Case: Jabar Singh Vs. Genda Lal

Gajendragadkar, J. (on behalf of Sarkar, Wanchoo, Das Gupta, JJ. and himself):1. 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 Ss. 97, 100 and 101 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). The appellant Jabar Singh and the respondent Gandra 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 February 21, 1962. In due course, the scrutiny of recorded votes took place and counting followed on February 27, 1962. As a results 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, 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 appellants 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 appellants election should be declared to be void and a declaration should be made that the respondent was duly elected.2. 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.3. 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 rescrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course, his case was that since the appellant had not recriminated under S. 97 of the Act, it was not open to him to make the plea that a recounting and rescrutiny 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 respondents contention was that in order to justify the claim made by the appellant it was necessary that he should have complied with the provisions of the proviso to S. 97(1) of the Act and should have furnished security as required by it. The failure of the appellant in that behalf precluded him from raising such a contention.4. The Tribunal rejected the respondents contention and held that in order to consider the relief which the respondent had claimed in his election petition it was necessary for it to decide whether the respondent had in fact received a majority of votes under S. 101 of the Act, and so, he re-examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had, in fact, not secured a majority of votes. As a consequence of these findings, the Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected.5. This decision led to two cross-appeals before the High Court of Madhya Pradesh No. 46 of 1962 and No. 1 of 1963 respectively, The appellant challenged the conclusion of the Tribunal that his election was void. whereas the respondent disputed the correctness of the decision of the Tribunal that no declaration could be granted in his favour that he 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 Ss. 100 and 101 of the Act. In dealing with this question. the High Court based itself upon its own earlier decision in Inayatullah Khan v. Diwanchand Mahajan, 15 Ele LR 219 : (AIR 1959 Madh Pra 58) as well as the decision of this Court in Bhim Sen v. Gopali, 22 Ele LR 288 (SC) 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 no longer open to challenge in this Court. When the application for leave filed by the appellant was argued and admitted by this Court, it was urged by Mr. Kapoor on his behalf that the observations made by this Court in the case of Bhim Sen, 22 Ele LR 288 (SC) 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.6. In dealing with the question raised by Mr. Kapoor before us, it is necessary to refer to the provisions of the Act in regard to the presentation of election petitions and the prayers that the petitioners can make therein. Section 81 provides that an election petition calling in question any election on one or more of the grounds specified in sub-section (1) of S. 100 and S. 101 may be presented to the Election Commission by any candidate or any elector within the time specified by the said Section. It is thus clear that when a person presents an election petition, it is open to him to challenge the election of the returned candidate under S. 100(1) and claim a declaration that the returned candidates election is void. He can also claim a further declaration that he himself or any other candidate has been duly elected. In other words, if the election petition contents itself with claiming a simple declaration that the election of the returned candidate should be declared to be void, the petition falls under S. 100 and the Election Tribunal can either grant the said declaration in which case the petition is allowed, or refuse to grant it in which case the petition is dismissed. It is also possible that the election petition may claim two reliefs, one under Section 100 (1), and the other under S. 101. In this category of cases, the Tribunal first decides the question as to whether the election of the returned candidate is valid or not, and if it is found that the said election is void, it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected. The scope of the enquiry which the Tribunal has to hold in such cases would obviously depend upon the nature of the reliefs claimed by the petition.7. There is another fact which it is necessary to bear in mind in dealing with the controversy before us in the present appeal. When elections are held, the declarations of the results are governed by the statutory rules framed under the Act. The counting of votes is dealt with in the relevant rules under Part V. Rule 55 deals with the scrutiny and opening of ballot boxes. Rule 56(1) requires that the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised. Rule 56 (2) provides when the returning officer has to reject a ballot paper; the grounds for rejection are specified in cls. (a) to (h). Rule 56 (3), (4) and (5) prescribes 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. 63 (1) lays down that after the counting has been completed, the returning officer shall record in the result sheet in Form 20 the total number of votes polled by each candidate and announce the same. Rule 63(2) permits an application to be made for a recounting and if that application is allowed, a recounting follows. If a recounting is made, then the result is declared once again on the sheet in Form 20. In pursuance of the result of counting thus announced, the result of the election is declared under R. 64 and a certificate of election is granted to the returned candidate. It is significant that R. 57(1) provides that every ballot paper which is not rejected under R. 56 shall be counted as one valid vote, which means that after the ballot papers have been scrutinised and invalid papers are rejected under R. 56(2) all voting papers which have been taken into the counting by the returning officer shall be deemed to be valid under R. 57(1). Similarly, when the scrutiny of the nomination papers is made by the returning officer under S. 36 of the Act and as a result, certain nomination papers are accepted, Section 36(8) provides that the said acceptance shall be presumed to be valid. In other words, when an election petition is filed before an Election Tribunal challenging the validity of the election of the returned candidate, prima facie the acceptance of nomination papers is presumed to be valid and the voting papers which have been counted are also presumed to be valid. The election petition may challenge the validity of the votes counted, or the validity of the acceptance or rejection of a nomination 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 Ss. 100 and 101 of the Act.8. 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 Ss. 117 and 118 respectively.2. Every notice referred to in sub-s. (1) shall be accompanied by the statement and particulars required by S. 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 sub-section (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(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 the 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 interest 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 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.Mr. Kapoor contends that in dealing with the cases falling under S. 100 (1) (d) (iii), Section 97 can have no application, and so, the enquiry contemplated in regard to cases falling under that class is not restricted by the prohibition prescribed by S. 97(1). He suggests that when the Tribunal decides whether or not the election of the returned candidate has been materially affected by the improper reception 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 S. 101 requires that the Tribunal has to come to the conclusion that in fact the petitioner or such other candidate received a majority of the valid votes, that can be done only when a recount is made after eliminating invalid votes, and so, no limitations can be placed upon the scope of the enquiry contemplated by S. 101 (a) Since S. 100 (1) (d) (iii) is outside the purview of S. 97, it would make no difference to the scope of the enquiry even if the appellant has not recriminated as required by S. 97(1).9. 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 inappropriate. He contends that in construing Sections 97, 100 and 101, we must bear in mind one important fact that the returned candidate whose election is challenged can face the challenge under S. 100 only by making pleas which can be described as pleas affording him a shield of defence, whereas if the election petition besides challenging the validity of the returned candidate claims that some other person has been duly elected, the returned candidate is given an opportunity to recriminate and by way of recrimination he can adopt pleas which can be described as weapons of attack against the validity of the election of the said other person. His argument is that though S. 100(1) (d) (iii) is outside S. 97, it does not mean that in dealing with a claim made by an election petition challenging the validity of his election, a returned candidate can both defend the validity of his election and assail the validity of the votes cast in favour of the petitioner or some other person. It is in the light of these two rival contentions that we must now proceed to decide what the true legal position in the matter is.10. It would be convenient if we take a simple case of an election petition where the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under S. 100. Section 100(1) (a), (b) and (c) refer to three distinct grounds on which the election of the returned candidate can be challenged. We are not concerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under S. 100(1) (d), it would be noticed that what the election petition has to prove is not only the existence of one or the other of the grounds specified in clauses (i) to (iv) of S. 100(1) (d), but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election in so far as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is: has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case. This requirement of S.100 (1) (d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of S.100 (1) (d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been 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 falling under S.100 (1) (d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in S.100 (1) (d) (iii), the result of the returned candidates election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S.100 (1) (d) itself. The enquiry is limited not because the returned candidate has not recriminated under S.97 (1); in fact, S.97 (1) has no application to the case falling under S. 100 (1) (d) (iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition.11. There are, however, cases in which the election petition makes a double claim: it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that S.100 as well as S.101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that S.97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of S.97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by S. 97 (1) , it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by S. 97 (1) proviso and S.97 (2). If the returned candidate does not recriminate as required by S.97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under S.100 so far as the validity of the returned candidates election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the 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.12. It is true that S.101 (a) requires the Tribunal to find the petitioner or such other candidate for the declaration of whose election a prayer is made in the election petition has in fact received a majority of the valid votes. It is urged by Mr. Kapoor that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and counted. In our opinion, this contention is not well founded. We have already noticed that as a result of Rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under R.56 constituted one valid vote and it is on that basis that the finding will have to be made under S.101 (a). Section 97 (1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by S.97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under S.101 (a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected, were invalid. What we have said about the presumed validity of the votes in dealing with a petition under S.101 (a) is equally true in dealing with the matter under S. 100 (1) (d) (iii). We are, therefore, satisfied that even in cases to which S.97 applies, the enquiry necessary while dealing with the dispute under S.101 (a) will not be wider if the returned candidate has failed to recriminate.13. If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under S.100 and the matter proceeds to be tried under S.101 (a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by S.100 (1) (d) (iii) and the latter part of the enquiry which is governed by S.101 (a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under S. 97 (1).If Mr. Kapoors construction of S. 100 (1) (d) (iii) is accepted, it would either make S. 97 otiose and ineffective or make the operation of S.101 read with S.97 inconsistent with the operation of S.100 (1) (d) (iii). We are, therefore satisfied that the High Court was right in coming to the conclusion that the Tribunal was in error in holding that "It was an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other contesting candidate."14. It, however, appears that following its own earlier decision in Inayatullah Khans case, 15 Ele. LR 219: (AIR 1959 Madh Pra 58) the High Court was disposed to take the view that the enquiry under S. 101 (a) was wider and that in making its finding under the said provision, it was 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 to allow the returned candidate to challenge the validity of votes cast in favour of the petitioner or any other candidate in whose favour a declaration is claimed by the election petition or to contend that any of his votes were improperly rejected. We ought to add that the view taken by the Madhya Pradesh High Court in the case of Inayatullah Khan, 15 Ele. LR 219 : (AIR 1959 Madh Pra 58 ) in regard to the scope of the enquiry under S.101 (a) does not correctly represent the true legal position in that behalf. Similarly, the view taken by the Allahabad High Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh, 22 Ele. LR 47 (All) cannot be said to interpret correctly the scope of the enquiry either under S.100 or S.101.The conclusion which we have reached in the present appeal is substantially in accord with the observations made by this Court in the case of Bhim Sen, 22 Ele. LR 288 (SC) though it appears that the points in question were not elaborately argued before the Court in that case.15. There is another point to which reference must be made. Mr. Garg contended that even if the view taken by the Tribunal about the scope of the enquiry under S.100 (1) (d) (iii) and S. 101 was right, the relief granted by it was not justified by the pleadings of the appellant in the present proceedings. 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 any 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 ?Later on, when the respondent contended that in absence of any recrimination by the appellant these issues did not arise on the pleadings, they were struck out, and yet in its judgement, 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 Bhim Sen 22 Ele LR 288 (SC) we do not propose to rest our decision on this subsidiary point raised by Mr. Garg.16. It now remains to refer to two decisions which were cited before us during the course of the arguments. In Vashist Narain Sharma v. Dev Chandra, 1955-1 SCR 509 : (AIR 1954 SC 513 ) this court has held that S.100 (1) (c), as it then stood, places a burden on the objector to substantiate the objection that the result 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.17. In Hari Vishnu Kamath v. Syed Ahmed Ishaque, 1955-1 SCR 1104 at p. 1131: ((S) AIR 1955 S C 233 at p. 248) adverting to the expression "the result of the election" in S. 100 (1) (c), this Court stated that unless there is something in the context compelling a different interpretation, the said expression must be construed in the same sense as in Section 66, and there it clearly means the result on the basis of the valid votes. Basing himself on this observation, Mr. Kapoor has urged that while the Tribunal decides the question as to whether the election of the returned candidate has been materially affected or not, the validity of the votes falls to be considered, and that inevitably enlarges the scope of the enquiry. We do not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to S.66 denotes is that 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 Kamaths case, 1955-1 SCR 1104 : ((S) AIR 1955 SC 233 ) support his plea that enquiry under S.100 (1) (d) (iii) is wide enough to take in the scrutiny of the validity of all the voting papers.18. In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, 1960-1 SCR 902 : (AIR 1960 SC 131 ) this Court has pointed out that the expression "valid votes" has nowhere been defined in the Act, but in the light of the provision of S. 36 (8) of the Act read with rule 58, two things are clear, first that the candidates are validly nominated candidates whose nomination papers are accepted by the returning officer after scrutiny, and second that the provision of S. 58 provides that the ballot papers which are not rejected under R.57 are deemed to be "valid ballot papers" and are to be counted as such.19. It appears that the position under the English Law in regard to the recounting of votes in proceedings under election petitions is substantially similar. As Halsbury points out :"where a petitioner claims the seat for an unsuccessful candidate, alleging that he had a majority of lawful votes, either party must six days before that appointed for the trial, deliver to the master, and also at the address, if any, given by the other side, a list of the votes intended to be objected to and of the heads of the objection to each of those votes*."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 as to amendment of the list, postponement of the inquiry, 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 Sec. 100 (1) (d) (iii) or under S.101, where S. 97 has not been complied with, it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity.*Halsburys Laws of England, p. 306 paras, 553 and 554.

Decision reasoning: 0[ds]Therefore, it seems to us that in case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of S.100 (1) (d) itself. The enquiry is limited not because the returned candidate has not recriminated under S.97 (1); in fact, S.97 (1) has no application to the case falling under S. 100 (1) (d) (iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the electionresult of S.97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by S. 97 (1) , it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by S. 97 (1) proviso and S.97 (2). If the returned candidate does not recriminate as required by S.97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under S.100 so far as the validity of the returned candidates election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the 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 alternativeour opinion, this contention is not well founded. We have already noticed that as a result of Rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under R.56 constituted one valid vote and it is on that basis that the finding will have to be made under S.101 (a). Section 97 (1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected; but if by his failure to make recrimination within time as required by S.97 the returned candidate is precluded from raising any such plea at the hearing of the election petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute under S.101 (a) on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate, if any, which were rejected, were invalid. What we have said about the presumed validity of the votes in dealing with a petition under S.101 (a) is equally true in dealing with the matter under S. 100 (1) (d) (iii). We are, therefore, satisfied that even in cases to which S.97 applies, the enquiry necessary while dealing with the dispute under S.101 (a) will not be wider if the returned candidate has failed toMr. Kapoors construction of S. 100 (1) (d) (iii) is accepted, it would either make S. 97 otiose and ineffective or make the operation of S.101 read with S.97 inconsistent with the operation of S.100 (1) (d) (iii). We are, therefore satisfied that the High Court was right in coming to the conclusion that the Tribunal was in error in holding that "It was an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for a matter of that any other contestingdo not think that the observation on which Mr. Kapoor relies was intended to lay down any such proposition. All that the reference to S.66 denotes is that 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 Kamaths case, 1955-1 SCR 1104  : ((S) AIR 1955 SC 233  ) support his plea that enquiry under S.100 (1) (d) (iii) is wide enough to take in the scrutiny of the validity of all the voting papers.The result, therefore, would be that though in fact, A has obtained the majority of lawful votes, B - the petitioner will be declared elected - recrimination or no recrimination. I cannot accept the position that either S. 100(1)(d)(iii) or S. 101 (a) contemplate this result which is at once so unjust and anomalous and appears to me to contradict the basic principles underlying election law viz., (1) that apart from disqualification, corrupt practices etc, the election of a candidate who obtains the majority of valid votes shall not be set aside, and (2) no candidate shall be declared duly elected who has not obtained the majority of valid votes.36. I would add that the entire argument proceeds on a misconception 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 R. 57 (3) all the ballot papers which have been held to be valid, in each Polling Station are bundled up and sealed by the Returning Officer, and similarly all the rejected ones of each station are made into another bundle. At the scrutiny by the Tribunal these two sets of bundles are examined to find out whether the votes cast in favour of each of the contesting candidates have been properly counted or not. How this can be done compartmentally, as those cast for A or B or C separately as is suggested by Mr. Garg. I am unable to follow. If the votes cast in favour of each candidate were made into separate bundles, then at least, there might be scope for an argument that the bundle of A or B shall not be opened up but when all the voting papers have to be scrutinised in order to find out (a) whether the returned candidate has really been proved to have received a minority of valid votes and (b) whether the candidate claiming the seat has obtained a majority of valid votes, this cannot obviously be done without an examination of the ballot papers to which objection is taken and which are contained in the two types of bundles into which these are made up under Rule 57 (3).