judgement:
Appeal No. 788 of 1968.
Appeal under section 116 A of the Representation of the People.
1951 from the judgment and order dated October 17, 18; 1967 of the Gujarat High Court in Election Petition No. 5 of 1967.
98 Bishan Narain and B. Datta, for the appellant, S.V. Gupte, M.l.
Patel, R.P. Kapur, M.N. Shroff for l. N. Shroff, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal from the judgment dated 17/18 October, 1967 of the High Court of Gujarat in an election petition filed by the present appellant.
The election petition was dismissed by the judgment under appeal.
The matter concerns the Petlad constituency in Kaira District from which election was to be held to the State Legislative Assembly Gujarat at the 4th General Election.
The appellant was a candidate for the Swatantra Party and the respondent a .candidate for the Congress Party.
The poll was held on February 21, 1967 and the result of the election was declared .on
February 24, 1967.
The appellant secured 23,795 votes and the respondent 23,981 votes.
1806 votes were declared invalid.
The respondent was therefore declared elected to the seat.
The election petition set out a number of grounds on which the election of the returned candidate was challenged as void under the Representation of People Act.
We are concerned in this appeal with only one such ground.
There is also a prayer in the appeal that a general re count was wrongly disallowed by the learned Judge who decided the election petition and that it should be ordered here.
We shall come to the second ground in due course.
As regards the first ground, the contention was that a car No. GJH 1.08 was hired or procured by the returned candidate and on the day of poll, it was used for free conveyance of three ladies to the polling booth.
In the election petition, the election petitioner had stated that the returned candidate had made extensive use of hired and procured vehicles for the purpose of free conveyance of voters to and from the various polling stations.
Although another instance was cited in the election petition, no evidence was led to support that or any other instance of the user of this or other vehicle.
The whole of the case therefore rested on the use of vehicle No. 108 and also its use on one occasion only, namely, when three lady voters were said to have been brought to the polling booth in it.
According to the election petitioner, he was in the Sayagi Hospital compound wherein two polling booths Nos. 8 and 9 were situated.
He was then accompanied by Suryakant Manilal Shah and Somabhai Chhotabhai Kachhia.
At about 12.30 P.M., a taxi bearing No. GTG 9021 came to.
the gate of the hospital compound, and a lady got out of it.
The election petitioner alleges that he immediately asked Suryakant Manilal Shah to request the Presiding Officer of 99 one of the booths to come out.
Presiding Officer B.M. Bhatt came to the gate and saw the lady who had got out of the taxi.
The lady had in her hand a voter 's identity card with the congress symbol and her No. was Serial No. 535 of Electoral Unit 26/100 belonging to Ward No. 1 of Petlad.
This part of the allegation in the election petition was not used as evidence of free conveyance of voters.
This incident was recited as furnishing the immediate background of what followed.
The allegation in regard to car No. 108 starts from this point.
The ellegation is that while the election petitioner was complaining to the Presiding Officer Bhatt about the other car, car No. 108 came to the gate of the compound and the petitioner along with his companion and Bhatt were standing there.
Three ladies got out of this car bearing identity cards from the congress party and their numbers were 426, 424 and 386 of electoral unit 28/100.
Bhatt then told the election petitioner that these voters would go to the other both and that he was not concerned with that both.
The election petitioner says that he followed the three voters to the next booth and called out the presiding officer K.D. Trivedi and pointed out the three voters to him stating that they were brought by car No. 108.
He asked him to.
verify this from Bhatt.
The complaint of the election petitioner was then recorded by Trivedi and it appears from the evidence that he also questioned Bhatt who endorsed the statement of the election petitioner that he had seen them get out of the car.
In support of this case witnesses were examined.
The net result of the examination of these witnesses established the fact that the ladies came by this car and that a complaint followed.
However no attempt was made to establish that these ladies had come in the car free.
We need not traverse the entire evidence to establish the above conclusions which in our opinion.
are quite clearly demonstrable from the evidence.
There is evidence to show that the car did come, that the three ladies did get out of the same and went to polling booth No. 9 and also that they were holding identity cards issued by the Congress party.
Presumably therefore they were brought in this car for voting on behalf of the Congress.
Attempt was then made to establish connection between the returned candidate and this car.
On this part of the case testimony of the returned candidate was extremely unsatisfactory.
He first said that three cars were placed at his disposal by the congress party between January 15 and January 31, 1967.
In another place he said that he had been given only two cars.
Later he said that two of the cars were withdrawn from him and that after the withdrawal of the cars he had no other car from the congress party.
He denied the use of the cars contrary to 100 the evidence of the purchase of petrol and also denied any connection between himself and one person by name H.I. Pathan, who had written requisition for petrol.
It was however proved by cross examination that this H.I. Pathan is probably one of his nephews, a fact which he denied also.
It appears that before this car was used, the returned candidate opened a new account in the name of Mahendra Electric Company C/o Anwarbeg and petrol was bought for this car along with other cars right upto 21st February in the.
account of this Mahendra Electric Company and that was the returned candidate himself.
Since the requisitions for petrol were issued by H.I. Pathan, the returned candidate was at great pains to deny any connection with him and even went to the length of denying the real names of his own nephews.
However, this only proved that he had procured the car No. 108 from the Congress party or somebody else for his own use during the election propaganda and at the time of the poll.
It also proved that he had purchased petrol not only previously but also.
on the day of poll because entries in respect of this car existed in the accounts of the petrol dealer 's firm on 18, 19, 20 and 21 February.
The evidence also proved that the three ladies did travel by this car on the date of poll and got out of it at the gate of the hospital compound where the polling booth was situated.
The question is whether all this evidence even taken in favour of the election petitioner goes to satisfy the requirement of the law under section 123(5) of the Representation of the People Act.
That section contains many ingredients and to them we shall come presently; one such ingredient is that the car must be used for the free conveyance of the voters to the poll.
The learned Judge who heard the case gave a finding that the car was so used, that is to say, the three Indies were carried free to the booths in this car.
There is no evidence to establish this.
The owner of the car, the driver and the electors namely the three ladies were not examined and there is nothing to show whether they had travelled free or had paid for the privilege.
Mr. Bishan Narain argues in the alternative, firstly, that an inference arises in the present case that the ladies must have been taken free and he refers to the findings given by the High Court on this part of the case.
Next, he argues that this is not the requirement of section 123(5) and he interprets the section so as to save his case from the operation of that section.
As regards the finding of the High Court that the ladies must have travelled free, we can only say that it is a mere surmise because there is no evidence whatever on this part of the case.
Mr. Bishan Narain stated that the best evidence could come from the returned candidate and that his client was not required to prove 101 a negative.
In our opinion, the burden was upon the election petitioner to establish this fact, if it was a requirement of law.
We do not think that it was an utter impossibility because the owner of the car, the driver or one of the ladies could have been questioned about it and something would have then come in evidence.
Since no such attempt was made there is nothing on which we can say whether the ladies were brought free or on payment and regard being had to the strictness of the law on the subject of corrupt practice we must hold in favour of the returned candidate that the requirements of the section have not been met.
This brings us to the examination of section 123(5) with a view to finding out what are its requirements.
We have already indicated that in our opinion the election petitioner must prove in addition to the other ingredients of the section that the vehicle was used for free conveyance of voters which ingredient we have stated was not attempted to be established in the case.
Section 123(5) of the Representation of People Act reads as follows: "The hiring or procuring, whether on payment or otherwise, of any vehicle or vessel by a candidate or his agent or by any other person with the consent of a candidate of his election agent, or the use of such vehicle or vessel for the free conveyance of any elector (other than the candidate himself, the members of his family or his agent) to or from any polling station provided under section 25 or a place fixed under subsection (1 ) of section 29 for the poll: Provided that the hiring of a vehicle or vessel by an elector or by several electors at their joint costs for the purpose of conveying him or them to and from any such polling station or place fixed for the poll shall not be deemed to.
be a corrupt practice under this clause if the vehicle or vessel so hired is a vehicle or vessel not pro pelled by mechanical power: Provided further that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost for the purpose of going to or coming from any such polling station or place fixed for the poll shall not be deemed to be a corrupt practice under this clause.
Explanation: In this clause, the expression "vehicle" means any vehicle used or capable of being used for the purpose of road transport whether propelled by mechanical power or otherwise and whether used for drawing other vehicles or otherwise.
" 102 This section defines one of the corrupt practices and it consists of the hiring and procuring whether on payment or otherwise of any vehicle.
This hiring and procuring must be by a candidate or his agent or by any other person with the consent of the candidate or his election agent and the hiring according to the section must be for the free conveyance of any elector other than the candidate himself or members of his family or his agent to and from any polling station.
It will, therefore, appear that the section requires three things, (1 ) hiring or procuring of a vehicle; (2) by a candidate or his agent etc.
and (3) for the free conveyance of an elector.
It will be noticed that the section also speaks of the use but it speaks of the use of such vehicle which connects the two parts, namely, hiring or procuring of vehicle and the use.
The requirement of the law therefore is that in addition to proving the hiring or procuring and the carriage of electors to and from any polling station, should also be proved that the electors used the vehicle free of cost to themselves.
The contention of Mr. Bishan Narain that the requirement of free conveyance is not necessary is therefore not borne out by the words of the section.
The two provisos also.
prove the same thing.
The first proviso provides that it would not be a corrupt practice for any elector to hire a vehicle for himself or even a group of electors to join in hiring a vehicle and the second proviso lays down that the use of any public transport vehicle or vessel or any tramcar or railway carriage by any elector at his own cost is not a corrupt practice.
In order words the electors, if they have to perform the journey by hired vehicle must pay for its hire themselves.
They cannot be taken in a hired vehicle free of costs to themselves.
In the same way if a procured vehicle is used, it must not be used for free conveyance of voters.
The journey of the elector must be paid for by him.
If a candidate hires or procures a vehicle for free conveyance of the electors that also is perhaps a corrupt practice but that aspect need not be considered here.
The language seems capable of that interpretation though we express no final opinion.
In the present case there is proof that the vehicles were procured; whether they were supplied by the Congress party or were procured from private parties makes no difference.
There is also proof that the vehicle numbered 108 was, in fact, used for the conveyance of three lady voters.
What is not proved is that there was free conveyance of the ladies in that vehicle.
Mr. Bishan Narain contends that this is very difficult of proof but as we stated earlier it is not impossible of proof because the owner of the car or the driver or the ladies could have been examined to show that the ladies had travelled free in the vehicle.
This is not proved and therefore the ingredients of the section have not been established.
In our opinion therefore there is no room for 103 interference although, our reasons are slightly different from those of the High Court.
was next contended that a general recount was demanded in the case and has been wrongly refused.
We have scrutinized the pleadings on this point carefully and we find that no plea on which it could be rested was made although in the relief clause there is mention of a general recount.
The pleas concerned the votes cast by impersonators and rejected votes.
These have been considered already and therefore there is no room for further count.
On the whole therefore we are of opinion that the judgment under appeal cannot be interfered with.
The appeal fail and will be dismissed.
In view however, of the prevarications of the returned candidate which were not attempted to be explained by his learned counsel we are of opinion that we should not allow him any costs either here or m the High Court and we order accordingly.
R.K.P.S. Appeal dismissed.

summary:
The appellant challenged the respondent 's election to the Gujarat State Legislative Assembly in February 1967, on the ground, inter alia, that he had committed corrupt practice under section 123(5) of the Representation of the People Act, 1951.
It was alleged that a car was hired or procured by the returned candidate and on the date of the poll it was used for free conveyance of three ladies to the polling booth.
The High Court dismissed the petition.
In the appeal to this Court it was contended that an inference arose in the present case that the ladies must have been taken free to the polling booth and reliance was placed in this respect on certain findings given by the High Court.
There was also a prayer that a general recount was wrongly disallowed by the High Court and that it should be ordered in the present appeal.
HELD: Dismissing the appeal: (i) section 123(5) requires three things, (1) hiring or procuring of a vehicle; (2) by a candidate or his agent etc. 'and (3) for the free conveyance of an elector.
[102 B C] In the present case there was proof that the vehicles were procured; there was also proof that a particular vehicle was in fact used for the conveyance of the three lady voters to the polling booth; what was not proved was that there was free conveyance of the ladies in that vehicle.
The burden of establishing that this fact was on the appellant petitioner and it was not impossible, of proof because the owner of the car or the driver or the ladies could have been examined to show that the, ladies had traveled free in the vehicle.
in the absence of this proof the ingredients of the section had not been established and there was therefore no room for interference with the High Court 's decision though based on slightly different reasons.
The High Court 's finding that the ladies must have travelled free was a mere surmise because there was no evidence whatever on this part of the case.
[100 H, 102 G, H] (2) A scrutiny of the pleadings showed that there was no plea on which the prayer for a recount could be rested though in the relief clause there was mention of a general recount.
The pleas concerned the votes caste by impersonators 'and rejected votes and as these had already been considered, there was no room for a further count.
[103 B]


judgement:
Appeal No. 1948 of 1966.
Appeal from the judgment and decree dated March 22, 1965 of the Gujarat High Court in First Appeal No. 718 of 1960.
Purshottam Trikamdas, M.H. Chhatrapati and A.K. Varma, for the appellant.
G.L. Sanghi, Urmila Kapur and S.P. Nayar, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
The appellant was the owner of land bearing survey No. 910 situated on the Bhachau Rahapur Road in Kutch District.
In November 1949 the Government of Kutch took possession of the land under an arrangement that the Government would give to the appellant in exchange other suitable lands of equal value.
On that date Kutch was part of the territory of India and the Land Acquisition, Act, 1894 was in force there.
After taking possession of the land the Government constructed thereon the State Guest House and the Court House.
Thereafter the Government was neither willing to return the land nor to give other suitable land in exchange and instead it decided to acquire the land compulsorily.
On February 1, 1955 the Government issued a notification under sec.
6 (1 ) of the Land Acquisition Act declaring that the land was needed for public purposes stating that possession of the land had already been taken over and directing the Collector to take action under sec.
The necessary action was duly taken and in due course the Collector made his award on April 22, 1957.
The appellant objected to the amount of compensation and asked the Collector to make a reference to the Court under sec.
The Collector duly made the reference.
At the hearing of the reference before the District Judge, Kutch, the Government conceded that the appellant was entitled to the market value of the land as on February 1, 1955.
The District Judge awarded compensation accordingly.
The Government filed an appeal in the High Court.
At the hearing of the appeal the Government contended that in the absence of a notification under sec. 4( 1 ), no compensation could be awarded to the appellant.
The High Court accepted the contention and observed that the appellant would be at liberty to contend in other proceed 62 ings that the acquisition was bad in the absence of a notification under sec.
4( 1 ).
In this view of the matter the High Court allowed the appeal and set aside the order of the District Judge.
The present appeal has been filed after obtaining a certificate from the High Court.
The main question arising in this appeal is whether the Government can take up inconsistent positions in Court at successive stages of the same litigation to the detriment of its opponent and whether having conceded before the District Judge that the appellant was entitled to the market value of the land on February 1, 1955 it could at the appellate stage resile from that position and contend that there was no notification under sec.
4(1) on that date and that consequently its opponent was not entitled to any compensation.
The scheme of the Land Acquisition Act is well known.
If the Government desires to acquire land, it has to issue a preliminary notification under sec.
4( 1 ) declaring that the land is needed or is likely to be needed for any public purpose.
This notification has to, be issued in order to give an opportunity to all persons interested in the land under section 5A( 1 ) to object to the acquisition within 30 days after the issue of the notification.
After hearing the objections the Collector has to make a report under sec.
5A(2).
On considering this report the Government may issue a notification under sec.
6 (1 ) declaring that the land is needed for a public purpose.
In cases covered by see.
17(4) the Government may direct that the provisions of sec.
5A shall not apply and if it does so a declaration may be made under sec.
6( 1 ) at any time after the publication of the notification under sec.
4 (1 ).
When the Collector has made an award under sec.
11, he may under see.
16 take possession of the land which thereupon vests in the Government.
Section 18 requires the Collector to make a reference to Court on the application of any person interested in the land who has not accepted the award.
It is the market value of the land at the date of the publication of the notification under sec.
4( 1 ) that can be awarded as compensation by the Collector under sec.
11 and by the Court under sec.
These provisions show that the issue of the notification under sec.
4(1) is a condition precedent to the acquisition of the land.
Where the procedure under sec.
5A has to.
be followed, there must necessarily be an interval of time between the issue of the notification under sec.
4(1) and the notification under sec.
But where sec.
5A does not stand in the way, the prior publication of a notification under 4( 1 ) is not a condition precedent to the publication of a notification under sec.
6( 1 ).
For this reason this Court held in Somavanti vs State of Punjab(1) that where an order was passed [1963] 2, S.C.R. 775, 821 823. 63 under sec.
17(4) dispensing with the procedure Under sec.
5A, it was lawful for the Government to publish both the notifications on the same date.
The procedure under sec.
5A being entirely for the benefit of the persons interested in the land they may waive it, see Toronto Vol.
36, p. 444: "A statutory right which is granted a privilege may be waived either altogether or in a particular case.
" If all persons interested in the land waive the benefit of the procedure under sec.
5A the Government may lawfully issue a composite notification under secs.
4 ( 1 ) and 6 ( 1 ).
In this background let us examine ,the facts of the present case.
The Government having constructed buildings on the land was not in a position to restore it and had: no option but to acquire it compulsorily.
With a view to make the acquisition the Government published a notification under sec.
6( 1 ) on February 1, 1955.
On finding that there was no separate notification under sec.
4( 1 ) the Government had a choice between two courses of conduct.
It could say that in the absence of such a notification the acquisition was invalid and that no compensation could be awarded under sec.
If it did so it would be compelled to start fresh acquisition proceedings and pay a larger sum by way of compensation.
The other course was to treat the notification of February 1, 1955 as.
a composite one under secs.
4(1) and 6(1) with the consent of the appellant and to say that the market value of the land on that day could be awarded by way of compensation.
The Government elected to choose the latter course.
At the hearing of the reference, it conceded that the appellant was entitled to the market value of the land on February 1, 1955.
The appellant agreed to accept compensation on that footing.
Having regard to the consent of both parties, it could properly be assumed that the procedure of section 5A had1 been waived by the appellant and that the notification of February 1, 1955 could be treated as a composite one under sections 4 ( 1 ) and 6 ( 1 ).
The District Judge could therefore lawfully award the market value of the land that day.
Relying on the concession made by the Government, the appellant acted to its detriment.
It did not challenge the acquisition and took no steps to recover the land.
The result is that the Government has been in adverse possession of the land for more than 12 years since 1949 and has gained an advantage which it could not otherwise obtain.
In these.circumstances the Government cannot be permitted to resile from the election which it deliberately made and to say that the appellant is not entitled to the market value of the land on February 1, 1955.
A party litigant cannot be permitted to take up inconsistent positions in (1) 64 Court to the deteriment of his opponents [see Rama Charan Chakrabarty vs Nimai Mondal(1), Bigelow on Estoppel, 6th ed., page 783].
He cannot approbate or reprobate (see Halsbury 's Laws of England, 3rd, ed., vol.
15 article 340).
The concession cannot now be retracted.
The High Court should have disposed of the appeal before it on the footing that the appellant is entitled to the market value of the land on February 1, 1955.
As the High Court did not hear the appeal on the merits, the matter must be remanded to it for final disposal.
In the result, the appeal is allowed, the order of the High Court is set aside and the matter is remanded to the High Court for disposal on the merits.
The respondent shall pay to the appellant the costs of the appeal in this Court.
R.K.P.S. Appeal allowed.
(1) 15 C.L.J. 58.

dataset_name: IN-Abs

summary:
In 1949 the Government took possession of certain land belonging to the appellant under an arrangement whereby the Government was to give to the appellant in exchange other suitable lands of equal value.
After the Government had constructed some buildings on the land, it decided to acquire the land compulsorily.
On February 1, 1959, the .Government issued a notification under section 6(1) of the Land Acquisition Act, 1894, declaring that the land was needed for public purposes and stating that possession of the land had already been taken.
The Collector made an award on April 22, 1957 but the appellant objected to the amount of compensation and the Collector, on his application, made a reference to the Court under section 18.
At the hearing of the reference before the District Judge, the Government concluded that the appellant was entitled to the market value of the land as on February 1, 1955 and the District Judge awarded compensation accordingly.
Thereafter the Government filed an appeal in the High Court and contended that in the absence of a notification under section 4(1); no compensation could be awarded to the appellant.
The High Court allowed the appeal and set aside the order of the District Judge.
On appeal to this Court, HELD: Allowing the appeal: The Government having constructed buildings on the land was not in a position to restore it and had no option but to acquire it compulsorily.
With a view to make the acquisition the Government published a notification under sec.
6(1) on February 1, 1955.
On finding that there was no separate notification under sec.
4(1) the Government had a choice between two courses.
It could say that in the absence of such a notification the acquisition was invalid and that no compensation could be awarded under sec.
If it did so it would be compelled to start fresh acquisition proceedings and pay a larger sum by way of compensation.
The other course was to treat the notification of February 1, 1955 as a composite one under sections 4(1) and 6(1) with the consent of the appellant and to say that the market value of the land on that day could be awarded by way of compensation.
The Government elected to choose the letter course and the appellant agreed to accept compensation on that footing.
Having regard to the consent of both parties, it could properly be assumed that the procedure of section 5A had been waived by the appellant and that the notification of February 1, 1955 could be treated as a composite one under sections 4(1) and 6(1).
The District Judge could therefore lawfully award the market value of the land on that day.
[63 C G] Somavanti.
vs State of Punjab, , 821 823 and Toronto Corpr.
vs Russell, ; referred to.
61 Furthermore, relying on the concession made by the Government the appellant had acted to its detriment in that it did not challenge the acquisition and the Government had come to be in adverse possession of the land for more than 12 years.
In these circumstances the Government could not be permitted to resile from the election which it deliberately made and to say that the appellant was not entitled to the market value of the land on February 1, 1955.
[63 G H] Rama Charan Chakrabarty vs Nimai Mondal, 15 C.L.J. 58; referred to,


judgement:
ew Petition No. 54 of 1968.
(For the review of this Court 's judgment dated July 19, 1968 in Civil Appeal No. 1705 of 1967).
B.S. Patil, M. K. Ramamurthi, Vineet Kumar and Shyamala Pappu, for the petitioner.
S.V. Gupte, S.S. Javali and B. Datta, for respondent No. 2.
The Judgment of the Court was delivered by Shah, J.
Vishwanath Reddy was declared elected to the Mysore Legislative Assembly from the Yadgiri constituency at the poll held in February 1967.
Nadgouda who was a contesting candidate filed a petition before the High Court of Mysore for an order setting aside the election of Reddy on the ground that Reddy was disqualified from standing as a candidate for election and for an order declaring that he Nadgouda be declared elected.
The High Court rejected the petition.
In appeal, this Court held that at the date of nomination Reddy was disqualified from standing as a candidate and passed an order on July 19, 1968 that " . the appeal is therefore allowed, the election of the first respondent is declared void.
In this view of the matter the votes cast in favour ' of the first respondent be treated as thrown away.
As there was no other contesting candidate we declare the appellant (election petitioner) elected to the seat from the Yadgiri constituency.
" Reddy then applied for review of judgment and claimed, relying upon the decision of this Court in Keshav Laxman Borkar vs Dr. Devrao Laxman Anande(1), that in the circumstances of the case no order declaring Nadgouda could be made by this Court.
This Court granted review of judgment by order dated August 27, 1968, and the appeal is now before us for consideration of the question whether it is open to this Court on the finding recorded ' about the disqualification of Reddy to declare Nadgouda as duly elected to the Mysore Legislative Assembly.
(1) 92 Out of seven candidates who.
filed their nomination papers for election, five candidates withdrew their candidature, and Nadgouda and Reddy were the only two candidates remaining in the field.
Nomination of Reddy was challenged before the Returning Officer on the plea that Reddy was disqualified by virtue of section 9A of the Representation of the People Act from standing as a candidate for election to the Mysore .State Legislative Assembly, but that objection was overruled and his nomination was accepted.
Reddy secured at the poll 4000 more votes than Nadgouda and was declared elected.
This Court has declared the election of Reddy void on the ground disqualification under section 9A of the Representation of the People Act, and the question is no longer in issue at this stage.
The only question which remains to be determined is whether in the events which have transpired, Nadgouda could under the law be declared elected.
Section 53 of the Representation of the People Act provides that if the number of contesting candidates is more than the number of seats to be filled, a poll shall be taken, and if the number of such candidates is equal to the number of seats to be filled, the Returning Officer shall forthwith declare all such candidates to be duly elected to fill those seats.
"Disqualified" means "disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State": section 7(b).
Section 9A of the Act provides: "A person shall be disqualified if, and for so long as, there subsists a contract entered into by him in the course of his trade or business with the appropriate Government for the supply of goods to, or for the execution of any works undertaken, by that Government.
Explanation.
Reddy was on the finding recorded by this Court incompetent to be chosen as a member of the Legislative Assembly.
Objection was raised before the Returning Officer that Reddy was disqualified, but no general notice was given to the electorate about the disqualification.
On the view that Reddy was not disqualified, the Returning Officer accepted his nomination and at the poll Reddy was declared duly elected.
Section 84 of the Representation of the People Act provides that petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected." 93 Nadgouda by his election petition did make a claim that the election of Reddy be declared void and that he Nadgouda be declared duly elected.
Section 100 sets out the grounds on which an election may be declared void, and section 101 sets out the grounds on which a candidate other than the returned candidate may be declared to have been elected.
That section provides: "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 High Court 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 High Court 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." The expression "valid votes" used in section 101 has not been defined in the Act.
But this Court has held in Keshav Laxman Borkar 's case(1) that a candidate whose nomination paper is accepted after scrutiny, is a validly nominated candidate "at least for the purpose of receiving votes at the election", and that the candidate must be treated as a person for whom votes could be given.
The Court on that view held that where there are only two candidates.
for a seat and the election of the candidate declared elected is set aside on the ground that he was disqualified the defeated candidate cannot be declared elected, and there must be a fresh election.
In the opinion of the Court the votes cast in favour of the disqualified candidate cannot be said to be thrown away unless there is a "special pleading" that certain voters had cast their votes with the knowledge or notice that the candidate for whom they had voted was not eligible for election, and they had deliberately thrown away their votes in favour of the disqualified person: in the absence of such a plea it cannot be said that the votes cast in favour of a person who was by law disqualified from being nominated, but who was in fact nominated, were thrown away.
In the Court 's view a defeated candidate out of the two who contested the election may be declared elected under section 84 read with section 101 of the Act, if he proves that the voters had notice of the disqualification of the successful candidate.
Correctness of this view is challenged before us.
94 The rule enunciated by this Court was apparently adopted from certain cases decided by the Courts in the United .Kingdom.
In Drinkwater vs Deakin(1) it was held that bribing by a candidate at an election, though it renders his election void if he be found guilty of it on petition, does not incapacitate the candidate at that election in the sense that the votes given for him by voters with knowledge of it will be thrown away, and that no disqualification arises in that sense of the term until after the candidate has been found guilty of bribery on petition, and consequently, the petitioner was not entitled to the seat.
In Hobbs vs Morey(2) at a municipal election a person who had an outstanding contract with a municipality was nominated as a candidate and was declared duly elected.
The defeated candidate then claimed the seat on the plea that the successful candidate was disqualified.
It was held that the nomination of the successful candidate was invalid, and as the defeated candidate did not allege any notice to the electorate of the disqualification of the successful candidate, the votes given for him could not be treated as thrown away, and the defeated candidate was not entitled to claim the seat.
In Beresford Hope vs Lady Sandhurst(3) it was held by the Court of Appeal that an 'election of a woman candidate to a county council under the Local Government Act, 1888, being void, the defeated candidate could be declared elected, because it was common knowledge that women are incapacitated from being elected members of a county council and the votes given to the woman candidate were thrown away.
In a recent judgment of the Court of Appeal in Re. Bristol South East Parliamentary Election(4) at the parliamentary election Wedgwood Benn was declared duly elected member of the Parliament.
Prior to that date St. Clair a contesting candidate had sent out notices to all persons entitled to vote stating that by reason of his status as a peer of the United Kingdom Wedgwood Benn was disqualified from being elected a member of Parliament and that all votes given for him would be thrown away and, be null and void.
Similar notices were published in the newspapers circulating in the constituency and were posted at the entrance to.
polling stations.
The Court of Queen 's Bench held in that case that the facts which in law created the incapacity of Wedgwood Benn to be elected a member of Parliament were known to the electors before they cast their votes, and the Court was bound to declare that the votes cast for the successful candidate had been thrown away.
The petitioner (defeated candidate) was accordingly declared duly elected.
(1) [1874] L.R. 9 Court of Common Pleas 626.
(2) (3) (4) 95 The cases decided by the Courts in the United Kingdom appear to have proceeded upon some general rule of election law that the votes.
cast in favour of a person who is found disqualified for election may be regarded as thrown away only if the voters had notice before the poll of the disqualification of the candidate.
But in our judgment the rule which has prevailed in the British Courts for a long time has no application in our country.
Section 53 of the Representation of the People Act renders a poll necessary only if there are more candidates contesting the election man the number of seats contested.
If the number of candidates validly nominated is equal to the number of seats to be filled, no poll is necessary.
Where by an erroneous order of the Returning Officer poll is held which, but for that order, was not necessary, the Court would be justified in declaring those contesting candidates elected, who, but for the order, would have been declared elected.
The rule enunciated by the Courts in the United Kingdom has only the merit of antiquity.
But the rule cannot be extended to the trial of disputes under our election law, for it is not consistent with our statute law, and in any case the conditions prevailing in our country do not justify the application of that rule.
If the rule is applied in our country, the provisions of section 84 read with section 101 (a) would practically be nugatory.
Apart from the immense cost of intimating each voter in the vast electorate in the constituencies the rule that a defeated candidate may be declared elected only if he pleads and proves that the voters had notice of the disqualification would render the exception in the context of prevailing illiteracy and ignorance of large sections of the electorate in our country, a dead letter.
A very large percentage of the electorate in our country is, unfortunately illiterate and sections thereof not infrequently speak a language different from the language of the majority.
It would be well nigh impossible to give .information of the disqualification of a candidate in a medium which the illiterate electors understand.
We are again unable to see any logic in the assumption that votes cast in favour of a person who is regarded by the Returning Officer as validly nominated, but who is in truth disqualified, could still be treated as valid votes.
for the purpose of determining whether a fresh election should be held.
When there are only two contesting candidates, and one of them is under a statutory disqualification, votes cast in favour of the disqualified candidate may be regarded as thrown away, irrespective of whether the voters who voted for him were aware of the disqualification.
This is not to say that where there are more than two candidates in the field for a single seat, and one alone is disqualified, on proof of disqualification all the votes cast in his favour will be discarded and the candidate securing the next highest number of votes will be declared elected.
In such a case, question of notice to the 96 voters may assume significance, for the voters may not, if aware of the disqualification have voted for the disqualified candidate.
The view that we are taking is consistent with the implication of d. (b) of section 101.
When in an election petition which complies with section 84 of the Act it is found at the hearing that some votes were obtained by the returned candidate by corrupt practices, the Court is bound to declare the petitioner or another candidate elected if, but for the votes obtained by the returned candidate by corrupt practice, such candidate would have obtained a majority of votes.
In cases falling under cl.
(b) of section 101 the Act requires merely proof of corrupt practice, and obtaining votes by corrupt practice: it does not require proof that the voters whose votes are secured by corrupt practice had notice of the corrupt practice.
If for the application of the rule contained in cl.
(b) notice to, the voters is not a condition precedent, we see no reason why it should be insisted upon in all cases under cl.
The votes obtained by corrupt practice by the returned candidate, proved to be guilty of corrupt practice, are expressly excluded in the computation of total votes for ascertaining whether a majority of votes had been obtained by the defeated candidate, and no fresh poll is necessary.
The same rule should, in our judgment, apply when at an election there are only two candidates and the returned candidate is found to be under a statutory disqualification existing at the date of the filling of the nomination paper.
We are of the view that Keshav Laxamn Borkar 's case(1) was not correctly decided.
therefore, restore the order passed by this Court by judgment dated July 19, 1968.
Reddy will pay the costs of the review petition as well as of the appeal.
V.P.S. Review petition dismissed.

summary:
The appellant and respondent were the contesting candidates for a seat in the State Legislative Assembly.
The appellant challenged the respondent 's nomination before the Returning Officer on the ground that the respondent was disqualified under section 9A of the Representation of the People Act, 1951.
No general notice was given to the electorate about the disqualification.
The Returning Officer overruled the objection and accepted the respondent 's nomination.
After the respondent was elected, the appellant flied an election petition in the: High Court, on the same ground, but the petition was rejected.
In appeal, this Court declared the election of the respondent void, and on the question whether the appellant could, under law, be declared elected, HELD: The decision in Keshav Laxman Borkar vs Dr. Devrao Laxman Anande, that votes cast in favour of the disqualified candidate would be deemed to be thrown away only when the, voters had notice of the disqualification, and that in the absence of such notice, there can only be fresh election is wrong.
That rule.
was adopted from English decisions but it is not consistent with the Indian statute.
law and is inappropriate for Indian conditions.
[95 A B; 96 E] (a) Section 53 of the Act renders a poll necessary only if there 'are more candidates contesting the election than the number of seats contested.
If the number of candidates is equal to the number of seats to be filled, the Returning Officer shall forthwith declare all such candidate 's to be dully elected to fill those seats.
[92 D] (b) In cases falling under section 101(b), the Act requires merely proof of corrupt practice and obtaining votes by the corrupt practice: it does not require proof that voters had notice of the corrupt practice.
Therefore, in cases falling under cl.
(a) when there are only two candidates for one seat and the returned candidate is found to be under a statutory disqualification the other may be declared elected under section 84 read with section 101 ( 'a), even though the voters had no notice of the disqualification of the successful candidate.
[96 BE] (c) It would be almost impossible to give notice of the disqualification to the electorate in view of the immense cost involved and the general illiteracy of a large section of voters.
[95 E F] (d) There is no logic in the assumption that votes, cast in favour of person whose nomination was accepted by the Returning Officer but who was really disqualified, could still be: treated as valid votes for deter 91 mining whether a fresh election should be held.
While notice to voters may have significance when there are more than two candidates in the field for a single seat, where there are only two contesting candidates and one of them is under a statutory disqualification, votes cast in his favour may be regarded as thrown away irrespective of whether the voters were aware of the disqualification.
[95 F H] Therefore, where by an erroneous order of the Returning Officer poll is held which, but for that order, was not necessary, the Court would be justified in declaring the contesting candidate elected, who, but for the order of the Returning Officer would have been declared elected.
[19 C D]


judgement:
Appeal No. 853 of 1968.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated January 15, 1968 of the Delhi High Court, Himachal Bench in C.O.P. No. 4 of 1967.
C.B. Agarwala, S.K. Bagga and section Bagga, for the appellant.
Sarjoo Prasad and Naunit Lal, for the respondent.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal against the judgment, dated January 15, 1968, of the High Court of Delhi (Himachal Bench) setting aside the election of the appellant to the Santokhgarh Assembly Constituency of Himachal Pradesh.
The election has been set aside on the ground of corrupt practice under section 123(6) of the Representation of People Act read with section 98(b) of the Act.
By a notification dated January 13, 1967 the electors of this constituency were invited to elect a member to the Assembly.
The the last date of withdrawal was January 23, 1967.
Three candidates contested the election.
The appellant was an independent candidate opposed by the respondent who was a Congress nominee and one Shanti Swarup, Jansangh candidate.
The poll took place throughout the constituency on February 18, 1967.
Votes were counted four days later at Una and the result was declared at follows: Vidya Sagar Joshi (Appellant) 8437 votes Surinder Nath Gautam 7695 votes (Election Petitioner) Shanti Swarup 2067 votes 1267 ballots were rejected as invalid.
Thus the present appellant was returned with a margin of 742 votes.
The returned candidate filed his return of election expenses showing an expenditure of Rs. 1,862.05P.
The limit of expenditure in this constituency was Rs. 2,000/ .
One of the contentions of the election petitioner was that he had filed a false return of his election expenses, that he had spent .an amount exceeding Rs. 2,000/ in the aggregate and therefore contravened the provisions of section 77 (3) 86 of the Representation of People Act, 1951 and therefore committed corrupt practice under section l23(6) of the Act.
The election petitioner therefore asked that his election be declared void.
There were other grounds also on which the election was challenged, but we need not refer to them since no point has been made before us.
The main item on which the expenses were said to be false was a deposit of Rs. 500/ as security and Rs. 200/ as application fee which the returned candidate had made with the Congress party on or before January 2, 1967.
The fee was not returnable, but as this payment was, made before the notification calling upon the voters to elect a member to the Assembly nothing turns upon it.
The returned candidate was denied the Congress ticket on or about January 10, 1967.
This was also.
before the said notification.
According to the rules of the Congress party the security deposit was refundable to a candidate if he or she was not selected.
It was however provided in the same rules that if the candidate contested the election against the official Congress candidate, the security deposit would be forfeited.
The returned candidate chose to stand as an independent candidate against the official Congress nominee and incurred the penalty of forfeiture.
This was after the date for the filing of the nomination paper (January 20, 1967).
He had time till January 23, 1967 to withdraw from the contest.
If he had done so the deposit would have presumably been returned to him.
As he became a contesting candidate the forfeiture of the deposit became a fact.
The case of the election petitioner was that if this deposit were added to the election expenses, the limit of Rs. 2,000/ was exceeded and therefore this amounted to a corrupt practice under section 123(6) read with section 77(3) of the Representation of People Act.
The High Court held in favour of the election petitioner and hence the appeal.
Section 77 of the Representation of People Act provides as follows.
: Section 77.
Account of election expenses 'and maximum thereof (1 ) Every candidate at an election shall either by himself or by his.
election agent, keep a separate and correct account of all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
The account shall contain such particulars, as may be prescribed.
87 (3) The total of the said expenditure shall not exceed such amount as may be prescribed.
The third sub section creates a bar against expenditure in excess of the prescribed amount.
In this case the prescribed amount was Rs. 2,000/ .
Section 123(6) provides that "the incurring or authorising of expenditure in contravention of section 77 is a corrupt practice.
" Therefore, if the amount of Rs. 500/was added to the election expenses as declared by the returned candidate he would be guilty of a corrupt practice, under the two sections quoted above.
The question, therefore, is whether this amount can be regarded as an election expense.
The first sub section of section 77 discloses what the candidate has.
to declare as part of his election expenses.
It speaks.
of "all expenditure in connection with the election incurred or authorised by him or by his election agent between the date of publication of the notification calling the election and the date of declaration of the result thereof, both dates inclusive.
" In the present case, therefore, the critical dates were January. 13, 1967 and February 22, 1967.
The amount in question was paid before the first date.
It was liable for confiscation not on the date on which the Congress ticket was refused to the returned candidate but on January 23, 1967 when he did not withdraw from the ' contest and offered himself as a contesting candidate against the official Congress candidate.
In other words, the payment was made before the period marked out by section 77 ( 1 ) but the expenditure became a fact between the two.
dates.
The contention of the returned candidate was that this was not an expenditure within the meaning of section 77(1) of the Representation of People Act and this is the short question, which falls for consideration in the present case.
Section 77 as flamed now departs in language from the earlier provision on the subject which was rule 117.
It read: "117.
Maximum election expenses No expense shall be incurred or authorised by a candidate or his election agent on account of or in respect of the conduct and management of an election in any one constituency in a State in excess of the maximum amount specified in respect of that constituency in Schedule V." The words "conduct and management of election" are not as wide as the words.
"all expenditure in connection with election incurred or authorised by him, "which now find place in section 77".
The question thus is what meaning must be given to the words used in section 77.
The critical words of section 77 are 'expenditure ' 'in connection with election ' and 'incurred or authorized '. 'Expenditure ' means the amount expended and 'expended ' means to.
pay away, lay. out or spend.
It really represents money out of pocket, a going out.
88 Now the amount paid away or paid out need not be all money which a man spends on himself during this time.
It is money in connection with ' his election.
These words mean not so much as 'consequent upon ' as 'having to do with '.
All money laid out and having to do.
with the election is contemplated.
But here again money which is liable to be refunded is not to be taken note of.
The word 'incurred ' shows a finality.
It has the sense of rendering oneself liable for the amount.
Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election that is to say having to do with his election.
The candidate here put out this money for his election since he was trying to obtain a congress ticket.
If he had got the ticket and the money was refunded to.
him, this would not have counted as an expenditure since the expense would not have been incurred.
When the candidate knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a chance independently.
The case of the appellant is that this money was not used in furthering the prospect of his election.
On the other hand, it was in fact used against him by the Congress Party as he was opposed to that party 's candidate.
He contends that such an expense cannot be regarded as expense in connection with the election.
According to him the connection must be a connection of utility and not something which is of no use but rather against the chances of victory.
In this connection the learned counsel draws our attention to Halsbury 's Laws of England, Third Edition Volume 14, at page 177 paragraph 314.
It is stated there as follows: "While no attempt has been made by judges to define exhaustively the meaning of expenses incurred in the conduct or management of an election, it has been said that if expenses are, primarily or principally, expenses incurred for the promotion of the interests of the candidate, they are election expenses.
" It will be seen that the above passage refers to expenses incurred in the conduct or management of an election.
The learned counsel for the appellant and respondent relied upon two decisions of this Court.
Reliance was also placed upon two decisions of the Election Tribunals.
The decisions of the Election Tribunal are of the same Bench and concern Rule 117.
They need not be considered.
The two cases of this Court may be noticed.
In Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income Tax, Bombay City(1) the question arose under the Indian (1) ; 89 Income tax Act.
A firm importing dates was found to have breached some law and a penalty was imposed on it under the Sea Customs Act.
The firm sought to treat the penalty as expenses and they were disallowed by this Court.
Learned Counsel for the appellant relied on this case and claimed that the same principle applies and this penalty cannot be said to be an expenditure in connection with the election.
The analogy is not apt because not only the prescriptions of the two laws are different but the underlying principle is different also.
In Income tax laws the expenditure must be laid out wholly or exclusively for the purpose of the business etc.
Breaking laws and incurring penalty is not carrying on 'business and therefore the loss is not for the purposes of business.
Here the expenditure is to be included if it is incurred in connection with the election and the payment to secure the seat is an expenditure in connection with the election.
The ruling therefore, does not apply.
In the second case a congress candidate had paid a sum of Rs. 500/ of which Rs. 100/ were subscription for membership and Rs. 400/ were a deposit.
Later he paid Rs. 500/ as donation to the Congress.
He failed to include the two sums of Rs. 500/ each in his return of expenses.
The Tribunal found that both the sums were spent in connection with the election and by including them the limit was exceeded.
This Court affirmed the decision of the Tribunal.
The case was decided under r. 117.
The two sums were considered separately.
The contention was that under section 123 (7) and r. 117 the candidate was nominated only on November 16, 1951 and the first sum was paid on September 12, 1951.
The question then arose when the candidate became a candidate for the application of the Rule and section 123(7).
It was held that the candidate became a candidate when he unequivocally expressed his intention by making the payment.
The question of commencement of the candidature is now obviated by prescribing the two terminii between which the expense is to be counted.
In so far as the case goes it supports our view.
It is risky to quote the decision because the terms of the law on which it was declared were entirely different.
We can only say that there is nothing in it which militates against the view taken by us here.
On the whole, therefore, the judgment under appeal is correct.
The appeal fails and will be dismissed with costs.
Appeal dismissed.

summary:
The appellant applied for a Congress ticket for election to the Legislative Assembly and deposited certain sums, which according to the rules of the Congress Party was refundable if the candidate was not selected but the deposit was to be forfeited if he contested the election against the official Congress candidate.
The appellant was denied the Congress ticket.
Thereafter the notification inviting electors to elect a member to the Assembly was issued, and the last date for filing nomination papers and for withdrawing from the contest was fixed.
The appellant contested the election against the respondent who was the official Congress nominee and incurred the penalty of forfeiture.
The appellant was declared elected and he filed his return of election expenses.
The respondent challenged the 'appellant 's election on the ground that he had committed corrupt practice under section 123(6) of the Representation of People Act, 1951, for not having included the sum deposited by him in seeking the Congress ticket in his return and by adding this sum to the return of election expenses filed the prescribed amount was exceeded, thereby contravening section 77(3) of Act.
The High Court held in favour of the election petitioner.
Dismissing the appeal, this Court, HELD: Section 77 as framed now departs in language from the earlier provision on the subject which was r. 117.
The words 'conduct 'and management of election ' are; not as wide as the words 'all expenditure in connection with election incurred or authorised by him ' which now find place in section 77 with 'election ' and 'incurred or authorised. ' 'Expenditure ' means the amount expended and 'expended ' means to pay away, lay out or spend.
It really represents money out of pocket, a going out.
The amount paid away or paid out need not be all money which a man spends on himself during this time.
It is money 'in connection with ' his election.
These words mean not so much as 'consequent upon ' as 'having to do with '.
All money laid out and having to do with the election is contemplated.
But here again money which is liable to be refunded is not to be taken note of.
The word 'incurred ' shows a finality.
It has the sense of rendering one self liable for the amount.
The words are not equivalent to 'conduct or management of an election ' and the expenses need not be for promotion of the; interest of the candidate.
Therefore the section regards everything for which the candidate has rendered himself liable and of which he is out of pocket in connection with his election, that is to say having to do with his election.
[87 G 88 B] (In this case, the appellant put out the money for his election since he was trying to obtain a Congress ticket.
If he had got the ticket and the money was refunded to him, this would not have counted as 'an expenditure since the expense would not have been incurred.
When the appellant knowing that the money would be lost went on to stand as an independent candidate, he was willing to let the money go and take a 85 chance independently.
So the 'amount was an expenditure within the meaning of the section.
[88 C D] Haji Aziz and Abdul Shakoor Bros. vs Commissioner of Income tax, Bombay City, ; , distinguished.