# r959 Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale

- **Citation:** [1960] 1 S.C.R. 902
- **Court:** Supreme Court of India
- **Decided:** 1957-11-14
- **Bench:** S. R. DAs, K. Subba Rao
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r959-satyanarayan-laxminarayan-hegde-v-millikarjun-bhavanappa-tirumale-1839
- **Pages:** 7

## Headnote

Election Petition-Prayer for declaring election of the respon.
dent void and appellant duly elected-Valid votes and thrown away
votes--Representation of the People Act, r95r (43 of r95r), s. IOI,
rr. 57, 58.
The respondent who was at all material time holding a post
of profit under the. Government was elected to the Bombay
Legislative Assembly. The appellant filed an election petition
wherein he in addition to calling in question the election of the
respondent, asked for a declaration that he himself had been duly
elected. The Tribunal set aside the election of the respondent
and further declared the appellant to be duly elected for the
reason that the respondent's election having been set aside the
appellant alone was left in the field, and there was no other
candidates contesting the seat and the appellant was entitled to
be declared as duly elected under s. 101 of the Representation of
the People Act as having received the majority of the valid votes.
•
On appeal by the respondent the Bombay High Court while
confirming the order of the Tribunal, in so far as it set aside the
election of the respondent it also set aside the order of the
S.C.R.
SUPREME COURT REPORTS
903
'I'ribunal declaring the appellant to be duly elected. The appellant was granted certificate by the High Court to appeal.
Point for determination was whether the Election Tribunal
was in error in declaring the appellant to have been duly elected.
The appellant contended that as the nomination paper ot the
respondent had been wrongly accepted, the entire process of
election from nomination to polling was bad, and the votes cast
for a candidate who was not eligible, should be regarded as votes
thrown away so that the appellant must be regarded as having
received the majority of valid votes.
Held, that the acceptance of a nomination paper after
scrutiny by the Returning Officer as valid under s. 36(5) of the
Act forms the basis of the election, and the candidate whose
nomination paper has been accepted must be treated as a validly
nominated candidate for whom votes could be given.
Though the expression 'valid votes' has nowhere been defined
in the Act, but in the light of provision of s. 36(8) of the Act
with rule 58; framed under the Act, two things are clear (1) firstly
that the candidates are validly nominated candidates whose
nomination papers are after scrutiny accepted by the Returning
Officer who has to affix the list of such candidates to his Notice
Board, which is only for the purpose of giving notice to thepublic that the votes may be cast for such candidate, thus, such
votes cannot be deemed to be the votes thrown away, (:ii) and
secondly that the provision of s. 58 provide that the ballot papers
which are not rejected under rule 57 are to be deemed to be
" valid ballot papers " and are to be counted as valid votes.
The question of throwing away the votes cannot arise in the
absence of some special pleadings that particular voters had cast
their votes with knowledge or notice that the candidate for whom
they had voted was not eligible for election, and that consequently they had deliberately thrown away their votes in
favour of the disqualified persons.
In view of the provisions of s. 101A of the Act, the onus of
proving such a special case lay on the appellant, and this he
failed to prove and he cannot be heard to say that he might have
proved the same had the respondent raised an issue on the point.
In the instant case the votes secured by the respondent were
valid votes, thus obviously the appellant has not received a
majority of the valid votes.
C:rvrr. APPELLATE JURISDICTION: Civil Appeal No.
455of1958.
Appeal from the judgment and order dated
November 14, 1957, of the Bombay High Court, in
First Appeal No. 737 of 1957, arising out of the Judgment and order dated September 17, 1957, of the
z959
Keshav Laxman
Borkar
v.
Dr. Dtvrao
Laxman A.na..U
I959
K6shav Laxman
Borkar
v.
Dt. Devrao
Laxman A nande
Das C. J.
904
SUPREME COURT REPORTS [1960(1)]
Ele

## Text

r959
Satyanarayan
Laxminarayan
Hegde
v.
Millikarjun
Bhavanappa
Tirumale
DasGupla j.
r959
September ~o
902
SUPREME COURT REPORTS [1960(1)]
to issue such a. writ. In our opinion the High Court
was wrong in thinking that the alleged error in the
judgment of the Bombay Revenue Tribunal, viz., that
an order for possession should not be made unless a
previous notice had been given was an error apparent
on the face of the record so as to be capable of
being corrected by a writ of certiorari.
For the reasons stated above the judgment and
order of the High Court cannot be sustained. We,
therefore, allow the appeal and set aside the order of
the High Court issuing a writ of certiorari, quashing
the order of the Tribunal and restoring the order of
the Mamla.tdar, and we restore the order of the Bombay Revenue Tribunal.
The appellant will get his costs here and in the
High Court.
Appeal allowed.
KESHAV LAXMAN BORKAR
v.
DR. DEVRAO LAXMAN ANANDE
(S. R. DAs,C.J., and K. SUBBA RAO, J.)
Election Petition-Prayer for declaring election of the respon.
dent void and appellant duly elected-Valid votes and thrown away
votes--Representation of the People Act, r95r (43 of r95r), s. IOI,
rr. 57, 58.
The respondent who was at all material time holding a post
of profit under the. Government was elected to the Bombay
Legislative Assembly. The appellant filed an election petition
wherein he in addition to calling in question the election of the
respondent, asked for a declaration that he himself had been duly
elected. The Tribunal set aside the election of the respondent
and further declared the appellant to be duly elected for the
reason that the respondent's election having been set aside the
appellant alone was left in the field, and there was no other
candidates contesting the seat and the appellant was entitled to
be declared as duly elected under s. 101 of the Representation of
the People Act as having received the majority of the valid votes.
•
On appeal by the respondent the Bombay High Court while
confirming the order of the Tribunal, in so far as it set aside the
election of the respondent it also set aside the order of the
S.C.R.
SUPREME COURT REPORTS
903
'I'ribunal declaring the appellant to be duly elected. The appellant was granted certificate by the High Court to appeal.
Point for determination was whether the Election Tribunal
was in error in declaring the appellant to have been duly elected.
The appellant contended that as the nomination paper ot the
respondent had been wrongly accepted, the entire process of
election from nomination to polling was bad, and the votes cast
for a candidate who was not eligible, should be regarded as votes
thrown away so that the appellant must be regarded as having
received the majority of valid votes.
Held, that the acceptance of a nomination paper after
scrutiny by the Returning Officer as valid under s. 36(5) of the
Act forms the basis of the election, and the candidate whose
nomination paper has been accepted must be treated as a validly
nominated candidate for whom votes could be given.
Though the expression 'valid votes' has nowhere been defined
in the Act, but in the light of provision of s. 36(8) of the Act
with rule 58; framed under the Act, two things are clear (1) firstly
that the candidates are validly nominated candidates whose
nomination papers are after scrutiny accepted by the Returning
Officer who has to affix the list of such candidates to his Notice
Board, which is only for the purpose of giving notice to thepublic that the votes may be cast for such candidate, thus, such
votes cannot be deemed to be the votes thrown away, (:ii) and
secondly that the provision of s. 58 provide that the ballot papers
which are not rejected under rule 57 are to be deemed to be
" valid ballot papers " and are to be counted as valid votes.
The question of throwing away the votes cannot arise in the
absence of some special pleadings that particular voters had cast
their votes with knowledge or notice that the candidate for whom
they had voted was not eligible for election, and that consequently they had deliberately thrown away their votes in
favour of the disqualified persons.
In view of the provisions of s. 101A of the Act, the onus of
proving such a special case lay on the appellant, and this he
failed to prove and he cannot be heard to say that he might have
proved the same had the respondent raised an issue on the point.
In the instant case the votes secured by the respondent were
valid votes, thus obviously the appellant has not received a
majority of the valid votes.
C:rvrr. APPELLATE JURISDICTION: Civil Appeal No.
455of1958.
Appeal from the judgment and order dated
November 14, 1957, of the Bombay High Court, in
First Appeal No. 737 of 1957, arising out of the Judgment and order dated September 17, 1957, of the
z959
Keshav Laxman
Borkar
v.
Dr. Dtvrao
Laxman A.na..U
I959
K6shav Laxman
Borkar
v.
Dt. Devrao
Laxman A nande
Das C. J.
904
SUPREME COURT REPORTS [1960(1)]
Election Tribunal, Surat, in Election Petition No. 190
of 1957.
Naunit Lal, for the appellant.
The respondent did not appear.
1959. September 30.
The Judgment of the Court
was delivered by
DAS C.J.-This appeal has been filed, on a certificate
granted by the High Court of Bombay, on January 14,
1958, under Act. 133(l)(c) of the Constitution, ch11>llenging the correctness of that part of the judgment of the
High Court, pronounced on November 14, 1957, which
set aside the ordt>r of the Election Tribunal declaring
the appellant to have been duly Elected a member of
the Legislative Assembly of the State of Bombay.
For the election to the Bombay Legislative Assembly from the Electoral Constituency No. 129 of
Mazagaon in Greater Bombay held on March 11, 1957,
there were originally four candidates for the unreserved seat. Out of them two had withdrawn before the
polling, leaving the appellant and the respondent as
the two contesting candidates.
The result of the
election was declared on March 12, 1957. The respondent having received 22,914 votes a8 against 14,885
votes secured by the appellant, the respondent was
declared tluly elect.ed. On April 10, 1957, the appellant filed an Election Petition (No. 190 of. 1957)
alleging that as the respondent was, at all material
times, an Insurance Medical Practitioner, Bombay
unde1· the Employees' State Insurance Act, 1948, ha
was holding an office of profit under the Government
of Bombay and as such was not, under Art. 191 o'f the
Constitution of India, eligible for election.
The
appellant prayed for the setting aside of the election
of the respondent, and also prayed that he, the appellant, be declared· to have been duly elected to the
Legislative Assembly from the said constituency. The
Election Tribunal was constituted "On June 28, 1957.
The Tribunal by its order dated September 17,. 1957,
held that the respondent was holding an office of profit
under the Government of Bombay and as such was
S.C.R.
SUPREME COURT REPORTS
905
disqualified under Art. 19l(l)(a) of the Constitution and
accordingly, declared the election of the respondent to
the Legislative Assembly of the State of Bombay from
Constituency No. 129 Mazagaon void. Th!'l Tribunal
further held that ~he appellant was duly elected, to the
State Legislative Assembly from the said constituency.
This conclusion of the Tribunal was thus expressed :
" Besides, as there was no other candidate contest.
ing the said Legislative Assembly seat, except the
Petitioner who polled 14,885 votes at the said election,
he alone remains and he is thus entitled to be
declared as duly elected for the said seat of the
Assembly of the State of Bombay from the Consti.
tuency in place of the Respondent, under section 101
of the Representation of the People Act 1951."
Being aggrieved by the order of the Tribunal, the
respondent appealed to the High Court of Bombay.
That appeal (No. 737of1957) was heard by a Division·
Bench by the judgment and order pronounced on
November 14, 1957, the High Court, while confirmfog
the order of the Tribunal, in so far as it set aside the
election of the respondent set aside the remaining part
of the order of the Tribunal which declared the appel-
• lant to have been duly elected a member of the State
Legislative Assembly.
The High Court, however,
granted to the appellant, on January 14, 1958, a certificate under Art. 133(l)(c) of the Constitution that the
case was a fit one for appeal to this Court. Hence the
present appeal. The respondent has not filed an
appeal against the judgment and order of the High
Court in so far as it confirmed the order of the Tribuna.l setting aside his election. So the order for
unseating the respondent has become final. Nor has
the respondent entered appearance to this appeal and
it accordingly has been heard ex parte.
The only point for our determination is whether the
Election Tribunal was in error in declaring the present
appellant to have been duly elected. The anAwer to
this question depends upon. a true construction of
s. 101 of the Representation of the People Act, 1951
(hereinafter called the Act) which reads as follows:-
Z9$9
Borkar
v.
Dr.D-ao
Lairma11 A. nande
DtuC.].
r959
J(eshav Laxman
Borkar
v.
Dr. Devrao
Liuman Anande
Das C. ].
906
SUPREME COURT REPORTS [1960(1))
"Section 101. Grounds for which a candidate
other than the returned candidate may be declared
GO have been elected:-
If any person who has lodged a petition has, in
addition to calling in question the election of the
returned candidate, claimed a declaration that he
himself or any other candidate has been duly elected
and the Tribunal is of opinion-
( a) that in fact the petitioner or such other
candidate received a majority of the valid votes ; or
(b) that but for the votes obtained by the
returned candidate by corrupt practices the petitioner or such other candidate would have obtained
a majority of the valid votes,
the Tribunal shall after declaring the election of
the returned candidate to be void declare the petitioner or such other candidate, as the case may be,
to have been duly elected."
In this case the appellant in his Election Petition had,
in addition to calling in question the election of the
respondent, asked for a declaration that he himself
had been duly elected. As already stated, the Tribunal was of the opinion, that the respondent's election
having been set aside the appellant alone was left in
the field and must be regarded as having received a
majority of the valid votes and on that basis declared
the appellant as duly elected. The High Court has
taken a different view. The question is whether the
High Court was right.
·
The expression "valid votes" is nowhere defined in
the Act; but considerable light is thrown on the
matter by the provisions of s. 36 (8) of the Act, which
runs as follows :-
" 36. Scurtiny of nominations :-
..............................
(8) Immediately after all the nomination papers
have been scrutinized and decisions accepting or
rejecting the same have been recorded, the returning
officer shall prepare a list of validly nominated
SUPREME COURT REPORTS
907
candidates, that is to say, candidates, whose nominations have been found valid, and affix it to his
notice board."
Rule 58 framed under the Act, which was in force at
the material time, in so far as it is relevant for our
present purpose, runs as under :-
" 58. Counting of votes and ballot papers:-
(1) Every ballot paper which is not rejected
under rule 57 shall be deemed tp be valid and shall
be counteJ:
Provided that no packet containing tendered
ballot papers shall be opened and no such ballot
paper shall be counted."
From the provisions quoted above two things are clear:
In the first place, the candidates whose nomination
papers are, after scrutiny, accepted by the returning
officer, are "validly nominated candidates "and· the
returning officer has to affix the list of such validly
nominated candidates to his notice board. The preparation of this list and the fixing of it in the notice
board. can only be for the purpose of giving notice to
the public that votes may be cast for those candidates
whose names are included in that list. The next
thing that emerges is that the ballot papers which are
not rejected under r. 57 are to be deemed to be "valid
ballot papers " and are to be counted, which obviously·
means that they are to be counted as valid votes.
In the instant case before us, the respondent had
secured 22,914 votes as against 14,885 votes cast for
the appellant. If the votes secured by the respondent
are valid votes, then obviously the appellant has not
received a majority of the valid votes. The contention of the appellant, however, is that as the Tribunal
has held that the nomination paper of the respondent
had been wrongly accepted, the entire ,process of
election from nomination to polling was bad and
the votes secured by the respondent were in effect
votes cast for a candidate who was not eligible and
should be regarded as votes thrown away so that the
appellant must be regarded ~s having received . the
I959
Keshav L""'an
Borkar
v.
Dr. Devrao
LaNman Anancld
Das C. J.
s959
K1shav Laxman
Bork or
v.
Dr. Devrao
Laxman Ananda
Dase.].
908
SUPREME COURT REPORTS [1960(1)]
majority of the valid votes. We agree with the High
Court that this argument ca,nnot prevail.
It is true that the acceptance of a nomination paper
after scrutiny is not final or conclusive but can be set
aside, as it has been done in the present case by the
Election Tribunal, but the acceptance of the nomination paper, under s. 36 (8) makes the candidate,
whose nomination paper is accepted after scrutiny, a
validly nominated candidate at least for the purpose
of receiving votes at the election. In other words,
the acceptance of the nomination papers by ·the
returning officer is conclusive to this extent that the
nomination paper accepted as valid should form the
basis of the election and that the candidate, whose
nomination paper has been accepted, must be treated
as a person for whom votes could be given, This
position is further reinforced by the provisions of r. 58
which provides that every ballot paper which is not
rejected under r. 57 should be deemed to be valid and
must be counted. The question of throwing away of
votes, therefore, cannot arise, in the absence of some
special pleading that particular voters had cast their
votes with knowledge or notice that the candidate for
whom they had voted was not eligible-for election and
that consequently, they had deliberately thrown away
their votes in favour of the disqualified person. No
such allegation of knowledge or notice is made in the
petition and the appellant cannot be heard to say that
he might have proved the same had the respondent
raised an issue on the point. Indeed under s. 101 (a)
the onus was on the appellant to allege and prove
that he had received a majority of the valid votes and
he should have adduc-ed evidence in support of that
claim. This the appellant has failed to do_ In the
circumstances, we do not think there is any substance
in this appeal which must, therefore, be dismissed.
As the respondent has not appeared, there will be no
order for costs.
Appeal di8missed.