Case: Jabar Singh Vs. Genda Lal

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.

Reasoning:
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).