# PRAKASH KHANDRE v. DR. VUA Y KUMAR KHANDRE AND ORS

- **Citation:** [2002] 3 S.C.R. 994
- **Court:** Supreme Court of India
- **Decided:** 2002
- **Case number:** Civil Appeal Nos. 2-3 of2002
- **Bench:** M.B. Shah, Bisheshwar Prasad Singh, H.K. Sema
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/prakash-khandre-v-dr-vua-y-kumar-khandre-and-ors-18544
- **Pages:** 46

## Headnote

Representation of the People A ct, I 9 51:
Section 9A (as substituted by Act 47of1966), Sections 53, 84, 100(/)(a),
C 100(/)(d)(i), JOI and 123.
D
Election-MLA-One seat-More than two candidates-Elected
candidate found disqualified subsequently-That by itself does not entitled the
candidate who has secured next higher votes to be declared elected
Election law-Disqualification-Ground-Subsisting contract on the
'
date of scrutiny of nomination paper-It is a question of fact to be determined
from evidence on record--Correspondene between elected candidate r:ind
Government as well as oral testimony disclosing that candidate terminated
subsisting contracts and Department accepted it-Held, there was no subsisting
E contract between candidate and Government-Consequently provisions of
Section 9-A are inapplicable.
In the election to a Constituency in Karnataka State Legislative
Assembly appellant was declared elected. Respondent, a defeated
candidate, filed an election petition praying that he may be declared as
F duly elected on the ground that under Section 9-A of the Representation
of the People Act, 1951 the appellant was disqualified to contest the election
as there were subsisting contracts. entered into by him in the course of his
business with the State Government. The connected petition has been filed
by a voter for a declaration that election of appellant was void under
G
Se~tions tOO(l)(a) and lOO(l)(d)(i). Correspondence between appellant and
State authorities revealed that appellant wrote to various authorities
requesting them to terminate all existing contracts and issue a certificate
to the effect that no relationship subsists between him and Government.
Consequently, registration of appellant as contractor was cancelled and
it was certified that there were no dues pertaining to any project to the
H
994
-t--
,....
I ...
PRAKASH KllANDRE v. YIJA Y KUMAR KHAN DRE
995
Government. All witnesses of the Department examined by the election- A
petitioner deposed before the Court to the same effect. A fresh contract
was also entered into with the brother of appellant.
The High Court declared the election of the appellant void under
Section I 00(1 )(a). It held that out of seven contracts between the appellant B
and State six contracts "'ere tcrn1inatcd but \vork in one of the contracts
\Vas continued to be carried out by appellant even after purported closure
of contract. Further it also declared the respondent, who had secured the
_ ~
next highest number of valid votes, as elected.
In appeals to this Court, on the question:
(i)
In and election petition under the Representation of the People
Act, 1951 when contest for election to the post of MLA is by
more than two candidates for one seat and a candidate, who
was disqualified to contest the election, is elected - whether
c
the Court can declare a candidate who has secured next D
highest votes as elected? and
(ii) whether any contract between the elected candidate and the
Government was subsisting on the date of scrutiny of
nomination paper.
-
Allowing the appeal of the elected candidate and dismissing the E
-
connected appeal, the Court
HELD: I. The impugned order passed by the High Court declaring
the election petitioner as elected on the ground that the votes cast in favour
of elected candidate (appellant) are thrown away was totally erroneous F
and cannot be justified. 11009-A, Bi
2. From a reading of sub-section (2) of Section 53 of the
Representation of the People Act, 1951, it is clear that if number of
candidates is equal to number of seats to be filled, the returning officer
has to declare all such candidates to be duly elected to fill those seats, G
meaning thereby it \vould be uncontested election. Further, if the number
of contesting candidate is more than the number of seats to be filled, a
poll is required to be taken. Finally, after taking poll if one candidates is
declared elected and there are only two candidates who contested the
election, and if it is found tha

## Text

_Characters 0–39,959 of 101,905. This is a partial read: ask again with offset=39959 for what follows._

A
PRAKASH KHANDRE
v.
DR. VUA Y KUMAR KHANDRE AND ORS.
MAY 'l, 2002
B
[M.B. SHAH, BISHESHWAR PRASAD SINGH AND H.K. SEMA, JJ.]
Representation of the People A ct, I 9 51:
Section 9A (as substituted by Act 47of1966), Sections 53, 84, 100(/)(a),
C 100(/)(d)(i), JOI and 123.
D
Election-MLA-One seat-More than two candidates-Elected
candidate found disqualified subsequently-That by itself does not entitled the
candidate who has secured next higher votes to be declared elected
Election law-Disqualification-Ground-Subsisting contract on the
'
date of scrutiny of nomination paper-It is a question of fact to be determined
from evidence on record--Correspondene between elected candidate r:ind
Government as well as oral testimony disclosing that candidate terminated
subsisting contracts and Department accepted it-Held, there was no subsisting
E contract between candidate and Government-Consequently provisions of
Section 9-A are inapplicable.
In the election to a Constituency in Karnataka State Legislative
Assembly appellant was declared elected. Respondent, a defeated
candidate, filed an election petition praying that he may be declared as
F duly elected on the ground that under Section 9-A of the Representation
of the People Act, 1951 the appellant was disqualified to contest the election
as there were subsisting contracts. entered into by him in the course of his
business with the State Government. The connected petition has been filed
by a voter for a declaration that election of appellant was void under
G
Se~tions tOO(l)(a) and lOO(l)(d)(i). Correspondence between appellant and
State authorities revealed that appellant wrote to various authorities
requesting them to terminate all existing contracts and issue a certificate
to the effect that no relationship subsists between him and Government.
Consequently, registration of appellant as contractor was cancelled and
it was certified that there were no dues pertaining to any project to the
H
994
-t--
,....
I ...
PRAKASH KllANDRE v. YIJA Y KUMAR KHAN DRE
995
Government. All witnesses of the Department examined by the election- A
petitioner deposed before the Court to the same effect. A fresh contract
was also entered into with the brother of appellant.
The High Court declared the election of the appellant void under
Section I 00(1 )(a). It held that out of seven contracts between the appellant B
and State six contracts "'ere tcrn1inatcd but \vork in one of the contracts
\Vas continued to be carried out by appellant even after purported closure
of contract. Further it also declared the respondent, who had secured the
_ ~
next highest number of valid votes, as elected.
In appeals to this Court, on the question:
(i)
In and election petition under the Representation of the People
Act, 1951 when contest for election to the post of MLA is by
more than two candidates for one seat and a candidate, who
was disqualified to contest the election, is elected - whether
c
the Court can declare a candidate who has secured next D
highest votes as elected? and
(ii) whether any contract between the elected candidate and the
Government was subsisting on the date of scrutiny of
nomination paper.
-
Allowing the appeal of the elected candidate and dismissing the E
-
connected appeal, the Court
HELD: I. The impugned order passed by the High Court declaring
the election petitioner as elected on the ground that the votes cast in favour
of elected candidate (appellant) are thrown away was totally erroneous F
and cannot be justified. 11009-A, Bi
2. From a reading of sub-section (2) of Section 53 of the
Representation of the People Act, 1951, it is clear that if number of
candidates is equal to number of seats to be filled, the returning officer
has to declare all such candidates to be duly elected to fill those seats, G
meaning thereby it \vould be uncontested election. Further, if the number
of contesting candidate is more than the number of seats to be filled, a
poll is required to be taken. Finally, after taking poll if one candidates is
declared elected and there are only two candidates who contested the
election, and if it is found that elected candidate was dis-qualified for one H
996
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A or other reason for being declared to be elected then his selection would
be set aside and unsuccessful candidate, if otherwise eligible, could be
declared as elected and that relief could be granted in view of Section 53
read with Section 84 of the Act. 11003-G, H; 1004-Al
3. Under Section JOI the first ingredient for declaring the electionB
petitioner or other candidate to have been duly elected depends upon
errors for various reasons in counting of valid votes and if it is found that
in fact the petitioner or such other candidate received a majority of valid
votes, he is to be declared elt>cted. Second ingredient provides for
establishing that the votes obtained by the returned candidate were
C obtained by corrupt practices and but for such votes the petitioner or such
other candidate would have obta_ined a majority of valid votes. Say as in
the present case, the difference between the elected candidate and the
election-petitioner is of 10327 votes and if it is established that elected
candidate obtained more than 10327 votes by corrupt practices then
petitioner or such other candidate who has obtained majority of valid votes
D could be declared as elected. [1004-D-Fl
4. However, in an election where candidate is declared to be
disqualified to contest election and there arc more than two candidates
contesting election, there is no specific provision under the Act under which
E the person who has secured the next highest number of votes could be
declared as elected. The Act is silent on this point. Further, it cannot be
presumed that the votes secured by the disqualified elected candidates
would have been wasted or would have been secured by the next candidate
who has secured more votes. If disqualified candidate was not permitted
to contest the election then how the voters would have voted in favour of
F
the candidate who has secured more votes than other remaining candidates
would be a question in the realm of speculation and unpredictability. In
such a situation, declaring the election of the returned candidate on the
ground of his initial disqualification to contest the election by itself would
not entitle the election-petitioner or any other candidate to be declared
G elected. 11004-G, H; 1005-A, Bl
5. General rule of election law prevailing in the United Kingdom 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 noticed before
the poll the disqualification of the candidate, has no application in our
H country and has only merit of antiquity. The question of sending such
-
--
_,
-
PRAKASll KllANDRE v. VI.JAY KUMAR KHANDRE
997
notice to all voters appears alien to the Act and the Rules. But that question A
is not required to be dealt within this matter. In the present case for one
scat, there \Vere five candidates and it 'vould be impossible to predict or
guess in 'vhose favour the voters \vould have voted if they were a\vare that
elected canc!idate was disqualified to contest election or if he was not
permitted to contest the election by rejecting his nomination paper on the B
ground of disqualification to contest the election and \Vhat \\·ould have been
voting pattern. Therefore, order passed by High Court declaring the
election petitioner as elected requires to be set aside. 11009-B-DI
Konappa Rudrappa Nadgouda v. Vishwanath Reddy and Anr .. 119691
2 SCR 90, relied on.
C
Keshav laxman Barker v. Dr. Devrao laxman Anande. 119601 I SCR
902; Thiru John and Anr. v. Returning Officer and Ors .. 119771 3 SCR 538;
RM Seshadriv. G. Vasantha Pai, 1196911SCC27; late Devi (Mali) v. Haru
Rajwar, 119891 4 SCC 773 and D. K. Sharma v. Ram Sharan Yadav and Ors ..
119931 Supp. 2 sec 117, referred to.
D
6. There was no contract subsisting between the appellant and the
State Government so as to apply the provisions of Section 9-A of the Act
and to hold that the appellant was disqualified to contest the elections.
11039-D, El E
7. Disqualification on the ground ofsusbsistence of contract was first
provided under section 7(d). This Section was replaced by Section 9-A by
Act 47 of 1966. From the object and reasons for substituting Section 9-A,
it is clear that unduly strict view about the Government contract in the
present day is not required to be taken and the change became necessary F
in order to do away with the disqualification that attach to a person for
being chosen as or for being member of Parliament or State Legislature
even ~fter he has fully performed his part of the contract.
11011-H; 1012-H; 1013-AI
Ranjeet Singh v. Harmohinder Sing Pradhan. 11991 4 SCC 517 and G
Dewan Jayna/ Abedin v. Abdul Wazed, 119881 Supp. SCC 580, referred to.
8. The question whether the contracts were subsisting or not is always
a question of fact to be determined from the evidence on record. 11033-DI
s. Nunishamappa v. D. Venkatarayappa and Ors., (19811 3 sec 260 H
998
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A and Smt. Aslhing@ lhingianong v. l.S. John and Ors., 119841 1 sec 205,
referred to.
9. in this case, correspondence between appellant and various
authorities manifestly establishes that appellant terminated all his
contracts with the State Government as he was to contest election and the
B same was accepted by the Department and the Chief Engineer issued "No
Dues Certificate" and also cancelled his registration as Class I Contractor.
11028-Fl
10. From the evidence of all witnesses of the Department examined
C by the Election Petitioner, it is also abundantly clear that contract of
asphalting of Halburga-Bawgi Kamtana road was cancelled and the work
was handed over to appellant's brother. "No Dues Certificate" was issued
and the registration of the appellant was cancelled on 16th August, 1999.
The contracts were terminated after obtaining the opinion of the
Government Pleader regarding premature termination of the contracts.
D Chief Engineer carried out inspection because of the closure of the work
by the appellant. He denied that work was carried out by appellant after
termination of the work. He has also stated that he had permitted the
transfer of work from appellant to his brother after verifying Codal Rules
and that he had ordered transfer of contract work. The work was
E
F
entrusted to brother of appellant on the recommendation of
Superintending Engineer. In this view of the matter, the finding given by
the High Court that work of effective improvement and asphalting of
Halburga-Bawgi Katana road continued and, therefore, contract was
susbsisting is erroneous. 11032-E-H; 1033-A, Cl
1 I. In the affidavit sworn by appellant, it was stated that in case the
substitute contractor fails to execute the work, he will take the full
responsibility of getting it completed on the same rate and terms and
conditions. From the affidavit filed by appellant, it can be stated that he
had terminated the contract and that there was no question of subsisting
contract. Further statement made in the affidavit only indicates that if
G substitute contractor fails to execute the work election petitioner will take
the full responsibility of getting it completed on the same rate, terms and
c.onditions. But the said statement would not mean that any new contract
for getting the works to be carried out was executed between the appellant
and the State Government. f 1035-E, Fl .
H
12. Presuming that according to the terms. of the contract if some
-
- r
PRAKASH KHANDRE v. VI.IA Y KUMAR KHAN DRE
999
part of the contract work is found to be defective or is not properly A
executed and the contractor \Vas bound to perform the same during a
period of one year after completion of the contract, then also as contracts
stood terminated, said ter.m of contract of repairing for a period of one
year of curing the defect would also not subsist. 11037-A, Bl
Kanappa Rudrappa Nac(~ouJa v. Vishwanath Reddy and Anr., 119691 B
I SCR 395, distinguished.
Chatturbhui Vithaldas Jasani v, Moresl711'ar Parshram and Ors., I 19541
SCR 817, referred to,
13. The submission that the contract work which was given to the C
brother of the appellant was, as a matter of fact, performed on behalf of
the appellant by his brother and, therefore, the High Court rightly held
that contract was subsisting on the date of scrutiny of the nomination
paper is \Vithout any substance because after termination of the contract,
fresh contract was executed by appellant's brother for carrying out D
remaining work. After substitution of Section 7(d) by Section 9-A there
must be subsisting contract by the contesting candidate for execution of
any wOrk undertaken by him with the Government. The essential
ingredient of the Section is that the contract for the execution of any work
undertaken by the Government should be subsisting on the date of scrutiny
E
of nomination. Merely because substituted contractor is brother" of the
Contractor, it cannot be said that he was acting as a benamidar as he
himself was registered Class I contractor. The objects and reasons of
Section 9-A provides that an unduly strict view about the Government
contract should not be taken as it might lead to disqualification of large
number of citizens, many of whom they may prove to be able or capable F
• '"
Members of Parliament or State Legislatures, Therefore, the amended
Section 9-A uses the phrase that a person shall be disqualified ·~o long as
there subsists a contract'. Similarly, subsequent payment by the
Government for the work done which was payable at the time of
termination of contract would not mean that contract between the parties
\vas subsisting and Explanation to Section 9-A has made the position clear. G
11037-C-GI
14. In the circumstances of the case it would be totally unreasonable
~
and unjustifiable to refer to some errors committed by some officers as
admitted by the witnesses, in mentioning the name of appellant as H
1000
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A contractor in the measurement book to arrive at the conclusion that contract
between appellant and the Government was susbsisting. 11038-B, q
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 2-3 of2002.
From the Judgment and Order dated 21.12.200 I of the Karnataka High
B Court in E.P. Nos. 25 and 30 of 1999.
Ashok Desai, Shanti Bhushan, K.N. Bhat, Ms. lndu Malhotra, Vikram
Mehta, Dheeraj Nair, Ms. Madhu Sweta, Sanjay Pathak, Manish Jha,
Manmohan, K. Rajeev, Vijay Kumar Majage, S. Sukumaran, Gangadhar
Mayage, Ms. Divya Niar for V.K. Sidharthan, Randhir Singh Jain, Sanjay R.
C
Hegde, Satya Mitra and Shantakumar V. Mahale for Rajesh Mahale for the
appearing parties.
The Judgment of the _Court was delivered by
SHAH, J. In the background of facts briefly stated below, questions for
D determination in these appeals are
E
F
G
H
1.
In an Election Petition under the Representation of the People
Act, 1951 (hereinafter referred to as 'the Act'), when contest for
election to the post of MLA is by more than two candidates for
one seat and a candidate, who was disqualified to .contest the
election, is elected whether the Court can declare a candidate
who has secured next higher votes as elected? And
2.
Whether contract between the elected candidate and the
Government was subsisting on the date of scrutiny of nomination
papers?
Appellant Prakash Khandre contested election from No. 2-Bhalki
Constituency of Karnataka State Legislative Assembly and was declared
elected. Respondent No. I Dr. Vijay Kumar Khandre contested the said election
but was defeated. The details of the votes secured by each candidate are as
follows: -
SI.No. Name of the Candidate
No. of Votes
Difference
Polled
01.
Shri Prakash Khandre
47,132
02.
Dr. Vijay Kumar Khandre
36,805
10327
r· -
PRAKASH KHANDRE v. VIJAY KUMAR KllANDRE JSl-IAH. J.J 1001
03.
Sri Bheemanna Kolle
04.Shri Shivaraj Patil
05.Sri Siddaramaiah S. Swamy
660
1,054
177
A
Respondent No. I challenged the said election by filing Election Petition B
No. 25/99 and contended that declaration of election dated 5.9.1999 resulting
in favour of the appellant was illegal and void. He prayed that he may be
declared as duly elected to Karnataka State Legislative Assembly on the
-
~
ground that under Section 9-A of the Act, appellant was disqualified to contest
the election as there were subsisting contracts entered into by hi1n in the
course of his business with the State Government.
C
Further, a voter Mr. Baswaraj D. Honna - appellant in C.A. No. 1455
of 2002 also filed Election Petition No.30/99 for a declaration that election
of Mr. Prakash Khandre was void under Section I 00( I )(a) and Section
IOO(l)(d)(i) of the Act.
Appellant also filed Recrimination Petition under Section 97 of the Act
praying that in the event of his election to the constituency being declared
D
-~
void, respondent No. I Dr. Vijay Kumar Khandre should not be declared as
elected as he is guilty of corrupt practices as specified in Section 123 of the
Act.
- ..
The High Court of Karnataka at Bangalore [Mr. Justice A. V. Srinivasa
Reddy] by its judgment and order dated 21.12.2001 allowed the election
petition filed by respondent No. I and the election of appellant was declared
void under section I 00( I )(a) on the ground that work of effective improvement
and asphalting of Halburga-Bawgi-Kamtana road was continued to be carried
out by Prakash Khandre even after purported closure of contract. With regard
E
F
to the rest of the contract works, the High Court held that contracts were
terminated. The Court also declared that the votes polled by the elected
candidate would become wasted and, therefore, Dr. Vijay Kumar Khandre
who has secured the next highest number of valid votes has to be declared
elected under Section I 0 I of the Act and was declared accordingly. That
order is challenged by Prakash Khandre by filing Civil Appeal Nos.2-3 of G
2002. Civil Appeal No. 1455 of 2002 is filed by Basavaraj D. Honna.
At the time of admission of this matter, by order dated 18.1.2002, the
Court granted interim relief as under:
"Appeals admit.
H
1002
A
B
SUPREME COURT REPORTS
[2002] 3 S.C.R.
The impugned judgment is stayed thereby entitling the appellant
only to attend the Assembly Sessions and sign the register but he will
neither participate in the proceedings nor vote nor draw remuneration
in his capacity as Member of the Legislative Assembly till the disposal
of the appeals. Any further documents to be filed by either party be
filed within four weeks from today.
These appeals may be listed for final disposal in the second week
of March, 2002.
On the other respondents, dasti notice is permitted."
C
Re: Question No. I
At the time of hearing of these appeals, learned senior counsel Mr.
Ashok Desai submitted that the order passed by the High Court declaring
election-petitioner Dr. Vijay Kumar Khandre as elected is, on the face of it,
illegal and erroneous as election was contested by 5 candidates and in support
D of his submission, he referred to various decisions rendered by this Court. As
against this, Mr. K.N. 'Bhat, learned senior counsel for respondent No. I
submitted that the High Court rightly declared Dr. Vijay Kumar Khandre as
elected and the decision. of the High Court is based on the provisions of
Section I 0 I of the Act.
E
F
G
H
For appreciating the aforesaid submissions, we would first refer to the
relevant provisions of the Act, namely, Sections 53, 84 and 101 of the Act
which are as under:
"53. Procedure in contested and uncontested elections. (I )-If the
number of contesting candidates is more than the number of seats to
be filled, a poll shall be taken.
(2) If the number 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.
(3) If the number of such candidates is less than the number of
'seats to be filled, the returning officer shall forthwith declare all such
candidates to be elected and the Election Commission shall by
notification in the Official Gazette call upon the constituency or the
elected members or the members of the State Legislative Assembly
or the members of the electoral college concerned as the case may be,
I
---t
PRAKASIJ KJIANDRE v. VI.JAY KJJMi\R KHi\NDRE fSHi\H . .1.J 1003
to elect a person or persons to fill the ren1aining seat or seats.
Provided that where the constituency or the elected members or
the members of the State Legislative Assembly or the members of the
electoral college having already been called upon under this subsection, has or have failed to elect a person or the requisite number
A
of persons, as the case may be, to fill the vacancy or vacancies. the B
Election Com111ission shall not be bound to call again upon the
constituency, or such 111e1nbcrs to elect a person or persons until it is
satisfied that if called upon again, there will be no such failure on the
part of the constituency of such members.
84. Relief that may be claimed hy the petitioner. A petitioner may, in C
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.
I 0 /. Grounds for which a candidate other than the returned candidate
may be declared to have been elected. If any person who has lodged D
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
1najority 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."
E
F
From a reading of sub-section (2) of Section 53, it is clear that if
number of candidates is equal to number of seats to be filled, the returning
officer has to declare all such candidates to he duly elected to fill those seats, G
meaning thereby it would be uncontested election. Further, if the number of
contesting candidates is more than the nu1nber of seats to be filled, a poll is
required to be taken. Finally, after taking poll if one candidate is declared
elected and there are only two candidates who contested for the election. and
if it is found that elected candidate was disqualified for one or. other reason
for being declared to be elected then his election would be set aside and H
~
1004
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A unsuccessful candidate, if otherwise eligible, could be declared as elected and
that relief could be granted in view of Section 53 read with Section 84 of the
Act.
However, the question which requires consideration is-if there are
B
more than two candidates for one seat and the elected candidate is subsequently·
found to be disqualified, whether the candidate who has secured more votes;
than remaining candidates should be declared as elected or not? For this, we
would consider the ingredients of Section IOI which inter alia provide that
after declaring election of returned candidate to be void, the High Court may
declare the petitioner or such other candidate to have been duly elected ifc
(a)
in fact the petitioner or such other candidate received a majority
of valid votes; or
(b) but for the votes obtained by the returned candidate by the corrupt
practices, the petitioner or such other candidate would have
D
obtained a majority of the valid votes.
Therefore, the first ingredient for de~laring the election-petitioner or
other candidate to have been duly elected depends upon error for various
reasons in counting of valid votes and if it is found that in fact the petitioner
or such other candidate received a majority of valid votes, he is to be declared
elected.
E
Second ingredient provides for establishing that the votes obtained by
the returned candidate were obtained by corrupt practices and but for such
votes the petitioner or such other candidate would have obtained a majority
of valid votes. Say as in the present case, the difference between the elected
F
candidate and the election petitioner is of 10327 votes and if it is established
that elected candidate obtained more than I 0327 votes by corrupt practices
then petitioner or such other candidate who has obtained majority of valid
votes could be declared as elected.
However, in an election where elected candidate is declared to be
G disqualified to contest election and there are more than two candidates
contesting election, there is no specific provision under the Act under which
the person who has sectJred the next highest number of votes could be declared
as elected. The Act is silent on this point. Further, it cannot be presumed that
the votes secured by the disqualified elected candidates would have been
wasted or would have been secured by the next candidate who has secured
H more votes. If disqualified candidate was not permitted to contest the election
•
j, -
~--
.__
.--
1-
~
-~
I .._
PRAKASH KHANDRE v. Vl.IAY KUMAR KllANDRE [SHAil. J.f 1005
then how the voters would have voted in favour of the candidate who has A
secured 111ore votes than other remaining candidates would be a question in
the realm of speculation and unpredictability. In such a situation, declaring
the election of the returned candidate on the ground of his initial
disqualification to contest the election by itself would not entitle the election
petitioner or any other candidate to be declared elected.
The learned counsel for the parties referred to various decisions rendered
B
.__).
by this Cou1t and \Ve \vould refer the111 in chronological order. The Constitution
Bench of this Court in Kunappa RudrapJJa /\
1cu~r;ouda v. Vislnl'unath Reddy
and Anothe1· [1969] 2 SCR 90 dealt with the case where one Vishwanath
Reddy was declared elected to Mysore Legislative Assembly and that election C
was challenged by Nadgouda \Vho was a contesting candidate on the ground
that Reddy was disqualified from standing as a candidate for election. This
Court by order dated 19th July, 1968 held that election of Reddy was void
and that votes cast in his favour be treated as thrown away. The Court held
"as there was no other contesting candidatei we declare the appellant (election
petitioner) as elected to the seat from the Yadgiri constituency." That order D
was challenged by filing a review application which was granted and question
whether it was open to the Court on finding recorded about disqualification
of Reddy to declare Nadgouda as duly elected to the Mysore Legislative
Assembly was deair with and decided. The Court referred to earlier decision
in Keshav laxman Borkar v. Dr. Devrao laxman Anande, [1960] I SCR E
902, wherein it was held 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 111ust be treated as a
person for whom votes could be given. The Cou11 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 F
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 G
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
ofa person \Vho was by law disqualified fro1n being no111inated, but who was
in fact nominated, were thrown away. In the opinion of the Court a defeated
candidate out of the two who contested the election may be declared elected
under section 84 read with section I 0 I of the Act. if he proves that the voters H
1006
SUPREME COURT REPORTS
[2002] 3 S.C.R.
A
had notice of the disqualification of the successful candidate.
The correctness of the said view was challenged before the Constitution
Bench. The Court considered various English decisions cited at the bar and
observed that 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
B
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. Thereafter, the Cou11 pe1tinently observed
but in our judgment the rule which has prevailed in the British Courts for a
long time has no application in our country. The rule enunciated in U.K. has
C only the merit of antiquity; 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. The Court also considered Section 53 of the Act and held that it
renders a poll necessary only if there are more candidates contesting the
election than the number of seats contested and if the number of candidates
D validly nominated is equal to the seats to be filled, no poll is necessary and
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
those contesting candidates elected, who, but for the order, would have been
declared elected.
E
F
G
Thereafter, the Court observed thus -
"When there are only two contesting candidates, and one of them
is under a statutory disqualification, votes cast in favour of the
disqualified candidate 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
candidates in the field for a single seat, and one alone is disqualified,
on proof of disqualification 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
voters may assume significance, for the voters may not, if aware of
the disqualification have voted for the disqualified candidate."
The Court also considered Section I 0 I and held as under
" .... The votes obtained by corrupt practice by the returned
H
candidate, proved to be guilty of corrupt practice, are expressly
-4, _
I
,+-
....
- ).
-j
,_
l'Ri\KASH KH/\NDRE v. VI.IA Y KUMAR Kl l!INDRL ISi lilH. J.j I 007
excluded in the co1l1putation of total votes for ascertaining whether a A
n1<11ririty of votes had been obtained -by the defeated candidate, and
no fresh poll is necessary. The san1e 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 filing of the nomination paper."
In Thirn John and Another v. Returning Officer and Ors. [ 1977] 3 SCR
538, the Court dealt with the biennial election to the Rajya Sabha from the
State of Ta1nil Nadu \Vhere the voting pattern is single-transferable vote
wherein the elected candidate Shri John was found by the Court to be statutorily
B
disqualified for election. The Cou1t considered the question whether the votes C
secured by such candidate be regarded as 'thrown away' and in consequence
the next candidate be declared elected? In that context the Court observed:
"Again, the answer to this question, in our opinion, must be in the
negative. It is nobody's case that the electors who voted for Shri D
John, had at the time of election, knowledge or notice of the statutory
disqualification of this candidate. On the contrary, they must have
been under the impression th~t Shri John was a candidate whose
no1nination had been validly accepted by the returning officer. Had
the electors notice ofShri John's disqualification, how many of them
would have voted for him and how many for the other continuing E
candidates, including Sarv Shri Subramanyan and Mohan Ranga1n,
and in what preferential order, remains a question in the realln of
speculation and unpredictability."
The Court also referred to the following observations made by
Hidayatullah, C.J. speaking for the Court in R. M. Seshadri v. G.
Vasantha Pai, (1969] I SCC 27 rejecting similar contention:-
"This (question) will depend on our reaching the conclusion that
but for the fact that voters were brought through this corrupt practice
F
to the polling booths, the result of the election had been materially
affected. In a single transferable vote, it is very difficult to say how G
the voting would have gone, because if all the votes which Seshadri
had got, had gone to one of the other candidates who got eliminated
at the earlier counts, those candidates would have ~'on. We cannot
order a recount because those voters were not free from complicity. ·
It would be speculating to decide how many of the voters were brought H
A
B
c
D
E
F
1008
SUPREME COURT REPORTS
[2002] 3 S.C.R.
to the polling booths in car. We think that we are not in a position
to declare Vasanta Pai as elected, because that would be merely a
guess or surmise as to the nature of the voting which would have
taken place if this corrupt practice had not been perpetrated."
And, thereafter the Court held as under: -
"The position in the instant case is no better. It is extremely difficult,
if not impossible, to predicate what the voting pattern would have been if the
electors knew at the time of election, that Shri John was not qualified to
contest the election. In any case, Shri Subramanyan was neither the sole
continuing candidate, nor had he secured the requisite quota of votes. He
cannot therefore, be declared elected:"
"The Court also considered the dictum in the case of Viswanath
(supra) and observed that the ratio decidendi of said case is applicable
only where (a) there a_re two contesting candidates and one of them
is disqualified; and (b) the election is on the basis of single nontransferable vote.
Again in Lata Devi (Mali) v. Haru Rajwar, [1989] 4 SCC 773, this
Court dealt with the same question and observed as under: -
"·······-··It is to be noted that in an election petition what is called in
question is the election and what is claimed is that the election of all
or any of the returned candidate is void, with or without a further
declaration that the election petitioner himself or any other candidate
had been duly elected. Declaring the election of the returned candidate
void does not, by itself, entitle the election petitioner or any other
candidate to be declared elected."
Learned counsel for the appellant lastly referred to the decision in D. K.
Sharma v. Ram Sharan Yadav and Ors., [1993] Supp 2 SCC 117. In that
case, the High Court referred to the decision in Konappa Rudrappa Nadgouda
(supra) and held that on the basis of the oral evidence, it was not possible to
G hold that the voters who cast their votes in favour of the elected candidate
did so after having noticed about the disqualification and knowing that their
votes would be wasted and therefore, the second prayer of the election
petitioner to declare him as duly elected after throwing away the votes of
elected candidate, was not allowed. This Court did not find any infirmity in
H the said 'reasoning and, therefore, dismissed the appeal.
-t----
..
...
..
I
~
PRAKASH KHANDRE v. Vl.IAY KUMAR KIIANDRE ISHAII. J.J 1009
In view of the aforesaid settled legal position, in our view, the in1pugned A
order passed by the High Court declaring the election petitioner as elected on
the ground that the votes cast in favour of elected candidate (appellant) are
thrown away was to/ally erroneous and cannot be justified. As held by the
Constitution Bench in Konappa 's case that son1e general rule of election law
prevailing in the United Kingdon1 that the votes cast in favour of a person B
\Vho is found disqualified fo1· election n1ay be regarded as 'thrO\Vll U\vay'
only if the voters had noticed before the poll the disqualification of the
candidate, has no application in our country and has only 111erit of antiquity.
We \Vould observe that the question of sending such notice to all voters
appears to us alien to the Act and the Rules. But that question is not required
to be dealt \Vith in this 111atter. As stated earlier, in the present case for one C
seat, there were five candidates and it would be i111possible to predict or
guess in whose favour the voters would have voted if they were aware that
elected candidate was disqualified to contest election or ifhe was not pennitted
to contest the election by rejecting his 1101nination paper on the ground of
disqualification to contest the election and what would have been voting
pattern. Therefore, order passed by the High Court declaring the election D
petitioner Dr. Vijay Kumar Khandre as elected requires to be set aside.
Re: Question No. 2.
fVhether Contracl be/H'een the Gover11111ent and Appellant lvas subsisling
on !he date of sc111tiny of non1ination papers?
E
Finding given by the High Courl:
On this question, we would first refer to the finding given by the High
Court. The learned Judge held that out of seven contracts between appellant
"'
and the State Government, six contracts were terminated. But from the evidence F
on record, he held that the work of effective improvement and asphalting of
Halburga-Bawgi-Kamtana road was continued to be carried out by Prakash
Khandre even after the purported closure of contract, that is, subsequent to
the writing of the letters and, therefore, as a matter of fact there was subsistence
of contract between him and PWD. For this purpose, the learned Judge relied G
upon Ex.118 wherein the name of the contractor appeared to be Mr. Prakash
Khandre and the likely date of completion was shown as December 1999. He
has also placed reliance upon Ex. 105 which is a 111easure1nent book pertaining
to Halbarga Ba\vgi \Vorks and held that if these '"''orks '"''ere carried out by
Mallikarjun Khandre after 1.9.99, the entries under various columns could
not have born the details of the contract as entered into by Prakash Khandre 1-1
1010
SUPREME COURT REPORTS
[2002) 3 S.C.R.
A
and the name of the contractor would also have been mentioned as Mallikaijun
Khandre. He held that except letters and agreements Ex. 71 and 72, there was
nothing on record to show that the department closed the contract of Mr.
Prakash Khandre. He further referred to the evidence of Mallikarjun Khandre
and held that Earnest Money Deposit was not given by him to the authority.
B
c
D
E
He, therefore, held that the department as well as Mallikarjun Khandre did
not actually treat the work allotted to Mallikarjun Khandre as a fresh contract
and there appeared to be mere substitution of Mallikarjun Khandre in place
of Prakash Khandre. With regard to the rest of the contract works, he arrived
at the conclusion that the contracts were not subsisting. He finally arrived at
the conclusion that election of Mi:.'"' Prakash Khandre was void under Section
JOO( I )(a) of the Act as he was disqualified under section 9-A of the Act on
the date of scrutiny of nomination papers, on the date of election and on the
date of declaration of result and it was declared as such on that count.
SUBMISSIONS
Learned senior counsel Mr.