KESHAV LAXMAN BORKAR versus DR. DEVRAO LAXMAN ANANDE

Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale

DasGupla j.

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 previous notice had been given was an error apparent on the face of the record so as to be capable of being corrected by 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 writ of certiorari, quashing the order of the Tribunal and restoring the order of the Mamla.tdar, and we restore the order of the Bom-bay Revenue Tribunal.

The appellant will get his costs here and in the High Court.

Appeal allowed.

KESHAV LAXMAN BORKAR

r959 v. September ~o 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 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 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

'I'ribunal declaring the appellant to be duly elected. The appel-lant 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 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.

Keshav Laxman Borkar v. Dr. Dtvrao Laxman A.na..U

Held, that the acceptance of 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 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 the-public 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 con-sequently 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 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 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 Judg-ment and order dated September 17, 1957, of the

I959 Election Tribunal, Surat, in Election Petition No. 190 of 1957.

K6shav Laxman

Borkar Naunit Lal, for the appellant. v. Dt. Devrao The respondent did not appear.

Laxman nande 1959. September 30. The Judgment of the Court Das C. J. was delivered by

DAS C.J.-This appeal has been filed, on certificate granted by the High Court of Bombay, on January 14, 1958, under Act. 133(l)(c) of the Constitution, ch11>lleng-ing 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 member of the Legislative Assembly of the State of Bombay.

For the election to the Bombay Legislative Assem-bly from the Electoral Constituency No. 129 of Mazagaon in Greater Bombay held on March 11, 1957, there were originally four candidates for the unreserv-ed 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 respond-ent 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 appel-lant 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 appel-lant, 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

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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 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 member of the State Legislative Assembly. The High Court, however, granted to the appellant, on January 14, 1958, certifi-cate under Art. 133(l)(c) of the Constitution that the case was 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 Tribu-na.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. true construction of s. 101 of the Representation of the People Act, 1951 (hereinafter called the Act) which reads as follows:-

Borkar v. Dr.D-ao Lairma11 A. nande DtuC.].

J(eshav Laxman Borkar v. Dr. Devrao Liuman Anande Das C. ].

"Section 101. Grounds for which candidate

other than the returned candidate may be declared GO have been elected:-

If any person who has lodged petition has, in addition to calling in question the election of the returned candidate, claimed 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 majority of the valid votes ; or (b) that but for the votes obtained by the returned candidate by corrupt practices the peti-tioner or such other candidate would have obtained majority of the valid votes,

the Tribunal shall after declaring the election of the returned candidate to be void declare the peti-tioner 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 declaration that he himself had been duly elected. As already stated, the Tribu-nal 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 majority of the valid votes and on that basis declared the appellant as duly elected. The High Court has taken 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 list of validly nominated

candidates, that is to say, candidates, whose nomina-tions 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."

Keshav L""'an Borkar v. Dr. Devrao LaNman Anancld Das C. J.

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 pre-paration 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 majority of the valid votes. The conten-tion 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 candidate who was not eligible and should be regarded as votes thrown away so that the appellant must be regarded ~s having received . the

K1shav Laxman Bork or v. Dr. Devrao Laxman Ananda

Dase.].

majority of the valid votes. We agree with the High Court that this argument ca,nnot prevail.

It is true that the acceptance of 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 nomin-ation paper, under s. 36 (8) makes the candidate, whose nomination paper is accepted after scrutiny, 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 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 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.