Case: Jabar Singh Vs. Genda Lal

-(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 (1 = appeal accepted, 0 = rejected): 0

Explanation:
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).