PRAKASH KHANDRE versus DR. VIJAY KUMAR KHANDRE AND ORS.

Citation: [2002] 3 S.C.R. 994 · Decided: 09-05-2002 · Supreme Court of India · Bench: M.B. SHAH · Disposal: Case Partly allowed

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Judgment (excerpt)

A 
PRAKASH KHANDRE 
v. 
DR. VUA Y KUMAR KHANDRE AND ORS. 
MAY 'l, 2002 
B 
[M.B. SHAH, BISHESHWAR PRASAD SINGH AND H.K. SEMA, JJ.] 
Representation of the People A ct, I 9 51: 
Section 9A (as substituted by Act 47of1966), Sections 53, 84, 100(/)(a), 
C 100(/)(d)(i), JOI and 123. 
D 
Election-MLA-One seat-More than two candidates-Elected 
candidate found disqualified subsequently-That by itself does not entitled the 
candidate who has secured next higher votes to be declared elected 
Election law-Disqualification-Ground-Subsisting contract on the 
' 
date of scrutiny of nomination paper-It is a question of fact to be determined 
from evidence on record--Correspondene between elected candidate r:ind 
Government as well as oral testimony disclosing that candidate terminated 
subsisting contracts and Department accepted it-Held, there was no subsisting 
E contract between candidate and Government-Consequently provisions of 
Section 9-A are inapplicable. 
In the election to a Constituency in Karnataka State Legislative 
Assembly appellant was declared elected. Respondent, a defeated 
candidate, filed an election petition praying that he may be declared as 
F duly elected on the ground that under Section 9-A of the Representation 
of the People Act, 1951 the appellant was disqualified to contest the election 
as there were subsisting contracts. entered into by him in the course of his 
business with the State Government. The connected petition has been filed 
by a voter for a declaration that election of appellant was void under 
G 
Se~tions tOO(l)(a) and lOO(l)(d)(i). Correspondence between appellant and 
State authorities revealed that appellant wrote to various authorities 
requesting them to terminate all existing contracts and issue a certificate 
to the effect that no relationship subsists between him and Government. 
Consequently, registration of appellant as contractor was cancelled and 
it was certified that there were no dues pertaining to any project to the 
H 
994 
-t--
,.... 
I ... 
PRAKASH KllANDRE v. YIJA Y KUMAR KHAN DRE 
995 
Government. All witnesses of the Department examined by the election- A 
petitioner deposed before the Court to the same effect. A fresh contract 
was also entered into with the brother of appellant. 
The High Court declared the election of the appellant void under 
Section I 00(1 )(a). It held that out of seven contracts between the appellant B 
and State six contracts "'ere tcrn1inatcd but \vork in one of the contracts 
\Vas continued to be carried out by appellant even after purported closure 
of contract. Further it also declared the respondent, who had secured the 
_ ~ 
next highest number of valid votes, as elected. 
In appeals to this Court, on the question: 
(i) 
In and election petition under the Representation of the People 
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 
c 
the Court can declare a candidate who has secured next D 
highest votes as elected? and 
(ii) whether any contract between the elected candidate and the 
Government was subsisting on the date of scrutiny of 
nomination paper. 
-
Allowing the appeal of the elected candidate and dismissing the E 
-
connected appeal, the Court 
HELD: I. 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 F 
and cannot be justified. 11009-A, Bi 
2. From a reading of sub-section (2) of Section 53 of the 
Representation of the People Act, 1951, 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, G 
meaning thereby it \vould be uncontested election. Further, if the number 
of contesting candidate is more than the number of seats to be filled, a 
poll is required to be taken. Finally, after taking poll if one candidates is 
declared elected and there are only two candidates who contested the 
election, and if it is found that elected candidate was dis-qualified for one H 
996 
SUPREME COURT REPORTS 
[2002] 3 S.C.R. 
A or other reason for being declared to be elected then his selection would 
be set aside and unsuccessful candidate, if otherwise eligible, could be 
declared as elected and that relief could be granted

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