only one seat is to be filled and rules 76 to 83 relate to cases where more than one seat is to be filled. The illustration in the schedule would clearly show that it is Droop quota that has been adopted for the purpose. Likewise First Statutes 40 (xii) to (xx) would show that it is the Droop quota which is adopted to carry out the intention of the Act.

It may be recalled the Act prescribes in Section 19 (2) (e) the system or proportional representation by means of single transferable vote and leaves the method of election to the First Statute to be made under Section 39 read with Section 38. The only difference in the methods provided by the Conduct of Election Rules and the First Statutes is that whereas Statute 40 (vii) provides that the number of preferences should not exceed the number of seats, the former is silent thereon. In other words there is no such limitation on the exercise of choice of the electors and if there is any ceiling it is related to the number of candidates in the field. Does the method of election contained in the Statutes cease to be one of proportional representation by means of single transferable vote by reason of the said difference warranted by a different situation? As already notice the single transferable vote system admits of several variants and combinations. Otherwise it may not be possible to make it applicable to different situations in different countries. The object of this system as we have already noticed, is to make the vote of the elector effective as far as possible so that the elected body may, to the maximum degree possible., reflect the strength of the groups of opinion in the electorate. The outcome of vote thus bears, as far as possible, a logical relation to the votes cast. We have already noticed that the largest the number of seats in the constituency the more exact would be the proportionality that will be achieved and that the element of proportionality where the number of seats is only two is but trivial. Even so, within these limitations, the maximum should nevertheless be aimed at that being the keynote of the system. So then in order to ensure this maximum proportionality if the choice of the voters is regulated by the number of seats and not mainly by the number of candidates the system could not cease to be a single transferable vote system. It would be named so as long as the voter has to give a single vote which is transferable from candidate to candidate in a manner that it may not go waste as far as possible. Where the seats to be filled are only two and the candidates several, the object of rendering each vote effective in a large number of cases, can be better achieved by limiting the choice to two alone. The outcome of vote in that case would bear a logical relation to the votes cast and the voters of practically all electors would play their part in returning candidates.

It is evidently on that basis that the provision in question was made to effectuate the purpose of the legislature in as best a manner as possible. It must also be remembered that in a system like this, the late preferences do not, as a rule have the same significance or value as the early ones. Of course exceptions there may be several. So then if in a two member constituency the choice of the electors was sought to be concentrated on any two rather than diffused on many which would result in much waste or loss of votes. The device must indeed be quite in keeping with the aim and object of the single transferable system.

Indeed in some of the countries which followed this system the number of preferences are delimited or extended or essential minimum thereof has been fixed for the validity of the ballot papers as the needs of the country required. So long as its basic character of transferability remains, namely that the vote can be transferred from candidate to candidate according to the choice of the elector the single fact that the extent of transferability is regulated by the number of vacancies would not render the system different from that of single transferable vote when it is also obvious that it is designed to achieve the maximum effectiveness of the vote under the circumstances Learned counsel has failed to satisfy us that the device of single transferable vote system even in its orthodox form admits of no variants or adjustments in matters of detail. In fact the textbooks relied on by him do show that there are various variants in this system. It is difficult to hold that the single transferable vote which is so clearly guaranteed by the statutes as well is desvested of its substance of transferability by reason of statute 40 (vii) which only regulates the degree of transferability having regard to the number of vacancies and not essentially to the total number of candidates. Nor can it be said that the integrity of the system is violated on that account when it is obvious that it is only a matter of detail designed to make the vote as effective as possible which is but the end and aim of the system. As already noticed the orthodox single transferable vote system has undergone several refinements in matters of details without attracting such a criticism as is advanced now. The contention of the learned counsel based on statute 40 (vii) must therefore fail.

To sum up our conclusions, we are of the view that the first Statutes having regard to any of their provisions are not in conflict with the provisions of Section 19 (2) (e) of the Act. As contemplated by the Act they have guaranteed in statute 40 (x) the right of single transferable vote. As directed in section 39 they have made provisions in relating to the method of election. The vote being single transferable vote, they in statute 40 (vii) have correlated the transferability of votes, from candidate to candidate, with the number of seats to ensure maximum effect for the votes given. In statutes 40 (xii) to (xx) they have provided for the method of counting votes fixed the Droop quota and laid down the method of transfer of surplus votes. The entire schemes so drawn is consistent with the scheme of the single transferable vote as known to law. Even Statute 40 (vii) which alone is in fact the impugned statue is not inconsistent with any basic principle of that system. On the other had it is designed to best effectuate its purpose in that designed to best effectuate its purpose. In that premises it cannot be successfully assailed, either that it goes it beyond the spirit of the provisions of the Act as contemplated by the legislature and is therefore liable to be struck down. Section 19 (2) (e) declares the system to be followed by giving its technical name. The Act while leaving in section 39 (1) the matter relating to the method of election to the First statutes directs in sub-clauses (6) that they are made. Accordingly the statutes made under section 39 (1) in which is included the impugned statute were laid before the Legislature and were found by Both the Houses to be quite in accord with their intendment. The impugned provision that apart even according to well known general principles of the system of single transferable vote, as discussed above does not spell out any inconsistency with that system. Above all the right to vote being a mere creature of a special enactment no one can set up a greater right than the act has conferred on him. We cannot also ignore the rules which are validly made to carry out the purpose of the Act. The provisions of statute 40 (vii) cannot be contravened with impunity for that is a mandatory provision declaration in Statute 40 (xi) (g) the effects of its non-compliance. The rejection of the ballot papers was therefore justified in law and the petitioner cannot make grievance of the same. Besides when the Statutes are consistent with the intendment of the legislature the petitioner cannot make any grievance of the loss of supposed right. The result is the second question also must be answered against the petitioner. The writ petition is therefore dismissed. The petitioner will pay the costs of the respondents Advocate's fee is fixed at Rupees 100/-

(10) Petition dismissed.


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