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
section K Kapur B L Khanna and B N Kirpal for the appellant
Homi Daji R K Garg section 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 5671 votes whereas the respondent 5703 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 58 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 5656 votes and the respondent 5654
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 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 5664 and the appellant 5652 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 section 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 section 971 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 section 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 vs Diwanchand Mahajan and Ors1
 as well as the decision of this Court in Bhim Sen vs 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 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 2 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 Sen1 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 section 100 and section 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 section 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 section 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 section 100 1 and the other under section 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 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 561 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 563 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 following Rules
R 63 provides for recounting of votes R 631 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 632 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 571 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 562 all voting papers which have been taken into the counting by the returning officer shall be deemed to be valid under r 571
Similarly when the scrutiny of the nomination papers is made by the returning officer under section 36 of the Act and as a result certain nomination papers are accepted section 368 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 
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 section 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 section 971
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 favour of the respondent had been improperly accepted
Basing himself on this position Mr Kapoor further contends that when section 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 section 101 a
Since section 1001diii is outside the purview of section 97 it would make no difference to the scope of the enquiry even if the appellant has not recriminated as required by section 971
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 section 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 section 1001diii is outside section 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 section 100
Section 1001 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 section 1001d 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 section 1001d 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 section 100 1 d necessarily imports limitations on the scope of the enquiry
Confining ourselves to clause iii of section 1001d 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 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 section 1001diii 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 SC 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 section 1001d 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 section 1001d itself
The enquiry is limited not because the returned candidate has not recriminated under section 971 in fact section 971 has no application to the case falling under section 1001diii 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 section 100  as well as section 101 would apply and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that section 97 comes into play
Section 971 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 section 971 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 section 971 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 section 97 1 proviso and section 97 2
If the returned candidate does not recriminate as required by section 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 section 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 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 section 101a 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 section 101a
Section 971 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 section 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 section 101a 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 section 101 a is equally true in dealing with the matter under section 1001diii We are therefore satisfied that even in cases to which section 97 applies the enquiry necessary while dealing with the dispute under section 101a 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 section 101a
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 section 1001diii and the latter part of the enquiry which is governed by section 101a 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 section 97 1
If Mr Kapoor s construction of section 100 1 d iii is accepted it would either make section 97 otiose and ineffective or make the operation of section 101 read with section 97 inconsistent with the operation of section 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 s1 case the High Court was disposed to take the view that the enquiry under section 101a was wider and that in making its finding under the said provision it was 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 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 Khan1 in regard to the scope of the enquiry under section 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 vs Kunwar Sripal Singh and Ors
2 cannot be said to interpret correctly the scope of the enquiry either under section 100 or section 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 Sen3 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 section 100 1 d iii and section 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 115 ELR219
3 ELR 288
2 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 Sen1 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 vs Dev Chandra and Ors
2 this Court has held that section 1001c as it then stood places a burden on the objector to substantiate the objection that the result 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 vs Syed Ahmed Ishaque and others1 adverting to the expression the result of the election in section 1001c 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 section 66 denotes is that 1 3  at P 1131
2  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 section 1001diii is wide enough to take in the scrutiny of the validity of all voting papers
In Keshav Laxman Borkar vs Dr Devrao Laxman Anande1 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 section 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 section 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 votes1
It further appears that no evidence may be given against the validity of any vote or under any head not specified in the list unless by leave of the Court upon such terms 1 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 section 1001diii or under section 101 where section 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 section 1001diii and section 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 section 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 section 1001 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 5703 as against 5671 which had been counted in favour of Jabar Singh
Jabar Singh 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 572 in Form 20
The scrutiny and recount disclosed that Genda Lal was found to have polled 5654 votes as against 5656 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 section 84 of the Act none of the respondents to the petition including the appellant had filed any recrimination in conformity with the provisions of section 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 6a 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 6b 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 improperly accepted
The result of these findings on issues 6a and 6b was that the total number of valid votes polled by Genda Lal became 5664 as against 5652 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 section 1001diii
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 section 101a
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 section 1001diii and its relative place in the scheme of sections 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 section 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 s1001diii read in conjunction with section 101a
and 76 this I shall first consider
I shall next deal with the place and function of section 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 vs Gopali and Ors1 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 1001 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       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 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 section 1001d 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 section 1001d bad jurisdiction to proceed only on the allegations made in the petition and 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 ie 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 section 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 section 1001d 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 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 section 1001d 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 ie 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 section 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 section 1001d 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 section 100 read with section 101 do not contemplate 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 section 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 section 1001diii
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 SC 6
82 it is obvious that B gains no advantage by recriminating because recrimination under section 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 section 1001diii or section 101a 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 573 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 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 573
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 section 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 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 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 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 section 1001di 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 s100 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 ie has 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 section 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 section 1001d iii would harmonise the provision contained in the opening words of section 100 1 d and section 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 section 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 section 1001d read with cl
iii
The words in fact  used in section 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 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 section 101a
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 sections 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 section 97 in regard to recrimination come into play
If no recrimination is filed then on the terms of section 101a the claimant would be immediately declared elected but if there is a recrimination then section 101b 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 sections 97 100 1d 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 section 1001d 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 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
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 section 100 1 d iii would become meaningless
The meaning of rule 571 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 section 1001diii or of section 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 5664 votes as against 5652 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 5654 votes as against 5664 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 sections 1001diii and 101a 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 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 sections 81 to 83 of the Act read with the frame of section 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 5660 valid votes as against 5658 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


Summary:
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 section 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 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 section 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 section 100 1d itself
In fact section 971 has no application to the case falling under section 1001d 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 section 100 as well as section 1001 would apply and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that section 97 comes into play
Section 971 thus allows the returned candidate to recriminate and raise pleas in support of his case
The result of section 971 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 section 971 and section 972 of the Act
If the returned candidate does not recriminate as required by section 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 section 97 of the Acthave to be tried after a declaration has been made under section 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 section 1001d iii and the latter part of the enquiry which is governed by section 101a 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 section 971
But even in cases to which section 97 applies the enquiry necessary while dealing with the dispute under section 101a 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
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 section 101a
Therefore it is clear that in holding an enquiry either under section 1001d iii or under section 101 where section 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 vs Diwanchand Mahajan and Lakshmi Shankar Yadav vs Kunwar Sripal Singh overruled
Bhim Sen vs Gopali and Ors  relied on
Vashist Narain Sharma vs Dev Chandra   Hari Vishnu Kamath vs Syed Ahmed Ishaque 1955 1 SCR 1104 and 56 Keshav Laxman Borkar vs Dr Devrao Laxman Anande  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 101a 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 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 section 97 in regard to recrimination came into play
If no recrimination is filed then on the terms of section 101a the claimant would be immediately declared elected but if there is recrimination the provision of section 101b is attracted
This construction would harmonise the provision of sections 97 1001d and 101
and would lead to a rational result
57 iii Rule 571 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 section 1001d 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 section 1001d iii or of section 101a