Judgment:
ORDER
B.S.A. Swamy, J.
1. Writ Petition No. 20556 of 1999 was filed by the in-charge Sarpanch Peravalipalem, Vemuru Mandal, Guntur District as per the resolution of the Gram Panchayat adopted for the purpose. Writ Petition No. 21494 of 1999 was filed by some of the voters of the same Gram Panchayat seeking a declaration that the 4th respondent herein is not entitled to act as the Sarpanch of Peravalipalem Gram Panchayat by issuance of writ of mandamus. As the issue raised in both these writ petitions being the same, they can be disposed of by a common order.
2. The question that falls for consideration in these two writ petitions would be when two candidates contested for (he office of Sarpanch and the candidate elected ultimately found to be disqualified to contest for the office of Sarpanch, whether the Court is bound to declare the other candidate in the fray as Sarpanch of the village automatically under Rule 13 of A.P. Panchayat (Election Tribunals in respect of Gram Panchayats, Mandal Parishads and Zilla Parishads) Rules, 1995 hereinafter called as 'Election Tribunal Rules' framed by the Government in exercise of its rule making power under Section 233 read with Section 268(1) of A.P. Panchayat Raj Act (hereinafter referred to as 'the Act') and the Rules.
3. The facts of the case are not in dispute.
4. Three candidates by name Sri Vishnumolakala Basava Punnaiah, Sri Javvaji Ammaiah-respondent No. 5 herein and Vishnumolakala Eswara Rao - respondent No. 4 herein contested for the office of Sarpanch of the village and they secured 976, 890 and 60 votes respectively, whereas 74 votes were declared as invalid out of 2000 votes polled. Vishnumolakala Basava Punnaiah was elected as Sarpanch of the village as he polled highest number of votes.
5. Questioning this election on the ground that the elected Sarpanch incurred disqualification from contesting elections under Section 19(2)(i) read with Section 14(6) of the Act as surcharge ' certificates were issued against him for misusing the Panchayat funds, respondent No. 4 herein filed O.P. No. 23 of 1995 before the Election Tribunal for Gram Panchayats. The Tribunal by its order dated 7th April, 1998 held that Basava Punnaiah-respondent No. 1 as well as Jawaji Ammaiah-Respondent No. 2 suffered disqualification, declared first respondent election as void and further gave a declaration that Vishnumolakala Eswarar Rao-respondent No. 4 who secured 60 votes as Sarpanch of the village for remaining period of the elected term.
6. Questioning the said order, Basava Punnaiah filed Writ Petition No. 13483 of 1998 on the file of this Court and obtained interim suspension in WPMP No. 16243 of 1998 dated 8.5.1998. Subsequently, during the pendency of the writ petition said Basava Punnaiah died on 13.8.1999 and when this fact was brought to the notice of this Court, the Division Bench of this Court, dismissed the writ petition by an order dated 9.9.1999 as abated. Having come to know about the dismissal of the said writ petition, the Gram Panchayat seemed to have convened an urgent meeting on 20.9.1999 and resolved to file a writ petition on the file of this Court seeking a declaration that the 4th respondent is not eligible to take charge as Sarpanch of the Gram Panchayat as he secured only 60 votes (i.e.,) less than the votes secured by a defeated ward member and authorized the Vice-President to file a writ petition on the file of this Court. As per the authorization the Upa-Sarpanch filed Writ Petition No. 20556 of 1999.
7. By the time these two writ petitions came up for admission, the District Collector (Panchayat Wing), Guntur in his Proceedings ROC No. 6169/99-G1, dated 29.9.1999 issued orders directing respondent No. 4 to assume the office of Sarpanch of the village by duly taking oath of allegiance in the presence of Divisional Panchayat Officer, Tenali and Respondent No. 4 assumed office of Sarpanch on 30.9.1999. While admitting W.P. No. 20556 of 1999 by an order dated 1.10.1999 this Court directed the office to post the writ petition for orders on 3.11.1999. In the meantime 12 voters of the village filed W.P. No. 21494 of 1999. By the time, the writ petitions came up for hearing practically the term of office of Sarpanch came to an end. In fact, after the case is reserved for orders, elections have taken place to the Gram Panchayat and new Sarpanch seemed to have assumed the office. In the normal course, writ petitions would have been disposed of as infructuous. But keeping in view the importance of the issue raised before this Court and as it relates to interpretation of Rule-13 of the Rules apart from the fact that both the Counsel addressed arguments very elaborately on the issue, I am inclined to dispose of the writ petitions on merits.
8. In May, 1995, the Election Commissioner seemed to have issued notification fixing the election programme for constitution of the Gram Panchayats in the State of Andhra Pradesh. As per the election programme, nominations have to be filed on or before 13.6.1995, the date of scrutiny of nominations was on 14.6.1995, publication of the valid list of qualified candidates was on 17.6.1995 and 3.7.1995 was fixed as election date. About 8 candidates seemed to have filed their nominations and on the date of scrutiny, respondent No. 4 herein seemed to have raised an objection for the nominations filed by respondent No. 5 as well as Basava Punnaiah on the ground that they incurred disqualification under Section 14(6) of the Act and in support of his objection he seemed to have filed surcharge certificates issued against both the individuals. From the record it is seen that without taking any decision on the objections raised by respondent No. 4, the Election Officer declared all the candidates as eligible candidates to contest the elections. While others withdrew from the elections, late Basava Punnaiah, respondent Nos.4 and 5 were in the fray. Subsequently, elections have taken place on 3.7.1995 and results were declared on 21.10.1995. As stated supra, Basava Punnaiah was declared elected as Sarpanch of the Gram Panchayat. Thereafter, Election Petition No. 23 of 1995 filed by the respondent No. 4 herein was allowed on 7.4.1998 and the Tribunal declared him as duly elected to the Office of Sarpanch.
9. Before adverting to the declaration given by the Tribunal, it is useful to refer to the aims and objectives of organization of the Village Panchayat. Article 40 of the Constitution of India deals with organization of Village Panchayats. Their Lordships of the Supreme Court in State of U.P. v. Pradhan Sangh Kshettra Samiti, : AIR1995SC1512 , explained the objectives underlying Article 40 and Part DC of the Constitution of India introduced by 73 Amendment Act, 1992. Their Lordships held at para 2 as follows:
'The Village Panchayats are envisaged by the Article as the base democratic institutions of a pyramid of the democratically organised and functioning self governing units. This being so, while organizing the Village Panchayats, what is necessary to be kept in mind is (a) that they are to be the self governing units at the lowest end of the democratic policy, (b) that being self governing units, those who are governed by the said units and for whose benefit they are going to operate, will have either a direct or an elective indirect representation in them, (c) that they will have an effective say in the conduct of their affairs including its plans, policies and programmes and their execution and (d) that thus they will have not only a sense and satisfaction of participation but also an experience in the governance of their own affairs. So long as the Village Panchayats are organised to achieve the said objectives, the requirements of the said Article will have been complied with both in their spirit and in letter.
10. Article 243-B deals with constitution of panchayats at the village, intermediate and district levels in accordance with the provisions of Part DC, Article 243C(2) states that all the seats in a Panchayat shall be filled by persons chosen by direct election from territorial constituencies in the Panchayat area and for this purpose, each Panchayat area shall be divided into territorial constituencies. Article 243(C)(5) states that the Chairperson of a Panchayat at the village level shall be elected in such a manner as the Legislature of a State may, by law, provide. Article 243(e) states that the duration of Gram Panchayat shall be for a period of five years, unless it is dissolved under any law for the time being in force. Article 243(f) states that contest for elections is subject to some disqualifications. Under Article 243(G), the Legislature of a State may, by law, endow the Panchayats with such powers and authority as may be necessary to enable them to function as institutions of self Government and such law may contain provisions for the devolution of powers and responsibilities upon Panchayats at the appropriate level subject to such conditions as may be specified therein, with respect to (a) the preparation of plans for economic development and social justice, (b) the implementation of schemes for economic development and social justice as may be entrusted to them including those in relation to the matters listed in the eleventh schedule. Article 243K states that the superintendence, direction and control of the preparation of electoral rolls for, and the conduct of, all elections to the Panchayats shall be vested in a State Election Commission consisting of a State Election Commissioner to be appointed by the Governor. Under Sub-clause (4) the Legislature of a State may by law, make provision with respect to all matters relating to, or in connection with elections to the Panchayats.
11. In consonance with the provisions of Part IX of the Constitution of India, the State Legislature enacted A.P. Panchayat Raj Act, 1994 (Act 13 of 1994). Section 4 of the Act deals with Constitution of Gram Panchayats for villages and their incorporation. Section 8 states that all members of the Gram Panchayat shall be elected by the registered voters in the ward by the method of secret ballot and in accordance with such rules as may be made in this behalf. Section 9 speaks about the reservation of seats of members of Gram Panchayat. Section 10 deals with division of wards. Section 11 deals with preparation and publication of electoral roll for a Gram Panchayat. Section 13 speaks about the term of office of members i.e., five years from the date appointed by the Commissioner for the first meeting of the Gram Panchayat after ordinary elections. Section 14 of the Act states that Sarpanch of every Gram Panchayat shall be elected directly by the persons whose names appear in the electoral roll of Gram Panchayat from among themselves. Section 14(6) states that the Sarpanch of the Gram Panchayat is subjected to the same disqualifications as that of the office holders as envisaged under Sections 18 to 22. Under Section 19(2)(i) a person who is in arrears of any dues including the sums surcharged otherwise than in a fiduciary capacity, to the Gram Panchayat upto and inclusive of the previous year, in respect of which a bill or notice has been duly served upon him and the time, if any, specified therein for payment has expired is disqualified for being chosen as a member (in this case Sarpanch) on the date of scrutiny of nomination for election.
12. In this case I am not called upon to adjudicate whether late Basava Punnaiah or respondent No. 5, incurred disqualification. As the writ petition filed by late Basava Punnaiah against the order of the Election Tribunal abated on his death.
13. The only issue that is canvassed before this Court in these two writ petitions is whether the Election Tribunal is justified in giving a declaration that respondent No. 4 who has not even secured the votes which a defeated candidate for a ward secured in the Gram Panchayat declared as Sarpanch of the Gram Panchayat more so by declaring a candidate who secured more votes than the Election Petitioner by holding that he is the dummy candidate of the elected candidate.
14. Under Rule 12(B) of the Election Tribunal Rules, if the Election Tribunal is of the opinion that if any returned candidate or his election agent or any other person with their consent indulged in any corrupt practice as laid down under Section 211 of the Act or the result of the election, in so far as it concerns a returned candidate has been materially affected by the improper acceptance of any nomination, etc. the Tribunal shall declare the election of the returned candidate as void and also declare that the returned candidates shall be disqualified to contest in any elections under the Act for a period of six years from the date of the order.
15. In this writ petition, I am concerned with the interpretation of Rules 13 and 15 of the Act and it is useful to extract the same.
'13. If any person who has lodged a petition, as in addition calling in question, the election of the Returned Candidate claimed a declaration that he himself, or any other candidate, has been duly elected and the Tribunal is of the opinion.
(a) that in fact, the petitioner or such other candidate, received the majority of the valid votes, or
(b) that but for the votes obtained by the returned candidate, by corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes, the Election Tribunal shall after declaring the elections of the returned candidate to be void, declare the petitioner or such other candidate, as the case may be to have been duly elected.
15. (i) At the conclusion of the inquiry, the Election Tribunal shall declare whether the election of the Returned Candidate or Candidates is void under Rules 12 and 13;
(ii) if he declares the election of the Returned Candidate or Candidates void, he shall further pass an order either;
(a) declaring that any other party to the petition who has under these Rules claimed the seat has been duly elected; or
(b) order a fresh election;
(iii) The order of the Election Tribunal under Sub-rules (i) and (ii) shall be final;
(iv) A copy of every order under Sub-rule (i) or Sub-rule (ii) shall be communicated to the Executive Authority of the Gram Panchayat, Mandal Parishad and Zilla Parishad, as the case may be, and the Election Authority.
It is seen that Rule 13 is in para material the same as Section 101 of the Representation of the Peoples Act. The sheet anker of the argument of the learned Counsel Sri Chandrasekhar Rao, appearing for R4 is that two out of three candidates incurred disqualification in the election to be chosen as Sarpanch of the village, the remaining candidate (i.e.,) his client has to be declared as elected under Rule 13 of the Election Tribunal Rules and as such, the Election Tribunal is justified in giving a declaration that his client is deemed to be 'elected as Sarpanch of the Village'. He placed strong reliance on a judgment of the Supreme Court in Viswanatha Reddy v. Konappa Rudrappa Nadgoudea, , wherein, their Lordships of the Supreme Court having held that the returned candidate was disqualified by virtue of Section 9-A of the Representation of the Peoples Act from standing as a candidate for election to the Mysore Legislative Assembly on the ground that he is having subsisting contact with the Government, gave a further declaration that the respondent was duly elected to the Mysore Legislative Assembly.
16. The Supreme Court pointed out the cases falling under Section 101(B) in which a further declaration can be made as hereunder:
'We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the returning officer as validly nominated but who is in truth disqualified, could still be treated as valid votes, for the purposes of determining whether a fresh election should be held. When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification. This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected. In such a case, question of notice to the voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.'
17. Their Lordships explained the view taken by them in para 13 of the judgment to the following effect:
'The view that we are taking is consistent with the implication of Clause (b) of Section 101. When in an election petition which complies with Section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the Returned Candidate bv corrupt practice, such candidate would have obtained a majority of votes. In cases falling under Clause (b) of Section 101 of the Act requires merely proof of corrupt practice; it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice. If for the application of the rule contained in Clause (b) notice to the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under Clause (a). The votes obtained by corrupt practice by fee returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and, no fresh poll is necessary. The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is to be under a statutory disqualification existing at the date of the filling of the nomination paper.'
18. In D.K. Sharma v. Ram Sharan Yadav, MR 1993 SC 95, their Lordships of the Supreme Court explained the above judgment by observing that in the absence of any proof either oral or documentary, that the voters had voted in favour of the elected candidate had notice and were aware of disqualification of the elected candidate, the petitioner is not entitled to be declared as elected by throwing away votes cast in favour of the elected candidates.
19. In Manohar Nathusao Samarth v. Maarotrao, : [1979]3SCR1078 , the Constitutional Bench of the Supreme Court in three separate but concurrent judgments reversed the judgment of the Election Tribunal as confirmed by the Bombay High Court and restoring the whole verdict in favour of the appellant by holding that Regulation 25 of the LIC Regulations whereunder the employees of the LIC are prohibited from taking part in the election to any legislative or local authority, is only disciplinary and not disqualificatory.
20. Coming to the appeal filed by the election petitioner, aggrieved by the orders of the Court below in not giving a declaration in his favour that he is deemed to be elected as Councillor to Nagapur Corporation, his Lordship Justice Krishna Iyer observed as follows:
'I am constrained to state that the draftsmanship of the provision is dubious and the Court in this decision has had to salvage sense out of alternative absurdity flowing from fidelity to pedantry. It is clear, in election law, that a defeated candidate cannot claim a seat through an election petition merely out of speculative possibilities of success. The reasoning of the Bombay High Court not merely accords with the well-known criteria incorporated in the Representation of the People Act, 1950 as well as in the rulings thereon by this Court but also is in consonance with the election sense. It is true that there is no common law rule applicable in this area and election statutes have to be strictly construed but that does not doctrinally drive the Court to surrender to bizarre verbalism when a different construction may inject reasonableness into the provision.'
21. Justice Tulzapurkar in his judgment in para 32 observed as follows:
'Turning to the election petitioner's appeal (C.A. No. 356 of 1978) I am in complete agreement with the view expressed by the High Court that the declaration granted to him by the learned Assistant Judge under Section 428(2) of the Corporation Act, 1948 should never have been granted. It is true that the election petitioner secured the next highest number of votes but that by itself would not entitle him to get a declaration in his favour that he be deemed to have been duly elected as a Councillor from Ward No. 428(2) I may point out that Section 428(2) is not that absolute as was suggested by Counsel for the election petitioner, for, the relevant part of Sub-section (2) provides that if the election of the returned candidate is either declared to be null and void or is set aside the District Court shall direct that the candidate, if any, in whose favour next highest number of valid votes is recorded after the said person or after all the persons who have returned at the said election and against whose election no cause or objection is found shall be deemed to have been elected'. The underlined words give jurisdiction to the District Court to deny declaration to the candidate who has secured the next best votes. The High Court has rightly taken the view that there was no material on record to show how the voters, who had voted for the returned candidate, would have cast their votes had they known about the disqualification. Therefore, this appeal also deserves to be dismissed.'
22. In Pyse Saheb v. Dashrath, : AIR1977Bom91 , a Division Bench of Bombay High Court considered Rule 16 framed under Section 428 of the City of Nagapur Corporation Act read with Section 420 read with Rule 3(XVIII) and (XIX) of the Act. The rule lays down that if election is declared void the Court may either declare then a casual vacancy has been created or an applicant has been duly elected and held in paras 15 to 22 as follows:
'15. These rules and the provisions of Section 428 permit any elector to question the validity of election on the grounds mentioned in Sub-section (1) inter alia being improper rejection of a nomination or improper reception or refund of a vote or any other cause which may include the cause regarding disqualification or want of qualification of the elected Councillor. It further shows that apart from disputing the validity of the election of the Councillor, it is permissible to pray by such petition that after the election is found to be null and void or in valid, any particular candidate should be declared to have been duly elected at such an election. The petitioner maybe the nominated candidate or may be simple elector. In both such cases such prayer can be made. When the petition seeks such a consequential prayer, both Sub-section (i) and Rule 1(b) require that all nominated candidates at the 'election should be joined as parties to that petition. If the declaration is only with regard to invalidity of the election and no further consequential prayer is made, this requirement is not necessary to be followed. Having filed such a petition, the scheme of the rule shows that a proper election trial has to be held. Rule 15 goes on to indicate what should be the result if the Court comes to the conclusion upon the matters indicated by Clauses (a) (b) and (c) of that rule. In other words, if the election is affected by corrupt practice or if it is affected by the corrupt practice committed by an elected candidate or his agent or the result of the election has been materially affected by any irregularity with regard to the nomination, the election would be declared as void. Rule 15 provides a proviso where the Court may not make a declaration if the conditions of Clauses (a) to (d) in the proviso of the rule are satisfied. Rule 16 proceeds to lay down that if an election is declared void, the Court may either declare that a casual vacancy has been created or that the applicant or any other candidate has been duly elected, The scheme of these Rules clearly is in consonance with whatever is stated in Sub-section (2) of Section 428. In other words after holding enquiry if the Court comes to the conclusion that there is a valid election, the statute indicates that the Court has to make an order confirming the declared result of the election. If the Court finds that the returned candidate was disqualified, then it has to declare that his election is null and void, If the Court finds that the election is not valid on any other ground, it has to make an order setting it aside. The Election Court is enabled in any of these cases to make a further declaration in favour of the candidate in whose favour the next highest number of valid votes is found, to be the elected candidate at such an election subject to any cause not permitting such a declaration. Obvious it is that this further declaration could be made only in a petition seeking such a relief and clearly-making of such a declaration in our view is a matter of adjudication and cannot be mechanical or automatic.
16. The phrase as available in the last sentence of Sub-section (2) is 'against whose election no cause of objection is found' and that has to be read along with the earlier clause ' in whose favour next highest number of valid votes is recorded.' The power conferred by that sub-section is enabling and is conferred to assess and decide upon the claim of all candidates', who may not, at the election be the next highest to the returned candidate, but yet may upon trial be entitled to such a declaration. In any case that itself shows that the matter requires consideration and adjudication and it is not as if when the returned candidate is found disqualified, the automatic result is that the next candidate standing below him in the count gets elected in his place.
17. The deeming introduced or spoken of by Sub-section (2) operates to clothe such declared election with all sense of substance and reality. Fiction statutorily enacted would be available to any of the candidates found by the Court to be entitled to such declaration. The construction seeking to have automatic declaration runs counter in our view to the basic concept of election adjudication. For all purposes, the Court has to apply its mind to the facts and circumstances so as to further the intention of the voters so as to find out the candidate who could be said to have got next highest valid votes. The term 'valid' indicates the intention of the Legislature and the votes earned by disqualified candidate are very well within the ken of consideration. That by itself would raise implicit question as to how those votes could have been distributed had disqualification been known or notified to the voters. Sub-section (2) does not render the result by itself to affect those votes so as to exclude them as simply thrown away or wasted.
18. Such an inference in favour of assumption that votes do stand thrown away cannot be deducted for more than one reason.
19. Firstly, such an inference would be against the basic concept of election dispute wherein not only the party but the entire body of concerned electorate is interested and would further work hardship on the constituency as a whole. A person getting a meager number of votes or even a few votes as compared to the votes polled by the returned candidate, will be entitled to an automatic declaration and by itself that would be contrary to the possible choice of the constituency. Attempt has to be to ascertain the valid and free choice and such an approach would defeat it. Often in this country in ignorance of the disqualification majority of the voters cast their vote. In spite of this reality are we to attribute an intention to the Legislature that even though the candidate at second number having polled meager number of votes he has to be statutorily declared elected once a disqualification is found against the candidate who has polled large majority of votes? Construction that will further the ends of justice- and here when we speak of justice, justice to the constituency and to the voter is implicit- should be put on the scheme indicated by the terms of the statute. We are inclined, therefore, to hold that only because the returned candidate has been found to be disqualified Sub-section (2) does not indicate that all the votes earned by the disqualified returned candidate are required to be treated as votes wasted away. Those continue to remain valid unless proved to be thrown away and the matter is open for adjudication when the contest was between more than two candidates for single seat and cannot be determined automatically.
20. Secondly, we find that the clause 'against whose election no cause of objection is found', is wide enough to take into account the consideration of the fact of the number of votes which were cast in favour of the disqualified returned candidate and possible distribution amongst other contesting candidates. That would include the candidate seeking to have declaration and will be required either to show that votes be treated as wasted or he would have got majority out of those votes upon fair possibility. There is no reason to restrict the term 'cause of objection' as referring only to the grounds on which an election of the returned candidate can be challenged under the Act or under the Rules. The compass of this particular phrase in our view, would take in clearly the consideration of the votes that were earned by the disqualified returned candidate and when there are more than two contestants it will have to be shown how those votes would have been cast or as to whether were in fact thrown away by the voters.
21. Thirdly, we find it rather difficult to accept such a mechanical approach in the matters of adjudication of election disputes. We have before us Rule 16, which in terms permits the Election Court to make a declaration that a casual vacancy has been created or to make a declaration that an applicant or any other candidate has been duly elected. If what is contended for, is accepted then this rule is rendered nugatory and otiose. For, upon the construction favouring automatic result no such power can be conceived in favour of the Court to declare vacancy in a petition where returned candidate is found to be disqualified and declaration of election in favour of some other candidates is sought. By itself rule throws light on the intention of the statute and permits alternative reliefs being granted. Provisions being express it is not possible to curtail its scope by such an approach.
22. Finally, we find that such a declaration in favour of the applicant or any other candidate can be made even in those cases where the election is not challenged only on the ground of disqualification of the returned candidate but on any other permissible ground. That itself would indicate that the applicant or any other such candidate to the satisfaction of the Election Court will have to show that he is entitled to a declaration that he should be deemed to have been elected. If the dispute is regarding the corrupt practice either committed at the election or by the returned candidate or his agent obviously it would raise an issue when the consequential declaration of such a kind is claimed and that to the satisfaction of the Court it will have to be shown that there are tainted votes that are required to be treated as invalid and further that excluding those votes such a declaration is available either to the applicant or to another returned candidate. Instance of similar type which will call for consideration of their votes can easily be available and must be treated as present to the mind of the Legislature. Further the burden in election dispute is on the petitioner to substantiate the claim for such type of declaration and that is indicated by the very words available in Sub-section (1) and Sub-section (2) of Section 428 taken together. In other words, before the declaration can be made, the election-petitioner will have to show that at the election in dispute either he himself or the candidate in whose favour such a declaration is sought would have been the returned candidate having earned the majority of the valid votes. It cannot be assumed that this rule is not available in the scheme of Sub-section (2) of Section 428 of the Act'
23. In Dnyaneshwasr v. Returning Officer/Deputy Collector (Egs), : AIR1998Bom221 , the High Court of Bombay following the judgment of the Apex Court in Vishwanath Reddy's case (supra) observed that neither the 2nd respondent had led evidence in accordance with the law laid down by the Apex Court referred to above, so as to obtain a declaration of being elected in his favour, nor the law laid down by the Apex Court was relied on by the parties before the Trial Court and nor the Trial Court was bothered to look into it and granted a declaration of being elected in favour of the respondent No. 2 which, in the facts and circumstances and the law laid down by the Apex Court, is bad in law.
24. Nine Judge Bench of the Supreme Court in S.R. Bommai v. Union of India, : [1994]2SCR644 , while considering the action of the respondent in issuing a proclamation removing the elected Governments and dissolving the Legislative Assemblies in six States under Article 356(1) of the Constitution of India considered the effect of Article 40 in Part IV of the Constitution of India and held at paras 68 to 68-A to the following effect:
'The Presidential power under Article 356(1) has also to be viewed from yet another and equally important angle. Decentralisation of power is not only valuable administrative device to ensure closer scrutiny, accountability and efficiency, but is also an essential part of democracy. It is for this purpose that Article 40 in Part IV of our Constitution dealing with the Directive Principles of State Policy enjoins upon the State to take steps to organize Village Panchayats and endow them with such powers and authorities as may be necessary to enable them to function as units of self-governance. The participation of the people in the governance is a sine qua non of democracy. The democratic way of life began by direct participation of the people in the day-to-day affairs of the Society. With the growth of population and the expansion of the territorial boundaries of the State, representative democracy replaced direct democracy and people gradually surrendered more and more of their rights of direct participation, to their representatives. Notwithstanding the surrender of the requisite powers, in matters which are retained, the powers are jealously guarded and rightly so. If it is true to say that in democracy, people are sovereign and all power belongs primarily to the people, the retention of such power by the people and the anxiety to exercise them is legitimate. The normal rule being the self-governance, according to the wishes expressed by the people, the occasions to interfere with fee self-governance should both be rare and demonstrably compelling.
In this connection, a very significant and special feature of our Society has to be constantly kept in mind. Our Society is, among other things, multilingual, multiethnic and multi-cultural. Prior to independence, political promises were made that the States will be formed on linguistic basis and the ethnic and cultural identities will not only be protected but also promoted. It is in keeping with the said promises, that the States eventually have come to be organized broadly on linguistic, ethnic and cultural basis. The peoples in every State desire to fulfil their own aspirations through self-governance within the framework of the Constitution. Hence, interference with the self-governance also amounts to the betrayal of the people and unwarranted interference. The betrayal of the democratic aspirations of the people is negation of the democratic principle which runs through our Constitution'.
25. The foregoing discussion may be summarised as hereunder:
(1) If the Court finds that the elected person is under statutory disqualification and when there are only two candidates, votes cast in favour of the disqualified candidate may be regarded as thrown away irrespective of whether the voters who voted for him were aware of disqualification or not.
(2) When there are more than two candidates in the field for a single seat and the elected person is disqualified, the election petitioner should prove that the voters casted their votes in favour of the disqualified candidate knows about his disqualification and all those votes have to be discarded and the candidate seeking declaration obtained by him majority of votes and no fresh poll is necessary.
(3) In the absence of any proof either oral or documentary that the voters are aware of the disqualification of the candidate to whom they voted, no declaration can be given to the candidate securing highest number of votes by throwing away the votes cast in favour of the elected candidate.
(4) The candidate has to further prove that there can be no cause or objection for giving declaration that he has been duly elected.
(5) A defeated candidate in an election cannot claim declaration through election petition merely out of speculative possibility of success.
(6) The candidate who secured next highest number of votes not entitled to get declaration unless the Court comes to a conclusion that no case or objection is found to give a declaration in favour of the candidate who secured highest number of votes.
(7) In democracy normally rule being the self-governance according to the wishes expressed by the people, the occasion to interfere with the self-governance should both be rare and demonstrably compelleing. Any interference with the self-governance will also amount to betrayal of self-governance within the framework of Constitution.
(8) In an election dispute the petitioner have to show that at the election dispute either he himself or the candidate in whose favour such a declaration sought would have been the returned candidate having gained majority of valid votes.
(9) The very concept of seeking to have automatic declaration runs counter to the basic concept of election adjudication and the very power of the Court to declare a vacancy in the event of declaring the elected candidate as disqualified will be nugatory and otiose.
(10) The Court has to apply its mind to the facts and circumstances of the case and any declaration is a matter of adjudication and cannot be mechanical or automatic.
(11) The person getting meager number of votes or even a few votes as compared to the votes polled by the returned candidate, will not be entitled to an automatic declaration and that by itself would be contrary to the possible choice of the constituency.
26. From the ratio decidendi laid down in the above cases, it is to be seen in a democratic set up the will of voters has to be reflected in the body constituted in accordance with law and the Court shall not substitute any candidate being declared as against the popular will of the voters at large and while granting such declarations, the Court should be cautious and shall not grant such a declaration unless the Court is satisfied that for the disqualification and/or the corrupt practice, the candidate to be declared as elected would have obtained the majority of the valid votes.
27. In the case on hand, it is seen that while framing the rules, the draftsman simply extracted Section 101 of the Representation of the People Act without applying his mind and without knowing the consequences of such a defective draftsmanship. As seen from the facts of the case, though there are three contestants in the field, two are under statutory disqualification who secured 97% of votes and the remaining candidate (i.e.,) respondent No. 4 herein secured only 3% of votes that were polled in the elections (i.e.,) out of 2,000 votes polled, respondent 4 get only 60 votes. To put it other way respondent 4 herein did not even get the votes required to claim refund of the deposit. Apart from that respondent 4 did not adduce any evidence to show that the voters casted their votes in favour of the other candidates knowing fully well that both of them are under disqualification and those votes have to be discarded.
28. If such an interpretation is placed, the very object underlined 'majority rule in a democratic form of Governments is defeated and the entire election process becomes erratum'.
29. In the case on hand also, the petitioners are justified in complaining against the declaration given by the Election Tribunal in favour of Respondent 4 who secured only 60 votes out of 2000 votes polled. To my mind (Rule 13(a) is only an enabling provision to give such a declaration if the facts and circumstances warrant such a declaration, but not a Legislative mandate, that in the event of setting aside the election of a candidate, that some other person in the fray must be declared as elected to the office. Further, the Election Tribunal miserably failed to take note of Rule 15 whereunder the Election Tribunal after declaring the election of the returned candidate as void, is given the discretion either to declare the petitioner or any other party duly elected or order a fresh election. In other words, under Rule 15, an option is given to the Election Tribunal either to declare the election of the petitioner or any other candidate as duly elected without ordering fresh election, if the facts of the case warrant such declaration or to order fresh election. I have no doubt that the Election Tribunal miserably failed in not considering the law of the land as interpreted by the superior Courts nor taken into consideration Rule 15 of the Rules before giving a declaration that Rule 4 who secured 60 votes out of 2000 polled votes is deemed to have been elected Sarpanch of the Village. Hence, the order of the Tribunal is vitiated and the same is declared as illegal.
30. The other contention of Sri M.Chandrasekhara Rao that the earlier order of this Court dated 9.9.1999 dismissing the Writ Petition No. 13483 of 1998 on the death of the petitioner - Basava Narayana on 13.8.1999 operates as res judicata, need not be gone into in this writ petition, since the elected term of the Gram Panchayat is over.
31. The writ petitions are disposed of accordingly. There shall be no order as to costs.