JABAR SINGH v. GENDA LAL
Citation: [1964] 6 S.C.R. 54; 1963 INSC 262
Court: Supreme Court of India
Bench: P.B. GAJENDRAGADKAR , A.K. SARKAR , K.N. WANCHOO, K.C. DAS GUPTA, N. RAJAGOPALA AYYANGAR
Judgment date:
Case summary
1963 INSC 262. Supreme Court of India judgment dated 1963-12-19. JABAR SINGH v. GENDA LAL. Read the judgment and case details on LawSphereX.
Judgment text
1961 Dec1mber, 19 54 SUPREME COURT REPORTS [ HJ(>4) JABAR SINGH v. GENDA LAL (P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. WANCHOO, K. C. DAS GUPTA AND N. RAJAGOPALA AYYANGAR JJ. ) Representation of the People Act (43 of 1951), ss. 97, ! OO(l)(d) and IOl(a) and Conduct of Election Rules, 1961 r. 57(1)-scope of. The appellant was tleclared elected having defeated the respondent y by 2 votes. Thereafter. the respondent filed an elect:Wn petition. The respondent challenged the validity of the appellant's election on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. His prayer was that the appel1ant's election should be declared void and a declaration should be made that the respondent was (iuly elected. The appellant urged before the Tribunal that there had been im~ proper rejection of his votes and improper acceptance of the votes of the respondent.
and his case was that if recounting and re-scrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course; his case was that since the appellant had not recriminate'd nor furnished security under s. 97 of the Act, it was not open to him to make this plea. The Tribunal rejected the objection of the respondent and accepted the plea of the appellant. The Tribunal re-examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had not secured a majority of votes. The Tribunal declared that the election of the appellant was void an(l refused to grant a declaration to the respondent that he had been duly elected. Both the appellant and the respondent preferre T J. SUPREME COL' RT REPORTS peiitioner or an improper refusal or rejection of his O\I n votes.
In other words, the argument was that the Tribunal dealing with a petition under s. 100(l)(d) had jurisdiction to proceed only on the allegations made in the petition and 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 re- count 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 • - I • ,_ ! ' 6 S. C. R.
SUPREME COURT REPORTS 79 A's votes have lxen wrongly counted as 200, whereas, in fact, if they were :ecounted they would only be 180 and the Tribunal on a recount finds. the allegation in the petition made out and th:;t the returned candidate had obtained only 180 votes the a~ceptance of Mr. Garg's argument would mean that the ekction of A would have to be set aside not- withstanding thut 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 sub- mitted that tho ugh if B claimed the seat there would have to be a recouii ( of the votes of both the candidates and this also, only in t ne 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 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 1963 Jabar Singh v. Genda Lal 4. yyangar ]'. 1963 Jabar Singh v. (/enda Lal Ayyangar J. 8o SUPREME COURT REPORTS 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. I OO(l)(d) is for ascertaining whether the res\llt 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 re- turned cadidate is void, also seeks a further declaration that he should be declared duly elected and the returned candi- date 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 de- sires us to adopt of s.
100 ( I )( d )(iii) turns, that the ques- tion 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 • ,, • ' - .. 6 S. C. R. SUPREME COURT REPORTS 81 not obtaining the majority of valid votes so far as the deci- sion under s. 100(l)(d) is concerned and then after the matter set out in the claim to the seat and the recrimination is in- quired 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. I 00 read with s.
101 do not contemplate 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. lOO(l)(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 re- turned 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 peti- tion 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. 1963 Jabar Sing/I v. Genda Lal A. yyangar J. 1963 lobar Singh ... Gerula Lal . A. 11angar J. 82 SUPREME COURT REPORTS [1g64J 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. lOO(l)(d)(iii) or s.
lOl(a) contemplate this result which is at once so unjust and anomalous and appears te> 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 pro- visions 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 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 minori- ty 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). • • ' . ; 6 S. C. R.
SUPREME COURT REPORTS 83 Support was sought by Mr. Garg for the construction that he sought to press upon us by reference to the provi- sions 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 re- ception 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 questior for consideration in the provision and which furnishes tht key to the interpretation of the sub-clause now under con- sideration. Let me take each of the cases provided by the other sub-clauses. Sub-cl. (i) deals with the improper ac- ceptance of a nomination.
It is obvious that allegations and proof by ihe 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 els. (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 bad not affected the result of his election; in other words, that the impropriety or illegality, if any, was inconsequential so far as bis election was concerned.
But this would not be the position in re- gard 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 1963 Jabar Singh v. . Genda Lal Ayyangar J. 1963 labar Singh v. Genda Lal Ayyangar /. SUPREME COURT REPORTS 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 satisfac- tion of the Tribunal that "the result of the election was materiitlly 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 satisfac- tion of the Tribunal that notwithstanding the improper re- ception or rejection of the particular votes alleged by the peti- tioner his election has not been materially affected. The argu- ment of Mr. Garg, if accepted, would mean that the returned candidate can merely comhat 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 candi- date to establish this fact which he might do in any manner he lilfes.
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 candi- date 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 . ' .. ... .. 6 S. C. R. SUPREME COURT REPORTS 85 of the election petitioner or of another candidate or of an improper rejection of votes of the returned candidate. As 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 ascer- tained 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 candi- date has been materially affected. For instance, let me lake a case within s. IOO(l)(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 im- properly accepted and which is the subject of the charge under s. lOO(l)(d)(i) is not the acceptance of the nomina- tion 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 iqquire as to its effect on the election, I take it, ii 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 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 expres- sion 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 1963 . Jabar Sin1h v. Genda Lal Ayyangar J. 1963 labar Singh v. 1Genda Lal Ayyangar J.
86 SUPREME COURT REPORTS [1964] 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 open- ing words of s. lOO(l)(d) ands. lOl(a). I cannot reason- ably 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, secur- ed the highest number of votes. Mr.
Garg, no doubt, con- templated 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 recon- cile 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 wnich is prescribed to be conducted under s. IOO(J)(d) read with cl. (iii). The words 'in fact' used in s. JOl(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 endeavoured 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 > ,.. 6 S. C. R. SUPREME COURT REPORTS 87 majority of valid votes. In other words, by the scrutiny that has taken place in order to test the validity of his elec- tion the Tribunal might have arrived at a conclusion that he had not received the majority of valid votes. Immediate- ly 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 evcut there would be a re-election. If, however, the seat is daimed 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 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 cami.
ot be a ~eclaration 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 cilst 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 interpreta- tion of ss.
100 and 101 have fiurisdiction 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- 1963 labor Singll v. Genda Lal {lyyangar /. 1963 lobar Singh v. Genda Lal . A. yyangar /. 88 SUPREME COURT REPORTS ed a majority of valid votes in order to sustain the claim to the seat. After this stage is passed and the Tribunal has reach- ed 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. IO !
(a) the claimant would be immediately declared elected but if there is a recrimination then s. 10 l(b) is attracted and the Tribunal would have to inquire whether if the claimant were a returned candidate there are circum- stances 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 57 ( 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(l)(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 pojnt 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 5 6 with the scru- tiny and rejection of ballot-papers. This last 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 ob- viously 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 ' , ' 6 S. C. R. SUPREME COURT REPORTS 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 impro- priety 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. lOO(l)(d)(iii) or of s.
lOl(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 ob_tained 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 investi- gate the allegations made by Jabar Singh as regards the im- prorer reception of votes in favour of Genda Lal and the improper rejection of votes in his bwn favour and after con- sidering 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 1961 Jabar Sin11t v. Genda Lal Ayyangar /. 1963 jabar Singh v. Genda Lal Ayyangar J. SUPREME COURT REPORTS that was strenuously urged before us by Mr. Kapoor-learn- ed counsel for the appellant Jabar Singh.
Both the Tribu- nal 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 conse- quently denied to the appellant the benefit of this finding. In view of what I have stated earlier as to the proper construc- tion of ss. (lOO)(I)(d)(iii) and 101 (a) the absence of recrimina- tion could not lead to this resurt and if this finding could be sustained I would have. allowed the appeal. But this find- ing of the Tribunal has proceeded partly without any plead- ing to support it. When an objection is taken to the impro- per 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 im- propriety 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 ithe 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 Tri- bunal 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 rngards 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- ... ' ' .. • fJ S. C. R. SUPREME COURT REPORTS 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 pol- led by Jabar Singh. The result of the election, therefote, was materially affected by the improper reception or refusal of votes and therefore I consider that the election of J abar Singh was properly set aside and that is why I concur in the order that the appeal should be dismissed. Appeal dismissed. SAIT NAGJEE PURUSHOTHAM AND CO. v. COMMISSIONER OF INCOME-TAX, MADRAS (A. K. SARKAR, M. HIDAYATULLAH AND J. C. SHAH JJ. ) Income Tax Act (II of 1922). s. 25(3) and (4)-Firm carrying on business in 1918-Disintegration into two firms-If discontinuance of business . By s. 25(4) of the Income-tax Act, 'Where the person who was at the commencement of the Indian Income-tax (Amendment) Act, 1939 ....
carrying on any business, profession or vocatioa in which tax was at any time charged under the provisions of the Indian Income- tax Act, 1918, is succeeded in such capacity by another person, the change not being merely a change in the constitution of a partnership, no tax shall be payable by the first mentioned person in respect of the income, profits and gains of the period between the end of the previous year and the date of such succession. " A firm bearing the same name as the appellant firm, had been carrying on business from before 1918 and had paid tax on that business under the Income-tax Act, 1918. The firm did three kinds of businesses, namely, (a) in piece-goods, yarn as general merchants, 1961 Jabar Singh v. Genda Lal Ayyangar J. 1963 December, 20
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