Keshav Laxman Borkar vs Devrao Laxman Anande

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 30 September, 1959

Coram: K. Subba Rao, Das

The case was titled Keshav Laxman Borkar versus Devrao Laxman Anande, and it was decided on 30 September 1959 by the Supreme Court of India. The judgment was authored by Justice K. Subba Rao, who also presided over the bench. The appeal before this Court arose from a certificate that the High Court of Bombay had issued on 14 January 1958 under article 133(1)(c) of the Constitution. By relying on that certificate, the appellant sought to challenge the portion of the High Court’s judgment dated 14 November 1957 that had set aside the order of the Election Tribunal which had declared the appellant to have been duly elected as a member of the Legislative Assembly of the State of Bombay.

The election to the Bombay Legislative Assembly from Electoral Constituency No. 129 (Mazagaon, Greater Bombay) was held on 11 March 1957. Initially four candidates had filed nominations for the unreserved seat, but two of them withdrew before the polling day, leaving only the appellant and the respondent as the remaining contestants. The election result was announced on 12 March 1957, showing that the respondent obtained 22,914 votes while the appellant received 14,885 votes; consequently, the respondent was declared to have been duly elected. On 10 April 1957 the appellant lodged Election Petition No. 190 of 1957, alleging that the respondent, at all relevant times, was employed as an Insurance Medical Practitioner under the Employees’ State Insurance Act, 1948, and therefore occupied an office of profit under the Government of Bombay. The appellant contended that this circumstance rendered the respondent ineligible for election under article 191 of the Constitution, and consequently prayed for the setting aside of the respondent’s election and for his own declaration as the elected member from the same constituency. The Election Tribunal was constituted on 28 June 1957 and delivered its order on 17 September 1957. The Tribunal held that the respondent indeed occupied an office of profit under the Government of Bombay, making him disqualified pursuant to article 191(1)(a) of the Constitution, and therefore declared the respondent’s election to the Legislative Assembly from Constituency No. 129 (Mazagaon) void. Further, the Tribunal concluded that, because no other candidate besides the petitioner had contested the seat and the petitioner had secured 14,885 votes, he alone remained and was entitled to be declared duly elected for the seat in place of the respondent, invoking section 101 of the Representation of the People Act, 1951. Aggrieved by this order, the respondent appealed to the High Court of Bombay; the appeal, numbered 737 of 1957, was heard by a Division Bench, which delivered its judgment and order on 14 November 1957.

The Court affirmed the Tribunal’s order insofar as it annulled the respondent’s election, but it reversed the portion of the Tribunal’s decision that declared the appellant to have been duly elected as a member of the State Legislative Assembly. The High Court, on 14 January 1958, issued a certificate under Article 133(1)(c) of the Constitution stating that the case was suitable for appeal to this Court, thereby giving rise to the present appeal. The respondent did not file an appeal against the High Court’s judgment and order that confirmed the Tribunal’s decree setting aside his election; consequently, the order effecting the respondent’s removal from office became final. Moreover, the respondent did not appear before this Court, and the matter was therefore heard ex parte. The sole issue for determination was whether the Election Tribunal had erred in declaring the appellant to have been duly elected. Resolving this question required a proper construction of section 101 of the Representation of the People Act, 1951 (hereinafter “the Act”), which provides: “Section 101. Grounds for which a candidate other than the returned candidate may be declared to 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 the present case, the appellant, in his election petition, besides challenging the respondent’s election, also sought a declaration that he himself had been duly elected. The Tribunal, having concluded that the respondent’s election was set aside, held that the appellant alone remained in the field and should be regarded as having obtained a majority of the valid votes, and therefore declared the appellant duly elected. The High Court, however, adopted a different approach. The question before this Court was whether the High Court’s view was correct. The term “valid votes” is not defined within the Act; nonetheless, guidance is found in section 36(8) of the Act, which states: “36. Scrutiny 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 candidates, that is to say, candidates whose nominations have been found valid, and affix it to his notice board.”

Section 36(8) of the Act required the returning officer, after scrutinising all nomination papers and recording the decisions to accept or reject them, to prepare a list of those candidates whose nominations had been found valid and to affix that list on the notice board. Rule 58, which was operative at the material time, provided that every ballot paper which was not rejected under Rule 57 was to be deemed a valid ballot paper and therefore had to be counted, subject to the proviso that no packet containing tendered ballot papers should be opened or any such ballot paper counted before the stipulated procedure was followed.

From these provisions two conclusions were drawn. First, a candidate whose nomination paper was accepted after scrutiny was a “validly nominated candidate,” and the requirement to fix the list of such candidates on the notice board served only to inform the public that votes could be cast for the persons whose names appeared on that list. Second, any ballot paper that was not rejected under Rule 57 was to be treated as a valid ballot paper, and consequently it was to be counted as a valid vote. Applying this to the facts before the Court, the respondent had obtained 22,914 votes while the appellant had obtained 14,885 votes. If the respondent’s votes were valid, the appellant could not claim a majority of the valid votes. The appellant contended that because the Election Tribunal had held that the respondent’s nomination paper had been wrongly accepted, the entire electoral process—from nomination to polling—was defective, and therefore the votes cast for the respondent should be regarded as discarded, leaving the appellant with a majority of the valid votes. The Court agreed with the High Court that this argument could not succeed. Although acceptance of a nomination paper after scrutiny was not immutable and could be set aside, Section 36(8) made the acceptance of the nomination sufficient to render the candidate a validly nominated candidate for the purpose of receiving votes. In other words, once the returning officer accepted a nomination as valid, that acceptance became conclusive for the election, obliging the authorities to treat the candidate as one for whom votes could be cast, a position further reinforced by the statutory provisions.

The Court observed that rule 58 expressly provides that any ballot paper which is not rejected under rule 57 shall be deemed to be a valid ballot and consequently must be counted. In view of that rule, the notion that votes could be treated as “thrown away” could arise only if a special pleading were made showing that particular voters had cast their votes with the knowledge or notice that the candidate for whom they voted was not eligible for election and that, as a result, they had deliberately attempted to waste their votes in favour of the disqualified person. The petition did not contain any such allegation of knowledge or notice, and the appellant could not be heard to suggest that he might have been able to prove such a claim even if the respondent had raised the issue. Moreover, under section 101(a) the burden of proof rested upon the appellant to allege and demonstrate that he had obtained a majority of the valid votes, and to do so he was required to adduce evidence supporting that contention. The appellant failed to meet that burden. Accordingly, the Court found that there was no substantive ground in the appeal that warranted a reversal, and the appeal was therefore dismissed. As the respondent did not appear before the Court, no order for costs was made. The appeal was consequently dismissed.