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PETITIONER:

JABAR SINGH

Vs.

RESPONDENT:

GENDA LAL

DATE OF JUDGMENT:

20/12/1963

BENCH:

GAJENDRAGADKAR, P.B.

BENCH:

GAJENDRAGADKAR, P.B.

SARKAR, A.K.

WANCHOO, K.N.

GUPTA, K.C. DAS

AYYANGAR, N. RAJAGOPALA

CITATION:

1964 AIR 1200 1964 SCR (6) 54

CITATOR INFO :

D 1968 SC 227 (6,7)

R 1972 SC 447 (12)

RF 1973 SC2077 (5,6,7,8)

E&R 1974 SC1032 (28)

R 1975 SC2182 (13)

D 1976 SC2184 (20)

R 1979 SC1617 (9)

F 1983 SC1311 (16,18)

D 1984 SC 304 (2)

F 1985 SC 150 (22,25,27,28,30,32,35)

O 1987 SC 831 (5,6,7,8,9,13,14)

ACT:

Representation of the People Act (43 of 1951), ss. 97,

100(1)(d) and 101(a) and Conduct of Election Rules, 1961 r.

57(1)-scope of.

HEADNOTE:

The appellant was 'declared elected having defeated the

respondent by 2 votes. Thereafter, the respondent filed an

election petition. The respondent challenged the validity

of the appellant's election on the ground of improper

reception of votes in favour of the appellant and improper

rejection of votes in regard to himself. His prayer was

that the appellant's election should be declared void and a

declaration should be made that the respondent was 'duly

elected.

The appellant urged before the Tribunal that there had been

improper rejection of his votes and improper acceptance of

the votes of the respondent, and his case was that if

recounting and re-scrutiny was made, it would be found that

he had secured a majority of votes. The respondent objected

to this course; his case was that since the appellant had

not recriminated nor furnished security under s. 97 of the

Act, it was not open to him to make this plea. The Tribunal

rejected the objection of the respondent and accepted the

plea of the appellant. The Tribunal re-examined the ballot

papers of the respondent as well as the appellant and came

to the conclusion that 22 ballot papers cast in favour of

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the respondent had been wrongly accepted. The result was

that the respondent had not secured a majority of votes.

The Tribunal declared that the election of the appellant was

void and refused to grant a declaration to the respondent

that he had been duly elected. Both the appellant and the

respondent preferred appeals before the High Court against

the decision of the Tribunal. The High Court dismissed both

the appeals and the decision of Tribunal was confirmed.

Hence the appeal.

Held: (i) The scope of the enquiry in a case falling under

s. 100 (1) (d) (iii) is to determine whether any votes have

been improperly cast in favour of the returned candidate or

any votes have been improperly refused or rejected in regard

to any other-candidate. These are the only two matters

which would be relevant in 'deciding whether the election of

the returned candidate has been materially affected or not.

At this enquiry the onus is on the petitioner to prove his

allegation. Therefore, in the case of a petition where the

only claim made is that the election of the returned

candidate is void, the scope of the enquiry is clearly

limited by the requirement of s. 100 (1)(d) itself. In

fact, s. 97(1) has no application to the case falling under

s. 100(1)(d) (iii); the scope of the enquiry is limited for

the simple reason that what

55

the clause requires to be considered is whether the election

of the returned candidate has been materially affected and

nothing else.

(ii) There are cases in which the erection petition makes a

double claim; it claims that the election of a returned

candidate is void and also -asks for a declaration that the

petitioner himself or some other person has been duly

elected. It is in regard to such a composite case that s.

100 as well as s. 100(1) would apply, and it is in respect

of the ,additional claim for a declaration that some other

candidate has been duly elected that s. 97 comes into play.

Section 97(1) thus allows the returned candidate to

recriminate and raise pleas in support of his case. The

result of s. 97(1) therefore, is that in dealing with a com-

posite election petition the Tribunal inquires into not only

the case made out by the petitioner, but also the counter-

claim made by the returned candidate. In this connection

the returned candidate is required to comply with the

provisions of s. 97(1) and s. 97(2) of the Act. If the

returned candidate does not recriminate as required by s.

97, then he cannot make any attack against the alternative

claim made by the petitioner. In other words the returned

candidate will not be allowed to lead any evidence because

he is precluded from raising any pleas against the validity

of the claim of the alternative candidate.

(iii) The pleas of the returned candidate under s. 97 of the

Act,have to be tried after a declaration has been made under

s. 100 of the Act. The first part of the enquiry in

regard to the validity of the election of the returned

candidate must be tried within the narrow limits prescribed

by s. 100(1)(d) (iii) and the latter part of the enquiry

which is governed by s. 101(a) will have to be tried on a

broader basis permitting the returned candidate to lead

evidence in support of the pleas which he may have taken by

way of recrimination under s. 97(1). But ,even in cases to

which s. 97 applies, the enquiry necessary while dealing

with the dispute under s. 101(a) will not be wider if the

returned candidate has failed to recriminate, and in a case

of this type the duty of the Election Tribunal will not be

to count and scrutinise all the votes cast at the election.

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As a result of r. 57, the Election Tribunal will have to

assume that every ballot paper which had not been rejected

under r. 56 constituted one valid vote and it is on that

basis the finding will have to be made under s. 101(a).

Therefore, it is clear that in holding an enquiry either

under s. 100(1)(d) (iii) or under s. 101 where s. 97 has not

been complied with it is not competent to the Tribunal to

order a general recount of the votes preceded by a scrutiny

about their validity.

Inayatullah Khan v. Diwanchand Mahajan, 15 E.L.R. 219 and

Lakshmi Shankar Yadav v. Kunwar Sripal Singh, 22 E.L.R. 47

overruled.

Bhim Sen v. Gopali and Ors. 22 E.L.R. 288, relied on.

Vashist Narain Sharma v. Dev Chandra, [1955] 1 S.C.R. 509,

Hari Vishnu Kamath v. Syed Ahmed Ishaque, [1955] 1 S.C.R.

1104 and

56

Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, [1960] 1

S.C.R. 902, 'discussed.

Per Ayyangar J.-(i) Section 100 of the Act casts on the

election petitioner the onus of establishing to the

satisfaction of the Tribunal that "the result of the

election was materially affected by the improper reception

or rejection of particular votes", but from this it does not

follow that the returned candidate is powerless to establish

to the satisfaction of the Tribunal that notwithstanding the

improper reception or rejection of the particular votes

alleged by the petitioner his election has not been

materially affected. If the key words of the provision on

the fulfillment of which alone the Tribunal is invested with

jurisdiction to set aside an election are taken to be the

words "the result of the election has been materially

affected"; it is not beyond the power of the returned

candidate to establish this fact which he might do in any

manner he likes. The returned candidate might do this by

establishing that though a few votes were wrongly counted as

in his favour, still a large number of his own votes were

counted in favour of the petitioner or that votes which

ought to have been counted as cast for him, have been

improperly counted as cast in favour of defeated candidates

other than the petitioner. Without such a scrutiny it would

manifestly not be possible to determine whether the election

of the returned candidate has been materially affected or

not. There is nothing in cl. (iii) which precludes the

returned candidates from establishing this. As this clause

does not speak of the person in whose favour or as against

whom the improper reception or rejection has taken place,

its content and significance have to be ascertained from the

purpose of which the provision is intended viz., to

determine from a counting of the voting papers after a

scrutiny whether the election of the returned candidate has

been materially affected. The expression "any vote" in this

clause has to be read as meaning "any vote cast in the

election with which this petition is concerned" and not "any

vote cast in the favour of the returned candidate".

(ii) Section 101(a) provides that there cannot be a

declaration in favour of the claimant to a seat merely

because the election of the returned candidate has been

declared void but he must in addition have secured the

majority of the lawful votes cast. It is obvious that for

this purpose the Tribunal ought to scrutinise not merely the

ballot papers of the claimant and the returned candidate but

also of the other candidates. When the Tribunal has reached

the conclusion after scrutiny of votes that the claimant

has, in fact, received the majority of valid votes, the

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Tribunal embarks on the further enquiry as to whether there

are any reasons why he should not be declared elected And it

is at this stage that the provisions of s. 97 in regard to

recrimination came into play. If no recrimination is filed

then on the terms of s. 101(a) the claimant would be

immediately declared elected but if there is recrimination

the provision of s. 101(b) is attracted. This construction

would harmonise the provision of ss. 97, 100(1)(d) and 101.

and would lead to a rational result.

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(iii) Rule 57(1) means that so far as the returning officer

is concerned and for the purpose of enabling him to declare

the result the ballot papers which are not rejected are to

be deemed as valid. It is manifest that if that validity

held good even at the stage of the election petition and for

the conduct of the enquiry before the Tribunal that could

really be no scrutiny of the ballot papers and s. 100(1)(d)

(iii) would become meaningless. The validity of the Ballot

Paper can be challenged in Election Petition by making

proper pleadings and the Tribunal can declare any ballot

paper as improperly received. Rule 57 does not bear upon

the construction of s. 100(1)(d) (iii) or of s. 101(a).

JUDGMENT:

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1042 of 1963.

Appeal by special leave from the judgment and order dated

May 3, 1963, of the Madhya Pradesh High Court in First

Appeal No. 46 of 1962.

S. K. Kapur, B. L. Khanna and B. N. Kirpal, for the

appellant.

Homi Daji, R. K. Garg, S. C. Agarwal, M. K. Ramamurthi and

D. P. Singh, for the respondent.

December 20, 1963. The Judgment of P. B. Gajendragadkar, A.

K. Sarkar, K. N. Wanchoo and K. C. Das Gupta, JJ. was

delivered by Gajendragadkar J. N. Rajagopala Ayyangar J.

delivered a separate opinion.

GAJENDRAGADKAR J.-The question of law which this appeal has

raised for our decision is in relation to the nature and

scope of the enquiry contemplated by sections 97, 100 and

101 of the Representation of People Act, 1951 (No. 43 of

1951) (hereinafter called the Act). The appellant Jabar

Singh and the respondent Genda Lal, besides five others, had

contested the election to the Madhya Pradesh Assembly on

behalf of the Morena Constituency No. 5. This election took

place on the 21st February, 1962. In due course, the

scrutiny of recorded votes took place and counting followed

on the 27th February, 1962. As a result of the counting,

the appellant was shown to have secured 5,671 votes, whereas

the respondent 5,703 votes. It is not necessary to refer to

the votes secured by the other candidates. After the result

of the counting was thus ascertained, the appellant applied

for recounting of the votes and thereupon,

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recounting followed as a result of which the appellant was

declared elected having defeated the respondent by 2 votes.

The recounting showed that the appellant secured 5,656 votes

and the respondent 5,654. Thereafter, the respondent filed

an election petition from which the present appeal arises.

By his petition the respondent challenged the validity of

the appellant's election on the ground' of improper

reception of votes in favour of the appellant and improper

rejection of votes in regard to himself. The respondent

urged before the Tribunal either for the restoration of the

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results in accordance with the calculations initially made

before recounting, or a re-scrutiny of the votes by the

Tribunal and declaration of the result according to the

calculations which the Tribunal may make. His prayer was

that the appellant's election should be declared to be void

and a declaration should be made that the respondent was

duly elected.

The Election Tribunal found that 10 ballot papers in favour

of the respondent had been improperly rejected and 4 had

been improperly accepted in favour of the appellant. That

led to a difference of 12 votes and the position of the

votes was found to be the respondent 5,664 and the appellant

5,652 votes.

At this stage, the appellant urged before the Tribunal that

there had been improper rejection of his votes and improper

acceptance of the votes of the respondent, and his case was

that if recounting and re-scrutiny was made, it would be

found that he had secured a majority of votes. The

respondent objected to this course; his case was that since

the appellant had not recriminated under s. 97 of the Act,

it was not open to him to make the plea that a recounting

and re-scrutiny should be made on the ground that improper

votes had been accepted in favour of the respondent and

valid votes had been improperly rejected when they were cast

in favour of the appellant. The respondent's contention was

that in order to justify the claim made by the appellant it

was necessary that he should have complied with the

provisions of the proviso to s. 97(1) of the Act and should

have furnished security as required by it. The failure of

the appellant in that behalf precluded him from raising such

a contention.

59

The Tribunal rejected the respondent's contention and held

that in order to consider the relief which the respondent

had cliamed in his election petition, it was necessary for

it to decide whether the respondent had in fact received a

majority of votes under s. 101 of the Act, and so,. he re-

examined the ballot papers of the respondent as well as the

appellant and came to the conclusion that 22 ballot papers

cast in favour of the respondent had been wrongly accepted.

The result was that the respondent had, in fact, not secured

a majority of votes. As a consequence of these findings,

the Tribunal declared that the election of the appellant was

void and refused to grant a declaration to the respondent

that he had been duly elected.

This decision led to two cross-appeals before the High Court

of Madhya Pradesh, No. 46 of 1952 and No. 1 of 1963

respectively. The appellant challenged the conclusion of

the Tribunal that his election was void, whereas the respon-

dent disputed the correctness of the decision of the

Tribunal that no declaration could be granted in his favour

that be had been duly elected. In these appeals. the main

question which was agitated before the High Court was about

the nature and scope of the enquiry permissible under

sections 100 and 101 of the Act. In dealing with this

question, the High Court based itself upon its own earlier

decision in Inayatullah Khan v. Diwanchand Mahajan and

Ors.(1)., as well as the decision of this Court in Bhim Sen

v. Gopali and Ors. (2) and held that the grievance made by

both the parties in their respective appeals was not well-

founded and that the decision of the Tribunal was right. In

the result, both the appeals were dismissed and the decision

of the Tribunal was confirmed. Against this decision, the

appellant has come to this Court by special leave. Later

on, the respondent filed an application for leave to appeal

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to this Court, but the said application was filed beyond

time. When the said application came on for hearing before

this Court, the delay made by the respondent in preferring

his application for special leave was not condoned, and so,

the decision of the High Court against the respondent has

become final and is not

(1) 15 E.L.R. 219.

(2) 22 E.L.R. 288

60

longer open to challenge in this Court. When the applica-

tion for leave filed by the appellant was argued and

admitted by this Court, it was urged by Mr. Kapoor on his

behalf that the observations made by this Court in the case

of Bhim Sen(1) on which the High Court substantially relied

required reconsideration. That is why the appeal has been

placed before a Bench of five Judges for final hearing.

In dealing with the question raised by Mr. Kapoor before us,

it is necessary to refer to the provisions of the Act in re-

gard to the presentation of election petitions and the

prayers that the petitioners can make therein. Section 81

provides that an election petition calling in question any

election on one or more of the grounds specified in sub-

section (1) of s. 100 and s. 101 may be presented to the

Election Commission by any candidate or any elector within

the time specified by the said section. It is thus clear

that when a person presents an election petition, it is open

to him to challenge the election of the returned candidate

under s. 100 (1) and claim a declaration that the returned

candidate's election is void. He can also claim a further

declaration that he himself or any other candidate has been

duly elected. In other words, if the election petition

contents itself with claiming a simple declaration that the

election of the returned candidate should be declared to be

void, the petition falls under s. 100 and the Election

Tribunal can either grant the said declaration in which case

the petition is allowed, or refuse to grant it in which case

the petition is dismissed. It is also possible that the

election petition may claim two reliefs, one under s. 100

(1), and the other under s. 101. In this category of cases,

the Tribunal first decides the question as to whether the

election of the returned candidate is valid or not, and if

it is found that the said election is void, it makes a

declaration to that effect and then deals with the further

question whether the petitioner himself or some other person

can be said to have been duly elected. The scope of the

enquiry which the Tribunal has to hold in such cases would

obviously depend upon the nature of the reliefs claimed by

the petition.

There is another fact which it is necessary to bear in mind

in dealing with the controversy before us in the present ap-

(1) 22 E.L.R. 288.

61

peal. When elections are held, the declarations of the

results are governed by the statutory rules framed under the

Act. The counting of votes is dealt with in the relevant

rules under Part V. Rule 55 deals with the scrutiny and

opening of ballot boxes. Rule 56(1) requires that the

ballot papers taken out of each ballot box shall be arranged

in convenient bundles and scrutinised. R. 5 6 (2) provides

when the returning officer has to reject a ballot paper; the

grounds for rejection are specified in clauses (a) to (h).

Rules 56(3), (4) and (5) prescribe the procedure for

rejecting ballot papers. When the ballot papers have been

taken out of the ballot boxes and have been scrutinised,

counting follows and that is dealt with by r. 57 and the

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following Rules. R. 63 provides for recounting of votes; R.

63(1) lays down that after the counting has been completed,

the returning officer shall record in the result sheet in

Form 20 the total number of votes polled by each candidate

and announce the same. R. 63(2) permits an application to

be made for a recounting and if that application is allowed,

a recounting follows. If a recounting is made, then the

result is declared once again on the sheet in Form 20. In

pursuance of the result of counting thus announced, the re-

sult of the election is declared under r. 64 and a

certificate of election is granted to the returned

candidate. It is significant that r. 57(1) provides that

every ballot paper which is not rejected under r. 56 shall

be counted as one valid vote, which means that after the

ballot papers have been scrutinised and invalid papers are

rejected under r. 56(2), all voting papers which have been

taken into the counting by the returning officer shall be

deemed to be valid under r. 57(1). Similarly, when the

scrutiny of the nomination papers is made by the returning

officer under s. 36 of the Act and as a result, certain

nomination papers are accepted, s. 36(8) provides that the

said acceptance shall be presumed to be valid. In other

words, when an election petition is filed before an Election

Tribunal challenging the validity of the election of the

returned candidate, prima facie the acceptance of nomination

papers is presumed to be valid and the voting papers which

have been counted are also presumed to be valid. The

election petition may challenge the validity of the votes

counted, or the validity of the acceptance or rejection of a

nomination

62

paper; that is a matter of proof. But the enquiry would

commence in every case with prima facie presumption in

favour of the validity of the acceptance or rejection of

nomination paper and of the validity of the voting papers

which have been counted. It is necessary to bear in mind

this aspect of the matter in dealing with the question about

the scope and nature of the enquiry under sections 100 and

101 of the Act.

Let us now read the three relevant sections with which we

are concerned in the present appeal. Section 97 provides :

"(1) When in an election petition a

declaration that any candidate other than the

returned candidate has been duly elected is

claimed, the returned candidate or any other

party may give evidence to prove that the

election of such candidate would have been

void if he had been the returned candidate and

a petition had been presented calling in

question his election.

Provided that the returned candidate or such

other party as aforesaid shall not be entitled

to give such evidence unless he has, within

fourteen days from the date of commencement of

the trial, given notice to the Tribunal of his

intention to do so and has also given the

security and the further security referred to

in sections 117 and 118 respectively.

(2) Every notice referred to in sub-section

(1) shall be

accompanied by the statement and particulars

required by section 83 in the case of an

election petition and shall be signed and

verified in like manner".

Section 100, sub-section (1) reads as under:-.

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(1) Subject to the provisions of subsection

(2) if the Tribunal is of opinion-

(a) that on the date of his election a

returned candidate, was not qualified, or was

disqualified, to be chosen to fill the seat

under the Constitution or this Act; or

63

(b) that any corrupt practice has been

committed by a returned candidate or his

election agent or by any other person with the

consent of a returned candidate or his

election agent; or

(c) that any nomination has been improperly

rejected; or

(d) that the result of the election, in so

far as it concerns a returned candidate, has

been materially affected-

(i) by the improper acceptance of any

nomination, or

(ii) by any corrupt practice committed in the

interests of the returned candidate by an

agent other than his election agent, or

(iii) by the improper reception, refusal or

rejection of any vote or the reception of any

vote which is void; or

(iv) by any noncompliance with the provisions

of the Constitution or of this Act or of any

rules or orders made under this Act,

the Tribunal shall declare the election of the

returned candidate to be void".

Section 101 provides that:

"If any person who has lodged a petition has,

in addition to 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 opinion-

(a) that in fact the petitioner. or such

other candidate received a 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 Tribunal shall after declaring the

election of the returned candidate to be void

declare the petitioner or such other

candidate, as the case may be, to have been

duly elected".

64

Mr. Kapoor contends that in dealing with the cases falling

under s. 100 (1) (d) (iii), section 97 can have no

application and so, the enquiry contemplated in regard to

cases falling under that class is not restricted by the

prohibition prescribed by s. 97(1). He suggests that when

the Tribunal decides whether or not the election of the

returned candidate has been materially affected by the

improper reception, refusal or rejection of any vote, or the

reception of any vote which is void, it has to examine the

validity of all votes which have been counted in declaring

the returned candidate to be elected, and so, no limitation

can be imposed upon the right of the appellant to require

the Tribunal to consider his contention that some votes

which were rejected though cast in his favour had been

improperly rejected and some votes which were accepted in

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favour of the respondent had been improperly accepted.

Basing himself on this position, Mr. Kapoor further contends

that when s. 101 requires that the Tribunal has to come to

the conclusion that in fact the petitioner or such other

candidate received a majority of the valid votes, that can

be done only when a recount is made after eliminating

invalid votes, and so, no limitations can be placed upon the

scope of the enquiry contemplated by s. 101 (a). Since s.

100(1)(d)(iii) is outside the purview of S. 97, it would

make no difference to the scope of the enquiry even if the

appellant has not recriminated as required by s. 97(1).

On the other hand, Mr. Garg who has addressed to us a very

able argument on behalf of the respondent, urged that the

approach adopted by the appellant in dealing with the

problem posed for our decision in the present appeal is in-

appropriate. He contends that in construing sections 97.

100 and 101, we must bear in mind one important fact that

the returned candidate whose election is challenged can face

the challenge under s. 100 only by making pleas which can be

described as pleas affording him a shield of defence,

whereas if the election petition besides challenging the

validity of the returned candidate claims that some other

person has been duly elected, the returned candidate is

given an opportunity to recriminate and by way of

recrimination he can adopt pleas which can be described as

weapons of attack against the validity of the election of

the other person.

65

His argument is that though s. 100(1)(d)(iii) is outside s.

97. it does not mean that in dealing with a claim made by an

election petition challenging the validity of his election,

a returned candidate can both defend the validity of his

election and assail the validity of the votes cast in favour

of the petitioner or some other person. It is in the light

of these two rival contentions that we must now proceed to

decide 'what the true legal position in the matter is.

It would be convenient if we take a simple case of an

election petition where the petitioner makes only one claim

and that is that the election of the returned candidate is

void. This claim can be made under s. 100. Section 100(1)

(a), (b) and (c) refer to three distinct grounds on which

the election of the returned candidate can be challenged.

We are not concerned with any of these grounds. In dealing

with the challenge to the validity of the election of the

returned candidate under s. 100(1)(d), it would be noticed

that what the election petition has to prove is not only the

existence ,of one or the other of the -rounds specified in

clauses (i) to (iv) of s. 100(1)(d), but it has also to

establish that as a result of the existence of the said

ground, the result of the election in so far as it concerns

a returned candidate has been materially affected. It is

thus obvious that what the Tribunal has to find is whether

or not the election in so far as it concerns the returned

candidate has been materially affected, and that means that

the only point which the Tribunal has to decide is: has the

election of the returned candidate been materially affected?

And no other enquiry is legitimate or permissible in such a

case. This requirement of s. 100 (1) (d) necessarily

imports limitations on the scope of the enquiry. Confining

ourselves to clause (iii) of s. 100(1)(d), what the Tribunal

has to consider is whether there has been an improper

reception of votes in favour of the returned candidate. It

may also enquire whether there has been a refusal or

rejection of any vote in regard to any other candidate or

whether there has been a reception of any vote which is void

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and this can only be the reception of a void vote in favour

of the returned candidate. In other words, the scope of the

enquiry in a case failing under s. 100(1)(d)(iii) is to

determine whether any votes have been improperly cast in

favour of the returned candidate, or any votes have been

improperly refused or re

134-159 S.C.-5.

66

sected in regard to any other candidate. These are the only

two matters which would be relevant in deciding whether the

election of the returned candidate has been materially

affected or not. At this enquiry, the onus is on the

petitioner to show that by reason of the infirmities

specified in s. 100(1)(d) (iii), the result of the returned

candidate's election has been materially affected, and that,

incidentally, helps to determined the scope of the enquiry.

Therefore, it seems to us that it, the case of a petition

where the only claim made is that the election of the

returned candidate is void, the scope of the enquiry is

clearly limited by the requirement of s. 100(1)(d) itself.

The enquiry is limited not because the returned candidate

has not recriminated under s. 97(1); in fact, s. 97(1) has

no application to the case falling under s. 100(1)(d)(iii);

the, scope of the enquiry is limited for the simple reason

that what the clause requires to be considered is whether

the election of the returned candidate has been materially

affected and nothing else. If the result of the enquiry is

in favour of the petitioner who challenges the election of

the returned candidate, the Tribunal has to make a

declaration to that effect, and that declaration brings to

an end the proceedings in the election petition.

There are, however, cases in which the election petition

makes a double claim; it claims that the election of the re-

turned candidate is void, and also asks for a declaration

that the petitioner himself or some other person has been

duly elected. It is in regard to such a composite case that

s. 100' as well as s. 101 would apply, and it is in respect

of the additional claim for a declaration that some other

candidate has been duly elected that s. 97 comes into play.

Section 97(1) thus allows the returned candidate to

recriminate and raise pleas in support of his case that the

other person in whose favour a declaration is claimed by the

petition cannot be said to be validly elected, and these

would be pleas of attack and it would be open to the

returned candidate to take these pleas, because when he

recriminates, he really becomes a counter-petitioner

challenging the validity of the election of the alternative

candidate. The result of s. 97(1) therefore, is that in

dealing with a composite election petition, the Tribunal

enquires into not only the case made out by the petitioner,

but also the counter-claim made by the returned

67

candidate. That being the nature of the proceedings con-

templated by s. 97(1), it is not surprising that the

returned candidate is required to make his recrimination and

serve notice in that behalf in the manner and within the

time specified by s. 97 (1) proviso and s. 97 (2). If the

returned candidate does not recriminate as required by s.

97, then he cannot make any attack against the alternative

claim made by the petition. In such a case, an enquiry

would be held under s. 100 so far as the validity of the

returned candidate's election is concerned, and if as a

result of the said enquiry a declaration is made that the

election of the returned candidate is void, then the

Tribunal will proceed to deal with alternative claim, but in

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doing so, the returned candidate will not be allowed to,

lead any evidence because he is precluded from raising any

pleas against the validity of the claim of the alternative

candidate.

It is true that s. 101(a) requires the Tribunal to find that

the petitioner or such other candidate for the declaration

of whose election a prayer is made in the election petition

has in fact received a majority of the valid votes. It is

urged by Mr. Kapoor that the Tribunal cannot make a finding

that the alternative candidate has in fact received a

majority of the valid votes unless all the votes cast at the

election are scrutinised and counted. In our opinion, this

contention is not well-founded. We have already noticed

that as a result of rule 57, the Election Tribunal will have

to assume that every ballot paper which had not been

rejected under r. 56 constituted one valid vote and it is on

that basis that the finding will have to be made under s.

101(a). Section 97(1) undoubtedly gives an opportunity to

the returned candidate to dispute the validity of any of the

votes cast in favour of the alternative candidate or to

plead for the validity of any vote cast in his favour which

has been rejected; but if by his failure to make

recrimination within time as required by s. 97 the returned

candidate is precluded from raising any such plea at the

hearing of the election petition, there would be nothing

wrong if the Tribunal proceeds to deal with the dispute

under s. 101(a) on the basis that the other votes counted by

the returning officer were valid votes and that votes in

favour of the returned candidate, if any, which were

rejected.

68

were invalid. What we have said about the presumed validity

of the votes in dealing with a petition under s. 101 (a) is

equally true in dealing with the matter under s.

100(1)(d)(iii) We are, therefore, satisfied that even in

cases to which s. 97 applies, the enquiry necessary while

dealing with the dispute under s. 101(a) will not be wider

if the returned candidate has failed to recriminate.

If the returned candidate has recriminated and has raised

pleas in regard to the votes cast in favour of the

alternative candidate or his votes wrongly rejected, then

those pleas may have to be tried after a declaration has

been made under s, 100 and the matter proceeds to be tried

under s. 101(a). In other words, the first part of the

enquiry in regard to the validity of the election of the

returned candidate must be tried within the narrow limits

prescribed by s. 100(1)(d)(iii) and the latter part of the

enquiry which is governed by s. 101(a) will have to be tried

on a broader basis permitting the returned candidate to lead

evidence in support of the pleas which he may have taken by

way of recrimination under s. 97 (1). If Mr. Kapoor's

construction of s. 100 (1) (d) (iii) is accepted, it would

either make s. 97 otiose and ineffective or make the

operation of s. 101 read with s. 97 inconsistent with the

operation of S. 100 (1) (d) (iii). We are therefore

satisfied that the High Court was right in coming to the

conclusion that the Tribunal was in error in holding that

"it was an authority charged with the duty of investigating

the validity of votes for and against the petitioning and

returned candidate or for a matter of that any other

contesting candidate."

It, however, appears that following its own earlier decision

in Inayatullah Khan's(1) case the High Court was disposed to

take the view that the enquiry under s. 101(a) was wider and

that in making its finding under the said provision, it was

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open to the Tribunal to scrutinise the votes and determine

whether in fact, the petitioner or some other person had

received a majority of the valid votes. As we have already

indicated, this would be the position only if the returned

candidate had recriminated; in the absence of recrimination,

it would not be open to the Election Tribunal

(1) 15 E.L.R. 219.

69

to allow the returned candidate to challenge the validity of

votes cast in favour of the petitioner or any other

candidate in whose favour a declaration is claimed by the

election petition or to contend that any of his votes were

improperly rejected. We ought to add that the view taken by

the Madhya Pradesh High Court in the case of Inayatullah

Khan(1) in regard to the scope of the enquiry under s. 101

(a) does not correctly represent the true legal Position in

that behalf. Similarly, the view taken by the Allahabad

Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh and

Ors. (2), cannot be said to interpret correctly the scope of

the enquiry either under s. 100 or s. 101. The conclusion

which we have reached in the present appeal is substantially

in accord with the observations made by this Court in the

case of Bhim Sen(3) though it appears that the points in

question were not elaborately argued before the Court in

that case.

There is another point to which reference must be made. Mr.

Garg contended that even if the view taken by the Tribunal

about the scope of the enquiry under s. 100 (1) (d) (iii)

and s. 101 was right, the relief granted by it was not

justified by the pleadings of the appellant -in the present

proceeding In support of this argument, he referred us to

paragraph 4 of the Special Pleas filed by the appellant, and

relied on the fact that at the initial stage of the

hearing,- the Tribunal had framed 18 issues including issue

No. 16 which consisted of three parts, viz.,-

(a) Whether any votes cast in favour of

respondent No. 1 were wrongly rejected

specially pertaining to polling station

mentioned in para 4 of the written statement

under heading special pleas?

(b) Whether many votes were wrongly accepted

in favour of the petitioner appertaining to

the polling stations mentioned in para 4 of

the special pleas in written statement?

(c) What is the effect of the above in the

case?

(1)15 E.L.R.219.

(3) 5 E.L.R. 219. E.L.R. 288.

(2) 22 E.L.R. 47.

70

Later on, when the respondent contended that in the absence

of any recrimination by the appellant these issues did not

arise on the pleadings, they were struck out, and yet in its

judgment the Tribunal has virtually tried these issues and

given relief on grounds which were not included even in his

written statement. Since this appeal was admitted mainly on

the ground that the appellant wanted this Court to

reconsider the observations made by it in the case of Bhin

Sen(1), we do not propose to rest our decision on this

subsidiary point raised by Mr. Garg.

It now remains to refer to two decisions which were cited

before us during the course of the arguments. In Vashist

Narain Sharma v. Dev Chandra and Ors. (2), this Court has

held that s. 100(1)(c), as it then stood, places a burden on

the objector to substantiate the objection that the result

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of the election has been materially affected by the improper

acceptance or rejection of the nomination paper. In that

connection, this Court observed that where the margin of

votes is greater than the votes secured by the candidate

whose nomination paper had been improperly accepted, the

result is not only materially not affected but not affected

at all; but where it is not possible to anticipate the

result, the petitioner must discharge the burden of proving

that fact and on his failure to do so, the election must be

allowed to stand.

In Hari Vishnu Kamath v. Syed Ahmed Ishaque and others(1),

adverting to the expression "the result of the election" in

s. 100(1)(c), this Court stated that unless there is

something in the context compelling a different

interpretation, the said expression must be construed in the

same sense as in section 66, and there it clearly means the

result on the basis of the valid votes. Basing himself on

this observation, Mr. Kapoor has urged that while the

Tribunal decides the question as to whether the election of

the returned candidate has been materially affected or not,

the validity of the votes falls to be considered, and that

inevitably enlarges the scope of the enquiry. We do not

think that the observation on which Mr. Kapoor relies was

intended to lay down any such proposition. All that the

reference to s. 66 denotes is that

(1) 22 E.L.R. 288.

(3) [1955] 1 S.C.R. 1104 at P 1131.

(2) [1955] 1 S.C.R. 509.

71

after considering the pleas raised, the Tribunal has to

decide whether the election of the returned candidate has

been materially affected or not, and that only means that if

any votes are shown to have been improperly accepted, or any

votes are shown to have been improperly refused or rejected,

the Tribunal has to make calculations on the basis of its

decisions on those points and nothing more. It is necessary

to recall that the votes which have not been rejected by the

-returning officer under r. 56 have to be treated as valid,

unless the contrary is specifically pleaded and proved.

Therefore, we do not think that Mr. Kapoor is justified in

contending that the observations in Hari Vishnu Kamath's

case support his plea that the enquiry under s.

100(1)(d)(iii) is wide enough to take in the scrutiny of the

validity of all voting papers.

In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande(1) this

Court has pointed out that the expression " valid votes" has

nowhere been defined in the Act, but in ,the light of the

provision of s. 3 6 (8 ) of the Act read with rule 58, two

things are clear, first that the candidates are validly

nominated candidates whose nomination papers are accepted by

the returning officer after scrutiny, and second that the

provision of s. 58 provides that the ballot papers which are

not rejected under r. 57 are deemed to be "valid ballot

papers" and are to be counted as such.

It appears that the position under the English Law in regard

to the recounting of votes in proceedings under election

petitions is substantially similar. As Halsbury points out:

"where a petitioner claims the seat for an unsuccessful

candidate, alleging that he had a majority of lawful votes,

either party must, six days before that appointed for the

trial, deliver to the master, and also at the address, if

any, given by the other side, a list of the votes intended

to be objected to and of the heads of the objection to each

of those votes(1)". It further appears that no evidence may

be given against the validity of any vote or under any head

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not specified in the list, unless by leave of the Court upon

such terms

(1) [1960] 1 S.C.R. 902.

(2) Halsbury's Laws of England, p. 306 paras. 553 & 554.

72

as to amendment of the list, postponement of the enquiry,

and payment of costs as may be ordered. Where no list of

the votes, to which it is intended to take objection, has

been delivered within the time specified, the Court has no

power to extend the time or to allow evidence of the votes

objected to or of the objections thereto to be given at the

trial. Therefore, it seems clear that in holding an enquiry

either under s. 100(1)(d)(iii) or under s. 101, where s. 97

has not been complied with, it is not competent to the

Tribunal to order a general recount of the votes preceded by

a scrutiny about their validity.

In the result, the appeal fails and is dismissed. We would

like to add that though we have accepted the construction of

s. 100(1)(d)(iii) and s. 101 for which Mr. Garg contended,

no relief can be granted to the respondent, because his

application for special leave to appeal against the decision

of the High Court has been dismissed since he was unable to

make out a sufficient cause for condoning the delay made by

him in preferring the said application. In the

circumstances of this. case, we direct that the parties

should bear their own costs.

We ought to mention that when this appeal was argued before

us on the 4th December, 1963, we were told that them fresh

election which had been ordered to be held in accordance

with the decision of the High Court was fixed for the 6th

December, 1963; and so, after the case was argued, we

announced our decision and intimated to the learned Advo-

cates that our reasons will follow. The present judgment

gives the reasons for our decision.

AYYANGAR J.-While I agree that the appeal deserves, to be

dismissed for reasons which I shall indicate later, I regret

my inability to agree with the construction which my learned

brethren have placed on s. 100 (1) (d) (iii) of the

Representation of the People Act which for shortness I shall

call the Act. on which in ultimate analysis the question of

law arising in the appeal turns.

The facts of the case which have given rise to the

proceeding as well as the points involved in the appeal have

all been set out in detail in the judgment of Gajendragadkar

J. and I consider it unnecessary to repeat

73

them. I shall accordingly state only those facts which are

relevant for the purpose of: (1) the construction of s.

100(1) (d) of the Act, and (2) the conclusion I have reached

that the appeal should be dismissed.

The appeal arises out of a contested election to the Morena

Constituency of the Madhya Pradesh Legislative Assembly.

The polling for the election took place on February 21, 1962

and there were as many as seven candidates who participated

in that poll. The appeal is, however, concerned only with

two of them-Genda Lal and Jabar Singh-the latter being the

returned candidate and is the appellant before us. The

voting procedure adopted was that set out in rule 39,

Conduct of Election Rules, 1961, which I shall hereafter

refer to as the Rules, under which the voter makes a mark on

the ballot paper on or near the symbol of the contesting

candidate to indicate his choice. On the first count of the

ballot papers the Returning Officer computed the valid votes

obtained by Genda Lal as 5,703 as against 5,671 which had

been counted in favour of Jabar Singh. Jabar Singh,

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however, immediately applied for a recount under rule 63 of

the 'Rules on the ground that the original scrutiny and

counting were defective and this, though opposed, was

acceded to by the Returning Office r who carried out a

recount. I might mention in passing that the Election

Tribunal has found discrepancies. even in the total of the

number of ballot papers in some of the polling stations, the

figures of the total number of valid votes in 6 polling

stations being different from those found in the result

sheet prepared under rule 57(2) in Form 20. The scrutiny

and recount disclosed that Genda Lal was found to have

polled 5,654 votes as against 5,656 votes counted as having

been obtained by Jabar Singh. As a result of this recount

Jabar Singh was declared elected, he having obtained 2 votes

more than his rival-Genda Lal.

Genda Lal thereupon filed the election petition which has

given rise to this appeal in which he sought to have the

election of Jabar Singh declared void and also made a claim

to the seat. The election was sought to be set aside on

various grounds but we are concerned in this appeal

74

solely with one of the them viz., the correctness of the

scrutiny and counting of votes at the recount vis-a-vis the

petitioner and the returned candidate. Shortly stated, the

allegation in this respect in the election petition was that

49 valid votes cast in favour of the petitioner (who is the

respondent before us) were improperly rejected and that 32

votes were improperly accepted in favour of the returned

candidate who is the appellant before us. Needless to add

these allegations were denied by the returned candidate.

Besides the denial, he also pleaded in his written statement

that many votes cast in favour of himself had been wrongly

rejected in regard to which details were given and that

similarly several votes were wrongly accepted in favour of

the election-petitioner and in regard to which also details

were given and it ended with the prayer that if a proper

scrutiny and recount were made of the valid votes received

by each, it would be found that he 'the returned candidate-

had. in fact, obtained a larger number of votes than the

election-petitioner and for this reason he submitted that

the election petition ought to be dismissed. Though Genda

Lal had by his election petition, besides seeking the relief

of having the appellant's election declared void, claimed

the seat for himself under s. 84 of the Act, none of the

respondents to the petition including the appellant had

filed any recrimination in conformity with the provisions of

s. 97 of the Act against the grant of such further relief

and it is the effect of this failure on the rights of the

parties that forms the principal point for consideration in

the appeal.

The Election Tribunal who inquired into the petition framed

the necessary issues arising out of these pleadings. Issue

6(a) dealt with the allegation in the petition that 49 valid

votes cast in favour of Genda Lal had been improperly

rejected. After examining the evidence adduced and

considering the validity of those votes in regard to which a

dispute was raised, the Election Tribunal recorded the

finding that not 49 but only 10 votes of Genda Lal had been

improperly rejected. In regard to the question of the

improper acceptance of 32 votes cast in favour of Jabar

'Singh which was covered by issue 6(b), the Tribunal found,

again after going through the evidence in respect of the

'particular votes in dispute, that not 32 but only 4 had

been

75

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improperly accepted. The result of these findings on issues

6(a) and 6(b) was that the total number of valid votes

polled by Genda Lal became 5,664 as against 5,652 polled by

Jabar Singh. The Tribunal consequently held that the

,election of Jabar Singh who had obtained a minority of

votes compared to Genda Lal must be declared void under

s. 100(1)(d)(iii).

So far we are on non-controversial ground except this that

on this state of the voting Genda Lal claimed that he was

entitled to the further relief that he be declared elected

having obtained the majority of lawful votes satisfying the

requirement of s. 101(a). The Election Tribunal refused him

that relief for reasons which it is unnecessary to set out

,or discuss and that decision having been affirmed by the

High Court in appeal and the special leave prayed for to

appeal from that decision of the High Court having been

-dismissed by us, the possibility of the disallowance of

this additional relief does not require to be further

noticed.

The question about the scope of s. 100(1)(d)(iii) and its

relative place in the scheme of ss. 97, 100 and 101 of the

Act arises out of the plea made by Jabar Singh that without

reference to the irregularities in the counting of the 49

and the 32 votes alleged by Genda Lal and which he had

denied, and which were the subject-matter of issues 6 (a)

and 6 (b) to which I have already adverted, there were other

irregularities in the scrutiny and counting which, if

examined, would establish that after every error was

eliminated, he himself had obtained a majority of 'lawful

votes. The question of law that was debated before us was

whether on the scheme of the Representation of the People

Act, 1951, Jabar Singh was entitled to make such a plea and

claim to adduce proof in support thereof in order to sustain

his election without filing a recrimination under s. 97 of

the Act. My learned brethren have held that he could not

and it is on that point that I do not find it possible to

agree with them.

The correct answer to this question would depend. it is

common ground, on a proper construction of s.100(1)(d)(iii)

read in conjunction with s. 101(a). and

76

this I shall first consider. I shall next deal with the

place and function of s. 97 in this context and its bearing

on the interpretation of the provisions on which the

decision of this appeal turns.

Though there have been a few decisions bearing upon the

question of law I have indicated, and they have all been

referred to by Gajendragadkar J. it is common ground that

there is no binding decision of this Court touching the

matter, though some observations in Bhim Sen v. Gopali and

Ors.(1) would appear to favour the construction which my

learned brethren have adopted. As, however, the appeal was

placed before this Bench for the consideration of this

question and we have proceeded on the basis that the matter

is res integra I do not propose to refer to any of these

decisions but shall proceed merely to interpret the

provisions without advertence to the authorities to which

our attention was invited during the course of the

arguments.

Section 100(1) (d) reads:

"100. Grounds for declaring election to be

void-(1) Subject to the provisions of sub-

section (2) if the Tribunal is of

o

pinion........................................

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(d) that the result of the election, in so

far as it

concerns a returned candidate, has

been

materially affected-

(i) by the improper acceptance of any

nomination, or

(ii) by any corrupt practice committed in the

interests of the returned candidate by an

agent other than his election agent, or

(iii) by the improper reception, refusal or

rejection of any vote or the reception of any

vote which is void, or

(iv) by any non-compliance with the

provisions of the Constitution or of this Act

or of any rules or orders made under this Act,

the Tribunal

(1) 22 E.L.R. 288.

77

shall declare the election of the returned

candidate to be void."

The short question arising for consideration in this appeal

may be stated thus: In the context of the provisions

contained in s. 100(1)(d) which permits an election of a

returned candidate to be set, aside only on proof of the

"result" viz., the election of the returned candidate having

been "materially affected" by the improprieties or

illegalities referred to in the four clauses numbered (i) to

(iv) what is the import of the words "by the improper

reception, refusal or rejection of any vote or the reception

of any vote which is void". For our present purposes I

might omit the reference to the latter part of this

provision relating to "the reception of a vote which is

void" and concentrate on the earlier part.

It is manifest that the jurisdiction of the Tribunal to

declare an election void arises only when it is of opinion

that "the result of the election has been materially

affected" by the defects or improprieties set out in cls.

(i) to (iv), so that if notwithstanding that impropriety or

illegality of the types set out in the four clauses, the

result of the election is not materially affected, the

returned candidate is entitled to retain his seat. With

this preliminary observation I shall proceed to consider the

import of the relevant words."materially affected by the

improper reception, refusal or rejection of any vote" first

in a case where there is no complication arising from the

petition claiming the seat in 'addition to the relief of

having the election of the returned ,candidate declared

void. The argument strenuously pressed before us by Mr.

Garg-learned counsel for the respondent was, that the

Tribunal in considering whether the result of an election

had been materially affected, was confined to the

consideration of any impropriety alleged as regards the

reception of the votes of the returned candidate as well as

improprieties alleged by the petitioner in. the refusal or

rejection of votes stated to have been cast in favour of the

petitioner and the denials of these charges or allegations

by the returned candidate. His further submission was that

the returned candidate could not sustain his seat by showing

a similar improper reception of votes in favour of the

78

petitioner or an improper refusal or rejection of his own

votes. In other words, the argument was that the Tribunal

dealing with a petition under s. 100(1)(d) bad jurisdiction

to proceed only on the allegations made in the petition and

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that even where a case had been established for a scrutiny,

and a recount is ordered, it would be so confined and that

its jurisdiction would not extend to cases of complaints by

the returned candidate. It is this argument that I feel

unable to accept.

When an election petition is filed complaining of the

improper reception or rejection of votes and praying for a

scrutiny of the ballot papers for the purpose of determining

whether the votes have been properly counted by the

Returning Officer, the Tribunal would doubtless have to be

satisfied that a case is made out for scrutiny and a re-

count, for it is settled law that the petitioner is not as a

matter of right entitled to have such a scrutiny and recount

merely because he prays for such a relief, but has to

allege, make out and prove the specific grounds to establish

that the scrutiny or counting was improper and that the

return, was in consequence erroneous. If one reaches that

stage and the Tribunal is satisfied that a case for scrutiny

and recount is made out it would mean that the Returning

Officer had not discharged his duties properly in the matter

of the scrutiny of the ballot papers and their counting. If

in such circumstances the respondent (the returned candidate

) also makes allegations of the same type regarding the

scrutiny and the counting I consider it would be unjust to

deprive him of the opportunity of proving his allegations

and thus maintain his seat, unless of course, the statutory

provision clearly precludes him from doing so. In saying

this I am not suggesting that the respondent need make no

averment in his pleadings making definite allegations

regarding the particular votes regarding which he desires

scrutiny and which he says have been wrongly counted either

for or against him. Let us take a case where the allegation

of the petitioner is that there has been a miscount i.e., a

wrong counting of the votes of the returned candidate and

nothing more. Let us suppose that A has been declared

elected as having secured, say 200 votes as against B who

has secured 190. If B in his election petition says that

79

A's votes have been wrongly counted as 200, whereas, in

fact, if they were recounted they would only be 180 and the

Tribunal on a recount finds the allegation in the petition

made out and that the returned candidate had obtained only

180 votes the acceptance of Mr. Garg's argument would mean

that the election of A would have to be set aside not-

withstanding that there has been a similar mistake in the

counting of B's votes and if these were properly counted

they might not amount to more than 170. Mr. Garg submitted

that though if B claimed the seat there would have to be a

recount of the votes of both the candidates and this also,

only in the event of a recrimination being filed under s.

97, still if no seat was claimed the election 'of the

returned candidate would be set aside and that the latter

had no means whereby he could maintain his election notwith-

standing that as a fact he had obtained a majority of lawful

votes.

It is urged that this result flowed from the opening words

of s. 100(1)(d) which speaks of "the result of the election"

being materially affected "so far as it concerns a returned

candidate". I do not find it possible to agree with the

construction or reasoning on which the submission is based.

There is, no doubt, that an election petition is primarily

concerned with the validity of the election of the returned

candidate. It cannot also be disputed that the election of

the returned candidate cannot be declared void, unless,

confining oneself to the impropriety or illegality involved

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in the reception or refusal of votes, the returned candidate

is proved to have obtained a minority of votes, for

otherwise whatever be the impropriety or its degree or

extensiveness, the result of the election would not be

materially affected. It is common ground and beyond con-

troversy that the election petitioner is not restricted as

regards the manner or details of the improper reception or

refusal of votes which he could allege and prove which would

achieve that result. If so much is conceded and is common

ground, I do not see any force in the contention that the

returned candidate is confined merely to disproving what is

alleged to dislodge him from his seat and is for bidden from

proving that votes which under the law had to

80

be counted in his favour, have been wrongly omitted to be so

counted. The words in cl. (iii) do not impose any such

restriction, for they speak of the "improper reception or

refusal of any vote", and as the inquiry under s. 100(1)(d)

is for ascertaining whether the result of the election has

been materially affected which in the context of cl. (iii)

obviously means "the returned candidate has been proved not

to have obtained, in fact, a majority of valid votes", there

appears to me no scope for the argument pressed before us by

Mr. Garg.

On an analysis of the situation the position would appear to

be this. Let us for instance assume that the voting

procedure adopted in an election was that prescribed in rule

59 i.e., by placing the ballot papers in the ballot boxes

set apart for the different contesting candidates. The

returning officer counts the valid votes cast in the several

boxes and declares A elected as having secured 200 votes as

against B whose votes are counted as 198. If B files a

petition and alleges that the counting was irregular, that

the totals of the ballot papers in the result sheet are not

properly computed, and that as a matter of fact A's papers,

if counted, would be 196, Mr. Garg's submission is that

though the discrepancy disclosed in the totals is consider-

able, A cannot prove that there has been a miscounting of

B's votes also, and that though if properly counted his

total is only 190,, still A's election should be set aside.

It is said that the position would be different and the

anomaly would be overcome in cases where the election

petitioner, besides claiming a declaration that the election

of the returned candidate is void, also seeks a further

declaration that he should be declared duly elected and the

returned candidate files a recrimination against such a

prayer and challenges the right to have the further

declaration. This, however, obviously furnishes no answer

for more than one reason. It is the submission of Mr. Garg,

and that is the whole basis upon which the construction

which he desires us to adopt of s. 100 (1) (d) (iii) turns,

that the question raised by the recrimination arises only

after the election of the returned candidate is declared

void. Therefore we would have the anomalous situation

wherein the election of the returned candiate is declared

void by reason of his

81

not obtaining the majority of valid votes so far as the

decision under s. 100(1)(d) is concerned and then after the

matter ,set out in the claim to the seat and the

recrimination is inquired into and decided the election

tribunal holds that the returned candidate had a majority of

lawful votes but that this affected only the right of the

defeated candidate to claim the seat. In my judgment the

provisions of s. 100 read with s. 101 do not contemplate

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this position of a candidate's election being set aside

because he did not get a majority of lawful votes but in the

same proceedings and -as part of the same inquiry he being

held to have obtained a majority of lawful votes. A

construction of s. 100 (1) (d) which would lead to this

result must, in my opinion, be -rejected as unsound.

The apart, there is the further circumstance arising from

'the fact that according to Mr. Garg the enquiry in respect

of a recrimination and its defence is identical with what he

says is the scope of a petition and its defence. This, of

course, is logical, but it suffers from the same anomaly

which I have pointed out as resulting from the acceptance

,of the primary argument regarding the construction of s.

100(1)(d)(iii). Applying what I have shown already

regarding a case where there was no claim to a seat in an

election petition in which the election of a returned candi-

date has to be declared void, notwithstanding that he had,

in fact, obtained a majority of valid votes, because he is

precluded from proving this fact, similarly in cases where a

seat is claimed, the petitioner so claiming would have to be

declared elected, notwithstanding that as a fact he has not

obtained the majority of lawful votes, but that the returned

candidate has obtained such a majority, because the latter

is precluded from proving it. If one took a case where

there were more candidates than two, the anomaly I have

indicated would be seen clearly. If B files a petition

against A the returned candidate claiming the seat and

impleads as he must C & D who are the other contestants, 'no

proof could be led by A to show that some of his own votes

have been counted for C or D, though B would be entitled to

prove that some of C's or D's votes have been wrongly

counted as cast in favour of A. In such a case

134-159 S.C.-6.

82

it is obvious that B gains no advantage by recriminating,

because recrimination under s. 97 could only be against A

and not against the other contesting candidates impleaded as

respondents. The result, therefore, would be that though,

in fact, A has obtained the majority of lawful votes, B, the

petitioner, will be declared elected-recrimination or no

recrimination. I cannot accept the position that either s.

100(1)(d)(iii) or s. 101(a) contemplate this result which is

at once so unjust and anomalous and appears to me. to

contradict the basic principles underlying election law

viz., (1) that apart from disqualification, corrupt

practices etc., the election of a candidate who obtains the

majority of valid votes shall not be set aside, and (2) no

candidates shall be declared duly elected who has not

obtained the majority of valid votes.

I would add that the entire argument proceeds on a mis-

conception of the procedure involved in a scrutiny. I will

take the case where the voting takes place, as in the case

of the election before us, in accordance with the provisions

of rule 39. Then conformably to Rule 57(3) all the ballot

papers which have been held to be valid in each polling

station are bundled up and sealed by the Returning Officer,

and similarly all the rejected ones of each station are made

into another bundle. At the scrutiny by the Tribunal these

two sets of bundles are examined to find out whether the

votes cast in favour of each of the contesting candidates

have been properly counted or not. How this can be done

compartmentally, as those cast for A or B or C separately as

is suggested by Mr. Garg, I am unable to follow. If the

votes cast in favour of each candidate were made into

separate bundles, then at least, there might be scope for an

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argument that the bundle of A or B shall not be opened up,

but when all the voting papers have to be scrutinised in

order to find out (a) whether the returned candidate has

really been proved to have received a minority of valid

votes and (b) whether the candidate claiming the seat has

obtained a majority of valid votes, this cannot obviously be

done without an examination of the ballot papers to which

objection is taken and which are contained in the two types

of bundles into which these are made up under rule 57(3).

83

Support was sought by Mr. Garg for the construction that he

sought to press upon us by reference to the provisions in

the other sub-clauses of s. 100 (1) (d). His point was that

if the returned candidate could not put forward the

objections contained in those clauses the returned

candidate could not likewise allege improprieties in the

reception of the votes of any other candidate including

the petitioner. I am wholly unimpressed by this argument

which does not take into account both the nature of the

objections in these other clauses as well as their bearing

on the question whether the election of the returned

candidate has been materially affected, which is the prime

question for consideration in the provision and which

furnishes the key to the interpretation of the sub-clause

now under consideration. Let me take each of the cases

provided by the other sub-clauses. Sub-cl. (i) deals with

the improper acceptance of a nomination. It is -obvious

that allegations and proof by the returned candidate

regarding the improper acceptance of a nomination cannot

serve to sustain his election. A fortiori so, clause (ii)

which reads

"(ii) by any corrupt practice committed in the

interests of the returned candidate by an

agent other than his election agent, or"

could have no meaning in the present -context nor cl. (iv)

unless the non-compliance has a bearing on the reception of

votes in which case it would be wholly covered by cl. (iii).

In the case of cls. (i), (ii) and (iv) it is obvious, having

regard to the very nature of the provisions, that the

returned candidate can do no more than prove (a) that there

was no such impropriety or illegality as is alleged, and (b)

that even if there was, the same had not affected the result

of his election; in other words, that the impropriety or

illegality, if any, was inconsequential so far as his

election was concerned. But this would not be the position

in regard to the improper reception or rejection of votes.

There we have two factors: (1) the impropriety of the

reception or rejection, and (2) whether as a result of such

improper reception or rejection the result was materially

affected. In the case contemplated by cl. (iii) the

question whether the result was materially affected or not

could not, when

84

the facts are ascertained, be a matter of doubt or dispute

but would be one merely of arithmetical calculation and

comparison. No doubt, s. 100 of the Act casts on the

election petitioner the onus of establishing to the

satisfaction of the Tribunal that "the result of the

election was materially affected" by the impropriety etc.,

and taking the case of cl. (iii) in hand, of improper

reception or rejection of particular votes, but from this it

does not follow that the returned candidate is powerless to

establish to the satisfaction of the Tribunal that

notwithstanding the improper reception or rejection of the

particular votes alleged by the petitioner his election has

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not been materially affected. The argument of Mr. Garg, if

accepted, would mean that the returned candidate can merely

combat the case alleged against him and is disabled from

establishing positively that the result of the election has

not been materially affected. If the key words of the

provision on the fulfilment of which alone the Tribunal is

invested with jurisdiction to set aside an election are

taken to be the words "The result of the election has been

materially affected." I do not consider that it is possible

to contend that it is beyond the power of the returned

candidate to establish this fact which he might do in any

manner he likes. He might do this by establishing that

though a few votes were wrongly counted as in his favour,

still a larger number of his own votes were counted in

favour of the petitioner or that votes which ought to have

been counted as cast for him, have-been improperly counted

as cast in favour of defeated candidates other than the

petitioner. Without such a scrutiny it would manifestly not

be possible to determine whether the election of the

returned candidate has been materially affected or not. Nor

do I see anything in the language of cl. (iii) which

precludes the returned candidate from establishing this.

This clause employs the words "improper reception, refusal

or rejection of any vote" to confine oneself to its first

part. No doubt, when a petitioner complains of a rejection,

he obviously means an improper rejection of votes in his own

favour and when he speaks of an improper reception he means

also obviously an improper reception of votes in favour of

the returned candidate. But from this it does not follow

that there might not be an improper reception of votes in

favour

85

of the election petitioner or of another candidate or of an

improper rejection of votes of the returned candidate the

clause does not speak of the person in whose favour or as

against whom the improper reception or rejection has taken

place, its content and significance have to be ascertained

from the purpose for which the provision is intended viz.,

to determine from a counting of the voting papers after a

scrutiny whether the election of the returned candidate has

been materially affected. For instance, let me take a case

within s. 100(1)(d)(i) where there has been an improper

acceptance of any nomination. The question arises as to

whether the election of the returned candidate has been

materially affected by that improper acceptance. Obviously,

a nomination which is alleged to have been improperly

accepted and which is the subject of the charge under s.100

(1) (d) (i) is not the acceptance of the nomination either

of the election petitioner where he has been one of the

candidates or of the returned candidate but only of one of

the other defeated candidates. If after inquiry the

nomination is found to have been improperly accepted and the

Tribunal proceeds to inquire as to its effect on the

election, I take it, it would necessarily have to consider

the votes received by that candidate. If this is not to be

done it would either mean that in every case-of an improper

acceptance of a nomination the election is to be declared

void or that in no case can such a declaration be made.

Now, if the votes cast in favour of that candidate whose

nomination was improperly accepted have to be counted,

necessarily there has to be a scrutiny and the Tribunal

would have to inquire and ascertain the number of valid

votes cast for that candidate in order to determine whether

the improper reception of votes in favour of that candidate

has materially affected the result of the election i.e., has

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resulted in the election of the returned candidate. In that

context the scrutiny of the improper reception of the votes

in favour of such candidate would obviously have to take

place and that could be done only by virtue of the provision

in s. 100 (1) (d) (iii). This would at least show that the

expression of "any vote" in the clause has to be read as

meaning 'any vote cast in the election with which the

petition is concerned' and not 'any vote cast in favour of

the returned

86

candidate', to take the illustration merely of the improper

reception of a vote.

The construction which I have placed on s. 100(1)(d) (iii)

would harmonise the provision contained in the opening words

of s. 100 (1) (d) and s. 101 (a). I cannot reasonably

conceive of the law providing (unless of course the language

employed leaves me no alternative) for the setting aside of

an election of the returned candidate because the Tribunal

finds that he did not receive the highest number of valid

votes cast at the election; but that after this stage is

over and the Tribunal proceeds to consider whether the claim

to the seat is made out or not its reaching the finding that

such a petitioner is not entitled to that relief because on

further scrutiny, the returned candidate had, in fact,

secured the highest number of votes. Mr. Garg, no doubt,

contemplated this anomaly with equanimity suggesting that it

was due not to any anomaly at all but a situation arising

merely from the application of different tests or being the

result of inquiries directed to different ends at different

stages of the petition. It is this that I am unable to

reconcile myself to. The language used in s. 101 (a) is, no

doubt, "in fact received the majority of the valid votes".

I do not, however, consider that the use of the words 'in

fact' involves scrutiny of a type different from that which

the Tribunal conducts for ascertaining whether by reason of

the improper reception or rejection of votes the election of

a returned candidate has been materially affected so as to

justify its being set aside. The inquiries are identical.

If every vote which has been improperly received is

eliminated and every vote which has been improperly refused

or rejected is added you get the totality of the valid votes

cast in favour of a candidate. That is precisely the

inquiry which is prescribed to be conducted under s.

100(1)(d) read with cl. (iii). The words 'in fact' used in

s. 101 (a) to my mind do not add any new element as regards

either the scrutiny or the counting. If so, on the

construction which I have endeavored to explain, when once

it is ascertained that the returned candidate has obtained a

majority of valid votes there is no question of his election

having to be set aside. But it might be shown that he had

not obtained the

87

majority of valid votes. in other words, by the scrutiny

that has taken place in order to test the validity of his

election the Tribunal might have arrived at a conclusion

that he had not received the majority of valid votes.

Immediately that stage is reached and that conclusion is

arrived at the Tribunal proceeds to declare the election

void. If there, is no claim to a seat there is nothing more

to be done, with the result that it stops with declaring the

election void in which event there would be a re-election.

If, however, the seat is claimed by a defeated candidate or

on his behalf there has to be a further inquiry which the

Tribunal is called upon to conduct. For the purpose of

declaring the election void the Tribunal would have arrived

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at the figures, ,of the valid votes cast in favour of the

several candidates. It might be that the petitioner who

made the claim to the. -seat or the person on whose behalf

that is made might not have obtained the highest number of

valid votes in which ,case, of course, a claim to the seat

would be rejected. It is this situation which is indicated

by s. 101(a). It provides that there cannot be a

declaration in favour of the claimant to a seat merely

because the election of the returned candidate has been

declared void but he must in addition have secured the

majority of the lawful votes cast. A question might arise

as to how this total is to be ascertained. It is obvious

that for this purpose the Tribunal ought to scrutinise not

merely the ballot papers of the claimant and the returned

candidate but also of the other candidates. Thus, for

instance, taking the case only of the petitioner who is a

claimant, among the votes counted in his favour might be

some which were really votes east in favour of a defeated

candidate and similarly votes properly cast for him might

have been improperly counted as the votes of the other

defeated candidates. Undoubtedly the irregularities would

have to be pleaded, but I am now concerned with whether even

if pleaded, the Tribunal would on a proper interpretation of

ss. 100 and 101 have jurisdiction to entertain the pleas and

embark on such a scrutiny. Proceeding then on the footing

that the necessary averments have been made in the pleadings

filed there would have to be a scrutiny of the ballot papers

before it can be ascertained whether or not the, person who

or on whose behalf the seat is claimed has obtain-

88

ed a majority of valid votes in order to sustain the claim

to. the seat. After this stage is passed and the Tribunal

has reached the conclusion that the claimant has, in fact,

received the majority of valid votes that the Tribunal

embarks on the further inquiry as to whether there are any

reasons why he should not be declared elected. And it is at

this stage that the provisions of s. 97 in regard to

recrimination come into play. If no recrimination is filed

then on the terms, of s. 101(a) the claimant would be

immediately declared elected but if there is a recrimination

then s. 101(b) is attracted and the Tribunal would have to

inquire whether if the claimant were a returned candidate

there are circumstances in which his election could be

declared void. This, would indicate that the recrimination

is concerned with a stage which emerges after the scrutiny

is completed and assumes that the scrutiny has resulted in

the claimant being found to have obtained the majority of

valid votes. This construction would harmonise the

provisions of ss. 97, 100 (1(d) and 101 and would lead to

a rational result.

This brings me to a submission based upon rule 5 7 (1) to

which reference was made by Mr. Garg. He referred us to the

words of that rule reading:

"Every ballot paper which is not rejected

under Rule 56 shall be counted as one valid

vote"

as throwing some light on the construction of s. 100(1)(d)

(iii) and as favouring the intrepretation which he invited

us to put upon the provision. I consider that the rule has

no bearing at all upon the point now in controversy. Rule

57 occurs in Part V of the Rules beginning with rule 50

which is headed 'Counting of votes in Parliamentary and

Assembly Constituencies.' Rule 55 prescribes the scrutiny at

the time of the opening of the ballot boxes and rule 56

with-the scrutiny and rejection of ballot-papers. This last

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rule lays down which shall be deemed to be a valid vote on a

ballot paper and which is not and directs the Returning

Officer to follow these directions and make the counting.

And it is in that context that we have rule 57 and the

provision in sub-r. (1). It obviously means only that so

far as the Returning Officer is concerned and for the

purpose of enabling him to declare the result the ballot

papers which are not rejected are to be

89

deemed as valid. It is manifest that if that validity held

good even at the stage of the election petition and for the

conduct of the inquiry before the Tribunal, that could

really be no scrutiny of the ballot papers and s. 100 (1)

(d) (iii) would become meaningless. The meaning of rule

57(1) is only this that ballot papers not rejected shall be

deemed to be valid so far as the Returning Officer is

concerned and even as regards himself it is subject to the

provision in rule 63 under which a recount may be demanded

and granted. His decision has, of course, prima facie

validity at the stage of the inquiry by the Election

Tribunal because the impropriety of his acceptance or

refusal has to be pleaded and proved by the party objecting

to this scrutiny and it is only if the Tribunal finds the

impropriety established, that the vote would be differently

treated or counted. It appears to me to be clear therefore

that rule 57 does not bear upon the construction of s.

100(1)(d)(iii) or of s. 101 (a) for which purpose reliance

was placed upon it.

The next question that arises is the result of the construc-

tion which I have endeavoured to explain of the relevant

provisions of the Act and now I shall set out a few further

findings of the Election Tribunal which bear upon the point

next to be considered. The Election Tribunal found after a

scrutiny of the voting papers to which objection had been

made by the petitioner-Genda Lal-and on a recount that it

resulted in Genda Lal having obtained 5,664 votes as against

5,652 obtained by the returned candidate-Jabar Singh which

meant that the election of Jabar Singh should be declared

void. The Tribunal then proceeded to investigate the

allegations made by Jabar Singh as regards the improper

reception of votes in favour of Genda Lal and the improper

rejection of votes in his own favour and after considering

the ballot papers of the several polling stations, it

arrived at the result that Genda Lal had been improperly

credited with 10 votes and that Jabar Singh had been im-

properly denied the benefit of 12 votes cast in his favour.

If this position could be sustained the result would be that

Genda Lal had obtained 5,654 votes as against 5,664 votes

polled by Jabar Singh which would mean that the election of

Jabar Singh could not be declared void, for "the result of

the election had not been materially affected." It was this

90

that was strenuously urged before us by Mr. Kapoor-learned

counsel for the appellant Jabar Singh. Both the Tribunal as

well as the High Court on appeal therefrom have held that

because Jabar Singh had not recriminated this deduction of

10 votes in favour of Genda Lal and the addition of 12 votes

in favour of Jabar Singh could not be made and consequently

denied to the appellant the benefit of this finding. In

view of what I have stated earlier as to the proper

construction of ss. (100)(1)(d)(iii) and 101(a) the absence

of recrimination could not lead to this result and if this

finding could be sustained I would have allowed the appeal.

But this finding of the Tribunal has proceeded partly

without any pleading to support it. When an objection is

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taken to the improper reception or refusal of a vote the

facts upon which such impropriety has occurred have to be

set out and the other party has to be given an opportunity

to meet- the case. Though there might be no express

requirement of the Act or any rule made thereunder, I

consider that it is implicit in the pleadings required to be

filed under ss. 81 to 83 of the Act read with the frame of

s. 100 that a party who alleges an impropriety or error in

the scrutiny by the Returning Officer, and needless to add

this would apply to every allegation of impropriety or

illegality by whosoever committed, must specify with

particularity the grounds of attack on the action of the

Returning Officer in regard to the scrutiny of the ballot

paper or the counting. In the present case it is admitted

that though in his written statement, the appellant Jabar

Singh challenged the propriety of the reception of certain

votes in favour of Genda Lal and the improper rejection of

some of his own votes, he did not specify all of these in

regard to which impropriety has been found by the Tribunal.

The Tribunal has, as I have already stated, found that 10

ballot papers whose numbers have been specified ought not to

have been counted in favour of Genda Lal. But of these, it

is now admitted, that in regard to 6 of them no plea had

been made in the written statement, with the result that

only 4 votes could be taken into account as having been

wrongly counted, bearing in mind the pleading in the case.

Similarly, as regards the rejection of Jabar Singh's votes

the Tirbunal, as stated eariler, has found that 12 votes

ought to have been counted in his favour. Of these,

however, the written statement con-

91

tained allegations only as regards 6 and not as regards the

rest. This would mean that the Tribunal had no jurisdiction

to find that more than 6 votes had been improperly rejected

in his case. If the votes regarding which no plea of impro-

priety had been raised by Jabar Singh were eliminated, it

would follow that as a result of the final scrutiny Genda

Lal had obtained properly 5,660 valid votes as against 5,658

polled by Jabar Singh. The result of the election,

therefore, was materially affected by the improper reception

or refusal of votes and therefore I consider that the

election of Jabar Singh was properly set aside and that is

why I concur in the order that the appeal should be

dismissed.

Appeal dismissed.