2002 Supreme(SC) 618

2002(4) Supreme 30
SUPREME COURT OF INDIA
(From Karnataka High Court)
V.N. Khare and Ashok Bhan, JJ.
P. Kiran Kumar -Appellant
versus
A.S. Khadar & Ors. -Respondents
Civil Appeal Nos. 3285-3286 of 2002
(Arising out of SLP (C) Nos. 21414-15 of 2001)
Decided on 3-5-2002
Counsel for the Parties :
For the Appellant : S.R. Bhat, Naveen R. Nath, Ms. Lalit Mohini Bhat, Ms. Hetu Arora, Advocates.
For the Respondent : Pawan Kumar Bahl, M.M. Kashyap, K.L. Nandwani, Vipin Nandwani, Debasis Misra, Advocates.

IMPORTANT POINT
In view of the dismissal of the earlier appeal against ex-parte decree as barred by limitation, the application under Order IX Rule 13 CPC for setting aside an ex-parte decree/award was not maintainable in view of introduction of Explanation to Order IX Rule 13 CPC by 1976 amendment.

Headnote:(i) Representation of People Act, 1951—Sections 53, 84 and 101—Grounds for which a candidate other than the returned candidate may be de­clared to have been elected—Five candidates contested election—Appel­lant was declared elected—He secured 47132 votes—2nd No. was respon­dent 1, securing 36805 votes—Their margin of difference was 10327—But election of appellant declared void by High Court on election petition of respon­dent 1—On ground that appellant was dis­qualified to contest the election and also declared respondent 1, who has secured next higher vote, as elected u/s 101—Appeal to Supreme Court—Question: In an Election Petition under the R.P. Act, 1951, when contest for election to the post of MLA is by more than two candidates for one seat and a candidate, who was disqualified to contest the election, is elected—Whether the Court can declare a candidate who has secured next higher votes as elected? (No)—Statuto­ry Provisions and case law referred.

       Held : From a reading of sub-section (2) of Section 53, it is clear that if number of candidates is equal to number of seats to be filled, the returning officer has to declare all such candidates to be duly elect­ed to fill those seats, meaning thereby it would be uncontested elec­tion. Further, if the number of contesting candidates is more than the number of seats to be filled, a poll is required to be taken. Finally, after taking poll if one candidate is declared elected and there are only two candidates who contested for the election, and if it is found that elected candidate was disqualified for one or other reason for being declared to be elected then his election would be set aside and unsuccessful candidate, if otherwise eligible, could be declared as elected and that relief could be granted in view of Section 53 read with Section 84 of the Act. However, the question which requires consideration is—if there are more than two candidates for one seat and the elected candidate is subsequently found to be disqualified, whether the candidate who has secured more votes than remaining candidates should be declared as elected or not? For this, we would consider the ingredients of Section 101 which inter alia provide that after declaring election of returned candidate to be void, the High Court may declare the petitioner or such other candidate to have been duly elected if—

        (a) in fact the petitioner or such other candidate received a majority of valid votes; or

        (b) but for the votes obtained by the returned candidate by the corrupt practices, the petitioner or such other candidate would have obtained a majority of the valid votes.

       Therefore, the first ingredient for declaring the election-petitioner or other candidate to have been duly elected depends upon error for various reasons in counting of valid votes and if it is found that in fact the petitioner or such other candidate received a majority of valid votes, he is to be declared elected. Second ingredient provides for establishing that the votes ob­tained by the returned candidate were obtained by corrupt practices and but for such votes the petitioner or such other candidate would have obtained a majority of valid votes. Say as in the present case, the difference between the elected candidate and the election peti­tioner is of 10327 votes and if it is established that elected candi­date obtained more than 10327 votes by corrupt practices then peti­tioner or such other candidate who has obtained majority of valid votes could be declared as elected. However, in an election where elected candidate is declared to be disqualified to contest election and there are more than two candi­dates contesting election, there is no specific provision under the Act under which the person who has secured the next highest number of votes could be declared as elected. The Act is silent on this point. Further, it cannot be presumed that the votes secured by the disquali­fied elected candidates would have been wasted or would have been secured by the next candidate who has secured more votes. If disquali­fied candidate was not permitted to contest the election then how the voters would have voted in favour of the candidate who has secured more votes than other remaining candidates would be a question in the realm of speculation and unpredictability. In such a situation, de­claring the election of the returned candidate on the ground of his initial disqualification to contest the election by itself would not entitle the election petitioner or any other candidate to be declared elected. (Paras 10 to 14)

       Held subsequently : In view of the aforesaid settled legal position. In our view, the impugned order passed by the High Court declaring the election peti­tioner as elected on the ground that the votes cast in favour of elected candidate (appellant) are thrown away was totally erroneous and cannot be justified. As held by the Constitution Bench in Konap­pa’s case that some general rule of election law prevailing in the United Kingdom that the votes cast in favour of a person who is found disqualified for election may be regarded as ‘thrown away’ only if the voters had noticed before the poll the disqualification of the candi­date, has no application in our country and has only merit of antiqui­ty. We would observe that the question of sending such notice to all voters appears to us alien to the Act and the Rules. But that question is not required to be dealt with in this matter. As stated earlier, in the present case for one seat, there were five candidates and it would be impossible to predict or guess in whose favour the voters would have voted if they were aware that elected candidate was disqual­ified to contest election or if he was not permitted to contest the election by rejecting his nomination paper on the ground of disquali­fication to contest the election and what would have been voting pattern. Therefore, order passed by the High Court declaring the election petitioner - Dr. Vijay Kumar Khandre as elected requires to be set aside. (Para 23)

       (ii) Representation of People Act, 1951—Sections 9A and 100(1)(a)—Whether contract between the Govt. and the appellant was subsisting on the date of securing of nomination ­papers? —High Court holding that out of seven contracts, six were terminated by appel­lant but one relating to work of effective improvement and aphalting Halburga-Bawgi—Kamtana road was continued to be carried out by Prakash Khandre even after purported closure of contract which dis­qualified him from contesting election—Whether ­correct? (No)—C.A. Nos. 2-3 of 2002 allowed.

       Held : From the evidence and the correspondence produced between the appellant and the Department, it is crystal clear that the appellant terminated the subsisting contracts and the Department accepted it. Hence, contracts were brought to an end by the parties. Department also permitted the remaining works to be carried out by Mallikarjun Khandre. In this view of the matter, the finding given by the High Court that work of effective improvement and asphalting of Halburga-Bawgi Kamtana road continued and, therefore, contract was subsisting is erroneous. (Para 60)

       Held finally : From the aforesaid discussion, it is apparent that there was no contract subsisting between the appellant and the State Government so as to apply the provisions of Section 9-A of the Act and to hold that appellant was disqualified to contest the elections. As stated above, the order passed by the High Court declaring Dr. Vijaykumar Khandre-respondent No. 1 as elected is, on the face of it, illegal. (Para 74)

       Held consequently : In the result, Civil Appeal Nos. 2-3 of 2002 filed by Prakash Khandre are allowed, the impugned order passed by the High Court declaring election of Prakash Khandre, the returned candidate, as void and declaring Dr. Vijaykumar Khandre who had polled the next highest number of valid votes as elected from No. 2 Bhalki Legislative Assem­bly constituency to the Eleventh Karnataka Legislative Assembly is quashed and set aside. (Para 75)

       But held : In view of the order passed above, Civil Appeal No. 1455 of 2002 stands dismissed. There shall be no order as to costs. (Paras 76 & 77)