ew Petition No 54 of 1968
For the review of this Court s judgment dated July 19 1968 in Civil Appeal No 1705 of 1967
BS Patil M K Ramamurthi Vineet Kumar and Shyamala Pappu for the petitioner
SV Gupte SS Javali and B Datta for respondent No 2
The Judgment of the Court was delivered by Shah J
Vishwanath Reddy was declared elected to the Mysore Legislative Assembly from the Yadgiri constituency at the poll held in February 1967
Nadgouda who was a contesting candidate filed a petition before the High Court of Mysore for an order setting aside the election of Reddy on the ground that Reddy was disqualified from standing as a candidate for election and for an order declaring that he Nadgouda be declared elected
The High Court rejected the petition
In appeal this Court held that at the date of nomination Reddy was disqualified from standing as a candidate and passed an order on July 19 1968 that   the appeal is therefore allowed the election of the first respondent is declared void
In this view of the matter the votes cast in favour  of the first respondent be treated as thrown away
As there was no other contesting candidate we declare the appellant election petitioner elected to the seat from the Yadgiri constituency
 Reddy then applied for review of judgment and claimed relying upon the decision of this Court in Keshav Laxman Borkar vs Dr Devrao Laxman Anande1 that in the circumstances of the case no order declaring Nadgouda could be made by this Court
This Court granted review of judgment by order dated August 27 1968 and the appeal is now before us for consideration of the question whether it is open to this Court on the finding recorded  about the disqualification of Reddy to declare Nadgouda as duly elected to the Mysore Legislative Assembly
1 92 Out of seven candidates who
filed their nomination papers for election five candidates withdrew their candidature and Nadgouda and Reddy were the only two candidates remaining in the field
Nomination of Reddy was challenged before the Returning Officer on the plea that Reddy was disqualified by virtue of section 9A of the Representation of the People Act from standing as a candidate for election to the Mysore State Legislative Assembly but that objection was overruled and his nomination was accepted
Reddy secured at the poll 4000 more votes than Nadgouda and was declared elected
This Court has declared the election of Reddy void on the ground disqualification under section 9A of the Representation of the People Act and the question is no longer in issue at this stage
The only question which remains to be determined is whether in the events which have transpired Nadgouda could under the law be declared elected
Section 53 of the Representation of the People Act provides that if the number of contesting candidates is more than the number of seats to be filled a poll shall be taken and if the number of such candidates is equal to the number of seats to be filled the Returning Officer shall forthwith declare all such candidates to be duly elected to fill those seats
Disqualified means disqualified for being chosen as and for being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State section 7b
Section 9A of the Act provides A person shall be disqualified if and for so long as there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to or for the execution of any works undertaken by that Government
Explanation
Reddy was on the finding recorded by this Court incompetent to be chosen as a member of the Legislative Assembly
Objection was raised before the Returning Officer that Reddy was disqualified but no general notice was given to the electorate about the disqualification
On the view that Reddy was not disqualified the Returning Officer accepted his nomination and at the poll Reddy was declared duly elected
Section 84 of the Representation of the People Act provides that petitioner may in addition to claiming a declaration that the election of all or any of the returned candidates is void claim a further declaration that he himself or any other candidate has been duly elected 93 Nadgouda by his election petition did make a claim that the election of Reddy be declared void and that he Nadgouda be declared duly elected
Section 100 sets out the grounds on which an election may be declared void and section 101 sets out the grounds on which a candidate other than the returned candidate may be declared to have been elected
That section provides 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 High Court 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 High Court 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 The expression valid votes used in section 101 has not been defined in the Act
But this Court has held in Keshav Laxman Borkar s case1 that a candidate whose nomination paper is accepted after scrutiny is a validly nominated candidate at least for the purpose of receiving votes at the election and that the candidate must be treated as a person for whom votes could be given
The Court on that view held that where there are only two candidates
for a seat and the election of the candidate declared elected is set aside on the ground that he was disqualified the defeated candidate cannot be declared elected and there must be a fresh election
In the opinion of the Court the votes cast in favour of the disqualified candidate cannot be said to be thrown away unless there is a special pleading that certain voters had cast their votes with the knowledge or notice that the candidate for whom they had voted was not eligible for election and they had deliberately thrown away their votes in favour of the disqualified person in the absence of such a plea it cannot be said that the votes cast in favour of a person who was by law disqualified from being nominated but who was in fact nominated were thrown away
In the Court s view a defeated candidate out of the two who contested the election may be declared elected under section 84 read with section 101 of the Act if he proves that the voters had notice of the disqualification of the successful candidate
Correctness of this view is challenged before us
94 The rule enunciated by this Court was apparently adopted from certain cases decided by the Courts in the United Kingdom
In Drinkwater vs Deakin1 it was held that bribing by a candidate at an election though it renders his election void if he be found guilty of it on petition does not incapacitate the candidate at that election in the sense that the votes given for him by voters with knowledge of it will be thrown away and that no disqualification arises in that sense of the term until after the candidate has been found guilty of bribery on petition and consequently the petitioner was not entitled to the seat
In Hobbs vs Morey2 at a municipal election a person who had an outstanding contract with a municipality was nominated as a candidate and was declared duly elected
The defeated candidate then claimed the seat on the plea that the successful candidate was disqualified
It was held that the nomination of the successful candidate was invalid and as the defeated candidate did not allege any notice to the electorate of the disqualification of the successful candidate the votes given for him could not be treated as thrown away and the defeated candidate was not entitled to claim the seat
In Beresford Hope vs Lady Sandhurst3 it was held by the Court of Appeal that an election of a woman candidate to a county council under the Local Government Act 1888 being void the defeated candidate could be declared elected because it was common knowledge that women are incapacitated from being elected members of a county council and the votes given to the woman candidate were thrown away
In a recent judgment of the Court of Appeal in Re Bristol South East Parliamentary Election4 at the parliamentary election Wedgwood Benn was declared duly elected member of the Parliament
Prior to that date St Clair a contesting candidate had sent out notices to all persons entitled to vote stating that by reason of his status as a peer of the United Kingdom Wedgwood Benn was disqualified from being elected a member of Parliament and that all votes given for him would be thrown away and be null and void
Similar notices were published in the newspapers circulating in the constituency and were posted at the entrance to
polling stations
The Court of Queen s Bench held in that case that the facts which in law created the incapacity of Wedgwood Benn to be elected a member of Parliament were known to the electors before they cast their votes and the Court was bound to declare that the votes cast for the successful candidate had been thrown away
The petitioner defeated candidate was accordingly declared duly elected
1 1874 LR 9 Court of Common Pleas 626
2 3 4 95 The cases decided by the Courts in the United Kingdom appear to have proceeded upon some general rule of election law that the votes
cast in favour of a person who is found disqualified for election may be regarded as thrown away only if the voters had notice before the poll of the disqualification of the candidate
But in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country
Section 53 of the Representation of the People Act renders a poll necessary only if there are more candidates contesting the election man the number of seats contested
If the number of candidates validly nominated is equal to the number of seats to be filled no poll is necessary
Where by an erroneous order of the Returning Officer poll is held which but for that order was not necessary the Court would be justified in declaring those contesting candidates elected who but for the order would have been declared elected
The rule enunciated by the Courts in the United Kingdom has only the merit of antiquity
But the rule cannot be extended to the trial of disputes under our election law for it is not consistent with our statute law and in any case the conditions prevailing in our country do not justify the application of that rule
If the rule is applied in our country the provisions of section 84 read with section 101 a would practically be nugatory
Apart from the immense cost of intimating each voter in the vast electorate in the constituencies the rule that a defeated candidate may be declared elected only if he pleads and proves that the voters had notice of the disqualification would render the exception in the context of prevailing illiteracy and ignorance of large sections of the electorate in our country a dead letter
A very large percentage of the electorate in our country is unfortunately illiterate and sections thereof not infrequently speak a language different from the language of the majority
It would be well nigh impossible to give information of the disqualification of a candidate in a medium which the illiterate electors understand
We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated but who is in truth disqualified could still be treated as valid votes
for the purpose of determining whether a fresh election should be held
When there are only two contesting candidates and one of them is under a statutory disqualification votes cast in favour of the disqualified candidate may be regarded as thrown away irrespective of whether the voters who voted for him were aware of the disqualification
This is not to say that where there are more than two candidates in the field for a single seat and one alone is disqualified on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected
In such a case question of notice to the 96 voters may assume significance for the voters may not if aware of the disqualification have voted for the disqualified candidate
The view that we are taking is consistent with the implication of d b of section 101
When in an election petition which complies with section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices the Court is bound to declare the petitioner or another candidate elected if but for the votes obtained by the returned candidate by corrupt practice such candidate would have obtained a majority of votes
In cases falling under cl
b of section 101 the Act requires merely proof of corrupt practice and obtaining votes by corrupt practice it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice
If for the application of the rule contained in cl
b notice to the voters is not a condition precedent we see no reason why it should be insisted upon in all cases under cl
The votes obtained by corrupt practice by the returned candidate proved to be guilty of corrupt practice are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate and no fresh poll is necessary
The same rule should in our judgment apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of the filling of the nomination paper
We are of the view that Keshav Laxamn Borkar s case1 was not correctly decided
therefore restore the order passed by this Court by judgment dated July 19 1968
Reddy will pay the costs of the review petition as well as of the appeal
VPS Review petition dismissed


Summary:
The appellant and respondent were the contesting candidates for a seat in the State Legislative Assembly
The appellant challenged the respondent s nomination before the Returning Officer on the ground that the respondent was disqualified under section 9A of the Representation of the People Act 1951
No general notice was given to the electorate about the disqualification
The Returning Officer overruled the objection and accepted the respondent s nomination
After the respondent was elected the appellant flied an election petition in the High Court on the same ground but the petition was rejected
In appeal this Court declared the election of the respondent void and on the question whether the appellant could under law be declared elected HELD The decision in Keshav Laxman Borkar vs Dr Devrao Laxman Anande that votes cast in favour of the disqualified candidate would be deemed to be thrown away only when the voters had notice of the disqualification and that in the absence of such notice there can only be fresh election is wrong
That rule
was adopted from English decisions but it is not consistent with the Indian statute
law and is inappropriate for Indian conditions
95 A B 96 E a Section 53 of the Act renders a poll necessary only if there are more candidates contesting the election than the number of seats contested
If the number of candidates is equal to the number of seats to be filled the Returning Officer shall forthwith declare all such candidate s to be dully elected to fill those seats
92 D b In cases falling under section 101b the Act requires merely proof of corrupt practice and obtaining votes by the corrupt practice it does not require proof that voters had notice of the corrupt practice
Therefore in cases falling under cl
a when there are only two candidates for one seat and the returned candidate is found to be under a statutory disqualification the other may be declared elected under section 84 read with section 101  a even though the voters had no notice of the disqualification of the successful candidate
96 BE c It would be almost impossible to give notice of the disqualification to the electorate in view of the immense cost involved and the general illiteracy of a large section of voters
95 E F d There is no logic in the assumption that votes cast in favour of person whose nomination was accepted by the Returning Officer but who was really disqualified could still be treated as valid votes for deter 91 mining whether a fresh election should be held
While notice to voters may have significance when there are more than two candidates in the field for a single seat where there are only two contesting candidates and one of them is under a statutory disqualification votes cast in his favour may be regarded as thrown away irrespective of whether the voters were aware of the disqualification
95 F H Therefore where by an erroneous order of the Returning Officer poll is held which but for that order was not necessary the Court would be justified in declaring the contesting candidate elected who but for the order of the Returning Officer would have been declared elected
19 C D