KESHAV LAXMAN BORKAR versus DR. DEVRAO LAXMAN ANANDE

Citation: [1960] 1 S.C.R. 902 · Decided: 30-09-1959 · Supreme Court of India · Bench: SUDHI RANJAN DAS · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

r959 
Satyanarayan 
Laxminarayan 
Hegde 
v. 
Millikarjun 
Bhavanappa 
Tirumale 
DasGupla j. 
r959 
September ~o 
902 
SUPREME COURT REPORTS [1960(1)] 
to issue such a. writ. In our opinion the High Court 
was wrong in thinking that the alleged error in the 
judgment of the Bombay Revenue Tribunal, viz., that 
an order for possession should not be made unless a 
previous notice had been given was an error apparent 
on the face of the record so as to be capable of 
being corrected by a writ of certiorari. 
For the reasons stated above the judgment and 
order of the High Court cannot be sustained. We, 
therefore, allow the appeal and set aside the order of 
the High Court issuing a writ of certiorari, quashing 
the order of the Tribunal and restoring the order of 
the Mamla.tdar, and we restore the order of the Bom-
bay Revenue Tribunal. 
The appellant will get his costs here and in the 
High Court. 
Appeal allowed. 
KESHAV LAXMAN BORKAR 
v. 
DR. DEVRAO LAXMAN ANANDE 
(S. R. DAs,C.J., and K. SUBBA RAO, J.) 
Election Petition-Prayer for declaring election of the respon. 
dent void and appellant duly elected-Valid votes and thrown away 
votes--Representation of the People Act, r95r (43 of r95r), s. IOI, 
rr. 57, 58. 
The respondent who was at all material time holding a post 
of profit under the. Government was elected to the Bombay 
Legislative Assembly. The appellant filed an election petition 
wherein he in addition to calling in question the election of the 
respondent, asked for a declaration that he himself had been duly 
elected. The Tribunal set aside the election of the respondent 
and further declared the appellant to be duly elected for the 
reason that the respondent's election having been set aside the 
appellant alone was left in the field, and there was no other 
candidates contesting the seat and the appellant was entitled to 
be declared as duly elected under s. 101 of the Representation of 
the People Act as having received the majority of the valid votes. 
• 
On appeal by the respondent the Bombay High Court while 
confirming the order of the Tribunal, in so far as it set aside the 
election of the respondent it also set aside the order of the 
S.C.R. 
SUPREME COURT REPORTS 
903 
'I'ribunal declaring the appellant to be duly elected. The appel-
lant was granted certificate by the High Court to appeal. 
Point for determination was whether the Election Tribunal 
was in error in declaring the appellant to have been duly elected. 
The appellant contended that as the nomination paper ot the 
respondent had been wrongly accepted, the entire process of 
election from nomination to polling was bad, and the votes cast 
for a candidate who was not eligible, should be regarded as votes 
thrown away so that the appellant must be regarded as having 
received the majority of valid votes. 
Held, that the acceptance of a nomination paper after 
scrutiny by the Returning Officer as valid under s. 36(5) of the 
Act forms the basis of the election, and the candidate whose 
nomination paper has been accepted must be treated as a validly 
nominated candidate for whom votes could be given. 
Though the expression 'valid votes' has nowhere been defined 
in the Act, but in the light of provision of s. 36(8) of the Act 
with rule 58; framed under the Act, two things are clear (1) firstly 
that the candidates are validly nominated candidates whose 
nomination papers are after scrutiny accepted by the Returning 
Officer who has to affix the list of such candidates to his Notice 
Board, which is only for the purpose of giving notice to the-
public that the votes may be cast for such candidate, thus, such 
votes cannot be deemed to be the votes thrown away, (:ii) and 
secondly that the provision of s. 58 provide that the ballot papers 
which are not rejected under rule 57 are to be deemed to be 
" valid ballot papers " and are to be counted as valid votes. 
The question of throwing away the votes cannot arise in the 
absence of some special pleadings that particular voters had cast 
their votes with knowledge or notice that the candidate for whom 
they had voted was not eligible for election, and that con-
sequently they had deliberately thrown away their votes in 
favour of the disqualified persons. 
In view of the provisions of s. 101A of the Act, the onus of 
proving such a special case lay on the appellant, and this he 
failed to prove and he cannot be heard to say that he might have 
proved the same had the respondent raised an

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