LexJABAR SINGH versus GENDA LAL
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1961 Dec1mber, 19 54 SUPREME COURT REPORTS [ HJ(>4) JABAR SINGH v. GENDA LAL (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ.) Representation of the People Act (43 of 1951), ss. 97, !OO(l)(d) and IOl(a) and Conduct of Election Rules, 1961 r. 57(1)-scope of. The appellant was tleclared elected having defeated the respondent y by 2 votes. Thereafter. the respondent filed an elect:Wn petition. The respondent challenged the validity of the appellant's election on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. His prayer was that the appel1ant's election should be declared void and a declaration should be made that the respondent was (iuly elected. The appellant urged before the Tribunal that there had been im~ proper rejection of his votes and improper acceptance of the votes of the respondent. and his case was that if recounting and re-scrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course; his case was that since the appellant had not recriminate'd nor furnished security under s. 97 of the Act, it was not open to him to make this plea. The Tribunal rejected the objection of the respondent and accepted the plea of the appellant. The Tribunal re-examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had not secured a majority of votes. The Tribunal declared that the election of the appellant was void an(l refused to grant a declaration to the respondent that he had been duly elected. Both the appellant and the respondent preferre<i appeals before the High Court against the decision of the Tribunal. The High Court t dismissed both the appeals and the decision of Tribunal was confirmea. Hence the appeal. Held: (i) The scope of the enquiry in a case falling under s. 100 ( I ) l d) (iii) is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been im- properly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in ~eciding whether the election of the returned candidate has been materially affected or· not. At this enquiry the onus is on the petitioner to prove his allegation. Therefore, in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the -J enquiry is clearly limited by the requirement of s. 100 (! )(d) itself. In fact, s. 97(1) bas no application to the case falling under s. IOO(l)(<l) (iii); the scope of the enquiry is limited for the simple reason that what • 6 S.C.R. SUPREME COURT REPORTS 55 the clause requires to be considered is whether the election of the return- ed candi'date has been materially affected and nothing else. (ii) There are cases in which the election petition makes a double claim; it claims that the election of a returned candidate is void and also asks for a declaration that the petitioner himself or some other person has bct!n duly elected. It is in regard to such a composite case that s. I 00 as well as s. 100( I) would apply. and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that s. 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his· case. The result of s. 97 ( 1) therefore, is that in dealing with a com- positP. P.lection petition the Tribunal enquires into not only the cruse made out by the petitioner, but also the counter-claim made by the returned candidate. In this conhection the returned candi(late is re- quired to comply with the provisions of s. 97 (I) an'd s. 97 (2) of the Act. If the returned candidate does not recriminate as required by ~. 97, then he cannot make any attack against the alternative claim made by the petitioner. In other words the returned candidate will not be allo\ve\.l to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. (iii) The pleas of the returned candidate under s. 97 of the Act, ~ have to be tried after a declaration has been made under s. 100 of
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