1. Election petition challenging returned candidate's eligibility for holding office of profit under Art 191, Constitution — Dispute over declaring runner-up as duly elected under Section 101, Representation of the People Act. (Para 1 , 2 )
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1959 Supreme(SC) 172
SUPREME COURT OF INDIA
30th September, 1959
S.R. DAS, C.J.I. AND K. SUBBA RAO, J.
Keshav Lakshman Borkar, Appellant
Versus
Dr. Deorao Lakshman Anande, Respondent.
Civil Appeal No. 455 of 1958.
Advocates appeared
Mr. Naunit Lal, Advocate, for Appellant;
Advocates:
NAUNIT LAL
NAUNIT LAL
Under Section 101 of the Representation of the People Act, 1951, a candidate is declared duly elected only if they receive a majority of valid votes. Votes cast for a disqualified candidate remain "valid votes" if the nomination was initially accepted, unless voters knew of the disqualification.
Headnote:(A) Representation of the People Act, 1951 - Section 101 - Constitution of India - Article 191 - Election Petition - Disqualification of candidate - Office of profit - Declaration of another candidate as duly elected - Meaning of "valid votes" - If a candidate is validly nominated under Section 36(8) and the ballot papers are not rejected under Rule 58, the votes cast in favor of such candidate are "valid votes" even if the candidate is subsequently found to be disqualified - A candidate cannot be declared duly elected under Section 101(a) unless they received a majority of the valid votes - Votes cast for a disqualified candidate are not to be treated as "thrown away" votes in the absence of evidence that voters had knowledge of the disqualification. (Paras 3, 4, 5)
Facts of the case:
An election petition was filed challenging the election of the returned candidate on the ground that he held an office of profit and was thus disqualified under the Constitution. The Election Tribunal declared the election void and declared the petitioner as duly elected, as he was the only other contesting candidate. The High Court confirmed the voiding of the election but set aside the declaration that the petitioner was duly elected.
Findings of Court:
The court found that the returned candidate, having had his nomination accepted, was a validly nominated candidate for the purpose of receiving votes. Consequently, the votes cast in his favor were valid votes. Since the returned candidate received more votes than the petitioner, the petitioner did not receive a majority of the valid votes.
Issues: Whether a candidate who is the only other contesting candidate can be declared duly elected under Section 101 of the Representation of the People Act, 1951, when the returned candidate is disqualified, by treating the votes cast for the disqualified candidate as invalid or "thrown away."
Ratio Decidendi: Under Section 101(a) of the Representation of the People Act, 1951, a candidate can only be declared duly elected if they received a majority of the valid votes. A candidate whose nomination is accepted under Section 36(8) is a validly nominated candidate for the purpose of the election, and votes cast for such person are valid under Rule 58. Such votes are not "thrown away" unless it is proved that voters cast them with knowledge of the candidate's disqualification.
Result: Appeal dismissed.
Legal Category Hierarchy
Table of Contents
2. Whether votes cast for a candidate subsequently disqualified for holding an office of profit should be treated as invalid, thereby granting the runner-up a majority of valid votes. (Para 3 , 4 )
3. Acceptance of nomination by returning officer makes a candidate validly nominated for receiving votes; votes cast for disqualified candidates are not automatically treated as thrown away. (Para 4 , 5 )
4. Under Section 101, Representation of the People Act, votes cast for a disqualified candidate remain valid votes unless proven that voters cast them with knowledge of disqualification. (Para 5 )
5. Appeal dismissed; High Court order upholding the unseating of the returned candidate but refusing to declare the appellant as duly elected is affirmed. (Para 5 )
6. What constitutes a validly nominated candidate for the purpose of receiving votes?
A candidate whose nomination paper is accepted by the returning officer after scrutiny under Section 36(8) of the Representation of the People Act is considered a validly nominated candidate for the purpose of receiving votes. (Para 4 , 5 )
7. Are votes cast for a candidate later found disqualified for holding an office of profit considered valid votes?
Yes, such votes are deemed valid under Rule 58 unless it is specifically pleaded and proved that voters cast their votes with knowledge that the candidate was ineligible for election. (Para 4 , 5 )
8. Under Section 101 of the Representation of the People Act, how is the majority of valid votes determined when a returned candidate is unseated?
The petitioner must prove they received a majority of valid votes. Since votes cast for a disqualified candidate are still counted as valid, the runner-up does not automatically receive a majority. (Para 4 , 5 )
Judgment
S.R. DAS, CJI. : This appeal has been filed, on a certificate granted by the High Court of Bombay on January 14, 1958, under Art. 133 (1)(c) of the Constitution, challenging the correctness of that part of the judgment of the High Court, pronounced on November 14, 1957, which set aside the order of the Election Tribunal declaring the appellant to have been duly elected a member of the Legislative Assembly of the State of Bombay.
2. For the election to the Bombay Legislative Assembly from the Electoral Constituency No. 129 of Mazagaon in Greater Bombay held on March 11, 1957, there was originally four candidates for the unreserved seat. Out of them two had withdrawn before the polling, leaving the appellant and the respondent as the two contesting candidates. The result of the election was declared on March 12, 1957. The respondent having received 22,914 votes as against 14,885 votes secured by the appellant, the respondent was declared duly elected. On April 10, 1957, the appellant filed an Election Petition (No. 190 of 1957) alleging that as the respondent was, at all material times, an Insurance Medical Practitioner, Bombay under the Employees State Insurance Act, 1948, he was holding an office of profit under the Government of Bombay and as such was not, under Art. 191 of the Constitution of India, eligible for election. The appellant prayed for the setting aside of the election of the respondent, and also prayed that he, the appellant, be declared to have been duly elected to the Legislative Assembly from the said constituency. The Election Tribunal was constituted on June 28, 1957. The Tribunal by its order dated September 17, 1957, held that the respondent was holding an office of profit under the Government of Bombay and as such was disqualified under Art. 191(1)(a) of the Constitution and accordingly declared the election of the respondent to the Legislative Assembly of the State of Bombay from Constituency No. 129 Mazagaon void. The Tribunal further held that the appellant was duly elected to the State Legislative Assembly from the said Constituency. This conclusion of the Tribunal was thus expressed :
"Besides, as there was no other candidate contesting the said legislative Assembly seat, except the Petitioner who polled 14,885 votes at the said election, he alone remains and he is thus entitled to be declared as duly elected for the said seat of the Assembly of the State of Bombay from the Constituency in place of the Respondent, under S. 101 of the Representation of the People Act, 1951."
Being aggrieved by the order of theTtribunal, the respondent appealed to the High Court of Bombay. That appeal (No. 737 of 1957) was heard by a Division Bench and by the judgement and order pronounced on November 14, 1957,* the High Court, while confirming the order of the Tribunal in so far as it set aside the election of the respondent, set aside the remaining part of the order of the Tribunal which declared the appellant to have been duly elected a member of the State Legislative Assembly. The High Court, however, granted to the appellant, on January 14, 1958, a certificate under Art. 133(1)(c) of the Constitution that the case was a fit one for appeal to this Court. Hence the present appeal. The respondent has not filed an appeal against the judgment and order of the High Court in so far as it confirmed the order of the Tribunal setting aside his election. So the order for unseating the respondent has become final. Nor has the respondent entered appearance to this appeal and it accordingly has been heard ex parte.
3. The only point for our determination is whether the Election Tribunal was in error in declaring the present appellant to have been duly elected. The answer to this question depends upon a true construction of S. 101 of the Representation of the People Act, 1951 (hereinafter called the Act), which reads as follows :
" Section 101 . Grounds for which a candidate other than the returned candidate may be declared
