Jabar Singh vs Genda Lal

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

Court: supreme-court

Case Number: Civil Appeal No. 1042 of 1963

Decision Date: 20 December 1963

Coram: P.B. Gajendragadkar, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta, N. Rajagopala Ayyangar

In the matter titled Jabar Singh versus Genda Lal, the judgment was delivered on 20 December 1963 by a bench of the Supreme Court of India comprising Justice P. B. Gajendragadkar, Justice A. K. Sarkar, Justice K. N. Wanchoo, Justice K. C. Das Gupta and Justice N. Rajagopala Ayyangar. The official citation of the decision is reported in 1964 AIR 1200 and 1964 SCR (6) 54, and the judgment has been referenced in numerous subsequent reports, including D 1968 SC 227 (pages 6‑7), R 1972 SC 447 (page 12), RF 1973 SC 2077 (pages 5‑8), E&R 1974 SC 1032 (page 28), R 1975 SC 2182 (page 13), D 1976 SC 2184 (page 20), R 1979 SC 1617 (page 9), F 1983 SC 1311 (pages 16 and 18), D 1984 SC 304 (page 2), F 1985 SC 150 (pages 22, 25, 27, 28, 30, 32 and 35), O 1987 SC 831 (pages 5‑9, 13‑14). The case concerned provisions of the Representation of the People Act, 1951 (Act 43 of 1951), specifically sections 97, 100(1)(d) and 101(a), together with Rule 57(1) of the Conduct of Election Rules, 1961, which defines the scope of the enquiry in election petitions.

The factual backdrop was that the trial court had declared petitioner Jabar Singh elected, noting that he had defeated respondent Genda Lal by a margin of two votes. Dissatisfied with this result, Genda Lal instituted an election petition challenging the validity of Jabar Singh’s election. The respondent alleged that votes had been improperly counted in favour of the appellant and that certain votes cast for the respondent had been wrongfully rejected. Consequently, the respondent prayed that the appellant’s election be declared void and that a declaration be made that he, Genda Lal, had been duly elected. In response, the appellant contended before the election Tribunal that his own votes had been wrongfully rejected and that votes for the respondent had been improperly accepted; he argued that a recount and re‑scrutiny would demonstrate that he possessed a majority of valid votes. The respondent objected to this line of defence, asserting that the appellant had neither filed a recrimination nor furnished security under section 97 of the Act, and therefore could not raise such a plea. The Tribunal rejected the respondent’s objection, allowed the appellant’s plea, and proceeded to re‑examine the ballot papers of both parties. Upon scrutiny, the Tribunal concluded that twenty‑two ballot papers counted in favour of Genda Lal had been wrongly accepted. As a result, it held that the respondent had not secured a majority of votes. The Tribunal consequently declared the election of Jabar Singh void and refused to issue a declaration that the respondent had been duly elected. Both parties appealed this decision to the High Court. The High Court dismissed both appeals and affirmed the Tribunal’s decision, leading the appellant to file the present appeal before the Supreme Court.

The Supreme Court held that the inquiry required under section 100(1)(d)(iii) of the Representation of the People Act is confined to determining whether any votes have been improperly cast in favour of the returned candidate or improperly refused or rejected in regard to any other candidate. These two matters are the only issues relevant to deciding whether the election of the returned candidate has been materially affected. The Court emphasized that the onus lies upon the petitioner to prove any alleged improprieties. Consequently, in a petition where the sole claim is that the election of the returned candidate is void, the scope of the enquiry is strictly limited by the language of section 100(1)(d) itself. The Court further noted that section 97(1) does not apply to petitions under section 100(1)(d)(iii), because the enquiry is limited to the material effect on the returned candidate’s election and does not extend to other procedural requirements such as filing a recrimination or furnishing security.

In the election enquiry the petitioner bore the burden of proving his allegation, and consequently, when the petition contained only a single claim that the election of the returned candidate was void, the enquiry was strictly confined by the language of section 100(1)(d). The provision required the Tribunal to consider solely whether the election of the returned candidate had been materially affected; no other issue could be entertained. Because of this narrow focus, section 97(1) did not apply to petitions that fell within the scope of section 100(1)(d)(iii). In contrast, there were petitions that presented a composite claim: they alleged that the election of the returned candidate was void and simultaneously sought a declaration that the petitioner himself or another individual had been duly elected. In such composite cases both section 100 and the broader subsection 100(1) were relevant, and the additional claim for a declaration that some other candidate had been duly elected triggered the operation of section 97. Under section 97(1) the returned candidate was permitted to recriminate and to raise pleas in his defence. Accordingly, the Tribunal was required to examine not only the petitioner's case but also the counter‑claim advanced by the returned candidate. The returned candidate was obliged to comply with the requirements of sections 97(1) and 97(2); failure to recriminate as mandated by section 97 meant that the returned candidate could not challenge the alternative claim made by the petitioner, and he would be barred from tendering any evidence in support of such a challenge. Moreover, the pleas under section 97 could be tried only after the Tribunal had rendered a declaration under section 100 concerning the validity of the returned candidate’s election. The initial part of the enquiry, which addressed whether the returned candidate’s election was void, had to be conducted within the narrow limits set out in section 100(1)(d)(iii). The subsequent part of the enquiry, governed by section 101(a), was to be conducted on a broader basis, allowing the returned candidate to present evidence in support of any pleas he had raised through recrimination under section 97(1). However, even when section 97 was applicable, if the returned candidate failed to recriminate, the enquiry under section 101(a) would not be broadened, and the Tribunal would not be required to recount and scrutinise all the votes cast at the election. As a consequence of rule 57, the Tribunal would be confined to the limited scope dictated by the applicable statutory provisions.

In the case at hand, the Tribunal was required to treat every ballot paper that had not been rejected under rule 56 as a valid vote, and the decision under section 101(a) had to be based on that assumption. Consequently, the Court observed that when an enquiry is conducted under either section 100(1)(d)(iii) or section 101, and the requirements of section 97 have not been satisfied, the Tribunal does not have the authority to order a full recount of all votes preceded by a fresh scrutiny of their validity. The earlier decisions in Inayatullah Khan v. Diwanchand Mahajan, 15 E.L.R. 219 and Lakshmi Shankar Yadav v. Kunwar Sripal Singh, 22 E.L.R. 47 were expressly overruled, while Bhim Sen v. Gopali and Others, 22 E.L.R. 288, was relied upon. The Court also referred to the authorities in Vashist Narain Sharma v. Dev Chandra, [1955] 1 S.C.R. 509; Hari Vishnu Kamath v. Syed Ahmed Ishaque, [1955] 1 S.C.R. 1104; and Keshav Laxman Borkar v. Dr. Devrao Laxman Anande, [1960] 1 S.C.R. 902, which were discussed in support of its reasoning.

Per Justice Ayyangar, section 100 of the Act places upon the election petitioner the burden of proving, to the satisfaction of the Tribunal, that “the result of the election was materially affected by the improper reception or rejection of particular votes.” However, this requirement does not deprive the returned candidate of the ability to demonstrate, also to the Tribunal’s satisfaction, that despite any alleged improper reception or rejection of votes, the election result was not materially affected. The essential phrase in the provision is “the result of the election has been materially affected,” and the returned candidate may establish this fact by any means he chooses. For example, he may show that although a few votes were erroneously counted in his favour, a larger number of his votes were correctly counted for the petitioner, or that votes that should have been recorded for him were mistakenly attributed to other defeated candidates. Without conducting such a scrutiny, it would be impossible to ascertain whether the returned candidate’s election was materially affected. Clause (iii) of section 100 does not forbid the returned candidate from making this enquiry. Since the clause does not specify whose favour or against whom the improper reception or rejection occurred, its purpose must be interpreted as enabling a count of voting papers after scrutiny to decide whether the returned candidate’s election was materially affected. Accordingly, the term “any vote” in this clause is to be understood as “any vote cast in the election that is the subject of this petition,” rather than “any vote cast in favour of the returned candidate.”

Section 101(a) of the Representation of the People Act stated that a person could not be declared elected simply because the election of the originally returned candidate had been set aside; the claimant also had to demonstrate that he had obtained the majority of the lawful votes that were cast. The Court observed that, for this purpose, the Tribunal was required to examine not only the ballot papers presented for the claimant and for the returned candidate but also the ballot papers that had been submitted for every other candidate who had contested the election. After the Tribunal completed its scrutiny of all the votes and reached the finding that the claimant, in fact, possessed a majority of the valid votes, the Tribunal then proceeded to a further inquiry to determine whether any additional circumstances existed that might prevent the claimant from being declared elected. At this stage, the Court explained, the provisions of section 97, which dealt with the concept of recrimination, became relevant to the enquiry. The Court noted that if no party filed a recrimination, then, under the terms of section 101(a), the claimant would be declared elected immediately. However, if a recrimination was filed, the situation fell within the scope of section 101(b), which required a different procedural approach. This interpretation, the Court held, reconciled the operative provisions of sections 97, 100(1)(d) and 101, and consequently produced a logical and coherent result.

Turning to Rule 57(1), the Court explained that, for the purpose of enabling the returning officer to announce a result, any ballot paper that was not expressly rejected was to be regarded as valid. The Court made clear that if such presumed validity were to continue to apply at the stage of an election petition and during the Tribunal’s inquiry, there would be no real opportunity to re‑examine the ballot papers, and section 100(1)(d)(iii) would become a meaningless provision. The Court therefore emphasized that the validity of a ballot paper could be contested in an election petition by making appropriate pleadings, and the Tribunal retained the authority to declare any ballot paper to have been improperly received. Consequently, Rule 57 did not influence the construction of section 100(1)(d)(iii) nor that of section 101(a). The judgment then recorded the appellate details: it was a civil appeal numbered 1042 of 1963, taken on special leave from a May 3, 1963 judgment of the Madhya Pradesh High Court in First Appeal No. 46 of 1962. Counsel for the appellant comprised senior advocates, while counsel for the respondent also consisted of experienced advocates. The judgment was delivered on December 20, 1963 by Justice Gajendragadkar, with Justices A. K. Sarkar, K. N. Wanchoo and K. C. Das Gupta forming the bench, and Justice N. Rajagopala Ayyangar delivering a separate opinion. The principal question of law presented for decision concerned the nature and scope of the inquiry envisaged by sections 97, 100 and 101 of the Representation of the People Act, 1951. The appeal involved Jabar Singh as the appellant and Genda Lal as the respondent, together with five other candidates who had contested the Madhya Pradesh Assembly election for the Morena Constituency No. 5, an election that had been held on February 21, 1962. In due course, the Court noted, the election proceedings had moved forward as described in the preceding parts of the judgment.

On 27 February 1962 the authorities conducted the scrutiny of the recorded votes and proceeded to count them. After the counting, the records showed that the petitioner had obtained 5,671 votes while the respondent had obtained 5,703 votes. The votes obtained by the other candidates were not mentioned because they were not material to the controversy. Following the declaration of these results, the petitioner applied for a recount. The recount was carried out and, as a consequence, the petitioner was declared elected, having apparently defeated the respondent by a margin of two votes. The recount figures indicated that the petitioner had secured 5,656 votes and the respondent 5,654 votes. The respondent then filed an election petition challenging the validity of the petitioner’s election. In his petition the respondent asserted that votes in favour of the petitioner had been improperly received and that votes in his own favour had been wrongly rejected. He prayed that the tribunal either restore the original result as computed before the recount or conduct a fresh scrutiny of the ballot papers and issue a declaration based on the tribunal’s own calculations. The respondent further prayed that the petitioner’s election be declared void and that a declaration be made that the respondent had been duly elected.

The election tribunal examined the petition and found that ten ballot papers that should have been counted for the respondent had been wrongly rejected, while four ballot papers that should have been rejected for the petitioner had been wrongly accepted. This error created a difference of twelve votes, leading the tribunal to compute the corrected totals as 5,664 votes for the respondent and 5,652 votes for the petitioner. After making these findings, the petitioner raised an additional objection before the tribunal, contending that his own votes had been improperly rejected and that the respondent’s votes had been improperly accepted. He argued that a further recount and re‑scrutiny would demonstrate that he had a majority of votes. The respondent opposed this line of argument, stating that the petitioner had not filed a petition under section 97 of the Representation of People Act, 1951, and therefore could not rely on the ground that the respondent’s votes had been wrongly accepted and the petitioner’s votes wrongly rejected. The respondent further maintained that, to rely on the remedy provided in the proviso to section 97(1), the petitioner should have furnished the security required by that provision, and that the petitioner’s failure to do so barred him from raising such a claim. The tribunal rejected the respondent’s objection and held that, in order to determine the relief sought by the respondent in his election petition, it was necessary first to decide whether the respondent had, in fact, obtained a majority of votes under section 101 of the Act.

He re‑examined the ballot papers of both the respondent and the appellant and concluded that twenty‑two ballot papers that had been counted in favour of the respondent had actually been accepted erroneously. On that basis the Tribunal found that the respondent had, in reality, failed to obtain a majority of the votes. Consequently the Tribunal declared the appellant’s election to be void and refused to issue any declaration that the respondent had been duly elected. This determination gave rise to two cross‑appeals before the High Court of Madhya Pradesh, identified as Appeal No. 46 of 1952 and Appeal No. 1 of 1963. In the first appeal the appellant contested the Tribunal’s finding that his election was void, while in the second appeal the respondent challenged the Tribunal’s refusal to grant him a declaration that he had been duly elected. The principal issue that the High Court was asked to resolve in these appeals concerned the nature and the scope of the enquiry that could be undertaken under sections 100 and 101 of the Act. While addressing that issue the High Court relied on its own earlier judgment in Inayatullah Khan v. Diwanchand Mahajan and Ors. (1) and also on the Supreme Court’s decision in Bhim Sen v. Gopali and Ors. (2). The High Court held that the grievances raised by both parties were unfounded and that the Tribunal’s decision was correct. Accordingly, the High Court dismissed both appeals and affirmed the Tribunal’s order. The appellant subsequently obtained special leave to approach this Court. Thereafter the respondent filed an application for leave to appeal to this Court, but his application was filed out of time. When that application was placed before this Court, the delay in filing the respondent’s special‑leave application was not condoned, and the High Court’s decision against the respondent therefore became final and is no longer open to challenge in this Court, as reflected in citations (1) 15 E.L.R. 219 and (2) 22 E.L.R. 288. When the appellant’s application for leave was heard and admitted, counsel for the appellant urged that the observations made by this Court in Bhim Sen (1), which the High Court had heavily relied upon, warranted reconsideration. For that reason the appeal was scheduled before a bench of five Judges for a final hearing. In order to address the question raised by the appellant’s counsel, it is necessary to refer to the relevant provisions of the Act concerning the filing of election petitions and the reliefs that petitioners may seek. Section 81 provides that an election petition challenging any election on any of the grounds enumerated in sub‑section (1) of sections 100 and 101 may be presented to the Election Commission by any candidate or any elector.

In this case, the Court explained that when a person filed an election petition within the period prescribed by the relevant section, the petitioner was entitled to challenge the election of the returned candidate under section 100(1) and to seek a declaration that the returned candidate’s election was void. The petitioner could also ask the Tribunal to declare that he or she, or any other candidate, had been duly elected. Accordingly, if the petition merely asked for a simple declaration that the returned candidate’s election should be declared void, the petition fell within section 100. The Election Tribunal could then either grant that declaration, which would mean the petition was allowed, or refuse it, which would result in dismissal of the petition. The Court further noted that an election petition could seek two separate reliefs, one under section 100(1) and another under section 101. In such circumstances, the Tribunal first had to determine whether the election of the returned candidate was valid. If the Tribunal found the election to be void, it would issue a declaration to that effect and then proceed to consider the second relief, namely whether the petitioner or some other person could be said to have been duly elected. The Court emphasized that the scope of the Tribunal’s enquiry depended on the specific reliefs claimed in the petition.

The Court also pointed out an additional fact that was relevant to the present appeal. It observed that the declarations of election results were governed by the statutes and rules formulated under the Act. The counting of votes was regulated by the rules in Part V, where rule 55 dealt with the scrutiny and opening of ballot boxes. Rule 56(1) required that ballot papers taken from each box be arranged in convenient bundles and examined. Rule 56(2) specified the grounds on which a returning officer must reject a ballot paper, enumerated in clauses (a) to (h). Rules 56(3), (4) and (5) prescribed the procedure for rejecting ballots. After the ballot papers had been taken out of the boxes and scrutinised, the counting was conducted under rule 57 and the subsequent rules. Rule 63 addressed the recounting of votes; under rule 63(1) the returning officer was required, after counting was completed, to record in Form 20 the total number of votes polled by each candidate and to announce those totals. Rule 63(2) allowed an application for recounting, and if such an application was permitted, a recount followed and the new result was again declared on Form 20. Following the announced result, the election was declared under rule 64 and a certificate of election was issued to the returned candidate. The Court noted that rule 57(1) provided that every ballot paper not rejected under rule 56 was to be counted as one valid vote, meaning that after scrutiny and the rejection of invalid papers, all remaining ballots were presumed valid. Likewise, when the returning officer scrutinised nomination papers under section 36 of the Act, section 36(8) presumed that the acceptance of those nomination papers was valid. Consequently, the Court held that when an election petition challenged the validity of the returned candidate’s election, there was a prima facie presumption that the acceptance of nomination papers and the counted voting papers were both valid.

In this case the Court explained that after the counting of votes the election is officially declared pursuant to rule sixty‑four and a certificate of election is issued to the candidate who has been returned. The Court stressed that rule fifty‑seven, sub‑paragraph one, provides that every ballot paper which has not been rejected under rule fifty‑six shall be counted as one valid vote. Consequently, once the ballot papers have been taken out of the ballot boxes and examined, the papers that are rejected under rule fifty‑six, sub‑paragraph two, are set aside as invalid, and all remaining voting papers that the returning officer has placed before him for counting are deemed to be valid according to rule fifty‑seven, sub‑paragraph one. In a similar way, when the returning officer scrutinises the nomination papers under section thirty‑six of the Representation of the People Act, the papers that he accepts are, by operation of section thirty‑six, sub‑paragraph eight, presumed to be valid. Thus, when an election petition is presented before an Election Tribunal challenging the validity of the election of the returned candidate, there is a prima facie presumption that the acceptance of the nomination papers is lawful and that the votes that have been counted are also lawful. The petition may seek to question the legitimacy of the counted votes or the correctness of the acceptance or rejection of any nomination paper; such challenges are matters of proof that the Tribunal must examine. Nevertheless, the Court noted that every enquiry will begin with the presumption in favour of the validity of both the acceptance or rejection of nomination papers and the validity of the voting papers that have been counted. The Court indicated that this presumption must be kept in mind while considering the scope and nature of the enquiry that is undertaken under sections one hundred and one hundred and one of the Act. The Court then turned to the three statutory provisions that are relevant to the present appeal. Section ninety‑seven, sub‑section one, states that when an election petition claims that a candidate other than the returned candidate has been duly elected, the returned candidate or any other interested party may present evidence to show that the election of that other candidate would have been void if he had been the returned candidate and a petition had been filed against his election. However, the provision also imposes a condition that the returned candidate or such other party may only give such evidence if, within fourteen days from the commencement of the trial, he gives notice to the Tribunal of his intention to do so and also furnishes the security and further security prescribed in sections one hundred and seventeen and one hundred and eighteen respectively. Sub‑section two of section ninety‑seven requires that every notice referred to in sub‑section one must be accompanied by the statement and particulars that are required by section eighty‑three in an election petition, and that the notice must be signed and verified in the same manner. Finally, the Court read the opening words of section one hundred, sub‑section one, which provide that, subject to the provisions of sub‑section two, if the Tribunal is of the opinion that, on the date of the election, the returned candidate was not qualified or was disqualified to fill the seat, …

The Court explained that under section 100 (1) a Tribunal may declare the election of a returned candidate void if it is of the opinion that, on the date of election, the candidate was not qualified under the Constitution or this Act; or that a corrupt practice was committed by the returned candidate, his election agent, or by any other person with the consent of either; or that any nomination had been improperly rejected; or that the result of the election, as far as it concerned the returned candidate, had been materially affected. The material effect may arise from the improper acceptance of any nomination; or from any corrupt practice carried out in the interests of the returned candidate by an agent other than his election agent; or from the improper reception, refusal, or rejection of any vote, or the reception of any vote which is void; or from any non‑compliance with the provisions of the Constitution, this Act, or any rules or orders made thereunder. If any of these conditions is satisfied, the Tribunal is required to declare the election of the returned candidate to be void. Section 101 further provides that when a petitioner, in addition to challenging the election of the returned candidate, seeks a declaration that he or another candidate has been duly elected, the Tribunal must determine whether, in fact, the petitioner or that other candidate received a majority of the valid votes, or whether, but for the votes obtained by the returned candidate through corrupt practices, the petitioner or the other candidate would have obtained a majority of the valid votes. If either condition is satisfied, the Tribunal, after declaring the election of the returned candidate void, must also declare the petitioner or the other candidate to have been duly elected.

Mr Kapoor argued that for matters falling within sub‑paragraph (d)(iii) of section 100 (1), section 97 is inapplicable, and therefore the enquiry contemplated for that class is not limited by the prohibition set out in section 97 (1). He maintained that when the Tribunal assesses whether the election of the returned candidate has been materially affected by the improper reception, refusal, or rejection of any vote, or by the reception of any void vote, it must examine the validity of every vote that was counted in declaring the returned candidate elected. Consequently, Kapoor contended that no restriction should be placed on the appellant’s right to require the Tribunal to consider his claim that some votes cast in his favour were wrongly rejected and that certain votes accepted for the respondent were improperly admitted. Relying on this position, Mr Kapoor further submitted that section 101 obliges the Tribunal to conclude that, in fact, the petitioner or the other candidate received a majority of the valid votes, a determination that can be achieved only through a recount after eliminating invalid votes, and therefore no limitation should be imposed on the scope of the enquiry contemplated by sub‑paragraph (a) of section 101.

In examining the scope of the enquiry contemplated by section 101(a), the Court observed that because provision 100(1)(d)(iii) lies outside the ambit of section 97, the failure of the appellant to make a recrimination as required by section 97(1) does not alter the breadth of the enquiry. Counsel for the respondent presented a strong argument on behalf of the opposing party and urged the Court to reject the approach taken by the appellant in addressing the issue raised for decision in the present appeal. He argued that, when construing sections 97, 100 and 101, it must be borne in mind that a returned candidate whose election is being challenged may invoke only defensive pleas under section 100, which serve as a shield of protection. By contrast, if the election petition not only contests the validity of the returned candidate but also alleges that some other person has been duly elected, the returned candidate is afforded an opportunity to make recriminatory pleas, which function as offensive weapons against the validity of the other person’s election. The counsel further maintained that although provision 100(1)(d)(iii) falls outside section 97, this does not permit a returned candidate, in a petition challenging the validity of his own election, to simultaneously defend his election and attack the votes cast in favour of the petitioner or any other individual. The Court recognised that these two rival contentions must be reconciled in order to determine the true legal position applicable to the matter.

The Court then illustrated the principles by considering a simple hypothetical election petition in which the petitioner makes a single claim that the election of the returned candidate is void. Such a claim may be brought under section 100. Sections 100(1)(a), (b) and (c) enumerate three distinct grounds on which the election of the returned candidate can be challenged; the Court noted that none of those grounds were relevant to the present discussion. In dealing with a challenge under section 100(1)(d), the petition must establish not only the existence of one of the grounds set out in clauses (i) to (iv) of that provision, but also that the existence of the specified ground has materially affected the result of the election as it pertains to the returned candidate. Consequently, the Tribunal’s task is to determine whether the election, insofar as it concerns the returned candidate, has been materially affected. In other words, the sole issue for determination is whether the election of the returned candidate has been materially affected, and no other enquiry is permissible in such a case.

No other inquiry is legitimate or permissible in such a case. The requirement of section 100(1)(d) therefore imposes strict limits on the scope of any investigation. When the tribunal confines itself to clause (iii) of section 100(1)(d), its only task is to determine whether there has been an improper reception of votes in favour of the returned candidate. The tribunal may also examine whether any vote for another candidate has been improperly refused or rejected, or whether a void vote has been received in favour of the returned candidate. In other words, the inquiry under section 100(1)(d)(iii) is limited to two questions: whether any votes have been improperly cast for the returned candidate, and whether any votes have been improperly denied to any other candidate. These two matters alone are relevant to deciding whether the election of the returned candidate has been materially affected. The burden of proof rests on the petitioner, who must demonstrate that the infirmities described in section 100(1)(d)(iii) have materially altered the result of the election of the returned candidate. This requirement itself defines the scope of the enquiry. Consequently, when a petition contains only the claim that the election of the returned candidate is void, the scope of the tribunal’s inquiry is clearly confined by the language of section 100(1)(d). The limitation arises not because the returned candidate has failed to recriminate under section 97(1); in fact, section 97(1) does not apply to a case that falls under section 100(1)(d)(iii). The inquiry is limited simply because the clause mandates consideration of whether the election result has been materially affected, and nothing else. If the tribunal’s finding favours the petitioner, it must declare the election of the returned candidate void, and that declaration terminates the election petition. However, some petitions present a composite claim, seeking both a declaration that the election is void and a declaration that the petitioner or another person has been duly elected. In such dual claims, sections 100 and 101 govern the void‑election allegation, while section 97 becomes relevant to the additional declaration that another candidate has been duly elected.

In this case, the Court explained that when the returned candidate makes a recrimination, he assumes the role of a counter‑petitioner who attacks the claim that the alternative candidate was validly elected. Section 97(1) therefore mandates that, in a composite election petition, the Tribunal must examine both the petitioner’s primary case and the counter‑claim advanced by the returned candidate. Because the statute envisions such dual proceedings, the law requires the returned candidate to serve his recrimination and give notice in the manner and within the period prescribed by the proviso to Section 97(1) and by Section 97(2). If the returned candidate fails to recriminate as required, he loses the right to raise any attack on the alternative claim presented in the petition. In that situation, the Tribunal conducts an inquiry under Section 100 solely to determine whether the returned candidate’s own election was valid. Should that inquiry result in a declaration that the returned candidate’s election is void, the Tribunal then proceeds to consider the alternative claim, but the returned candidate is barred from presenting evidence because he is prevented from raising any pleas against the validity of the alternative candidate’s election. The Court further noted that Section 101(a) obliges the Tribunal to determine whether the petitioner or any other candidate for whom a declaration of election is sought actually obtained a majority of the valid votes. Counsel for the petitioner argued that the Tribunal could not reach such a finding unless every ballot cast in the election were examined and counted. The Court found this argument unpersuasive. It observed that, pursuant to Rule 57, the Tribunal must presume that every ballot paper not rejected under Rule 56 represents one valid vote, and the determination required by Section 101(a) must be based on that presumption. Section 97(1) indeed gives the returned candidate an opportunity to contest the validity of any votes counted for the alternative candidate or to seek validation of any of his own votes that were rejected. However, when the returned candidate does not make a timely recrimination under Section 97, he is consequently barred from raising such pleas during the hearing. In that circumstance, the Tribunal may correctly proceed under Section 101(a) on the basis that the votes counted by the returning officer are to be treated as valid, and that any votes cast for the returned candidate which were rejected are to be treated as invalid.

In this case the Court explained that any ballot papers rejected against the returned candidate are treated as invalid. The Court reiterated that the presumption of validity of votes, which it had earlier applied when dealing with a petition under section 101(a), is likewise applicable when the matter is considered under section 100(1)(d)(iii). Consequently the Court was satisfied that even where section 97 is invoked, the inquiry required under section 101(a) does not become broader simply because the returned candidate has failed to make a recrimination. However, if the returned candidate does make a recrimination and raises objections concerning votes cast for the opposing candidate or votes that were wrongly rejected, those objections may have to be examined after a declaration is issued under section 100 and the case then proceeds under section 101(a). In other words, the initial stage of the enquiry, which determines the validity of the election of the returned candidate, must be conducted within the narrow parameters set out in section 100(1)(d)(iii). The subsequent stage, governed by section 101(a), must be conducted on a broader basis that allows the returned candidate to present evidence supporting any pleas he has raised by way of recrimination under section 97(1). The Court noted that accepting Mr Kapoor’s interpretation of section 100(1)(d)(iii) would either render section 97 redundant or create an inconsistency between the operation of section 101 read with section 97 and the operation of section 100(1)(d)(iii).

The Court therefore held that the High Court was correct in concluding that the Tribunal erred when it described itself as “an authority charged with the duty of investigating the validity of votes for and against the petitioning and returned candidate or for any other contesting candidate.” Nevertheless, the Court observed that, following its earlier decision in Inayatullah Khan (1), the High Court appeared inclined to view the enquiry under section 101(a) as broader, allowing the Tribunal, in making its finding under that provision, to scrutinise all votes and decide whether the petitioner or another person had actually obtained a majority of the valid votes. As the Court had already indicated, such a broader approach is permissible only where the returned candidate has made a recrimination. In the absence of such recrimination, the Election Tribunal, as noted in Inayatullah Khan (1) 15 E.L.R. 219, cannot permit the returned candidate to challenge the validity of votes cast for the petitioner or any other candidate whose election is sought to be declared, nor can the Tribunal entertain claims that any of the returned candidate’s own votes were improperly rejected. The Court added that the Madhya Pradesh High Court’s view in Inayatullah Khan regarding the scope of the enquiry under section 101(a) does not accurately reflect the correct legal position, and the same observation applies to similar judgments.

The Court observed that the judgment of the Allahabad High Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh and Ors. (2) did not correctly explain the extent of the enquiry permitted under section 100 or section 101. It further stated that the conclusion reached in the present appeal was largely consistent with the observations made by this Court in Bhim Sen (3), although the matters raised in that earlier case had not been argued in great detail before the Court. The Court then turned to another matter that required reference. Counsel for the appellant argued that, even if the Tribunal’s view on the scope of the enquiry under section 100(1)(d)(iii) and section 101 was correct, the relief granted by the Tribunal was not supported by the appellant’s pleadings. To support that submission, counsel pointed to paragraph 4 of the Special Pleas filed by the appellant and highlighted that, at the outset of the hearing, the Tribunal had framed eighteen issues, one of which was issue No. 16. Issue 16 comprised three sub‑parts: (a) whether any votes cast in favour of respondent No. 1 had been wrongly rejected, specifically those relating to the polling station mentioned in paragraph 4 of the written statement under the heading “special pleas”; (b) whether many votes had been wrongly accepted in favour of the petitioner, again referring to the polling stations listed in paragraph 4 of the special pleas in the written statement; and (c) what the effect of those alleged errors would be on the case. The citations accompanying these points were (1) 15 E.L.R. 219, (3) 5 E.L.R. 219, E.L.R. 288, and (2) 22 E.L.R. 47. Subsequently, the respondent contended that, because the appellant had not made any recrimination, those issues did not arise on the pleadings and therefore should be struck out. Nevertheless, the Tribunal, in its judgment, had effectively examined those issues and granted relief on grounds that were not even included in the appellant’s written statement. The Court noted that the present appeal had been admitted chiefly because the appellant sought a reconsideration of the observations made by this Court in Bhin Sen (1), and therefore the Court would not base its decision on the subsidiary point raised by counsel for the appellant. Finally, the Court turned to two authorities cited during the arguments. In Vashist Narain Sharma v. Dev Chandra and Ors. (2), this Court held that section 100(1)(c), as then framed, placed upon the objector the burden of proving that the election result had been materially affected by the improper acceptance or rejection of a nomination paper. The Court further explained that when the margin of votes exceeded the number of votes secured by the candidate whose nomination paper had been improperly accepted, the result was not merely not materially affected but not affected at all; however, where the impact on the result could not be foreseen, the petitioner must discharge the burden of demonstrating that effect.

The Court observed that when an objector fails to prove the required burden, the election must be allowed to stand. In the case of Hari Vishnu Kamath v. Syed Ahmed Ishaque and others (1), the Court addressed the phrase “the result of the election” found in section 100(1)(c) and held that, unless the surrounding circumstances demand a different meaning, the phrase should be interpreted in the same way as it is used in section 66, where it unmistakably refers to the result based on the valid votes. Relying on this observation, counsel for the petitioner argued that while the Tribunal is determining whether the election of the returned candidate has been materially affected, it must also consider the validity of the votes, a view that would expand the scope of the enquiry. The Court rejected this submission, stating that the reference to section 66 does not create a broader proposition. After citing the authorities 22 E.L.R. 288, [1955] 1 S.C.R. 1104 at p 1131 and [1955] 1 S.C.R. 509, the Court explained that once the pleas have been considered, the Tribunal’s task is simply to decide whether the election of the returned candidate has been materially affected. This determination requires the Tribunal, if it finds that any votes were improperly accepted or improperly refused or rejected, to recalculate the result on the basis of those specific findings and nothing beyond that. The Court further reminded that votes not rejected by the returning officer under rule 56 are to be treated as valid unless the contrary is expressly pleaded and proved. Consequently, the Court found that the petitioner’s counsel was not justified in contending that the observations in Hari Vishnu Kamath’s case support a broader enquiry under section 100(1)(d)(iii) that would examine the validity of all voting papers. The Court then referred to Keshav Laxman Borkar v. Dr. Devrao Laxman Anande (1), where it was noted that the expression “valid votes” has no explicit definition in the Act. In light of section 36(8) read with rule 58, two points become clear: first, a candidate is validly nominated when the returning officer accepts the nomination after scrutiny; second, section 58 provides that ballot papers not rejected under rule 57 are deemed “valid ballot papers” and must be counted as such. The Court observed that this approach aligns closely with the position under English law concerning the recounting of votes in election petition proceedings.

The Court explained that the opposite party must submit a list specifying the votes that they intend to object to, together with the particular grounds of objection for each listed vote. It was further observed that, unless the Court grants leave on terms relating to amendment of the list, postponement of the enquiry, and payment of costs, no evidence may be adduced against the validity of any vote or under any ground that is not included in the submitted list. The Court cited the authority in [1960] 1 S.C.R. 902 and Halsbury’s Laws of England, page 306, paragraphs 553 and 554, to support this rule. The Court held that if a list of the votes intended to be objected to is not delivered within the prescribed time, the Court lacks the power to extend the deadline or to permit evidence concerning the unlisted votes or objections to be presented at trial. Consequently, the Court found that, when an enquiry is conducted under section 100(1)(d)(iii) or section 101 of the Representation of the People Act, and the requirements of section 97 have not been satisfied, the Tribunal is not empowered to order a general recount of the votes preceded by a scrutiny of their validity.

Accordingly, the Court dismissed the appeal. Although the Court accepted the construction of sections 100(1)(d)(iii) and 101 advanced by counsel for the respondent, it held that no relief could be granted because the respondent’s application for special leave to appeal the High Court’s decision had been refused, the respondent having failed to demonstrate sufficient cause to condone the delay in filing the application. The Court directed that each party bear its own costs. The Court noted that the appeal was argued on 4 December 1963, and that a fresh election ordered by the High Court was scheduled for 6 December 1963. After the arguments, the Court announced its decision and informed counsel that the reasons would follow, and the present judgment provides those reasons. Justice Ayyangar concurred that the appeal should be dismissed, although he disagreed with the interpretation of section 100(1)(d)(iii) adopted by his colleagues, and he limited his discussion to the points necessary for the construction of that provision.

The Court stated that it had reached the conclusion that the appeal must be dismissed. The appeal arose from a contested election to the Morena Constituency of the Madhya Praadesh Legislative Assembly. The poll for that election was held on 21 February 1962 and a total of seven candidates had contested the election. However, the present appeal concerned only two of those candidates, namely Genda Lal and Jabar Singh. Jabar Singh had been declared the returned candidate and he appeared before the Court as the appellant.

The voting procedure that was used was the one prescribed in rule 39 of the Conduct of Election Rules, 1961, which the Court referred to as “the Rules”. Under those Rules a voter indicated his choice by marking the ballot paper on or near the symbol of the candidate for whom he wished to vote. After the first count the Returning Officer recorded that Genda Lal had secured 5,703 valid votes, while Jabar Singh had secured 5,671 valid votes.

Jabar Singh immediately filed an application for a recount under rule 63 of the Rules, alleging that the original scrutiny and counting were defective. Although the application was opposed, the Returning Officer acceded to it and ordered a recount. The Court noted, in passing, that the Election Tribunal had discovered discrepancies in the total number of ballot papers in some polling stations. In six polling stations the total number of valid votes recorded differed from the totals shown in the result sheet prepared under rule 57(2) in Form 20.

The scrutiny and recount showed that Genda Lal’s vote total fell to 5,654, while Jabar Singh’s total rose to 5,656. Consequently, after the recount Jabar Singh was declared elected, having obtained two votes more than his rival Genda Lal. Following this result Genda Lal filed an election petition, which gave rise to the present appeal. In the petition Genda Lal sought to have Jabar Singh’s election declared void and also claimed the seat for himself.

The petition raised several grounds for setting aside the election, but the Court limited its consideration in this appeal to one specific ground: the correctness of the scrutiny and counting of votes at the recount as it affected the petitioner and the returned candidate. The petition alleged that 49 valid votes cast in favour of the petitioner (who was the respondent before the Court) had been improperly rejected, and that 32 votes had been improperly accepted in favour of the returned candidate (the appellant). The appellant denied these allegations. In addition, the appellant’s written statement asserted that many votes cast for him had been wrongly rejected, providing details of those votes, and that likewise several votes for the petitioner had been wrongly accepted, also with details.

In the petition, the returned candidate concluded by asking that a proper scrutiny and recount of the valid votes received by each candidate would show that he, the returned candidate, had actually obtained a larger number of votes than the election‑petitioner, and therefore he submitted that the election petition should be dismissed. Although Genda Lal, in his election petition, besides seeking to have the appellant’s election declared void, also claimed the seat for himself under section 84 of the Act, none of the respondents to the petition, including the appellant, filed any recrimination in accordance with the provisions of section 97 of the Act against the grant of such further relief; this failure to file a recrimination is the principal issue for consideration on appeal. The Election Tribunal, after examining the petition, framed the necessary issues arising from these pleadings. Issue 6(a) concerned the allegation that fifty‑nine valid votes cast in favour of Genda Lal had been improperly rejected. After reviewing the evidence and assessing the validity of the disputed votes, the Tribunal found that, contrary to the allegation, only ten votes for Genda Lal had been improperly rejected. Issue 6(b) dealt with the allegation that thirty‑two votes cast in favour of Jabar Singh had been improperly accepted. Upon examining the evidence relating to the specific votes in dispute, the Tribunal concluded that only four votes for Jabar Singh had been improperly accepted. As a result of these findings on issues 6(a) and 6(b), the total number of valid votes recorded for Genda Lal became five thousand six hundred sixty‑four, compared with five thousand six hundred fifty‑two recorded for Jabar Singh. Consequently, the Tribunal held that the election of Jabar Singh, who had obtained fewer votes than Genda Lal, must be declared void under section 100(1)(d)(iii). On the non‑controversial basis that, with this voting outcome, Genda Lal claimed entitlement to the additional relief of being declared elected, having obtained a majority of lawful votes satisfying the requirement of section 101(a), the Tribunal refused him that relief for reasons that need not be repeated. That refusal was affirmed by the High Court on appeal, and a special leave petition against the High Court’s decision was dismissed. Therefore, the possibility of disallowing this additional relief does not require further consideration. The question concerning the scope of section 100(1)(d)(iii) and its relative position within the scheme of sections 97, 100 and 101 of the Act arises from the plea made by Jabar Singh that, without reference to the alleged irregularities in the counting of the fifty‑nine and thirty‑two votes alleged by Genda Lal and which he denied, there existed other irregularities in the scrutiny and counting which, if examined, would show that, after eliminating every error, he himself had obtained a majority of lawful votes. The point of law debated before the Court was whether, under the Representation of the People Act, 1951, Jabar Singh was entitled to make such a plea and to adduce proof in support of it in order to sustain his election without filing a recrimination under section 97 of the Act. The learned judges had held that he could not, a conclusion with which the present judge disagreed. The correct answer to this question depends, as a matter of common ground, on a proper construction of section 100(1)(d)(iii) read in conjunction with section 101(a), which the judge first considered, before subsequently addressing the role and function of section 97 in this context.

In the course of the proceedings the issue arose that the respondent had denied certain allegations, which had already been identified as the subject of issues 6(a) and 6(b) and to which reference had been made earlier. Apart from those matters, the Court observed that there existed additional irregularities in the scrutiny and counting of votes. The Court stated that, if those irregularities were examined, they would demonstrate that, after correcting every error, the respondent himself would have secured a majority of lawful votes. The central question of law before the Court was whether, under the scheme of the Representation of the People Act, 1951, Jabar Singh was permitted to make a plea and to adduce evidence in support of that plea in order to sustain his election without invoking a recrimination proceeding under section 97 of the Act. The learned judges of the Court had concluded that such a plea was not permissible, a conclusion with which the speaker disagreed. The appropriate answer to the question, the speaker explained, hinged upon a proper construction of section 100(1)(d)(iii) read together with section 101(a), and the speaker indicated that this construction would be considered first. Subsequently, the speaker said that the role and function of section 97 in this context would be examined, together with its impact on the interpretation of the provisions that formed the basis of the appeal. Although a few authorities dealing with the point of law had been mentioned during the arguments, and although all of those authorities had been cited by Justice Gajendragadkar, it was accepted that no binding decision of this Court directly addressed the issue, even though certain observations in Bhim Sen v. Gopali and Others appeared to support the interpretation adopted by the learned judges. Because the appeal was placed before the Bench for fresh consideration of a matter that was deemed res integra, the speaker chose not to rely on any of those authorities and instead proceeded to interpret the statutory provisions without reference to the authorities highlighted during the arguments. Section 100(1)(d) was then quoted in full: “100. Grounds for declaring election to be void—(1) Subject to the provisions of sub‑section (2) if the Tribunal is of opinion… (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected—(i) by the improper acceptance of any nomination, or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non‑compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the Tribunal shall declare the election of the returned candidate to be void.” The speaker then framed the concise question for determination in the appeal as follows: in the context of the provisions contained in section 100(1)(d), which allow an election of a returned candidate to be set aside only on the basis of a material effect on the result, what is the precise import of the words “by the improper reception, refusal or rejection of any vote or the reception of any vote which is void”?

In this appeal the Court examined the meaning of the expression “materially affected” when it is said that the result of the election of the returned candidate has been materially affected by the improprieties or illegalities described in clauses (i) to (iv) of section 100(1)(d). Specifically the Court asked what is the import of the words “by the improper reception, refusal or rejection of any vote or the reception of any vote which is void”. For the purposes of the discussion the Court decided to disregard the latter phrase concerning “the reception of a vote which is void” and to concentrate on the earlier part of the provision. The Court observed that the Tribunal has authority to declare an election void only when it is of the opinion that the result of the election has been materially affected by the defects or improprieties enumerated in clauses (i) to (iv). Consequently, if despite the existence of an impropriety or illegality of the types mentioned, the result of the election is not materially affected, the returned candidate is entitled to retain his seat. After making this preliminary observation the Court turned to analyse the phrase “materially affected by the improper reception, refusal or rejection of any vote” in a situation where no additional complication arises from a petition that also seeks to claim the seat in addition to the relief of having the election of the returned candidate declared void. The argument advanced vigorously by counsel for the respondent, Mr Garg, was that when the Tribunal examines whether the result of an election has been materially affected, it must confine its inquiry to the alleged improprieties concerning the reception of votes cast for the returned candidate as well as the alleged improprieties of refusal or rejection of votes that the petitioner claims were cast for him, together with the denials of those allegations by the returned candidate. The respondent further submitted that the returned candidate could not preserve his seat by demonstrating a similar improper reception of votes in favour of the petitioner or by showing an improper refusal or rejection of his own votes. In other words, the respondent argued that a Tribunal dealing with a petition under section 100(1)(d) lacked jurisdiction to consider anything beyond the specific allegations made in the petition, and that even when a case for scrutiny is established and a recount is ordered, the Tribunal’s jurisdiction would remain confined to those matters and would not extend to complaints raised by the returned candidate. The Court found that this position could not be accepted. The Court explained that when an election petition is filed alleging improper reception or rejection of votes and seeking a scrutiny of the ballot papers to determine whether the Returning Officer counted the votes correctly, the Tribunal must first be satisfied that there is a case for scrutiny and recount. Established jurisprudence holds that the petitioner does not have an absolute right to obtain such scrutiny; he must allege, make out, and prove the specific grounds showing that the scrutiny or counting was improper and that the return was consequently erroneous. If the Tribunal reaches that stage and is convinced that a case for scrutiny and recount exists, it follows that the Returning Officer failed to discharge his duties properly in scrutinising the ballot papers and in counting them. In such circumstances, if the returned candidate also makes allegations of the same type regarding the scrutiny and counting, the Court held it would be unfair to deprive him of the opportunity to prove his allegations and retain his seat, unless the statutory provision expressly barred such a possibility.

In this case, the Court explained that a petitioner does not acquire the right to a scrutiny and a recount simply because he requests such relief. The petitioner must allege, develop, and prove specific grounds showing that the scrutiny of the ballot papers or the counting of votes was improper and that, as a result, the election return was erroneous. When the Tribunal reaches the point where it is satisfied that the petitioner has established a valid case for scrutiny and recount, this finding indicates that the Returning Officer failed to discharge his duties properly with respect to the examination of the ballot papers and the tabulation of the votes. If, under those same circumstances, the respondent – that is, the candidate who has been returned – also puts forward allegations of the same nature concerning the scrutiny and the counting, the Court held that it would be unfair to deny the respondent the chance to prove his allegations and thereby preserve his seat, unless a statutory provision expressly forbids him from doing so. The Court clarified, however, that this principle does not relieve the respondent from the requirement to make definite averments in his pleadings. The respondent must specifically identify the particular votes that he seeks to have scrutinised and must assert that those votes were wrongly counted either in his favour or against him. To illustrate the point, the Court considered a hypothetical situation in which the petitioner alleged a miscount involving only the votes of the returned candidate. Suppose that candidate A was declared elected with a total of 200 votes, while candidate B received 190 votes. If candidate B, in his election petition, contended that the 200 votes attributed to candidate A were incorrectly counted and that a proper recount would reduce A’s total to 180 votes, the Tribunal, after conducting the recount, might find the petitioner's allegation proved and determine that the returned candidate actually obtained only 180 votes. Under the argument advanced by Mr Garg, such a finding would require setting aside A’s election, even though a similar counting mistake could exist in B’s vote total, which, if correctly counted, might be no more than 170 votes. Mr Garg further submitted that if B were to claim the seat, a recount of the votes of both candidates would be necessary, and that only in the case of a recrimination petition filed under section 97 would the issue of seat entitlement arise. Nevertheless, if no candidate claimed the seat, the Court observed, the election of the returned candidate would be declared void, leaving the returned candidate without any means to maintain his election despite the factual circumstance that he had obtained a majority of lawful votes. The argument in support of that outcome relied upon the opening words of section 100(1)(d), which refer to “the result of the election” being materially affected “so far as it concerns a returned candidate.” The Court found this construction and the accompanying reasoning unconvincing. While it is undisputed that an election petition primarily concerns the validity of the election of the returned candidate, the Court also recognised that this principle does not preclude consideration of the broader implications of counting errors on the election result.

In this case, the Court explained that the election of a returned candidate could be declared void only when, after limiting the inquiry to any impropriety or illegality in the reception or refusal of votes, the returned candidate is proven to have obtained fewer votes than the required majority; otherwise, regardless of the nature, degree, or extent of any irregularity, the result of the election would not be regarded as materially affected. The Court noted that it is undisputed and accepted by all parties that the election petitioner is not restricted in the manner or the details of the alleged improper reception or refusal of votes that he may invoke and demonstrate in order to achieve the result of nullifying the election. Consequently, the Court found no merit in the argument that the returned candidate is confined solely to disproving the allegations leveled against him and is prohibited from showing that votes which, according to law, ought to have been counted in his favour were wrongly omitted. The wording of clause three does not impose such a limitation, because it refers to “the improper reception or refusal of any vote,” and the inquiry prescribed by section 100(1)(d) is intended to determine whether the election result has been materially affected, which, in the context of clause three, unmistakably means that the returned candidate has been shown not to have actually secured a majority of valid votes. Accordingly, the Court saw no room for the contention advanced by counsel for the respondent. To illustrate the principle, the Court considered a hypothetical situation in which the voting procedure follows rule 59, whereby ballot papers are placed in separate ballot boxes for each contesting candidate. The returning officer tallies the valid votes in each box and declares candidate A elected with 200 votes against candidate B’s 198 votes. Suppose candidate B files a petition alleging that the counting process was irregular, that the totals recorded in the result sheet are inaccurate, and that, in fact, candidate A’s correct total should have been 196 votes. Counsel for the respondent argued that, although the discrepancy in the totals is considerable, candidate A cannot demonstrate a miscount of B’s votes, and even if B’s correctly counted total were only 190, candidate A’s election should nonetheless be set aside. The Court observed that the position would not change simply because the petitioner also seeks a declaration that he should be declared duly elected and the returned candidate files a recrimination challenging that further declaration. The Court held that this line of reasoning offers no answer for more than one reason, and it reiterated that the submission made by counsel for the respondent formed the entire basis of the argument, which the Court found untenable.

In this case the Court examined the construction proposed for section 100(1)(d)(iii). The construction suggested that the issue raised by a recrimination could be considered only after the election of the returned candidate had been declared void. If that construction were accepted, the result would be anomalous. The election of the returned candidate would first be declared void because, for the purpose of the decision under section 100(1)(d), the candidate had not obtained a majority of valid votes. Subsequently the same tribunal would be called upon to consider the claim to the seat and the recrimination, and might then hold that the returned candidate actually possessed a majority of lawful votes, a finding that would affect only the defeated candidate’s right to claim the seat. The Court held that the language of section 100 read together with section 101 did not envisage a situation in which a candidate’s election was set aside on the ground that he lacked a majority of lawful votes, while the same proceedings simultaneously concluded that he did have such a majority. Accordingly any interpretation of section 100(1)(d)(iii) that produced this outcome had to be rejected as unsound.

The Court also noted another difficulty arising from the argument advanced by counsel that an enquiry into a recrimination and its defence was identical to the scope of a petition and its defence. Although that equivalence appeared logical, it produced the same anomaly identified above, namely that the primary argument relied on an untenable construction of section 100(1)(d)(iii). Applying the reasoning already set out for a situation where no claim to the seat was made, the Court observed that an election could be declared void even though the returned candidate had, in fact, obtained a majority of valid votes, simply because he was unable to prove that fact. In cases where a seat is claimed, the petitioner would be declared elected even though, as a matter of fact, he had not obtained a majority of lawful votes, while the returned candidate, who did have such a majority, would be prevented from proving it. The Court illustrated the absurdity of this result by describing a scenario with more than two candidates. If petitioner B filed a petition against returned candidate A for the seat and also impleaded candidates C and D, A would be unable to prove that some of his own votes had been counted for C or D, whereas B could prove that votes intended for C or D had been incorrectly recorded for A. In such circumstances B would obtain no advantage from a recrimination, because recrimination under section 97 could be directed only against A and not against the other contestants, as noted in the case reported at 134‑159 S.C.-6.

The Court observed that the petitioner could not raise a recrimination claim against the other contesting candidates who had been impleaded as respondents. Consequently, even if the factual record showed that candidate A had received the majority of lawful votes, the petitioner, identified as B, would nonetheless be declared elected, regardless of whether recrimination was pursued. The Court stated that it could not accept an interpretation of either section 100(1)(d)(iii) or section 101(a) that would lead to such an outcome, because that outcome would be both unjust and anomalous and would contradict the fundamental principles of election law. Those principles are, first, that apart from disqualification, corrupt practices, and similar grounds, the election of a candidate who obtains the majority of valid votes must not be set aside; and second, that no candidate may be declared duly elected if he has not obtained a majority of valid votes. The Court further noted that the entire line of argument was based on a misunderstanding of the scrutiny procedure. It explained that, in the election under consideration, voting had been conducted in accordance with rule 39. In compliance with rule 57(3), the Returning Officer had bundled and sealed all ballot papers that were deemed valid at each polling station, while similarly bundling and sealing all rejected papers from each station in a separate bundle. At the tribunal’s scrutiny, these two sets of bundles were examined to determine whether the votes cast for each of the contesting candidates had been properly counted. The Court expressed difficulty in following the suggestion, made by counsel, that such scrutiny could be carried out compartmentally by separating the votes for A, B, C, and so on, into distinct bundles. The Court reasoned that even if votes for each candidate were placed in separate bundles, an argument might be raised that the bundle belonging to candidate A or B should not be opened. However, when the purpose of the scrutiny is to ascertain (a) whether the returned candidate has indeed been shown to have received a minority of valid votes, and (b) whether the candidate claiming the seat has obtained a majority of valid votes, it is inevitable that the ballot papers objected to must be examined. Those papers are contained within the two types of bundles created under rule 57(3). Counsel sought support for his construction by referring to other sub‑clauses of section 100(1)(d). He argued that if the returned candidate could not raise objections under those sub‑clauses, then the returned candidate could not also allege improprieties in the reception of votes of any other candidate, including the petitioner. The Court expressed that it was wholly unimpressed by this argument, noting that it failed to consider both the nature of the objections contained in the other sub‑clauses and their relevance to the central question of whether the election of the returned candidate had been materially affected, which is the prime

In this case the Court noted that the essential question to be considered was the one that supplies the key to interpreting the sub‑clause that was before it. The Court then proceeded to examine each of the situations described in the other sub‑clauses. Sub‑clause (i) relates to the improper acceptance of a nomination. It was held to be obvious that any allegation made by the returned candidate, together with any proof he might produce, concerning the improper acceptance of a nomination could not be used to sustain his election. By the same token, sub‑clause (ii), which provides that a corrupt practice committed in the interests of the returned candidate by an agent other than his election agent may be a ground for challenge, could have no application in the present circumstance, nor could sub‑clause (iv) be relevant unless the alleged non‑compliance affected the reception of votes, a situation that would already be covered by sub‑clause (iii). In relation to sub‑clauses (i), (ii) and (iv), the Court observed that, given the nature of those provisions, the returned candidate is limited to proving two points: firstly, that no impropriety or illegality of the kind alleged actually occurred; and secondly, that even if some impropriety or illegality did occur, it did not have any bearing on the result of his election. In other words, any such impropriety, if it existed, would be inconsequential as far as the election outcome was concerned. The Court distinguished this position from the situation dealing with the improper reception or rejection of votes. In that context, two elements must be examined: the existence of the impropriety in the reception or rejection of votes, and whether that impropriety materially affected the result. Under sub‑clause (iii) the question of material effect, once the facts are established, is not a matter of doubt or dispute but is simply a question of arithmetic calculation and comparison. Section 100 of the Act places on the election petitioner the burden of proving to the satisfaction of the Tribunal that “the result of the election was materially affected’’ by the alleged impropriety, including the improper reception or rejection of particular votes. However, the Court held that this burden on the petitioner does not deprive the returned candidate of the ability to demonstrate, also to the Tribunal’s satisfaction, that despite the alleged improper reception or rejection of votes, his election was not materially affected. Accepting the argument advanced by counsel for the petitioner would mean that the returned candidate could only defend against the allegations and would be barred from positively establishing that the election result was unchanged. The Court concluded that the essential words of the provision that confer jurisdiction on the Tribunal to set aside an election are “the result of the election has been materially affected.” It is therefore not correct to say that the returned candidate is unable to establish this fact by any means he chooses.

The Court observed that the returned candidate could establish his case by showing that, although a small number of votes had been mistakenly recorded as being in his favour, a larger number of his own votes had actually been recorded for the petitioner, or that votes which should have been counted for the returned candidate had been improperly attributed to other defeated candidates who were not the petitioner. The Court held that without carrying out such a detailed scrutiny it would be impossible to determine whether the result of the election had been materially affected. It further stated that there was nothing in the language of clause (iii) that barred the returned candidate from making this showing. The clause, the Court noted, uses the terms “improper reception, refusal or rejection of any vote” and therefore limits its focus to the first part of the provision. The Court clarified that when a petitioner alleges a rejection, the implication is an improper rejection of votes that were cast for the petitioner, and when the petitioner mentions an improper reception, it is understood to refer to an improper reception of votes that were cast for the returned candidate. However, the Court warned that such an interpretation does not exclude the possibility of an improper reception of votes that were intended for the petitioner or for another candidate, nor does it exclude an improper rejection of votes belonging to the returned candidate. The clause does not specify the person in whose favour or against whom the improper reception or rejection occurred; its meaning and importance must be derived from the purpose of the provision, which is to determine, after a scrutiny of the ballot papers, whether the election of the returned candidate has been materially affected. To illustrate this, the Court referred to a situation under section 100(1)(d)(i) involving an improper acceptance of a nomination. The Court posed the question of whether such an improper acceptance could materially affect the returned candidate’s election. It explained that a nomination alleged to have been improperly accepted under section 100(1)(d)(i) would not be the nomination of either the petitioner, who may also be a candidate, or the returned candidate, but rather the nomination of another defeated candidate. If an inquiry found that the nomination had indeed been improperly accepted, the Tribunal, in examining the effect on the election, would necessarily have to consider the votes received by that other candidate. The Court observed that failing to do so would imply either that every case of an improperly accepted nomination must automatically void the election, or that no election could ever be declared void on that ground. Consequently, the Court concluded that when votes cast for the candidate whose nomination was improperly accepted must be counted, a thorough scrutiny is indispensable, and the Tribunal must ascertain the number of valid votes for that candidate in order to decide whether the improper reception of those votes has materially altered the result of the election.

In the present matter the Court observed that, if the votes cast for the candidate whose nomination had been improperly accepted had materially affected the election result by causing the returned candidate to be elected, then a scrutiny of those improperly received votes must necessarily be undertaken. The Court explained that such scrutiny could only be carried out pursuant to the provision contained in section 100 (1) (d) (iii). By interpreting the phrase “any vote” in that provision as referring to “any vote cast in the election that is the subject of the petition,” rather than as meaning “any vote cast for the returned candidate,” the Court illustrated how the improper reception of a vote should be understood.

The Court further stated that the construction it placed on section 100 (1) (d) (iii) served to harmonise the opening words of that provision with the language of section 101 (a). It added that it could not conceive of any legal rule—absent a compulsory textual necessity—that would allow an election of the returned candidate to be set aside merely because the Tribunal found that the returned candidate had not received the highest number of valid votes, and then, after completing that stage, to proceed to examine whether a claim to the seat was justified and to deny relief on the basis that, upon further scrutiny, the returned candidate had in fact secured the highest number of votes.

The Court noted that counsel for the respondent, identified as Mr Garg, had suggested that this apparent anomaly might arise from the application of different tests or from inquiries directed to distinct ends at different stages of the petition, rather than from any true inconsistency. The Court replied that it could not accept that explanation. It observed that the expression in section 101 (a) that the returned candidate “in fact received the majority of the valid votes” did not, in the Court’s view, invoke a type of scrutiny different from the scrutiny undertaken under section 100 (1) (d) (iii) to determine whether the improper reception or rejection of votes had materially affected the election and warranted its set‑aside.

The Court explained that the inquiries are essentially identical. It clarified that eliminating every vote that had been improperly received and adding every vote that had been improperly refused or rejected would produce the total number of valid votes cast for a candidate. This procedure is precisely the one prescribed by section 100 (1) (d) read with clause (iii). Accordingly, the Court held that the words “in fact” in section 101 (a) do not introduce any new element with respect to either the scrutiny or the counting of votes. Consequently, once it is established that the returned candidate has obtained a majority of valid votes, there is no remaining question of the election being set aside on the basis of the earlier findings.

In this case the Tribunal first examined whether the returned candidate’s election needed to be set aside, but it also considered the possibility that the returned candidate might not have obtained a majority of valid votes. The Tribunal explained that, through the scrutiny conducted to test the validity of the election, it could arrive at a conclusion that the returned candidate had failed to receive the required majority of valid votes. When such a conclusion was reached, the Tribunal was empowered to declare the election void. The Court noted that if no other person laid claim to the vacant seat, the matter would cease with the declaration of a void election and a fresh election would be ordered.

The Court further observed that where a defeated candidate, or a person claiming on behalf of a defeated candidate, asserted a right to the seat, the Tribunal was required to undertake an additional inquiry. For the purpose of declaring the election void, the Tribunal would have already ascertained the number of valid votes cast in favour of each of the candidates who had contested the election. It was possible, the Court said, that the petitioner who claimed the seat, or the individual on whose behalf the claim was made, might not have obtained the highest number of valid votes; in such a circumstance the claimant’s request for the seat would necessarily be rejected. This situation was precisely the one contemplated by section 101(a), which provides that a declaration in favour of a claimant cannot be made merely because the election of the returned candidate has been declared void; the claimant must also have secured a majority of the lawful votes cast.

The Court addressed the question of how the total of lawful votes should be determined. It was evident, the Court held, that the Tribunal must scrutinise not only the ballot papers of the claimant and the returned candidate but also those of all other candidates. For example, the Court explained, some of the votes that had been counted in favour of the petitioner might actually have been votes intended for a defeated candidate, while some votes properly cast for the petitioner might have been incorrectly recorded as votes for another defeated candidate. The Court acknowledged that such irregularities would have to be pleaded by the parties.

After considering whether, even if pleaded, the Tribunal possessed jurisdiction under sections 100 and 101 to entertain those pleas and to conduct a detailed scrutiny, the Court concluded that, assuming the necessary averments were made in the pleadings, the Tribunal was required to examine the ballot papers. This examination was necessary to determine whether the person who claimed the seat, or the individual on whose behalf the claim was made, had obtained a majority of valid votes. Only if the Tribunal, after this scrutiny, concluded that the claimant had indeed received a majority of valid votes could it proceed to the next stage of inquiry, which involved further considerations about the claimant’s election.

After the scrutiny of the ballot papers determines that the claimant has obtained the majority of valid votes, the next step is to examine whether any reason exists to withhold the declaration of election. At this juncture, the provisions of section 97 concerning recrimination become relevant. If no recrimination is presented, section 101(a) provides that the claimant must be declared elected immediately. Conversely, if a recrimination is filed, section 101(b) applies and requires the Tribunal to consider whether, assuming the claimant were a returned candidate, there are circumstances that would justify declaring his election void. This interpretation places recrimination after the completion of the scrutiny and assumes that the scrutiny has already concluded that the claimant holds a majority of valid votes. Reading the provisions of sections 97, 100(1)(d) and 101 in this sequence yields a consistent and logical outcome.

Counsel for the petitioner referred to Rule 57(1), which states, “Every ballot paper which is not rejected under Rule 56 shall be counted as one valid vote,” and argued that this rule sheds light on the construction of section 100(1)(d)(iii) and supports the interpretation he proposed. The Court considered that Rule 57 is situated in Part V of the Rules, which begins with Rule 50 titled “Counting of votes in Parliamentary and Assembly Constituencies.” Rule 55 governs the scrutiny at the time the ballot boxes are opened, while Rule 56 deals with the scrutiny and rejection of ballot papers, specifying which papers constitute a valid vote and directing the Returning Officer to conduct the count accordingly. Within this framework, Rule 57(1) merely states that, for the purpose of the Returning Officer’s declaration of result, any ballot paper not rejected under Rule 56 is to be treated as a valid vote. This rule applies solely to the Returning Officer’s immediate determination and is subject to Rule 63, which permits a recount to be demanded and granted. Consequently, the presumed validity of those ballots does not extend to the stage of an election petition or the Tribunal’s inquiry; otherwise, the scrutiny provision of section 100(1)(d)(iii) would become redundant. The rule thus merely confers a prima facie validity on the Returning Officer’s count, and any allegation of impropriety in his acceptance or rejection of ballots must be pleaded and proved by the party challenging the scrutiny.

In this case the Court observed that a party could challenge a scrutiny only if the Tribunal established the impropriety, and only then would the vote be treated or counted differently. The Court found that rule 57 did not influence the interpretation of section 100(1)(d)(iii) or section 101(a), despite the reliance placed on it. The next issue, according to the Court, was the consequence of the interpretation that had been explained, and the Court then outlined additional findings of the Election Tribunal that were relevant to the matter under consideration.

The Election Tribunal, after examining the ballot papers that had been objected to by the petitioner Genda Lal and conducting a recount, concluded that Genda Lal had obtained 5,664 votes while the returned candidate Jabar Singh had obtained 5,652 votes. On that basis, the Tribunal held that the election of Jabar Singh should be declared void. Subsequently, the Tribunal investigated the claims made by Jabar Singh regarding the improper acceptance of votes in favour of Genda Lal and the improper rejection of votes in his own favour. After reviewing the ballot papers from several polling stations, the Tribunal determined that Genda Lal had been incorrectly credited with ten votes and that Jabar Singh had been wrongly denied twelve votes that were cast for him.

The Tribunal reasoned that if its findings were upheld, the adjusted totals would be 5,654 votes for Genda Lal and 5,664 votes for Jabar Singh. Under that scenario, the election of Jabar Singh could not be set aside because the result would not have been materially affected. This argument was vigorously presented before the Court by counsel for the appellant Jabar Singh. Both the Tribunal and the High Court, on appeal, had previously held that because Jabar Singh had not pleaded the deduction of ten votes for Genda Lal and the addition of twelve votes for himself, the Tribunal could not make those adjustments, and consequently the appellant was denied the benefit of that finding.

The Court noted that, given the earlier discussion on the proper construction of sections 100(1)(d)(iii) and 101(a), the lack of a recrimination should not have produced that result, and the Court would have allowed the appeal if the Tribunal’s finding could be sustained. However, the Court pointed out that the Tribunal’s finding had been made partly without any pleading to support it. When an objection is raised to the improper acceptance or refusal of a vote, the facts giving rise to the alleged impropriety must be set out, and the opposite party must be afforded an opportunity to meet the case. Although the Act or any rule does not expressly require this, the Court considered that such a requirement is implicit in the pleadings required under sections 81 to 83 of the Act.

In construing section 100, the Court observed that any party who alleges an impropriety or error in the scrutiny performed by the Returning Officer must state the grounds of attack with particular specificity, whether the allegation concerns the receipt of ballots, their counting, or any other illegal act. In the present matter, the appellant, Jabar Singh, admitted in his written statement that he contested both the propriety of the reception of certain votes cast for Genda Lal and the alleged wrongful rejection of some of his own votes, but he did not identify every ballot on which he claimed impropriety. The Tribunal, as earlier noted, determined that ten ballot papers, whose numbers were specifically listed, should not have been counted in favour of Genda Lal; however, it is now accepted that no pleading was made concerning six of those ten papers, leaving only four ballots that could be regarded as improperly counted based on the pleadings on record. Likewise, the Tribunal held that twelve votes ought to have been counted for Jabar Singh, yet his written statement raised objections to only six of those votes, meaning that the Tribunal lacked jurisdiction to declare that more than six votes had been wrongly rejected. Consequently, when the votes for which no plea of impropriety was raised are excluded, the final scrutiny shows that Genda Lal correctly secured five thousand six hundred sixty valid votes, whereas Jabar Singh obtained five thousand six hundred fifty‑eight votes. Because the election result was materially affected by the improper reception or refusal of votes, the Court concluded that the election of Jabar Singh was rightfully set aside. Accordingly, the Court concurred with the order dismissing the appeal and entered an order that the appeal be dismissed.