Case: Keshav Laxman Borkar Vs. Dr. Deorao Laxman Anande

been heard ex parte.3. The only point for our determination is whether the Election Tribunal was in error in declaring the present appellant to have been duly elected. The answer to this question depends upon a true construction of S. 101 of the Representation of the People Act, 1951 (hereinafter called the Act), which reads as follows :"Section 101. Grounds for which a candidate other than the returned candidate may be declared to have been elected :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."In this case the appellant in his Election Petition had, in addition to calling in question the election of the respondent, asked for a declaration that he himself had been duly elected. As already stated, the Tribunal was of the opinion, that the respondents election having been set aside the appellant alone was left in the field and must be regarded as having received a majority of the valid votes and on that basis declared the appellant as duly elected. The High Court has taken a different view. The question is whether the High Court was right.4. The expression "valid votes" is nowhere defined in the Act; but considerable light is thrown on the matter by the provisions of S. 36(8) of the Act, which runs as follows :"36. Scrutiny of nominationa :......................................................................................................8. Immediately after all the nomination papers have been scrutinized and decisions accepting or rejecting the same have been recorded, the returning officer shall prepare a list of validly nominated candidates, that is to say, candidates, whose nominations have been found valid, and affix it to his notice board."Rule 58 framed under the Act, which was in force at the material time, in so far as it is relevant for our present purpose, runs as under :"58. Counting of votes and ballot papers:(1) Every ballot paper which is not rejeoted under R. 57 shall be deemed to be valid and shall be counted :Provided that no packet containing tendered ballot papers shall be opened and no such ballot paper shall be counted.......................................................................................................From the provisions quoted above two things are clear : In the first place, the candidates whose nomination papers are, after scrutiny, accepted by the returning officer, are "validly nominated candidates" and the returning officer has to affix the list of such validly nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice board can only be for the purpose of giving notice to the public that votes may be cast for those candidates whose names are included in that list. The next thing that emerges is that the ballot papers which are not rejected under R. 57 are to be deemed to be "valid ballot papers" and are to be counted, which obviously means that they are to be counted as valid votes. In the instant case before us, the respondent had secured 22,914 votes as against 14,885 votes cast for the appellant. If the votes secured by the respondent are valid votes, then obviously the appellant has not received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal has held that the nomination paper of the respondent had been wrongly accepted, the entire process of election from nomination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. We agree with the High Court that this argument cannot prevail.5. It is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, as it has been done in the present case by the Election Tribunal, but the acceptance of the nomination paper, under S. 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election.In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as a person for whom votes could be given.This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim.This the appellant has failed to do.

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

Explanation:
0[ds]From the provisions quoted above two things are clear : In the first place, the candidates whose nomination papers are, after scrutiny, accepted by the returning officer, are "validly nominated candidates" and the returning officer has to affix the list of such validly nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice board can only be for the purpose of giving notice to the public that votes may be cast for those candidates whose names are included in that list. The next thing that emerges is that the ballot papers which are not rejected under R. 57 are to be deemed to be "valid ballot papers" and are to be counted, which obviously means that they are to be counted as valid votes. In the instant case before us, the respondent had secured 22,914 votes as against 14,885 votes cast for the appellant. If the votes secured by the respondent are valid votes, then obviously the appellant has not received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal has held that the nomination paper of the respondent had been wrongly accepted, the entire process of election from nomination to polling was bad and the votes secured by the respondent were in effect votes cast for a candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded as having received the majority of the valid votes. We agree with the High Court that this argument cannotIt is true that the acceptance of a nomination paper after scrutiny is not final or conclusive but can be set aside, as it has been done in the present case by the Election Tribunal, but the acceptance of the nomination paper, under S. 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes at the election.In other words, the acceptance of the nomination papers by the returning officer is conclusive to this extent that the nomination paper accepted as valid should form the basis of the election and that the candidate, whose nomination paper has been accepted, must be treated as a person for whom votes could be given.This position is further reinforced by the provisions of R. 58 which provides that every ballot paper which is not rejected under R. 57 should be deemed to be valid and must be counted. The question of throwing away of votes, therefore, cannot arise, in the absence of some special pleading that particular voters had cast their votes with knowledge or notice that the candidate for whom they had voted was not eligible for election and that consequently they had deliberately thrown away their votes in favour of the disqualified person. No such allegation of knowledge or notice is made in the petition and the appellant cannot be heard to say that he might have proved the same had the respondent raised an issue on the point. Indeed under S. 101(a) the onus was on the appellant to allege and prove that he had received a majority of the valid votes and he should have adduced evidence in support of that claim.This the appellant has failed to do.