# JABAR SINGH v. GENDA LAL

- **Citation:** [1964] 6 S.C.R. 54
- **Court:** Supreme Court of India
- **Decided:** 1964
- **Bench:** P. B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo, K. C. Das Gupta, N. Rajagopala Ayyangar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jabar-singh-v-genda-lal-3206
- **Pages:** 38

## Headnote

Representation of the People Act (43 of 1951), ss. 97, !OO(l)(d)
and IOl(a) and Conduct of Election Rules, 1961 r. 57(1)-scope of.
The appellant was tleclared elected having defeated the respondent
y
by 2 votes. Thereafter. the respondent filed an elect:Wn petition. The
respondent challenged the validity of the appellant's election on the
ground of improper reception of votes in favour of the appellant and
improper rejection of votes in regard to himself.
His prayer was that
the appel1ant's election should be declared void
and
a
declaration
should be made that the respondent was (iuly elected.
The appellant urged before the Tribunal that there had been im~
proper rejection of his votes and improper acceptance of the votes of
the respondent. and his case was that if recounting and re-scrutiny 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 recriminate'd nor furnished security under s. 97 of the Act, it
was not open to him to make this plea. The Tribunal rejected
the
objection of the respondent and accepted the plea
of the
appellant.
The Tribunal 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 not secured a majority of votes.
The
Tribunal declared that the
election
of the appellant was void an(l
refused to grant a declaration to the respondent that he had been duly
elected. Both the appellant and the respondent preferre<i appeals before
the High Court against the decision of the Tribunal. The High Court
t
dismissed both the appeals and the decision of Tribunal was confirmea.
Hence the appeal.
Held: (i) The scope of the enquiry in a case falling under s. 100
( I ) l 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 ~eciding whether
the election of the returned candidate has been materially affected or·
not. At this enquiry the onus is on the petitioner to prove his allegation.
Therefore, in the case of a petition where the only claim made is that
the election of the returned candidate is void, the scope of the -J
enquiry is clearly limited by the requirement of s. 100 (! )(d) itself. In
fact, s. 97(1) bas no application to the case falling under s. IOO(l)(<l)
(iii); the scope of the enquiry is limited for the simple reason that what
•
6 S.C.R.
SUPREME COURT REPORTS
55
the clause requires to be considered is whether the election of the returned candi'date has been materially affected and nothing else.
(ii) There are cases in which the election petition makes a double
claim; it claims that the election of a returned candidate is void and also
asks for a declaration that the petitioner himself or some other person
has bct!n duly elected. It is in regard to such a composite case that
s. I 00 as well as s. 100( I) 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. The result of s. 97 ( 1) therefore, is that in dealing with a compositP. P.lection petition the Tribunal enquires into not only the cruse
made out by the petitioner, but also the counter-claim made by the
returned candidate. In this conhection the returned candi(late
is
required to comply with the provisions of s. 97 (I) an'd s. 97 (2) of the
Act.
If the returned candidate
does not recriminate as required by
~. 97, then he cannot make any attack against the
alternative claim
made by the petitioner. In other words the returned candidate will not
be allo\ve\.l to lead any evidence because he is preclud

## Text

_Characters 0–39,971 of 91,066. This is a partial read: ask again with offset=39971 for what follows._

1961
Dec1mber, 19
54
SUPREME COURT REPORTS
[ HJ(>4)
JABAR SINGH
v.
GENDA LAL
(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. WANCHOO,
K. C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ.)
Representation of the People Act (43 of 1951), ss. 97, !OO(l)(d)
and IOl(a) and Conduct of Election Rules, 1961 r. 57(1)-scope of.
The appellant was tleclared elected having defeated the respondent
y
by 2 votes. Thereafter. the respondent filed an elect:Wn petition. The
respondent challenged the validity of the appellant's election on the
ground of improper reception of votes in favour of the appellant and
improper rejection of votes in regard to himself.
His prayer was that
the appel1ant's election should be declared void
and
a
declaration
should be made that the respondent was (iuly elected.
The appellant urged before the Tribunal that there had been im~
proper rejection of his votes and improper acceptance of the votes of
the respondent. and his case was that if recounting and re-scrutiny 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 recriminate'd nor furnished security under s. 97 of the Act, it
was not open to him to make this plea. The Tribunal rejected
the
objection of the respondent and accepted the plea
of the
appellant.
The Tribunal 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 not secured a majority of votes.
The
Tribunal declared that the
election
of the appellant was void an(l
refused to grant a declaration to the respondent that he had been duly
elected. Both the appellant and the respondent preferre<i appeals before
the High Court against the decision of the Tribunal. The High Court
t
dismissed both the appeals and the decision of Tribunal was confirmea.
Hence the appeal.
Held: (i) The scope of the enquiry in a case falling under s. 100
( I ) l 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 ~eciding whether
the election of the returned candidate has been materially affected or·
not. At this enquiry the onus is on the petitioner to prove his allegation.
Therefore, in the case of a petition where the only claim made is that
the election of the returned candidate is void, the scope of the -J
enquiry is clearly limited by the requirement of s. 100 (! )(d) itself. In
fact, s. 97(1) bas no application to the case falling under s. IOO(l)(<l)
(iii); the scope of the enquiry is limited for the simple reason that what
•
6 S.C.R.
SUPREME COURT REPORTS
55
the clause requires to be considered is whether the election of the returned candi'date has been materially affected and nothing else.
(ii) There are cases in which the election petition makes a double
claim; it claims that the election of a returned candidate is void and also
asks for a declaration that the petitioner himself or some other person
has bct!n duly elected. It is in regard to such a composite case that
s. I 00 as well as s. 100( I) 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. The result of s. 97 ( 1) therefore, is that in dealing with a compositP. P.lection petition the Tribunal enquires into not only the cruse
made out by the petitioner, but also the counter-claim made by the
returned candidate. In this conhection the returned candi(late
is
required to comply with the provisions of s. 97 (I) an'd s. 97 (2) of the
Act.
If the returned candidate
does not recriminate as required by
~. 97, then he cannot make any attack against the
alternative claim
made by the petitioner. In other words the returned candidate will not
be allo\ve\.l to lead any evidence because he is precluded from raising
any pleas against the validity of the claim of the alternative candidate.
(iii) The pleas of the returned candidate under s. 97 of the Act,
~
have to be tried after a declaration has been made under s. 100 of the
Act. 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 bys. IOO(l)(d) (iii) and the latter part of the enquiry
which is governed by s. 10 I (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). But
even in cases to which s. 97 applies, the enquiry necessary while dealing
with the aispute under s. lOl(a) will not be wider if the returne'd candidate
has failed to recriminate, and in a case of this type the duty of the
Elec iron Tribunal will not be to count and scrutinise all the votes cast
at the election. As a result of T· S7, the Election Tribunal will have to
assume that every ballot paper which had not been rejected under r. 56
-constituted one vali'd vote and it is on that basis the finding will have
to be made under s. !Ol(a) .. Therefore, it is clear that in holding an
~nquiry either under s. IOO(l)(d) (iii) or under s. IOI 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.
Jnayatu/lah Khan v. Diwanchand Mahajan,
15 E.L.R. 219 and
Lakshmi Shankar Yadav v. Kunwar Sripa/ Singh, 22 E.L.R. 47
overruled.
Bhim Sen v. Gopali and Ors. 22 E-L.R. 288, relied on.
Vashist Narain Sharma v. Dev Chandra, [1955] I S.C.R. 509, Hari
Vishnu Karnath v. Syed Ahmed lshaque, [1955] I S.C.R. 1104 and
1963
Jabar Singh
v.
Genda l,ol
1963
lobar Slnzh
'"
Gerula Lal
SUPREME COURT REPORTS
[rg64J
Keslwv La:cman Borkar v. Dr. Devrao Laxn1an Anande, [1960] 1 S.C.R.
902, liiscussed.
l't'r Ayyangar L-(i) Section 100 of the Act casts on the election
petitioner the onus of establishing to the satisfaction of the l'ribunal
that "the result ot the election was materially affected by the improper
reception or rejection of particul<1r votes", but from this it does not
follow that the returned candidate is powerless to establish to the satisfaction of the Tribunal that notwithstanding the improper reception or
rejection of the particular votes alleged by the petitioner hi~ elt:ction
ha:-i not been materially affected.
If the key words of the provision on
the fulfihnent of which alone the Tribunal is invested with jurisdiction
to set aside an election are taken to be the words
"the result of the
election has bee11 materially affected''; it is not beyond the power of the
returned candi'date to '!Stablish this fact which he might do in any
manner he likes. The returned candidate might <lo this by establishing
that though a few votes were wrongly counted as in hb favour, still a
l::i.rge number of his own votes were counted in favour of the petitioner
or that votes which ought to have been counted as cast for him. have
been improperly counted as cast in favour of defeated candidates other
than tht.! petitioner. Without such a scrutiny it would manifestly not
1 be possible to determinl: wht:ther the election of the returned can'didate
has been materially affected or not.
There is nothing in cl. (iii) which
precludes the returned candidates from establishing
this.
As
this
clause does not speak of the person in whose favour or as against whom
the improper reception or rejection has taken place, its content and
significa.nce have to be ascertained from the purpose of which the provision is intended i•iz., to determine
from
a
counting of the voting
papers after a scrutiny whether the election of the returned candidate
has been materially affected.
The expres-.ion "any vote" in this clause
has to be rea.'d as meaning "any vote cast in the election with
which
this petition is concerned" and not "any vote cast in the favour of the
returned candidate".
(ii) Section lOl(a) provides that theI-c cannot be a declaration in
favour of the claimant to a seat merely because the election
of the
returned candidate has been
declared void but he must in
addition
have secured the majority of the lawful votes cast. It is obvious that
for this purpose the Tribunal ought to scrutinise not merely the ballot
papers of the claimant and the returne'd candidate but also of the O(hor
candidates.
When the Tribunal has
reached the
conclusion
after
scrutiny of votes that the claimant has, in fact, received the majority
of valid vote~, the Tribunal
embarks on the further enquiry
as
to
whether there are any reasons why he should not be declared elected.
·And it is at this stage that the provisions of s. 97 in regatd to recrimination came into play.
If no recrimination is filed then on the terms
of s. lOl(a) the claimant would be immediately declared elected tiut
if there is r1.cr1mination the provision of s. lOl(b) is attracted.
This
constructior 'vould harmonise the prov1s1on of ss. 97. lOO(ll(d) and
101 and would lead to a rational result.
•
•
Ir
6 S.C.R.
SUPREME COURT REPORTS
196]
Ja~ar Singh
(iii) Ru!~ 57(1) means that so far as the returning offi.Cer jS~COD.-:-~--
cerned and for the purpose of enabling hini to ·declare the result the
ballot papers y,:hich are not rejected are io be deemed as valfd. It is. '
manifest that if that validity held good even at the ·stage of the election
petition and for the conduct of the enquiry before the Tribunal that
could really be no scrutiny of the ballot papers ands. lOO(l)(d) _(iii)
would become me3.ningless;· The validity of the Ballot Paper can be
challenged in Election Petition by making proper pleadings and
the
Tribunal can -declare 3.ny~ ballot paper as irnproperlY received.
Rule 57
does no; bea-i upon the construction of s. IOO(l)(d) (iii) or of s. _lOI(a).
CIVIL APPELLATE-: JURISDICTION: Civil
Appeal No.
1042 of 1963. ·
'
Appeal by special lea"'.e from the judgment and order
dated May 3, 1963, of the Madhya Pradesh High Court in
First Appeal No. 46 of 1962.
S. K. Kapur, B. L. Khanna and B~ N. Kirplll, for the
appellant.
Homi Daji, R. K. Garg, S. C. Agarwal, M. K. Ramamurthi and D. P. Singh, for the respondent.
December 20, 1963. The Judgment of P.- B. Gajendragadkar, A. K. Sarkar, K. N. Wanchoo and K. C. Das Gupta,
JJ. was delivered by Gajendragadkar J. N. Rajagopala
Ayyangar J. delivered a separate opinion.
v.
Genda Uil
GAJENDRAGADKAR J.-_-· The question ol law which
0
this Gajendragadkar J.
appeal has raised for our decision is in relation to the nature
and scope of the enquiry contemplated by sections 97, I 00
and 101 of the Representation of People Act, 1951 (No. 43
of 1951) (hereinafter called the Act). The appellant Jabar
Singh and the respondent Genda Lal, besides five others,
had contested the election to the Madhya Pradesh Assembly oil behalf of the Morena Constituency No. 5.
This election took place on the 21st February, 1962. In due course,
the scrutiny of
recorded votes took place and counting
followed on the 27th February, 1962.
As a result of the
counting, the appellant was shown to have secured 5,671
votes, whereas the respondent 5, 703 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,
58
SUPREME COURT REPORTS
[1g64]
1963
recounting followed as a result of which the appellant was
Jabar Singh
declared elected having defeated the respondent by 2 votes.
•·
The recounting showed that the appellant secured 5,656
Genda Lal
votes and the respondent 5,654. Thereafter, the respondent
Gajendragadkar J. filed an election petition from which the present appeal
arises.
By his petition the respondent challenged the validity of the appellant's 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 appellant's
election should be declared to be void and a declaration
should be made that the respondent was duly elected.
The Election· Tribunal found that IO ballot papers in
favour of the· respondent had been improperly rejected and
4 had been improperly accepted iii favour of the appellant.
That led to a difference of 12 votes and the position of the
votes was found to be the respondent 5,664 and the appellant 5,652 votes.
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 re-scrutiny 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 re-scrutiny 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 respondent's contention was that in order to justify the claim made by the
appellant it was necessary fhat 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.
,
•
..
,,,.
•
+i S.C.R.
SUPREME COURT REPORTS
59
The Tribunal rejected the respondent's contention and
1961
held that in order to consider the relief which the respondent
Jabar S11111t
had cliamed in his election petition, it was necessary for it
0.,J· Lal
to deciue whether the respondent had in fact received a
·-
4
-
majority of votes under s. 101 of the Act, and so. he re-exa- Gaie11dragadkar /.
mined 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 fir.dings,
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.
This decision led to two cross-appeals before the High
Court of Madhya Pradesh, No. 46 of 1952 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 sections
100 and 101 of the Act.
In dealing with this question, the
High Court based itself upon its own earlier decision in
lnayatullah Khan v. Diwanchand Mahajan and Ors.(')., as
well as the decision of this Court in Bhim Sen v. Gopali and
Ors. (2 ) 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
~o
(I)
15 E.L.R. 219.
(2) 22 E.L.R. 288.
1963
labar Singh
v.
Genda Lal
Ga1endragadka1
60
SUPREME ~OURT REPORTS
[1g64J
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 Rhim
I. Sen(') 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.
ln dealing with the question raised by Mr. Kapoor before
us, it is necessary to refer to the provisions of the Act in regard to th~ 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 (!) 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 presenb
an election petition, it is open to him to challenge the election of the returned candidate under s. 100 (1) and claim a
deciaration that the returned candidate's 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 cand:date 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 e'ection petition may claim two reliefs, one under s. I 00
'. l). and the other under s. 10 I. In this category of cases,
the Tribunal first decides the questia'n 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 ho.Id in such cases would obviously
depend upon the nature of the reliefs claimed by the petition.
There is another fact which it is necessary to bear in mind
in dealing with the controversv before us in the present ap-
(I) 22 E.L.R. 288.
•
•
'
..
6 S.C.R.
SUPREME COURT REPORTS
61
peal.
When elections are held, the declarations of the results
are governed by the statutory mies 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 bal1963
/a/Jar Singh
v.
Gerula Lal
lot boxes.
Rule 56(1) requires that the ballot papers taken Ga;endra!adkar J.
out of each ballot box shall be arranged in convenient bundle'
and scrutinised. R. 56(2) provides when the returning officer
has to reject a ballot paper; the grounds for rejection are specified in clauses (a) to (h).
Rules 56(3), (4) and (5) prescribe
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. 5 7
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. R. 63(2) permits ai1 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 (I) 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 countini:
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, s. 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 cand idate, 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
1963
Jabar S111gh
v.
Genda Lal
62
SUPREME COURT REPORTS
[1964]
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
Gaje11dragqdkar J. 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 sections 100 and
10 l of the A.ct.
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
candidat~
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 sections 117 and
118 respectively.
(2) Every notice referred to in sub-section (!) chall bt
accompanied by the statement and particulars
required by section 83 in the case of an election
petition and shall be signed and verified in like
manner".
Section I 00, sub-section (I) reads as under: --
(!) Subject to the provisions of sub-sectiou (2) if the Tri·
bunal is of opinion-
(a) that on the date of his election a returned candi
date. was not qualified, or was disqualified, to be
chosen to fill the seat under the Constitution or
this Act; or
' -
•
'
6 S.C.R.
SUPREME COURT REPORTS
63
(b) that any corrupt practice has been committed by
a returned candidate or his election ~.gent or
by any other person with the consent of a returned candidate or his election agent; or
1963
labar Singh
v.
Gendu Lal
(
h
.
.
h
b
.
l
.
Gajendragadkar /.
c) t at any nommation as
een improper y re1ect·
ed; or
(d) that the result of the election, in so far as it con- .
cerns a returned candidate. has been materially
affected-
(i) by the improper acceptance of any nomination,
or
(ii} by any corrupt practice committed in the
interests 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
feturned candidate to be void".
Section W 1 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".
1963 -
Jubar Singh
v.
Genda Lal
SUPREME COURT REPORTS
[1964]
Mr. Kapoor contends that in dealing with the cases falling
under s. lOO(l)(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
Ga/endragadkar_ J. 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, refusal or
rejection of any vote, or the 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. lOl(a). Since s. lOO(l)(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 bys. 97(1).
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 IOI, we must bear in mind one important fact that
the returned candidate whose election is challenged can face
the challenge under s. I 00 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 ~ '.'rson has been duly elected, the returned candidate is given an
opportunity to recriminate and by way of recrimination he
<:an adopt pleas which can be described as weapons of attack
against the validity of the election of the other :oerson.
•
..
''
..
•
6 S.C.R.
SUPREME COURT REPORTS
65
His argument is that though s. JOO(l)(d)(iii) is outside s. 97,
1961
it does not mean that in dealing with a claim made by an
iobor Si11gh
election petition challenging the validity of his election, a
v.
returned candidate can both defend the validity of his clcc·
G•~
Lal
tion and assail the validity of the votes cast in favour of the Ga/endrazadkar I.
petitioner or some other person. It is in the light of these
two rival contentions !hat we must now proceed to decide
what the true legal position in lhe matter is.
lt 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), lbl 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
can•fah•tc under s. JOO(l)(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. JOO(l)(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 cand:date 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. lOO(l)(d) necessarily
impons iimitaticns on the scope of the enquiry. Confining
ourselves to clause (iii) of s. IOO(l)(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 h:1s been a refusal or rejection of any
vote in regard to any other candidate or whether there has
been a 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. JOO(l)(d)(iii) is to determine whether
any ~otcs have been improperly cast in favour of the returned
candidate. or any votes have been improperly refused or reta4-159 S.C.-5.
1963
Jabar Singh
...
G1rul#i Lal
66
SUPREME COURT REPORTS
[1964]
jected 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
Ga/endraradkar J. show that by reason of the infirmities specified in s. 1 OO(l)(d)
(iii), the result of the return~d candidate's election has been
materially affected, and that, incidentally, helps IQ determine
the scope of the enquiry. Therefore, it seems to us that ii~.
the 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. lOO(l)(d1
itself. The enquiry is limited not because the returned candidate has not recriminated under s. 97(1); in fact, s, 970 J has
no application to the case falling under s. lOO(l)(d)(iiiJ; 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.
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 fot 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 ass. IOI would apply, and it is in respect of the additional claim fot a declaration that some other candidate has
been duly elected that s. 97 comes into play. Section 97( I)
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
..
•
•
•
..
...
6 S.C.R.
SUPREME COURT REPORTS
67
candidate.
That being the nature of me 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
1963
lobar Sin11.
y,
Genda Lal
specified by s. 97 ( 1) proviso and s. 97 (2). If the returned Gaiendragadur J.
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
candidaie's election is concerned, and if as a result of the
said enquiry a declaration is made that the election of the
returned candidate is void, then the Tribunal will proceed to
deal with 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.
It is true that s. lOl(a) requires the Tribunal to firtd that
the petitioner or such other candidate for the declaration of
whose election a prayer is made in the election petition hl)s 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. IOl(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. 10 !(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.
1963
Jabar Singh
••
Ge111Ja Lal
Ga1endragadkar J.
68
SUPREME COURT REPORTS
[1g64]
w.ere invalid.
What we have said about the presumed validity of the votes in dealing with a petition under s. 10 !(a) is
equally true in dealing with the matter under s. l()()(l)(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. lOl(a) will not be wider if the returned candidate
has failed to recriminate.
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 plea' may
have to be tried after· a declaration has been made under s.
100 and the matter proceeds to be tried under s. lOl(a).
ln
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. l()l)(J)(d)(iiil
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
returnea candidate to lead evidence in support of the pleas
which he may have taken by way of recrimination under s.
97 ( 1). If Mr. Kapoor's construction of s. l 00 ( 1) ( d) (iii) is
accepted, it would either make s. 97 otiose and ineffective
or make the operation of s. I 01 read with s. 97 inconsistent
with the operation of s. IOO(l)(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."
It, however, appears that following its own earlier decision in lnayatul/ah
Khan's(') case the High Court
was disposed to take the view that the enquiry under s.
JOl(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
(1) 15 E.L.R. 219.
•
...
6 S.C.R.
SUPREME COURT REPORTS
6g
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
1963
Jabar Srng!1
v.
Gendc. lc.l
rejected.
We ought to add that the view taken by the Gaj<11dragad~ar I.
Madhya Pradesh High Court in the case
of Inayatul/ah
Khan(1) 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 Yadm· v. l(;.inwar Sripa/ Singh
and Ors. (2). cannot be said to interpret correctly the scope of
the enquiry either under s. 100 or s. 101.
The conclmion
which we han! reached in the present appeal is substantially
in accord with the observations made by this Ct•urt in the
case of Bhim Sen(") though it appears that the points
in question were not elaborately argued before the Court in
that case.
There i;, 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 righit, the relief granted by it was not justified
by the pleadings of the appellant in the present proce~dings.
In support of this argument, he referred us to paragraph 4
of the Specfal 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 many 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?
(1) 15 B.L.R. 219.
' ll.L.R. 288,
(2) 22 E.L.R. 47.
196J
Jaw Sillfh
v.
GCll4 Lal
70
SUPREME COURT REPORTS
[1964]
Later on, when the respondent contended that in the absence
of any recrimination by the appellant these issues did not arise
on the pleadings, they were struck out, and yet in its judgment, the Tribunal has virtually tried these issues and given
.. Ga}lndrllgodka. J. 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 (1),
we do not propose to rest our decision on this subsidiary point
raised by Mt.