# KONAPPA RUDRAPPA NADGOUDA v. VISHWANATH REDDY & ANR

- **Citation:** [1969] 2 S.C.R. 90
- **Court:** Supreme Court of India
- **Decided:** 1968-09-13
- **Case number:** Review Petition No. 54 of 1968
- **Bench:** M. H!Dayatullah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/konappa-rudrappa-nadgouda-v-vishwanath-reddy-anr-4796
- **Pages:** 7

## Headnote

J. C. SHAH,
V. RAMASWAMI,
G. K. MITTER AND A. N. GROVER, JJ.)
Representation of the People Act ( 43 of 1951), ss. 53, 84 and 101Two candidates contesting for one seat-Court finds successful candidate
to be .under statutory disquo!ification-Whether the other can be declared
elected.
The appellant and respondent were the contesting candidates for a
'cat in the State Legislative Assembly. The appellant challenged the
respondent's nomination before the Returning Officer on the ground that
the respondent was disqualified under s. 9A of the Representation of the
People Act, 1951. No general notice was given to the electorate about
the disqualification.
The Returning Officer overruled the objection and
accepted the respondent's nomination. After the respondent was elected, the appellant filed an election petition in the High Court, on the
same ground, but the petition was rejected.
In appeal, this Court declared the election of the respondent void,
and on the question whether the appellant could, under law, be declared
elected,
HELD : The decision in Keshav
Laxman
Borkar v. Dr. Devrao
T..axman Anande, [1960] 1 S.C.R. 902 that votes cast in favour of the
disqualified candidate would be deemed to be thrown away only when the
voters had notice of the disqualification, ·and that in the absence of such
notice, there can only be fresh· election is wrong. That rule was adopted
from English decisions but it is not consistent with the Indian statute
law and is inappropriate for Indian conditions. [95 A-B; 96 E]
(a) Section 53 of the Act renders a poll necessary only if there ·are
more candidates contesting the election than the number of seats contested. If the number of candidates is equal to the number of seats to
be filled, the Returning Officer shall forthwith declare all suqh candidates
to be dully elected to fill those seats. [92 DJ
(b) In cases falling under s. !Ol(b), the Act requires merely proof
of· corrupt practice and obtaining votes by the corrupt
practice :
it
does not require proof that voters had notice of the corrupt practice.
Therefore, in cases falling under cl. (a) when there are only two candidates for one seat and the returned candidate is found to be under a
statutory disqualification the other may be declared elected under s. 84
read withs. IOl(a), even though the voters had no notice of the disqualification of the successful candidate. [96 B-E]
(c) It would be almost impassible to give notice of the disqualification to the electorate in view of the immense cost involved and the general
illiteracy of a large section of voters. [95 E-F]
( d) There is no logic in the assumption that votes, cast in favour of
a person whose nomination was accepted by the Returning Officer but
who was really disqualified, could still be treated as valid votes for deter-
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KONAPPA V, V!SHWANATH (Shah,. J,)
9!
mining whether a fresh election should be held.
While notice to voters
may have significance when there are more than two candidates in the
field for a single seat, where there are only two contesting candidates and
one of them is under a statutory disqualification, votes cast in his favour
may he regarded as thrown away irrespective of whether the voters were
aware of the disqualification. [95 F-H]
Therefore, where by an erroneous order of the Returning Officer poll
is held which, but for that order, was not necessary, the Court would
be justified in declaring the contesting candidate elected, who, but for
the order of the Returning Officer would have been declared elected.
f95 C-D)

## Text

KONAPPA RUDRAPPA NADGOUDA
v.
VISHWANATH REDDY & ANR.
September 13, 1968
[M. H!DAYATULLAH,. C.J.,
J. C. SHAH,
V. RAMASWAMI,
G. K. MITTER AND A. N. GROVER, JJ.)
Representation of the People Act ( 43 of 1951), ss. 53, 84 and 101Two candidates contesting for one seat-Court finds successful candidate
to be .under statutory disquo!ification-Whether the other can be declared
elected.
The appellant and respondent were the contesting candidates for a
'cat in the State Legislative Assembly. The appellant challenged the
respondent's nomination before the Returning Officer on the ground that
the respondent was disqualified under s. 9A of the Representation of the
People Act, 1951. No general notice was given to the electorate about
the disqualification.
The Returning Officer overruled the objection and
accepted the respondent's nomination. After the respondent was elected, the appellant filed an election petition in the High Court, on the
same ground, but the petition was rejected.
In appeal, this Court declared the election of the respondent void,
and on the question whether the appellant could, under law, be declared
elected,
HELD : The decision in Keshav
Laxman
Borkar v. Dr. Devrao
T..axman Anande, [1960] 1 S.C.R. 902 that votes cast in favour of the
disqualified candidate would be deemed to be thrown away only when the
voters had notice of the disqualification, ·and that in the absence of such
notice, there can only be fresh· election is wrong. That rule was adopted
from English decisions but it is not consistent with the Indian statute
law and is inappropriate for Indian conditions. [95 A-B; 96 E]
(a) Section 53 of the Act renders a poll necessary only if there ·are
more candidates contesting the election than the number of seats contested. If the number of candidates is equal to the number of seats to
be filled, the Returning Officer shall forthwith declare all suqh candidates
to be dully elected to fill those seats. [92 DJ
(b) In cases falling under s. !Ol(b), the Act requires merely proof
of· corrupt practice and obtaining votes by the corrupt
practice :
it
does not require proof that voters had notice of the corrupt practice.
Therefore, in cases falling under cl. (a) when there are only two candidates for one seat and the returned candidate is found to be under a
statutory disqualification the other may be declared elected under s. 84
read withs. IOl(a), even though the voters had no notice of the disqualification of the successful candidate. [96 B-E]
(c) It would be almost impassible to give notice of the disqualification to the electorate in view of the immense cost involved and the general
illiteracy of a large section of voters. [95 E-F]
( d) There is no logic in the assumption that votes, cast in favour of
a person whose nomination was accepted by the Returning Officer but
who was really disqualified, could still be treated as valid votes for deter-
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KONAPPA V, V!SHWANATH (Shah,. J,)
9!
mining whether a fresh election should be held.
While notice to voters
may have significance when there are more than two candidates in the
field for a single seat, where there are only two contesting candidates and
one of them is under a statutory disqualification, votes cast in his favour
may he regarded as thrown away irrespective of whether the voters were
aware of the disqualification. [95 F-H]
Therefore, where by an erroneous order of the Returning Officer poll
is held which, but for that order, was not necessary, the Court would
be justified in declaring the contesting candidate elected, who, but for
the order of the Returning Officer would have been declared elected.
f95 C-D)
CIVIL APPELLATE JURISDICTION: Review Petition No. 54 of
1968.
(For the review of this Court's judgment dated July 19,
1968 in Civil Appeal No. 1705 of 1967).
B. S. Patil, M. K. Ramamurthi, Vineet Kumar and Shyamala
Pappu, for the petitioner.
S. V. Gupte, S. S. Java/i aind B. Datta, for respandent No. 2.
The Judgment of the Court was delivered by
Shah, J. Vishwanath Reddy was declared elected to the
Mysore Legislative Assembly from the Yadgiri constituency at
the poll held in February 1967. Nadgouda who was a contesting
candidate filed a petition before the High Court of Mysore for an
order setting aside the election of Reddy on the
ground that
Reddy was disqualified from standing as a candidate for election
and for an order declaring that he--Nadgouda-be declared
elected. The High Court rejected the petition. In appeal,
this
Court held that at the date of nomination Reddy was disqualified
from standing as a candidate and passed an order on July 19,
1968 that-
". . . . the appeal is therefore allowed, the election
of the first respandent is declared void. In this view of
the matter the votes cast in favour of the first respandent be treated as thrown away. As there was no other
contesting candidate we declare the appellant (election
petitioner) elected to the seat from the Yadgiri constituency."
Reddy then applied for review of judgment and claimed,
relying upon the decision of this Court in Keshav Laxman Borkar
v. Dr. Devrao Laxman Anande('), that in the circumstances of the
case no order declaring Nadgouda could be made by this Court.
This Court granted review of judgment by order dated August 27,
1968, and the appeal is now before us for consideration of the
question whether it is open to this Court on the finding recorded
about the disqualification of Reddy to declare Nadgouda as duly
elected to the Mysore Legislative Assembly.
(1) [1960] l s.c.R. 902
92
SUPREME COURT REPORTS
[1969] 2 S.C.R.
Out of seven candidates who filed their nomination papers
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for election, five candidates withdrew their candidature, and
Nadgouda and Reddy were the only two candidates remaining
in the field.
Nomination of Reddy was challenged before the.
Returning Officer on the plea that Reddy wru. disqualified by
virtue of s. 9A of the Representation of .the People Act from
standing as a candidate for election to the Mysore .State LegislaB
tive Assembly, but that objection was overruled and his nomination was accepted. Reddy secured at the poll 4000 more votes
than Nadgouda and was declared elected.
This Court has declared the election of Reddy void on the
ground disqualification under s. 9A of the Representation of
the People Act, and the question is no longer in issue at this stage.
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The only question which remains to be determined is whether in
the events which have transpired, N adgouda could under the law
be declared elected.
Section 5 3 of the Representation of the People Act provides
that if the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken, and if the number
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of such candidates is equal to the number of seats to be filled,
the Returning Officer shall forthwith declare all such candidates
to be duly elected to fill those seats. "Oisqualified" means "disqualified for being chosen as, and for being, a member of either
House of Parliament or of the Legislative Assembly or Legislative
Coi.incil of a State": s. 7 (b). Section 9 A of the Act provides:
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"A person shall be disqualified if, and for so long
as, there subsists a contract entered into by him in the
course of his trade or business with the appropriate
Government for the supply of goods to, or for the execution of auy works undertaken, by that Government.
Explanation.-
Reddy was on the finding recorded by this Court incompetent
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to be chosen as a member of the Legislative Assembly. Objectiou
was raised before the Returning Officer that Reddy was disqualified, but no general notice was given to the electorate about the
disqualification.
On the view that Reddy was not disqualified,
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the Returning Officer accepted his nomination and at the poll
Reddy was declared duly elected.
Section 84 of the Representation of the People Act provides
that-
"A petitioner may, in addition to claiming a declaration that the election of all or any of the returned
candidates is void, claim a further declaration that he
himself or any other candidate has been duly elected."
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KONAPPA V, VISHWANATH (Shah, J.)
93
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Nadgouda by his election petition did make a claim that the
election of Reddy be declared void and that he-Nadgouda-be
declared duly elected. Section 100 sets out the grounds on which
an election may be declared void, and s. 101 sets out the grounds
on which a candidate other than the returned candidate may be
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declared to have been elected. That section provides :
"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 High
Court 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 High Court 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."
The expression "valid votes" used in s. 101 has not been defined
in the Act. But this Court has held in Keshav Laxman Borkar' s
case ( 1 ) that a candidate whose nomination paper is accepted after
scrutiny, is a validly nominated candidate "at least for the purpose of receiving votes at the election", and that the candidate
must be treated as a person for whom votes could be given. The
Court on that view held that where there are only two candidates
for a seat and the election of the candidate declared elected is set
aside on the ground that he was disqualified the defeated candidate cannot be declared elected, and there must be a fresh election. In the opinion of the Court the votes cast in favour of the
disqualified candidate cannot be said to be thrown away unless
there is a "special pleading" that certain voters had cast their
votes with the knowledge or notice that the candidate for whom
. they had voted was not eligible for election, and they had deliberately thrown away their votes in favour of the disqualified
person : in the absence of such a plea it cannot be said that the
votes cast in favour of a person who was by law disqualified
from being nominated, but who was in fact nominated, were
thrown away. In the Court's view a defeated candidate out of
the two who contested the election may be declared elected under
s. 84 read with s. 101 of the Act, if he proves that the voters had
notice of the disqualification of the successful candidate.
Correctness of this view is challenged before us.
(I) [196011S.C.R.902.
94
SUPREME COURT REPORTS
(1969] 2 S.C.R.
The rule enunciated by this Court was apparently adopted
from certain cases decided by the Courts in the United Kingdom.
In Drinkwater v. Deakin(') it was held that bribing by a candidate at an election, though it renders his election void if he be
found guilty of it on petition, does not incapacitate the candidate
at that election in the sense that the votes given for him by voters
with knowledge of it will be thrown away, and that no disqualification arises in that sense of the term until after the candidate has
been found guilty of bribery on petition, and consequently, the
petitio.ner was not entitled to the seat.
In Hobbs v. Morey( 2 ) at a municipal election a person who
had an outstanding contract with a municipality was nominated
as a candidate and was declared duly elected.
The defeated candidate then claimed the seat on the plea that the successful candidate was disqualified. It was held that the nomination of the
successful candidate was invalid, and as the defeated candidate did
not allege any notice to the electorate of the disqualilication of
the successful candidate, the votes given for him could not be
treated as thrown away, and the defeated candidate was not
entitled to claim the seat.
In Beresford Hope v. Lady Sandhurst(') it was held by the
Court of Appeal that an election of a woman candidate to a
county council under the Local Government Act, 1888, bemg
void, the de.feated candidate could be declared elected, because
it was common knowledge that women are incapacitated from
being elected members of a county council and the votes given to
the woman candidate were thrown away.
In a recent judgment of the Court of Appeal in Re. Bri~tol
South East Parliamentary Election(') at the parliamentary election Wedgwood Benn was declared duly elected member of the
Parliament.
Prior to that date St. Clair a contesting candidate
had sent out notices to all persons entitled to vote stating that by
reason of his status as a peer of the United Kingdom Wedgwood
Benn was disqualified from being elected a member of Parliament and that all votes given for him would be thrown away and,
be null and void.
Similar notices were published in the news- .
papers circulating in the constituency and were posted at the
entrance to polling stations.
The Court of Queen's Bench held
in that case that the facts which in law created the incapacity of
Wedgwood Benn to be elected a member of Parliament were
known to the electors before they cast their votes, and the Court
was bound to declare that the votes cast for the successful candidate had been thrown away.
The petitioner (defeated candidate)
was accordingly declared duly elected.
(1)
[1874] L.R. 9 Court of Common Pleas 626.
( 3) [1889] 23 Q.B.D. 79.
(2) [1904] I K.B. 74.
(4) [1961] 3 All E.R. 354.
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KONAPPA V. VISHWANATH (Shah, J.)
95
The cases decided by the Courts in the United Kingdom
appear to have proceeded upon some general rule of election law
that the votes cast in favour of a person who is found disqualified
for election may be regarded as thrown away only if the voters
had notice before the poll of the disqualification of the candidate.
But in our judgment the rule which has prevailed in the
British Courts for a long time has no application in our country.
Section 53 of the Representation of the People Act renders a poll
necessary only if there are more candidates contesting the election
than the number of seats contested. If the number of candidates
validly nominated is equal to the number of seats to be filled, no
poll is necessary.
Where by an erroneous order of the Returning
Olli.:er poll is held which, but for that order, was not necessary,
the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared
elected.
The rule enunciated by the Courts in the United Kingdom has only the merit of antiquity.
But the rule cannot be
extended to the trial of disputes under our election law, for it is
not consistent with our statute law, and in any case the conditions
prevailing in our country do not justify the application of that
rule.
If the rule is applied in our country, the provisions of s. 84
read withs. 101 (a) would practically be nugatory.
Apart from
the immense cost of intimating each voter in the vast electorate
in the constituencies the rule that a defeated candidate may be
declared elected only if he pleads and proves that the voters had
notice of the disqualification would render the exception in the
context of prevailing illiteracy and ignorance of large sections of
the electorate in our country, a dead letter.
A very large percentage of the electorate in our country is, unfortunately illiterate and sections thereof not infrequently speak a language different from the language of the majority. It would be well nigh
impossible to give information of the disqualification of a candidate in a medium which the illiterate electors understand. We
are again unable to see any logic in the assumption that votes cast
in favour of a person who is regarded by the Returning Officer a'
validly nominated, but who is in truth disqualified, could still be
treated as valid votes. for the purpose of determining whether a
fresh election should be held.
When there are only two contesting canilidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified canilidate may be
regarded as thrown away, irrespective of whether the voters who
voted for him were aware of the disqualification.
This is not to
say that where there are more than two canilidates in the field
for a single seat, and one alone is disqualified, on proof of disqtalification all the votes cast in his favour will be discarded
and the candidate securing the next highest number of votes will
be declared elected.
In such a case, question of notice to the
96
SUPREME COURT REPORTS
(1969] 2 S.C.R,
·1oters may assume significance, for the voters may not, if aware
ilf the disqualification have voted for the disqualified candidate.
The view that we are taking is consistent with the implication
of cl. (b) of s. 101.
When in an election petition which complies with s. 84 of the Act it is found at the hearing that some
votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained
a majority of votes.
In cases falling under cl. (b) of s. 101 the
Act requires merely proof of corrupt practice, and obtaining
votes by corrupt practice : it does not require proof that the
voters whose votes are secured by corrupt practice had notice of
the corrupt practice. If for the application of the rule contained in cl. ( b) notice to the voters is not a condition precedent,
we see no reason why it should be insisted upon in all cases
under cl. (a). The votes obtained by corrupt practice by the
returned candidate, proved to be guilty of corrupt practi~ are
expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the
defeated candidate, and no fresh poll is necessary.
The same
rule should, in our judgment, apply when at an election there
are only two candidates and the returned candidate is found to
be under a statutory disqualification existing at the date of the
filling of the nomination paper.
We are of the view that Keshav Laxamn Borkar's case(')
was not correctly decided.
We, therefore,
restore the order
passed by this Court by judgment dated July 19, 1968.
Reddy
will pay the costs of the review petition a~ well as of the appeal.
V.P.S.
Review petition dismissed.
(l) [1960]
I S.C.R. 902
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