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PETITIONER: JABAR SINGH

       Vs.

RESPONDENT: GENDA LAL

DATE OF JUDGMENT: 20/12/1963

BENCH: GAJENDRAGADKAR, P.B. BENCH: GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. GUPTA, K.C. DAS AYYANGAR, N. RAJAGOPALA

CITATION:  1964 AIR 1200            1964 SCR  (6)  54  CITATOR INFO :  D          1968 SC 227  (6,7)  R          1972 SC 447  (12)  RF         1973 SC2077  (5,6,7,8)  E&R        1974 SC1032  (28)  R          1975 SC2182  (13)  D          1976 SC2184  (20)  R          1979 SC1617  (9)  F          1983 SC1311  (16,18)  D          1984 SC 304  (2)  F          1985 SC 150  (22,25,27,28,30,32,35)  O          1987 SC 831  (5,6,7,8,9,13,14)

ACT: Representation  of  the  People Act (43 of  1951),  ss.  97, 100(1)(d) and 101(a) and Conduct of Election Rules, 1961  r. 57(1)-scope of.

HEADNOTE: The  appellant  was ’declared elected  having  defeated  the respondent by 2 votes.  Thereafter, the respondent filed  an election  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 appellant’s election should be declared void and  a declaration  should  be made that the respondent  was  ’duly elected. The appellant urged before the Tribunal that there had  been improper  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  recriminated 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

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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  and refused to grant a declaration to  the  respondent that  he had been duly elected.  Both the appellant and  the respondent  preferred appeals before the High Court  against the decision of the Tribunal.  The High Court dismissed both the  appeals  and the decision of  Tribunal  was  confirmed. Hence the appeal. Held:  (i) The scope of the enquiry in a case falling  under s. 100 (1) (d) (iii) is to determine whether any votes  have been improperly cast in favour of the returned candidate  or any votes have been improperly refused or rejected in regard to  any  other-candidate.  These are the  only  two  matters which would be relevant in ’deciding 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  enquiry  is  clearly limited  by  the requirement of s. 100  (1)(d)  itself.   In fact, s. 97(1) has no application to the case falling  under s. 100(1)(d) (iii); the scope of the enquiry is limited  for the simple reason that what 55 the clause requires to be considered is whether the election of  the returned candidate has been materially affected  and nothing else. (ii) There are cases in which the erection 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  been  duly elected.   It is in regard to such a composite case that  s. 100  as well as s. 100(1) 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- posite election petition the Tribunal inquires into not only the  case made out by the petitioner, but also the  counter- claim  made by the returned candidate.  In  this  connection the  returned  candidate  is required  to  comply  with  the provisions  of  s. 97(1) and s. 97(2) of the  Act.   If  the returned  candidate does not recriminate as required  by  s. 97,  then he cannot make any attack against the  alternative claim  made by the petitioner.  In other words the  returned candidate  will not be allowed 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 the Act.  The  first   part  of  the  enquiry   in regard to the validity of the election  of   the    returned candidate must be tried within the narrow limits  prescribed by  s.  100(1)(d) (iii) and the latter part of  the  enquiry which  is governed by s. 101(a) will have to be tried  on  a broader  basis  permitting the returned  candidate  to  lead evidence in support of the pleas which he may have taken  by way of recrimination under s. 97(1).  But ,even in cases  to which  s.  97 applies, the enquiry necessary  while  dealing with  the dispute under s. 101(a) will not be wider  if  the returned candidate has failed to recriminate, and in a  case of  this type the duty of the Election Tribunal will not  be to count and scrutinise all the votes cast at the  election.

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As  a  result of r. 57, the Election Tribunal will  have  to assume  that every ballot paper which had not been  rejected under  r.  56 constituted one valid vote and it is  on  that basis  the  finding will have to be made  under  s.  101(a). Therefore,  it  is clear that in holding an  enquiry  either under s. 100(1)(d) (iii) or under s. 101 where s. 97 has not been  complied with it is not competent to the  Tribunal  to order a general recount of the votes preceded by a  scrutiny about their validity. Inayatullah  Khan v. Diwanchand Mahajan, 15 E.L.R.  219  and Lakshmi  Shankar Yadav v. Kunwar Sripal Singh, 22 E.L.R.  47 overruled. Bhim Sen v. Gopali and Ors. 22 E.L.R. 288, relied on. Vashist  Narain Sharma v. Dev Chandra, [1955] 1 S.C.R.  509, Hari  Vishnu Kamath v. Syed Ahmed Ishaque, [1955]  1  S.C.R. 1104 and 56 Keshav  Laxman Borkar v. Dr. Devrao Laxman Anande, [1960]  1 S.C.R. 902, ’discussed. Per  Ayyangar  J.-(i) Section 100 of the Act  casts  on  the election   petitioner  the  onus  of  establishing  to   the satisfaction  of  the  Tribunal  that  "the  result  of  the election  was materially affected by the improper  reception or rejection of particular votes", but from this it does not follow that the returned candidate is powerless to establish to the satisfaction of the Tribunal that notwithstanding the improper  reception  or rejection of  the  particular  votes alleged  by  the  petitioner  his  election  has  not   been materially  affected.  If the key words of the provision  on the fulfillment of which alone the Tribunal is invested with jurisdiction  to set aside an election are taken to  be  the words  "the  result  of the  election  has  been  materially affected";  it  is  not beyond the  power  of  the  returned candidate  to establish this fact which he might do  in  any manner  he likes.  The returned candidate might do  this  by establishing that though a few votes were wrongly counted as in  his favour, still a large number of his own  votes  were counted  in  favour of the petitioner or  that  votes  which ought  to  have  been counted as cast  for  him,  have  been improperly counted as cast in favour of defeated  candidates other than the petitioner.  Without such a scrutiny it would manifestly not be possible to determine whether the election of  the returned candidate has been materially  affected  or not.   There  is nothing in cl. (iii)  which  precludes  the returned candidates from establishing this.  As this  clause does  not speak of the person in whose favour or as  against whom  the improper reception or rejection has  taken  place, its content and significance have to be ascertained from the purpose  of  which  the  provision  is  intended  viz.,   to determine  from  a  counting of the voting  papers  after  a scrutiny whether the election of the returned candidate  has been materially affected.  The expression "any vote" in this clause  has  to  be read as meaning "any vote  cast  in  the election with which this petition is concerned" and not "any vote cast in the favour of the returned candidate". (ii) Section   101(a)  provides  that  there  cannot  be   a declaration  in  favour  of the claimant to  a  seat  merely because  the  election of the returned  candidate  has  been declared  void  but  he must in addition  have  secured  the majority  of the lawful votes cast.  It is obvious that  for this purpose the Tribunal ought to scrutinise not merely the ballot papers of the claimant and the returned candidate but also of the other candidates.  When the Tribunal has reached the  conclusion  after scrutiny of votes that  the  claimant has,  in  fact, received the majority of  valid  votes,  the

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Tribunal embarks on the further enquiry as to whether  there are any reasons why he should not be declared elected And it is  at this stage that the provisions of s. 97 in regard  to recrimination came into play.  If no recrimination is  filed then  on  the  terms  of s. 101(a)  the  claimant  would  be immediately  declared elected but if there is  recrimination the provision of s. 101(b) is attracted.  This  construction would harmonise the provision of ss. 97, 100(1)(d) and  101. and would lead to a rational result.                              57 (iii) Rule 57(1) means that so far as the returning  officer is concerned and for the purpose of enabling him to  declare the  result the ballot papers which are not rejected are  to be  deemed as valid.  It is manifest that if  that  validity held good even at the stage of the election petition and for the  conduct of the enquiry before the Tribunal  that  could really be no scrutiny of the ballot papers and s.  100(1)(d) (iii) would become meaningless.  The validity of the  Ballot Paper  can  be  challenged in Election  Petition  by  making proper  pleadings  and the Tribunal can declare  any  ballot paper  as improperly received.  Rule 57 does not  bear  upon the construction of s. 100(1)(d) (iii) or of s. 101(a).

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1042 of 1963. Appeal  by special leave from the judgment and  order  dated May  3,  1963,  of the Madhya Pradesh High  Court  in  First Appeal No. 46 of 1962. S.   K.  Kapur,  B.  L. Khanna and B.  N.  Kirpal,  for  the appellant. Homi  Daji, R. K. Garg, S. C. Agarwal, M. K. Ramamurthi  and D. P. Singh, for the respondent. December 20, 1963.  The Judgment of P. B. Gajendragadkar, A. K.  Sarkar,  K.  N. Wanchoo and K. C.  Das  Gupta,  JJ.  was delivered  by  Gajendragadkar J. N. Rajagopala  Ayyangar  J. delivered a separate opinion. GAJENDRAGADKAR J.-The question of law which this  appeal has raised  for  our decision is in relation to the  nature  and scope  of the enquiry contemplated by sections 97,  100  and 101  of  the Representation of People Act, 1951 (No.  43  of 1951)  (hereinafter  called the Act).  The  appellant  Jabar Singh and the respondent Genda Lal, besides five others, had contested  the  election to the Madhya Pradesh  Assembly  on behalf of the Morena Constituency No. 5. This election  took place  on  the  21st February, 1962.   In  due  course,  the scrutiny of recorded votes took place and counting  followed on  the 27th February, 1962.  As a result of  the  counting, the appellant was shown to have secured 5,671 votes, whereas the respondent 5,703 votes.  It is not necessary to refer to the votes secured by the other candidates.  After the result of the counting was thus ascertained, the appellant  applied for recounting of the votes and thereupon, 58 recounting  followed as a result of which the appellant  was declared elected having defeated the respondent by 2  votes. The recounting showed that the appellant secured 5,656 votes and the respondent 5,654.  Thereafter, the respondent  filed an  election petition from which the present appeal  arises. By  his 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.   The  respondent urged before the Tribunal either for the restoration of  the

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results  in accordance with the calculations initially  made before  recounting,  or a re-scrutiny of the  votes  by  the Tribunal  and  declaration of the result  according  to  the calculations  which the Tribunal may make.  His  prayer  was that the appellant’s election should be declared to be  void and  a  declaration should be made that the  respondent  was duly elected. The Election Tribunal found that 10 ballot papers in  favour of  the  respondent had been improperly rejected and  4  had been  improperly accepted in favour of the appellant.   That led  to  a difference of 12 votes and the  position  of  the votes was found to be the respondent 5,664 and the appellant 5,652 votes. At this stage, the appellant urged before the Tribunal  that there had been improper 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 recriminated under s. 97 of the  Act, it  was not open to him to make the plea that  a  recounting and  re-scrutiny should be made on the ground that  improper votes  had  been accepted in favour of  the  respondent  and valid votes had been improperly rejected when they were cast in favour of the appellant.  The respondent’s contention was that in order to justify the claim made by the appellant  it was  necessary  that  he  should  have  complied  with   the provisions of the proviso to s. 97(1) of the Act and  should have  furnished security as required by it.  The failure  of the appellant in that behalf precluded him from raising such a contention.                              59 The  Tribunal rejected the respondent’s contention and  held that  in order to consider the relief which  the  respondent had  cliamed in his election petition, it was necessary  for it  to decide whether the respondent had in fact received  a majority  of votes under s. 101 of the Act, and so,. he  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, in fact, not secured a  majority of votes.  As a consequence of  these  findings, the Tribunal declared that the election of the appellant was void  and refused to grant a declaration to  the  respondent that he had been duly elected. This decision led to two cross-appeals before the High Court of  Madhya  Pradesh,  No.  46 of 1952  and  No.  1  of  1963 respectively.   The appellant challenged the  conclusion  of the Tribunal that his election was void, whereas the respon- dent  disputed  the  correctness  of  the  decision  of  the Tribunal that no declaration could be granted in his  favour that  be had been duly elected.  In these appeals. the  main question which was agitated before the High Court was  about the  nature  and  scope of  the  enquiry  permissible  under sections  100  and  101 of the Act.  In  dealing  with  this question,  the High Court based itself upon its own  earlier decision  in  Inayatullah  Khan v.  Diwanchand  Mahajan  and Ors.(1)., as well as the decision of this Court in Bhim  Sen v.  Gopali and Ors. (2) and held that the grievance made  by both  the parties in their respective appeals was not  well- founded and that the decision of the Tribunal was right.  In the result, both the appeals were dismissed and the decision of  the Tribunal was confirmed.  Against this decision,  the appellant  has come to this Court by special  leave.   Later on, the respondent filed an application for leave to  appeal

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to  this  Court, but the said application was  filed  beyond time.  When the said application came on for hearing  before this  Court, the delay made by the respondent in  preferring his application for special leave was not condoned, and  so, the  decision of the High Court against the  respondent  has become final and is not (1) 15 E.L.R. 219. (2) 22 E.L.R. 288 60 longer  open to challenge in this Court.  When the  applica- tion  for  leave  filed  by the  appellant  was  argued  and admitted  by this Court, it was urged by Mr. Kapoor  on  his behalf that the observations made by this Court in the  case of Bhim Sen(1) on which the High Court substantially  relied required  reconsideration.  That is why the appeal has  been placed before a Bench of five Judges for final hearing. In dealing with the question raised by Mr. Kapoor before us, it is necessary to refer to the provisions of the Act in re- gard  to  the  presentation of election  petitions  and  the prayers  that the petitioners can make therein.  Section  81 provides  that an election petition calling in question  any election  on  one or more of the grounds specified  in  sub- section  (1)  of s. 100 and s. 101 may be presented  to  the Election  Commission by any candidate or any elector  within the  time specified by the said section.  It is  thus  clear that when a person presents an election petition, it is open to  him to challenge the election of the returned  candidate under  s. 100 (1) and claim a declaration that the  returned candidate’s  election is void.  He can also claim a  further declaration that he himself or any other candidate has  been duly  elected.   In other words, if  the  election  petition contents itself with claiming a simple declaration that  the election of the returned candidate should be declared to  be void,  the  petition  falls under s. 100  and  the  Election Tribunal can either grant the said declaration in which case the petition is allowed, or refuse to grant it in which case the  petition  is dismissed.  It is also possible  that  the election  petition may claim two reliefs, one under  s.  100 (1), and the other under s. 101.  In this category of cases, the  Tribunal first decides the question as to  whether  the election  of the returned candidate is valid or not, and  if it  is  found  that the said election is void,  it  makes  a declaration  to that effect and then deals with the  further question whether the petitioner himself or some other person can  be  said to have been duly elected.  The scope  of  the enquiry  which the Tribunal has to hold in such cases  would obviously  depend upon the nature of the reliefs claimed  by the petition. There is another fact which it is necessary to bear in  mind in dealing with the controversy before us in the present ap- (1)  22 E.L.R. 288. 61 peal.   When  elections are held, the  declarations  of  the results are governed by the statutory rules framed under the Act.   The counting of votes is dealt with in  the  relevant rules  under  Part V. Rule 55 deals with  the  scrutiny  and opening  of  ballot  boxes.  Rule 56(1)  requires  that  the ballot papers taken out of each ballot box shall be arranged in convenient bundles and scrutinised.  R. 5 6 (2)  provides when the returning officer has to reject a ballot paper; the grounds  for rejection are specified in clauses (a) to  (h). Rules  56(3),  (4)  and  (5)  prescribe  the  procedure  for rejecting  ballot papers.  When the ballot papers have  been taken  out  of the ballot boxes and have  been  scrutinised, counting  follows  and that is dealt with by r. 57  and  the

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following Rules.  R. 63 provides for recounting of votes; R. 63(1) lays down that after the counting has been  completed, the  returning officer shall record in the result  sheet  in Form  20 the total number of votes polled by each  candidate and  announce the same.  R. 63(2) permits an application  to be made for a recounting and if that application is allowed, a  recounting  follows.  If a recounting is made,  then  the result  is declared once again on the sheet in Form 20.   In pursuance of the result of counting thus announced, the  re- sult  of  the  election  is  declared  under  r.  64  and  a certificate   of  election  is  granted  to   the   returned candidate.   It is significant that r. 57(1)  provides  that every  ballot paper which is not rejected under r. 56  shall be  counted  as one valid vote, which means that  after  the ballot  papers have been scrutinised and invalid papers  are rejected  under r. 56(2), all voting papers which have  been taken  into the counting by the returning officer  shall  be deemed  to  be valid under r. 57(1).   Similarly,  when  the scrutiny  of the nomination papers is made by the  returning officer  under  s. 36 of the Act and as  a  result,  certain nomination  papers are accepted, s. 36(8) provides that  the said  acceptance  shall be presumed to be valid.   In  other words, when an election petition is filed before an Election Tribunal  challenging  the validity of the election  of  the returned candidate, prima facie the acceptance of nomination papers  is presumed to be valid and the voting papers  which have  been  counted  are also presumed  to  be  valid.   The election  petition may challenge the validity of  the  votes counted, or the validity of the acceptance or rejection of a nomination 62 paper;  that  is a matter of proof.  But the  enquiry  would commence  in  every  case with prima  facie  presumption  in favour  of  the validity of the acceptance or  rejection  of nomination  paper and of the validity of the  voting  papers which  have been counted.  It is necessary to bear  in  mind this aspect of the matter in dealing with the question about the  scope and nature of the enquiry under sections 100  and 101 of the Act. Let  us now read the three relevant sections with  which  we are concerned in the present appeal.  Section 97 provides :               "(1)   When   in  an   election   petition   a               declaration that any candidate other than  the               returned  candidate has been duly  elected  is               claimed,  the returned candidate or any  other               party  may  give evidence to  prove  that  the               election  of  such candidate would  have  been               void if he had been the returned candidate and               a  petition  had  been  presented  calling  in               question his election.               Provided  that the returned candidate or  such               other party as aforesaid shall not be entitled               to  give such evidence unless he  has,  within               fourteen days from the date of commencement of               the trial, given notice to the Tribunal of his               intention  to  do so and has  also  given  the               security and the further security referred  to               in sections 117 and 118 respectively.               (2)   Every notice referred to in  sub-section               (1) shall be               accompanied  by the statement and  particulars               required  by  section  83 in the  case  of  an               election  petition  and shall  be  signed  and               verified in like manner".               Section 100, sub-section (1) reads as under:-.

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             (1)   Subject to the provisions of  subsection               (2) if the Tribunal is of opinion-               (a)   that  on  the  date of  his  election  a               returned candidate, was not qualified, or  was               disqualified,  to be chosen to fill  the  seat               under the Constitution or this Act; or               63               (b)   that  any  corrupt  practice  has   been               committed  by  a  returned  candidate  or  his               election agent or by any other person with the               consent   of  a  returned  candidate  or   his               election agent; or               (c)   that any nomination has been  improperly               rejected; or               (d)   that  the result of the election, in  so               far  as it concerns a returned candidate,  has               been materially affected-               (i)   by   the  improper  acceptance  of   any               nomination, or               (ii)  by any corrupt practice committed in the               interests  of  the returned  candidate  by  an               agent other than his election agent, or               (iii) by  the improper reception,  refusal  or               rejection of any vote or the reception of  any               vote which is void; or               (iv)  by any noncompliance with the provisions               of  the Constitution or of this Act or of  any               rules or orders made under this Act,               the Tribunal shall declare the election of the               returned candidate to be void".               Section 101 provides that:               "If any person who has lodged a petition  has,               in   addition  to  calling  in  question   the               election of the returned candidate, claimed  a               declaration  that  he  himself  or  any  other               candidate  has  been  duly  elected  and   the               Tribunal is of opinion-               (a)   that  in  fact the petitioner.  or  such               other  candidate  received a majority  of  the               valid votes, or               (b)   that  but for the votes obtained by  the               returned  candidate by corrupt  practices  the               petitioner or such other candidate would  have               obtained a majority of the valid votes,               the   Tribunal  shall  after   declaring   the               election of the returned candidate to be  void               declare   the   petitioner   or   such   other               candidate,  as the case may be, to  have  been               duly elected". 64 Mr.  Kapoor contends that in dealing with the cases  falling under  s.  100  (1)  (d)  (iii),  section  97  can  have  no application  and so, the enquiry contemplated in  regard  to cases  falling  under that class is not  restricted  by  the prohibition  prescribed by s. 97(1).  He suggests that  when the  Tribunal  decides whether or not the  election  of  the returned  candidate  has  been materially  affected  by  the improper reception, refusal or rejection of any vote, or the reception  of any vote which is void, it has to examine  the validity  of all votes which have been counted in  declaring the returned candidate to be elected, and so, no  limitation can  be imposed upon the right of the appellant  to  require the  Tribunal  to consider his contention  that  some  votes which  were  rejected  though cast in his  favour  had  been improperly  rejected and some votes which were  accepted  in

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favour  of  the  respondent had  been  improperly  accepted. Basing himself on this position, Mr. Kapoor further contends that  when s. 101 requires that the Tribunal has to come  to the  conclusion  that in fact the petitioner or  such  other candidate  received a majority of the valid votes, that  can be  done  only  when a recount  is  made  after  eliminating invalid votes, and so, no limitations can be placed upon the scope  of the enquiry contemplated by s. 101 (a).  Since  s. 100(1)(d)(iii)  is  outside the purview of S. 97,  it  would make  no difference to the scope of the enquiry even if  the appellant has not recriminated as required by s. 97(1). On  the other hand, Mr. Garg who has addressed to us a  very able  argument on behalf of the respondent, urged  that  the approach  adopted  by  the appellant  in  dealing  with  the problem posed for our decision in the present appeal is  in- appropriate.   He contends that in construing  sections  97. 100  and 101, we must bear in mind one important  fact  that the returned candidate whose election is challenged can face the challenge under s. 100 only by making pleas which can be described  as  pleas  affording him  a  shield  of  defence, whereas  if  the election petition besides  challenging  the validity  of the returned candidate claims that  some  other person  has  been duly elected, the  returned  candidate  is given   an  opportunity  to  recriminate  and  by   way   of recrimination  he can adopt pleas which can be described  as weapons  of attack against the validity of the  election  of the other person. 65 His argument is that though s. 100(1)(d)(iii) is outside  s. 97. it does not mean that in dealing with a claim made by an election petition challenging the validity of his  election, a  returned  candidate can both defend the validity  of  his election and assail the validity of the votes cast in favour of the petitioner or some other person.  It is in the  light of  these two rival contentions that we must now proceed  to decide ’what the true legal position in the matter is. It  would  be  convenient if we take a  simple  case  of  an election petition where the petitioner makes only one  claim and  that is that the election of the returned candidate  is void.  This claim can be made under s. 100.  Section  100(1) (a),  (b) and (c) refer to three distinct grounds  on  which the  election of the returned candidate can  be  challenged. We are not concerned with any of these grounds.  In  dealing with  the challenge to the validity of the election  of  the returned  candidate under s. 100(1)(d), it would be  noticed that what the election petition has to prove is not only the existence  ,of one or the other of the -rounds specified  in clauses  (i)  to (iv) of s. 100(1)(d), but it  has  also  to establish  that  as a result of the existence  of  the  said ground, the result of the election in so far as it  concerns a  returned candidate has been materially affected.   It  is thus  obvious that what the Tribunal has to find is  whether or  not the election in so far as it concerns  the  returned candidate has been materially affected, and that means  that the only point which the Tribunal has to decide is: has  the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such  a case.   This  requirement  of s.  100  (1)  (d)  necessarily imports limitations on the scope of the enquiry.   Confining ourselves to clause (iii) of s. 100(1)(d), what the Tribunal has  to  consider  is whether there  has  been  an  improper reception of votes in favour of the returned candidate.   It may  also  enquire  whether  there has  been  a  refusal  or rejection  of any vote in regard to any other  candidate  or whether there has been a reception of any vote which is void

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and this can only be the reception of a void vote in  favour of the returned candidate.  In other words, the scope of the enquiry  in  a case failing under s.  100(1)(d)(iii)  is  to determine  whether  any votes have been improperly  cast  in favour  of  the returned candidate, or any votes  have  been improperly refused or re 134-159 S.C.-5. 66 sected in regard to any other candidate.  These are the only two matters which would be relevant in deciding whether  the election  of  the  returned candidate  has  been  materially affected  or  not.   At this enquiry, the  onus  is  on  the petitioner  to  show  that  by  reason  of  the  infirmities specified in s. 100(1)(d) (iii), the result of the  returned candidate’s election has been materially affected, and that, incidentally, helps to determined the scope of the  enquiry. Therefore,  it seems to us that it, the case of  a  petition where  the  only  claim made is that  the  election  of  the returned  candidate  is void, the scope of  the  enquiry  is clearly  limited by the requirement of s. 100(1)(d)  itself. The  enquiry is limited not because the  returned  candidate has  not recriminated under s. 97(1); in fact, s. 97(1)  has no application to the case falling under s.  100(1)(d)(iii); the,  scope of the enquiry is limited for the simple  reason that  what the clause requires to be considered  is  whether the  election of the returned candidate has been  materially affected and nothing else.  If the result of the enquiry  is in  favour of the petitioner who challenges the election  of the   returned  candidate,  the  Tribunal  has  to  make   a declaration  to that effect, and that declaration brings  to an end the proceedings in the election petition. There  are,  however, cases in which the  election  petition makes a double claim; it claims that the election of the re- turned  candidate is void, and also asks for  a  declaration that  the petitioner himself or some other person  has  been duly elected.  It is in regard to such a composite case that s. 100’ as well as s. 101 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 that  the other person in whose favour a declaration is claimed by the petition  cannot  be said to be validly elected,  and  these would  be  pleas  of  attack and it would  be  open  to  the returned  candidate  to take these pleas,  because  when  he recriminates,   he  really  becomes   a   counter-petitioner challenging the validity of the election of the  alternative candidate.   The  result of s. 97(1) therefore, is  that  in dealing  with  a composite election petition,  the  Tribunal enquires into not only the case made out by the  petitioner, but also the counter-claim made by the returned 67 candidate.   That being the nature of the  proceedings  con- templated  by  s.  97(1),  it is  not  surprising  that  the returned candidate is required to make his recrimination and serve  notice  in that behalf in the manner and  within  the time  specified by s. 97 (1) proviso and s. 97 (2).  If  the returned  candidate does not recriminate as required  by  s. 97,  then he cannot make any attack against the  alternative claim  made  by the petition.  In such a  case,  an  enquiry would  be  held under s. 100 so far as the validity  of  the returned  candidate’s  election is concerned, and  if  as  a result  of the said enquiry a declaration is made  that  the election  of  the  returned  candidate  is  void,  then  the Tribunal will proceed to deal with alternative claim, but in

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doing  so,  the returned candidate will not be  allowed  to, lead  any evidence because he is precluded from raising  any pleas  against the validity of the claim of the  alternative candidate. It is true that s. 101(a) requires the Tribunal to find that the  petitioner or such other candidate for the  declaration of whose election a prayer is made in the election  petition has  in fact received a majority of the valid votes.  It  is urged by Mr. Kapoor that the Tribunal cannot make a  finding that  the  alternative  candidate has  in  fact  received  a majority of the valid votes unless all the votes cast at the election are scrutinised and counted.  In our opinion,  this contention  is  not well-founded.  We have  already  noticed that as a result of rule 57, the Election Tribunal will have to  assume  that  every  ballot paper  which  had  not  been rejected under r. 56 constituted one valid vote and it is on that  basis that the finding will have to be made  under  s. 101(a).   Section 97(1) undoubtedly gives an opportunity  to the returned candidate to dispute the validity of any of the votes  cast  in favour of the alternative  candidate  or  to plead for the validity of any vote cast in his favour  which has   been  rejected;  but  if  by  his  failure   to   make recrimination within time as required by s. 97 the  returned candidate  is  precluded from raising any such plea  at  the hearing  of  the election petition, there would  be  nothing wrong  if  the Tribunal proceeds to deal  with  the  dispute under s. 101(a) on the basis that the other votes counted by the  returning  officer were valid votes and that  votes  in favour  of  the  returned  candidate,  if  any,  which  were rejected. 68 were invalid.  What we have said about the presumed validity of the votes in dealing with a petition under s. 101 (a)  is equally   true   in  dealing  with  the  matter   under   s. 100(1)(d)(iii)  We  are, therefore, satisfied that  even  in cases  to which s. 97 applies, the enquiry  necessary  while dealing  with the dispute under s. 101(a) will not be  wider if the returned candidate has failed to recriminate. If  the returned candidate has recriminated and  has  raised pleas  in  regard  to  the  votes  cast  in  favour  of  the alternative  candidate or his votes wrongly  rejected,  then those  pleas  may have to be tried after a  declaration  has been  made under s, 100 and the matter proceeds to be  tried under  s.  101(a).  In other words, the first  part  of  the enquiry  in  regard to the validity of the election  of  the returned  candidate must be tried within the  narrow  limits prescribed  by s. 100(1)(d)(iii) and the latter part of  the enquiry which is governed by s. 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken  by way  of  recrimination  under s. 97  (1).  If  Mr.  Kapoor’s construction  of s. 100 (1) (d) (iii) is accepted, it  would either  make  s.  97  otiose and  ineffective  or  make  the operation  of s. 101 read with s. 97 inconsistent  with  the operation  of  S.  100  (1) (d)  (iii).   We  are  therefore satisfied  that  the High Court was right in coming  to  the conclusion  that the Tribunal was in error in  holding  that "it was an authority charged with the duty of  investigating the  validity of votes for and against the  petitioning  and returned  candidate  or  for  a matter  of  that  any  other contesting candidate." It, however, appears that following its own earlier decision in Inayatullah Khan’s(1) case the High Court was disposed to take the view that the enquiry under s. 101(a) was wider and that in making its finding under the said provision, it  was

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open  to the Tribunal to scrutinise the votes and  determine whether  in  fact, the petitioner or some other  person  had received a majority of the valid votes.  As we have  already indicated,  this would be the position only if the  returned candidate had recriminated; in the absence of recrimination, it would not be open to the Election Tribunal (1)  15 E.L.R. 219. 69 to allow the returned candidate to challenge the validity of votes  cast  in  favour  of  the  petitioner  or  any  other candidate  in whose favour a declaration is claimed  by  the election  petition or to contend that any of his votes  were improperly rejected.  We ought to add that the view taken by the  Madhya  Pradesh High Court in the case  of  Inayatullah Khan(1)  in regard to the scope of the enquiry under s.  101 (a) does not correctly represent the true legal Position  in that  behalf.   Similarly, the view taken by  the  Allahabad Court  in Lakshmi Shankar Yadav v. Kunwar Sripal  Singh  and Ors. (2), cannot be said to interpret correctly the scope of the  enquiry either under s. 100 or s. 101.  The  conclusion which we have reached in the present appeal is substantially in  accord with the observations made by this Court  in  the case  of  Bhim Sen(3) though it appears that the  points  in question  were  not elaborately argued before the  Court  in that case. There is another point to which reference must be made.  Mr. Garg  contended that even if the view taken by the  Tribunal about  the scope of the enquiry under s. 100 (1)  (d)  (iii) and  s.  101  was right, the relief granted by  it  was  not justified by the pleadings of the appellant -in the  present proceeding  In support of this argument, he referred  us  to paragraph 4 of the Special Pleas filed by the appellant, and relied  on  the  fact  that at  the  initial  stage  of  the hearing,- the Tribunal had framed 18 issues including  issue No. 16 which consisted of three parts, viz.,-               (a)   Whether  any  votes cast  in  favour  of               respondent   No.  1  were   wrongly   rejected               specially   pertaining  to   polling   station               mentioned  in para 4 of the written  statement               under heading special pleas?               (b)   Whether many votes were wrongly accepted               in  favour of the petitioner  appertaining  to               the  polling stations mentioned in para  4  of               the special pleas in written statement?               (c)  What  is the effect of the above  in  the               case? (1)15 E.L.R.219. (3)  5 E.L.R. 219. E.L.R. 288. (2) 22 E.L.R. 47. 70 Later on, when the respondent contended that in the  absence of  any recrimination by the appellant these issues did  not arise on the pleadings, they were struck out, and yet in its judgment  the Tribunal has virtually tried these issues  and given relief on grounds which were not included even in  his written statement.  Since this appeal was admitted mainly on the   ground  that  the  appellant  wanted  this  Court   to reconsider  the observations made by it in the case of  Bhin Sen(1),  we  do  not propose to rest our  decision  on  this subsidiary point raised by Mr. Garg. It  now remains to refer to two decisions which  were  cited before  us during the course of the arguments.   In  Vashist Narain  Sharma v. Dev Chandra and Ors. (2), this  Court  has held that s. 100(1)(c), as it then stood, places a burden on the  objector to substantiate the objection that the  result

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of the election has been materially affected by the improper acceptance  or rejection of the nomination paper.   In  that connection,  this  Court observed that where the  margin  of votes  is  greater than the votes secured by  the  candidate whose  nomination  paper had been improperly  accepted,  the result is not only materially not affected but not  affected at  all;  but  where it is not possible  to  anticipate  the result, the petitioner must discharge the burden of  proving that fact and on his failure to do so, the election must  be allowed to stand. In  Hari Vishnu Kamath v. Syed Ahmed Ishaque and  others(1), adverting to the expression "the result of the election"  in s.  100(1)(c),  this  Court  stated  that  unless  there  is something   in   the   context   compelling   a    different interpretation, the said expression must be construed in the same sense as in section 66, and there it clearly means  the result  on the basis of the valid votes.  Basing himself  on this  observation,  Mr.  Kapoor has  urged  that  while  the Tribunal decides the question as to whether the election  of the returned candidate has been materially affected or  not, the  validity of the votes falls to be considered, and  that inevitably  enlarges  the scope of the enquiry.  We  do  not think  that the observation on which Mr. Kapoor  relies  was intended  to  lay down any such proposition.  All  that  the reference to s. 66 denotes is that (1)  22 E.L.R. 288. (3)  [1955] 1 S.C.R. 1104 at P 1131. (2) [1955] 1 S.C.R. 509. 71 after  considering  the pleas raised, the  Tribunal  has  to decide  whether the election of the returned  candidate  has been materially affected or not, and that only means that if any votes are shown to have been improperly accepted, or any votes are shown to have been improperly refused or rejected, the  Tribunal has to make calculations on the basis  of  its decisions on those points and nothing more.  It is necessary to recall that the votes which have not been rejected by the -returning officer under r. 56 have to be treated as  valid, unless  the  contrary is specifically  pleaded  and  proved. Therefore,  we do not think that Mr. Kapoor is justified  in contending  that  the observations in Hari  Vishnu  Kamath’s case   support   his  plea  that  the   enquiry   under   s. 100(1)(d)(iii) is wide enough to take in the scrutiny of the validity of all voting papers. In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande(1)  this Court has pointed out that the expression " valid votes" has nowhere  been defined in the Act, but in ,the light  of  the provision  of s. 3 6 (8 ) of the Act read with rule 58,  two things  are  clear, first that the  candidates  are  validly nominated candidates whose nomination papers are accepted by the  returning officer after scrutiny, and second  that  the provision of s. 58 provides that the ballot papers which are not  rejected  under r. 57 are deemed to  be  "valid  ballot papers" and are to be counted as such. It appears that the position under the English Law in regard to  the  recounting of votes in proceedings  under  election petitions is substantially similar.  As Halsbury points out: "where  a  petitioner claims the seat  for  an  unsuccessful candidate, alleging that he had a majority of lawful  votes, either  party must, six days before that appointed  for  the trial,  deliver to the master, and also at the  address,  if any,  given by the other side, a list of the votes  intended to be objected to and of the heads of the objection to  each of those votes(1)".  It further appears that no evidence may be given against the validity of any vote or under any  head

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not specified in the list, unless by leave of the Court upon such terms (1)  [1960] 1 S.C.R. 902. (2)  Halsbury’s Laws of England, p. 306 paras. 553 & 554. 72 as  to amendment of the list, postponement of  the  enquiry, and  payment of costs as may be ordered.  Where no  list  of the  votes, to which it is intended to take  objection,  has been  delivered within the time specified, the Court has  no power to  extend the time or to allow evidence of the  votes objected to or of the objections thereto to be given at  the trial.  Therefore, it seems clear that in holding an enquiry either under s. 100(1)(d)(iii) or under s. 101, where s.  97 has  not  been  complied with, it is not  competent  to  the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity. In the result, the appeal fails and is dismissed.  We  would like to add that though we have accepted the construction of s.  100(1)(d)(iii) and s. 101 for which Mr. Garg  contended, no  relief  can be granted to the  respondent,  because  his application for special leave to appeal against the decision of the High Court has been dismissed since he was unable  to make out a sufficient cause for condoning the delay made  by him   in   preferring   the  said   application.    In   the circumstances  of  this. case, we direct  that  the  parties should bear their own costs. We ought to mention that when this appeal was argued  before us  on the 4th December, 1963, we were told that them  fresh election  which  had been ordered to be held  in  accordance with  the decision of the High Court was fixed for  the  6th December,  1963;  and  so, after the  case  was  argued,  we announced  our decision and intimated to the  learned  Advo- cates  that our reasons will follow.  The  present  judgment gives the reasons for our decision. AYYANGAR  J.-While I agree that the appeal deserves,  to  be dismissed for reasons which I shall indicate later, I regret my inability to agree with the construction which my learned brethren  have  placed  on  s. 100  (1)  (d)  (iii)  of  the Representation of the People Act which for shortness I shall call the Act. on which in ultimate analysis the question  of law arising in the appeal turns. The  facts  of  the  case  which  have  given  rise  to  the proceeding as well as the points involved in the appeal have all been set out in detail in the judgment of Gajendragadkar J. and I consider it unnecessary to repeat 73 them.  I shall accordingly state only those facts which  are relevant  for  the purpose of: (1) the  construction  of  s. 100(1) (d) of the Act, and (2) the conclusion I have reached that the appeal should be dismissed. The appeal arises out of a contested election to the  Morena Constituency  of  the Madhya Pradesh  Legislative  Assembly. The polling for the election took place on February 21, 1962 and there were as many as seven candidates who  participated in  that poll.  The appeal is, however, concerned only  with two  of them-Genda Lal and Jabar Singh-the latter being  the returned  candidate  and is the appellant  before  us.   The voting  procedure  adopted  was that set  out  in  rule  39, Conduct  of  Election Rules, 1961, which I  shall  hereafter refer to as the Rules, under which the voter makes a mark on the  ballot  paper on or near the symbol of  the  contesting candidate to indicate his choice.  On the first count of the ballot papers the Returning Officer computed the valid votes obtained  by Genda Lal as 5,703 as against 5,671  which  had been  counted  in  favour  of  Jabar  Singh.   Jabar  Singh,

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however, immediately applied for a recount under rule 63  of the  ’Rules  on the ground that the  original  scrutiny  and counting  were  defective  and  this,  though  opposed,  was acceded  to  by  the Returning Office r who  carried  out  a recount.   I  might  mention in passing  that  the  Election Tribunal  has found discrepancies. even in the total of  the number of ballot papers in some of the polling stations, the figures  of  the total number of valid votes  in  6  polling stations  being  different from those found  in  the  result sheet  prepared under rule 57(2) in Form 20.   The  scrutiny and  recount  disclosed  that Genda Lal was  found  to  have polled 5,654 votes as against 5,656 votes counted as  having been  obtained by Jabar Singh.  As a result of this  recount Jabar Singh was declared elected, he having obtained 2 votes more than his rival-Genda Lal. Genda  Lal thereupon filed the election petition  which  has given  rise  to this appeal in which he sought to  have  the election of Jabar Singh declared void and also made a  claim to  the  seat.  The election was sought to be set  aside  on various grounds but we are concerned in this appeal 74 solely  with  one of the them viz., the correctness  of  the scrutiny and counting of votes at the recount vis-a-vis  the petitioner and the returned candidate.  Shortly stated,  the allegation in this respect in the election petition was that 49 valid votes cast in favour of the petitioner (who is  the respondent  before us) were improperly rejected and that  32 votes  were  improperly accepted in favour of  the  returned candidate  who is the appellant before us.  Needless to  add these  allegations  were denied by the  returned  candidate. Besides the denial, he also pleaded in his written statement that  many votes cast in favour of himself had been  wrongly rejected  in  regard to which details were  given  and  that similarly  several votes were wrongly accepted in favour  of the election-petitioner and in regard to which also  details were  given  and it ended with the prayer that if  a  proper scrutiny  and recount were made of the valid votes  received by each, it would be found that he ’the returned  candidate- had.  in  fact, obtained a larger number of votes  than  the election-petitioner  and for this reason he  submitted  that the  election petition ought to be dismissed.  Though  Genda Lal had by his election petition, besides seeking the relief of  having the appellant’s election declared  void,  claimed the  seat  for himself under s. 84 of the Act, none  of  the respondents  to  the petition including  the  appellant  had filed any recrimination in conformity with the provisions of s.  97 of the Act against the grant of such  further  relief and  it is the effect of this failure on the rights  of  the parties that forms the principal point for consideration  in the appeal. The Election Tribunal who inquired into the petition  framed the necessary issues arising out of these pleadings.   Issue 6(a) dealt with the allegation in the petition that 49 valid votes  cast  in  favour of Genda  Lal  had  been  improperly rejected.    After  examining  the  evidence   adduced   and considering the validity of those votes in regard to which a dispute  was  raised,  the Election  Tribunal  recorded  the finding that not 49 but only 10 votes of Genda Lal had  been improperly  rejected.   In  regard to the  question  of  the improper  acceptance  of 32 votes cast in  favour  of  Jabar ’Singh which was covered by issue 6(b), the Tribunal  found, again  after  going through the evidence in respect  of  the ’particular  votes  in dispute, that not 32 but only  4  had been 75

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improperly accepted.  The result of these findings on issues 6(a)  and  6(b)  was that the total number  of  valid  votes polled by Genda Lal became 5,664 as against 5,652 polled  by Jabar  Singh.   The  Tribunal  consequently  held  that  the ,election  of  Jabar Singh who had obtained  a  minority  of votes compared to Genda Lal must be declared void under s.   100(1)(d)(iii). So  far we are on non-controversial ground except this  that on  this state of the voting Genda Lal claimed that  he  was entitled  to the further relief that he be declared  elected having obtained the majority of lawful votes satisfying  the requirement of s. 101(a).  The Election Tribunal refused him that  relief for reasons which it is unnecessary to set  out ,or  discuss and that decision having been affirmed  by  the High  Court  in appeal and the special leave prayed  for  to appeal  from  that decision of the High  Court  having  been -dismissed  by  us, the possibility of the  disallowance  of this  additional  relief  does not  require  to  be  further noticed. The  question about the scope of s. 100(1)(d)(iii)  and  its relative  place in the scheme of ss. 97, 100 and 101 of  the Act arises out of the plea made by Jabar Singh that  without reference  to the irregularities in the counting of  the  49 and  the  32  votes alleged by Genda Lal and  which  he  had denied,  and which were the subject-matter of issues  6  (a) and 6 (b) to which I have already adverted, there were other irregularities  in  the  scrutiny  and  counting  which,  if examined,  would  establish  that  after  every  error   was eliminated,  he himself had obtained a majority  of  ’lawful votes.   The question of law that was debated before us  was whether  on the scheme of the Representation of  the  People Act, 1951, Jabar Singh was entitled to make such a plea  and claim to adduce proof in support thereof in order to sustain his  election without filing a recrimination under s. 97  of the  Act.  My learned brethren have held that he  could  not and  it is on that point that I do not find it  possible  to agree with them. The  correct  answer to this question would  depend.  it  is common ground, on a proper construction of  s.100(1)(d)(iii) read in conjunction with s. 101(a). and 76 this  I  shall first consider.  I shall next deal  with  the place and function of s. 97 in this context and its  bearing on  the  interpretation  of  the  provisions  on  which  the decision of this appeal turns. Though  there  have been a few decisions  bearing  upon  the question  of  law I have indicated, and they have  all  been referred  to by Gajendragadkar J. it is common  ground  that there  is  no binding decision of this  Court  touching  the matter,  though some observations in Bhim Sen v. Gopali  and Ors.(1)  would  appear to favour the construction  which  my learned brethren have adopted.  As, however, the appeal  was placed  before  this  Bench for the  consideration  of  this question and we have proceeded on the basis that the  matter is  res  integra I do not propose to refer to any  of  these decisions   but  shall  proceed  merely  to  interpret   the provisions  without advertence to the authorities  to  which our   attention  was  invited  during  the  course  of   the arguments.               Section 100(1) (d) reads:               "100.  Grounds  for declaring election  to  be               void-(1)  Subject  to the provisions  of  sub-               section   (2)   if   the   Tribunal   is    of               o               pinion........................................

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             (d)   that  the result of the election, in  so               far as it               concerns    a    returned    candidate,    has               been               materially affected-               (i)   by   the  improper  acceptance  of   any               nomination, or               (ii)  by any corrupt practice committed in the               interests  of  the returned  candidate  by  an               agent other than his election agent, or               (iii) by  the improper reception,  refusal  or               rejection of any vote or the reception of  any               vote which is void, or               (iv)  by    any   non-compliance   with    the               provisions of the Constitution or of this  Act               or of any rules or orders made under this Act,               the Tribunal               (1) 22 E.L.R. 288.               77               shall  declare  the election of  the  returned               candidate to be void." The short question arising for consideration in this  appeal may  be  stated  thus:  In the  context  of  the  provisions contained  in  s. 100(1)(d) which permits an election  of  a returned  candidate  to be set, aside only on proof  of  the "result" viz., the election of the returned candidate having been   "materially   affected"  by  the   improprieties   or illegalities referred to in the four clauses numbered (i) to (iv)  what  is  the import of the  words  "by  the  improper reception, refusal or rejection of any vote or the reception of  any  vote which is void".  For our  present  purposes  I might  omit  the  reference  to  the  latter  part  of  this provision  relating  to "the reception of a  vote  which  is void" and concentrate on the earlier part. It  is  manifest that the jurisdiction of  the  Tribunal  to declare  an election void arises only when it is of  opinion that  "the  result  of  the  election  has  been  materially affected"  by the defects or improprieties set out  in  cls. (i) to (iv), so that if notwithstanding that impropriety  or illegality  of  the types set out in the four  clauses,  the result  of  the  election is not  materially  affected,  the returned  candidate  is entitled to retain his  seat.   With this preliminary observation I shall proceed to consider the import  of  the relevant words."materially affected  by  the improper reception, refusal or rejection of any vote"  first in  a case where there is no complication arising  from  the petition  claiming  the seat in ’addition to the  relief  of having  the  election of the  returned  ,candidate  declared void.   The  argument strenuously pressed before us  by  Mr. Garg-learned  counsel  for  the  respondent  was,  that  the Tribunal  in considering whether the result of  an  election had   been   materially  affected,  was  confined   to   the consideration  of  any impropriety alleged  as  regards  the reception of the votes of the returned candidate as well  as improprieties  alleged by the petitioner in. the refusal  or rejection of votes stated to have been cast in favour of the petitioner  and the denials of these charges or  allegations by the returned candidate.  His further submission was  that the returned candidate could not sustain his seat by showing a similar improper reception of votes in favour of the 78 petitioner  or an improper refusal or rejection of  his  own votes.   In other words, the argument was that the  Tribunal dealing with a petition under s. 100(1)(d) bad  jurisdiction to proceed only on the allegations made in the petition  and

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that even where a case had been established for a  scrutiny, and  a recount is ordered, it would be so confined and  that its jurisdiction would not extend to cases of complaints  by the  returned  candidate.  It is this argument that  I  feel unable to accept. When  an  election  petition is  filed  complaining  of  the improper  reception or rejection of votes and praying for  a scrutiny of the ballot papers for the purpose of determining whether  the  votes  have  been  properly  counted  by   the Returning  Officer, the Tribunal would doubtless have to  be satisfied  that  a case is made out for scrutiny and  a  re- count, for it is settled law that the petitioner is not as a matter of right entitled to have such a scrutiny and recount merely  because  he  prays for such a  relief,  but  has  to allege, make out and prove the specific grounds to establish that  the  scrutiny or counting was improper  and  that  the return,  was in consequence erroneous.  If one reaches  that stage and the Tribunal is satisfied that a case for scrutiny and  recount  is made out it would mean that  the  Returning Officer had not discharged his duties properly in the matter of the scrutiny of the ballot papers and their counting.  If in such circumstances the respondent (the returned candidate )  also  makes allegations of the same  type  regarding  the scrutiny  and the counting I consider it would be unjust  to deprive  him of the opportunity of proving  his  allegations and thus maintain his seat, unless of course, the  statutory provision  clearly precludes him from doing so.   In  saying this  I am not suggesting that the respondent need  make  no averment  in  his  pleadings  making  definite   allegations regarding  the particular votes regarding which  he  desires scrutiny and which he says have been wrongly counted  either for or against him.  Let us take a case where the allegation of the petitioner is that there has been a miscount i.e.,  a wrong  counting of the votes of the returned  candidate  and nothing  more.   Let  us suppose that A  has  been  declared elected  as having secured, say 200 votes as against  B  who has secured 190.  If B in his election petition says that                              79 A’s  votes  have been wrongly counted as  200,  whereas,  in fact, if they were recounted they would only be 180 and  the Tribunal  on a recount finds the allegation in the  petition made  out and that the returned candidate had obtained  only 180  votes the acceptance of Mr. Garg’s argument would  mean that  the  election  of A would have to be  set  aside  not- withstanding  that there has been a similar mistake  in  the counting  of  B’s votes and if these were  properly  counted they might not amount to more than 170.  Mr. Garg  submitted that  though if B claimed the seat there would have to be  a recount  of the votes of both the candidates and this  also, only  in the event of a recrimination being filed  under  s. 97,  still  if  no seat was claimed  the  election  ’of  the returned  candidate would be set aside and that  the  latter had no means whereby he could maintain his election notwith- standing that as a fact he had obtained a majority of lawful votes. It  is urged that this result flowed from the opening  words of s. 100(1)(d) which speaks of "the result of the election" being materially affected "so far as it concerns a  returned candidate".   I  do not find it possible to agree  with  the construction or reasoning on which the submission is  based. There  is, no doubt, that an election petition is  primarily concerned with the validity of the election of the  returned candidate.  It cannot also be disputed that the election  of the  returned  candidate cannot be  declared  void,  unless, confining oneself to the impropriety or illegality  involved

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in the reception or refusal of votes, the returned candidate is  proved  to  have  obtained  a  minority  of  votes,  for otherwise  whatever  be  the impropriety or  its  degree  or extensiveness,  the  result  of the election  would  not  be materially  affected.  It is common ground and  beyond  con- troversy  that the election petitioner is not restricted  as regards  the manner or details of the improper reception  or refusal of votes which he could allege and prove which would achieve  that result.  If so much is conceded and is  common ground,  I do not see any force in the contention  that  the returned candidate is confined merely to disproving what  is alleged to dislodge him from his seat and is for bidden from proving that votes which under the law had to 80 be counted in his favour, have been wrongly omitted to be so counted.   The  words in cl. (iii) do not  impose  any  such restriction,  for they speak of the "improper  reception  or refusal of any vote", and as the inquiry under s.  100(1)(d) is  for ascertaining whether the result of the election  has been  materially affected which in the context of cl.  (iii) obviously means "the returned candidate has been proved  not to have obtained, in fact, a majority of valid votes", there appears to me no scope for the argument pressed before us by Mr. Garg. On an analysis of the situation the position would appear to be  this.   Let  us  for instance  assume  that  the  voting procedure adopted in an election was that prescribed in rule 59  i.e., by placing the ballot papers in the  ballot  boxes set  apart  for the different  contesting  candidates.   The returning officer counts the valid votes cast in the several boxes and declares A elected as having secured 200 votes  as against  B  whose votes are counted as 198.  If  B  files  a petition  and alleges that the counting was irregular,  that the totals of the ballot papers in the result sheet are  not properly computed, and that as a matter of fact A’s  papers, if  counted,  would be 196, Mr. Garg’s  submission  is  that though the discrepancy disclosed in the totals is  consider- able,  A cannot prove that there has been a  miscounting  of B’s  votes  also, and that though if  properly  counted  his total is only 190,, still A’s election should be set  aside. It  is  said that the position would be  different  and  the anomaly  would  be  overcome in  cases  where  the  election petitioner, besides claiming a declaration that the election of  the  returned candidate is void, also  seeks  a  further declaration that he should be declared duly elected and  the returned  candidate  files a recrimination  against  such  a prayer  and  challenges  the  right  to  have  the   further declaration.   This, however, obviously furnishes no  answer for more than one reason.  It is the submission of Mr. Garg, and  that  is the whole basis upon  which  the  construction which he desires us to adopt of s. 100 (1) (d) (iii)  turns, that  the question raised by the recrimination  arises  only after  the  election of the returned candidate  is  declared void.   Therefore  we  would have  the  anomalous  situation wherein  the election of the returned candiate  is  declared void by reason of his 81 not  obtaining  the majority of valid votes so  far  as  the decision under s. 100(1)(d) is concerned and then after  the matter   ,set  out  in  the  claim  to  the  seat  and   the recrimination  is  inquired into and  decided  the  election tribunal holds that the returned candidate had a majority of lawful  votes but that this affected only the right  of  the defeated  candidate to claim the seat.  In my  judgment  the provisions  of  s. 100 read with s. 101 do  not  contemplate

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this  position  of a candidate’s election  being  set  aside because he did not get a majority of lawful votes but in the same  proceedings and -as part of the same inquiry he  being held  to  have  obtained  a majority  of  lawful  votes.   A construction  of  s. 100 (1) (d) which would  lead  to  this result must, in my opinion, be -rejected as unsound. The  apart, there is the further circumstance  arising  from ’the fact that according to Mr. Garg the enquiry in  respect of a recrimination and its defence is identical with what he says  is the scope of a petition and its defence.  This,  of course,  is  logical, but it suffers from the  same  anomaly which  I have pointed out as resulting from  the  acceptance ,of  the primary argument regarding the construction  of  s. 100(1)(d)(iii).    Applying  what  I  have   shown   already regarding  a case where there was no claim to a seat  in  an election petition in which the election of a returned candi- date  has to be declared void, notwithstanding that he  had, in  fact, obtained a majority of valid votes, because he  is precluded from proving this fact, similarly in cases where a seat is claimed, the petitioner so claiming would have to be declared elected, notwithstanding that as a fact he has  not obtained the majority of lawful votes, but that the returned candidate  has obtained such a majority, because the  latter is  precluded  from proving it.  If one took  a  case  where there  were  more candidates than two, the  anomaly  I  have indicated  would  be seen clearly.  If B  files  a  petition against  A  the  returned candidate claiming  the  seat  and impleads as he must C & D who are the other contestants, ’no proof  could be led by A to show that some of his own  votes have been counted for C or D, though B would be entitled  to prove  that  some  of C’s or D’s  votes  have  been  wrongly counted as cast in favour of A. In such a case 134-159 S.C.-6. 82 it  is obvious that B gains no advantage  by  recriminating, because  recrimination under s. 97 could only be  against  A and not against the other contesting candidates impleaded as respondents.   The result, therefore, would be that  though, in fact, A has obtained the majority of lawful votes, B, the petitioner,  will  be declared elected-recrimination  or  no recrimination.  I cannot accept the position that either  s. 100(1)(d)(iii) or s. 101(a) contemplate this result which is at  once  so  unjust and anomalous and  appears  to  me.  to contradict  the  basic principles  underlying  election  law viz.,   (1)  that  apart  from   disqualification,   corrupt practices etc., the election of a candidate who obtains  the majority  of valid votes shall not be set aside, and (2)  no candidates  shall  be  declared duly  elected  who  has  not obtained the majority of valid votes. I  would  add that the entire argument proceeds  on  a  mis- conception of the procedure involved in a scrutiny.  I  will take  the case where the voting takes place, as in the  case of the election before us, in accordance with the provisions of  rule 39.  Then conformably to Rule 57(3) all the  ballot papers  which  have been held to be valid  in  each  polling station are bundled up and sealed by the Returning  Officer, and similarly all the rejected ones of each station are made into another bundle.  At the scrutiny by the Tribunal  these two  sets  of bundles are examined to find out  whether  the votes  cast in favour of each of the  contesting  candidates have  been  properly counted or not.  How this can  be  done compartmentally, as those cast for A or B or C separately as is  suggested  by Mr. Garg, I am unable to follow.   If  the votes  cast  in  favour of each  candidate  were  made  into separate bundles, then at least, there might be scope for an

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argument  that the bundle of A or B shall not be opened  up, but  when  all the voting papers have to be  scrutinised  in order  to  find out (a) whether the returned  candidate  has really  been  proved to have received a  minority  of  valid votes  and (b) whether the candidate claiming the  seat  has obtained a majority of valid votes, this cannot obviously be done  without an examination of the ballot papers  to  which objection is taken and which are contained in the two  types of bundles into which these are made up under rule 57(3). 83 Support was sought by Mr. Garg for the construction that  he sought  to press upon us by reference to the  provisions  in the other sub-clauses of s. 100 (1) (d).  His point was that if  the  returned  candidate  could  not  put  forward   the objections     contained  in  those  clauses  the   returned candidate could     not likewise allege improprieties in the reception of the    votes  of any other candidate  including the  petitioner.  I am wholly unimpressed by  this  argument which  does  not take into account both the  nature  of  the objections  in these other clauses as well as their  bearing on  the  question  whether  the  election  of  the  returned candidate  has been materially affected, which is the  prime question  for  consideration  in  the  provision  and  which furnishes  the key to the interpretation of  the  sub-clause now  under  consideration.  Let me take each  of  the  cases provided  by the other sub-clauses.  Sub-cl. (i) deals  with the  improper  acceptance of a nomination.  It  is  -obvious that  allegations  and  proof  by  the  returned   candidate regarding  the  improper acceptance of a  nomination  cannot serve  to sustain his election.  A fortiori so, clause  (ii) which reads               "(ii) by any corrupt practice committed in the               interests  of  the returned  candidate  by  an               agent other than his election agent, or" could  have no meaning in the present -context nor cl.  (iv) unless the non-compliance has a bearing on the reception  of votes in which case it would be wholly covered by cl. (iii). In the case of cls. (i), (ii) and (iv) it is obvious, having regard  to  the  very nature of  the  provisions,  that  the returned candidate can do no more than prove (a) that  there was no such impropriety or illegality as is alleged, and (b) that even if there was, the same had not affected the result of  his  election; in other words, that the  impropriety  or illegality,  if  any,  was inconsequential  so  far  as  his election was concerned.  But this would not be the  position in  regard to the improper reception or rejection of  votes. There  we  have  two factors: (1)  the  impropriety  of  the reception or rejection, and (2) whether as a result of  such improper  reception or rejection the result  was  materially affected.   In  the  case  contemplated  by  cl.  (iii)  the question  whether the result was materially affected or  not could not, when 84 the  facts are ascertained, be a matter of doubt or  dispute but  would  be one merely of  arithmetical  calculation  and comparison.   No  doubt,  s. 100 of the  Act  casts  on  the election   petitioner  the  onus  of  establishing  to   the satisfaction  of  the  Tribunal  that  "the  result  of  the election  was materially affected" by the impropriety  etc., and  taking  the  case of cl. (iii)  in  hand,  of  improper reception or rejection of particular votes, but from this it does not follow that the returned candidate is powerless  to establish   to  the  satisfaction  of  the   Tribunal   that notwithstanding  the improper reception or rejection of  the particular votes alleged by the petitioner his election  has

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not been materially affected.  The argument of Mr. Garg,  if accepted, would mean that the returned candidate can  merely combat  the  case alleged against him and is  disabled  from establishing positively that the result of the election  has not  been  materially  affected.  If the key  words  of  the provision  on the fulfilment of which alone the Tribunal  is invested  with  jurisdiction to set aside  an  election  are taken  to be the words "The result of the election has  been materially affected." I do not consider that it is  possible to  contend  that  it is beyond the power  of  the  returned candidate  to establish this fact which he might do  in  any manner  he  likes.  He might do this  by  establishing  that though  a few votes were wrongly counted as in  his  favour, still  a  larger  number of his own votes  were  counted  in favour  of the petitioner or that votes which ought to  have been  counted as cast for him, have-been improperly  counted as  cast  in favour of defeated candidates  other  than  the petitioner.  Without such a scrutiny it would manifestly not be  possible  to  determine  whether  the  election  of  the returned candidate has been materially affected or not.  Nor do  I  see  anything  in the language  of  cl.  (iii)  which precludes  the  returned candidate from  establishing  this. This  clause employs the words "improper reception,  refusal or  rejection of any vote" to confine oneself to  its  first part.  No doubt, when a petitioner complains of a rejection, he obviously means an improper rejection of votes in his own favour and when he speaks of an improper reception he  means also  obviously an improper reception of votes in favour  of the  returned candidate.  But from this it does  not  follow that  there might not be an improper reception of  votes  in favour 85 of the election petitioner or of another candidate or of  an improper  rejection of votes of the returned  candidate  the clause  does not speak of the person in whose favour  or  as against  whom the improper reception or rejection has  taken place,  its content and significance have to be  ascertained from  the purpose for which the provision is intended  viz., to  determine from a counting of the voting papers  after  a scrutiny whether the election of the returned candidate  has been materially affected.  For instance, let me take a  case within  s.  100(1)(d)(i) where there has  been  an  improper acceptance  of  any nomination.  The question arises  as  to whether  the  election of the returned  candidate  has  been materially affected by that improper acceptance.  Obviously, a  nomination  which  is alleged  to  have  been  improperly accepted and which is the subject of the charge under  s.100 (1)  (d) (i) is not the acceptance of the nomination  either of  the  election petitioner where he has been  one  of  the candidates  or of the returned candidate but only of one  of the  other  defeated  candidates.   If  after  inquiry   the nomination is found to have been improperly accepted and the Tribunal  proceeds  to  inquire  as to  its  effect  on  the election,  I take it, it would necessarily have to  consider the votes received by that candidate.  If this is not to  be done it would either mean that in every case-of an  improper acceptance  of a nomination the election is to  be  declared void  or  that in no case can such a  declaration  be  made. Now,  if  the votes cast in favour of that  candidate  whose nomination  was  improperly  accepted have  to  be  counted, necessarily  there  has to be a scrutiny  and  the  Tribunal would  have  to inquire and ascertain the  number  of  valid votes cast for that candidate in order to determine  whether the improper reception of votes in favour of that  candidate has materially affected the result of the election i.e., has

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resulted in the election of the returned candidate.  In that context the scrutiny of the improper reception of the  votes in  favour  of such candidate would obviously have  to  take place and that could be done only by virtue of the provision in s. 100 (1) (d) (iii).  This would at least show that  the expression  of  "any vote" in the clause has to be  read  as meaning  ’any  vote  cast in the  election  with  which  the petition  is concerned’ and not ’any vote cast in favour  of the returned 86 candidate’, to take the illustration merely of the  improper reception of a vote. The  construction which I have placed on s. 100(1)(d)  (iii) would harmonise the provision contained in the opening words of  s.  100  (1) (d) and s. 101 (a).   I  cannot  reasonably conceive of the law providing (unless of course the language employed leaves me no alternative) for the setting aside  of an  election of the returned candidate because the  Tribunal finds  that he did not receive the highest number  of  valid votes  cast  at the election; but that after this  stage  is over and the Tribunal proceeds to consider whether the claim to the seat is made out or not its reaching the finding that such a petitioner is not entitled to that relief because  on further  scrutiny,  the  returned candidate  had,  in  fact, secured  the highest number of votes.  Mr. Garg,  no  doubt, contemplated this anomaly with equanimity suggesting that it was  due not to any anomaly at all but a  situation  arising merely from the application of different tests or being  the result of inquiries directed to different ends at  different stages  of  the petition.  It is this that I  am  unable  to reconcile myself to.  The language used in s. 101 (a) is, no doubt,  "in fact received the majority of the valid  votes". I  do not, however, consider that the use of the  words  ’in fact’ involves scrutiny of a type different from that  which the Tribunal conducts for ascertaining whether by reason  of the improper reception or rejection of votes the election of a  returned candidate has been materially affected so as  to justify  its being set aside.  The inquiries are  identical. If  every  vote  which  has  been  improperly  received   is eliminated and every vote which has been improperly  refused or rejected is added you get the totality of the valid votes cast  in  favour  of a candidate.   That  is  precisely  the inquiry  which  is  prescribed  to  be  conducted  under  s. 100(1)(d) read with cl. (iii).  The words ’in fact’ used  in s.  101 (a) to my mind do not add any new element as regards either  the  scrutiny  or  the  counting.   If  so,  on  the construction  which I have endeavored to explain, when  once it is ascertained that the returned candidate has obtained a majority of valid votes there is no question of his election having  to be set aside.  But it might be shown that he  had not obtained the 87 majority  of  valid votes. in other words, by  the  scrutiny that  has taken place in order to test the validity  of  his election  the  Tribunal might have arrived at  a  conclusion that  he  had  not received the  majority  of  valid  votes. Immediately  that  stage is reached and that  conclusion  is arrived  at  the Tribunal proceeds to declare  the  election void.  If there, is no claim to a seat there is nothing more to be done, with the result that it stops with declaring the election  void in which event there would be a  re-election. If, however, the seat is claimed by a defeated candidate  or on  his behalf there has to be a further inquiry  which  the Tribunal  is  called upon to conduct.  For  the  purpose  of declaring the election void the Tribunal would have  arrived

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at  the figures, ,of the valid votes cast in favour  of  the several  candidates.   It might be that the  petitioner  who made  the claim to the. -seat or the person on whose  behalf that  is made might not have obtained the highest number  of valid  votes in which ,case, of course, a claim to the  seat would be rejected.  It is this situation which is  indicated by   s.  101(a).   It  provides  that  there  cannot  be   a declaration  in  favour  of the claimant to  a  seat  merely because  the  election of the returned  candidate  has  been declared  void  but  he must in addition  have  secured  the majority  of the lawful votes cast.  A question might  arise as  to how this total is to be ascertained.  It  is  obvious that  for this purpose the Tribunal ought to scrutinise  not merely  the ballot papers of the claimant and  the  returned candidate  but  also  of the other  candidates.   Thus,  for instance,  taking the case only of the petitioner who  is  a claimant,  among  the votes counted in his favour  might  be some  which were really votes east in favour of  a  defeated candidate  and similarly votes properly cast for  him  might have  been  improperly  counted as the votes  of  the  other defeated  candidates.  Undoubtedly the irregularities  would have to be pleaded, but I am now concerned with whether even if pleaded, the Tribunal would on a proper interpretation of ss. 100 and 101 have jurisdiction to entertain the pleas and embark  on such a scrutiny.  Proceeding then on the  footing that the necessary averments have been made in the pleadings filed there would have to be a scrutiny of the ballot papers before it can be ascertained whether or not the, person  who or on whose behalf the seat is claimed has obtain- 88 ed  a majority of valid votes in order to sustain the  claim to.  the seat.  After this stage is passed and the  Tribunal has  reached the conclusion that the claimant has, in  fact, received  the  majority  of valid votes  that  the  Tribunal embarks  on the further inquiry as to whether there are  any reasons why he should not be declared elected.  And it is at this  stage  that  the  provisions of s.  97  in  regard  to recrimination come into play.  If no recrimination is  filed then  on  the  terms, of s. 101(a)  the  claimant  would  be immediately declared elected but if there is a recrimination then  s. 101(b) is attracted and the Tribunal would have  to inquire  whether if the claimant were a  returned  candidate there  are  circumstances  in which his  election  could  be declared void.  This, would indicate that the  recrimination is  concerned with a stage which emerges after the  scrutiny is  completed and assumes that the scrutiny has resulted  in the  claimant being found to have obtained the  majority  of valid   votes.   This  construction  would   harmonise   the provisions of ss. 97, 100 (1(d)    and 101 and would lead to a rational result. This brings me to a submission based upon rule 5 7 (1) to which reference was made by Mr. Garg.  He referred us to the words of that rule reading:               "Every  ballot  paper which  is  not  rejected               under  Rule 56 shall be counted as  one  valid               vote" as  throwing some light on the construction of s.  100(1)(d) (iii)  and as favouring the intrepretation which he  invited us to put upon the provision.  I consider that the rule  has no  bearing at all upon the point now in controversy.   Rule 57  occurs  in Part V of the Rules beginning  with  rule  50 which  is  headed ’Counting of votes  in  Parliamentary  and Assembly Constituencies.’ Rule 55 prescribes the scrutiny at the  time  of the opening of the ballot boxes  and  rule  56 with-the scrutiny and rejection of ballot-papers.  This last

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rule lays down which shall be deemed to be a valid vote on a ballot  paper  and which is not and  directs  the  Returning Officer  to follow these directions and make  the  counting. And  it  is  in that context that we have rule  57  and  the provision  in sub-r. (1).  It obviously means only  that  so far  as  the  Returning Officer is  concerned  and  for  the purpose  of  enabling him to declare the result  the  ballot papers which are not rejected are to be                              89 deemed as valid.  It is manifest that if that validity  held good even at the stage of the election petition and for  the conduct  of  the  inquiry before the  Tribunal,  that  could really  be no scrutiny of the ballot papers and s.  100  (1) (d)  (iii)  would become meaningless.  The meaning  of  rule 57(1) is only this that ballot papers not rejected shall  be deemed  to  be  valid so far as  the  Returning  Officer  is concerned  and even as regards himself it is subject to  the provision  in rule 63 under which a recount may be  demanded and  granted.   His  decision has, of  course,  prima  facie validity  at  the  stage  of the  inquiry  by  the  Election Tribunal  because  the  impropriety  of  his  acceptance  or refusal has to be pleaded and proved by the party  objecting to  this scrutiny and it is only if the Tribunal  finds  the impropriety established, that the vote would be  differently treated or counted.  It appears to me to be clear  therefore that  rule  57  does not bear upon the  construction  of  s. 100(1)(d)(iii)  or of s. 101 (a) for which purpose  reliance was placed upon it. The next question that arises is the result of the construc- tion  which  I have endeavoured to explain of  the  relevant provisions of the Act and now I shall set out a few  further findings of the Election Tribunal which bear upon the  point next to be considered.  The Election Tribunal found after  a scrutiny  of the voting papers to which objection  had  been made  by the petitioner-Genda Lal-and on a recount  that  it resulted in Genda Lal having obtained 5,664 votes as against 5,652  obtained by the returned candidate-Jabar Singh  which meant  that the election of Jabar Singh should  be  declared void.   The  Tribunal  then  proceeded  to  investigate  the allegations  made  by Jabar Singh as  regards  the  improper reception  of votes in favour of Genda Lal and the  improper rejection  of votes in his own favour and after  considering the  ballot  papers  of the  several  polling  stations,  it arrived  at  the result that Genda Lal had  been  improperly credited  with  10 votes and that Jabar Singh had  been  im- properly denied the benefit of 12 votes cast in his  favour. If this position could be sustained the result would be that Genda  Lal had obtained 5,654 votes as against  5,664  votes polled by Jabar Singh which would mean that the election  of Jabar  Singh could not be declared void, for "the result  of the election had not been materially affected." It was this 90 that  was strenuously urged before us by Mr.  Kapoor-learned counsel for the appellant Jabar Singh.  Both the Tribunal as well  as the High Court on appeal therefrom have  held  that because  Jabar Singh had not recriminated this deduction  of 10 votes in favour of Genda Lal and the addition of 12 votes in favour of Jabar Singh could not be made and  consequently denied  to  the appellant the benefit of this  finding.   In view  of  what  I  have stated  earlier  as  to  the  proper construction of ss. (100)(1)(d)(iii) and 101(a) the  absence of  recrimination could not lead to this result and if  this finding could be sustained I would have allowed the  appeal. But  this  finding  of the  Tribunal  has  proceeded  partly without  any pleading to support it.  When an  objection  is

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taken  to  the improper reception or refusal of a  vote  the facts  upon which such impropriety has occurred have  to  be set  out and the other party has to be given an  opportunity to  meet-  the  case.   Though there  might  be  no  express requirement  of  the  Act or any  rule  made  thereunder,  I consider that it is implicit in the pleadings required to be filed  under ss. 81 to 83 of the Act read with the frame  of s.  100 that a party who alleges an impropriety or error  in the  scrutiny by the Returning Officer, and needless to  add this  would  apply  to every allegation  of  impropriety  or illegality   by  whosoever  committed,  must  specify   with particularity  the  grounds of attack on the action  of  the Returning  Officer in regard to the scrutiny of  the  ballot paper  or the counting.  In the present case it is  admitted that  though in his written statement, the  appellant  Jabar Singh  challenged the propriety of the reception of  certain votes  in favour of Genda Lal and the improper rejection  of some  of his own votes, he did not specify all of  these  in regard to which impropriety has been found by the  Tribunal. The  Tribunal has, as I have already stated, found  that  10 ballot papers whose numbers have been specified ought not to have been counted in favour of Genda Lal.  But of these,  it is  now  admitted, that in regard to 6 of them no  plea  had been  made  in the written statement, with the  result  that only  4  votes could be taken into account  as  having  been wrongly  counted, bearing in mind the pleading in the  case. Similarly,  as regards the rejection of Jabar Singh’s  votes the  Tirbunal,  as stated eariler, has found that  12  votes ought  to  have  been  counted in  his  favour.   Of  these, however, the written statement con- 91 tained allegations only as regards 6 and not as regards  the rest.  This would mean that the Tribunal had no jurisdiction to find that more than 6 votes had been improperly  rejected in his case.  If the votes regarding which no plea of impro- priety  had been raised by Jabar Singh were  eliminated,  it would  follow that as a result of the final  scrutiny  Genda Lal had obtained properly 5,660 valid votes as against 5,658 polled  by  Jabar  Singh.   The  result  of  the   election, therefore, was materially affected by the improper reception or  refusal  of  votes and therefore  I  consider  that  the election  of Jabar Singh was properly set aside and that  is why  I  concur  in  the order  that  the  appeal  should  be dismissed. Appeal dismissed.