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2. The election petitioner was a losing candidate and he had lost his election by merely two votes. In the election petition, the following prayers were made:

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(iii) to order a re-count of the votes after excluding the void votes if required;
(iv) to declare the election of the Respondent No.1 as void;
(v) to pass other and further orders as may be deemed fit by the Hon'ble Court in the facts and circumstances of the case."

18. Following were the observations made in the majority judgment in para 10:-

"It would be convenient if we take a simple case of an election petition where the petitioner makes only one claim and that is that the election of the returned candidate is void. This claim can be made under Section 100. Section 100(1)(a), (b) and (c) refer to three distinct grounds on which the election of the returned candidate can be challenged. We are not concerned with any of these grounds. In dealing with the challenge to the validity of the election of the returned candidate under Section 100(1)(d), it would be noticed that what the election petition has to prove is not only the existence of one or the other of the grounds specified in clauses (i) to (iv) of Section 100(1)(d), but it has also to establish that as a result of the existence of the said ground, the result of the election in so far as it concerns a returned candidate has been materially affected. It is thus obvious that what the Tribunal has to find is whether or not the election in so far as it concerns the returned candidate has been materially affected, and that means that the only point which the Tribunal has to decide is: has the election of the returned candidate been materially affected? And no other enquiry is legitimate or permissible in such a case. This requirement of Section 100(1)(d) necessarily imports limitations on the scope of the enquiry. Confining ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate. It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate or whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate. In other words, the scope of the enquiry in a case falling under Section 100(1)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate, or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in Section 100(1)(d)(iii), the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determine the scope of the enquiry. Therefore, it seems to us that in the case of a petition where the only claim made is that the election of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of Section 100(1)(d) itself. The enquiry is limited not because the returned candidate has not recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling under Section 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else..... the Tribunal has to make a declaration to that effect, and that declaration brings to an end the proceedings in the election petition." (emphasis supplied) This judgment was given by Hon'ble Gajendragadkar, J.

24. It must be noted that, the present matter, with which we are dealing, more or less depends upon incorrect acceptance of votes but not the void votes. According to the election petitioner, the elected candidate has received some votes which were cast by some impersonators of the dead voters. In reality, therefore, the question before the present Election Tribunal is whether the election petitioner proves that some dead voters were impersonated and in their name, votes were cast. Again, it will have to be proved by the election petitioner that those impersonated had voted in favour of the elected candidate because that will be the only way to prove that the void votes have affected the result in favour of elected candidate materially. The question of void votes was not considered in Jabar Singh's case. Even, in the minority judgment, Hon'ble Ayyanger, J. restricted himself to the earlier part of clause 100 (1) (d) (iii) and left the clause of "the reception of any vote which is void". The import of words "the reception of any vote which is void" would, in my opinion, cover each and every void vote received by each and every candidate because void vote cannot be counted: whether it is cast in favour of an elected candidate or any other candidate contesting the elections. Once the real import of clause "the reception of any vote which is void" is realized, it becomes clear that, in recount of the votes which are void votes, those would have to be excluded and for that purpose, the returned candidate can raise a plea by way of defence that the void votes were cast either in favour of elected candidate or any other defeated candidate. He can at least raise a plea that such void votes were actually cast and he would certainly be justified in raising a plea that the void votes were cast not only in the polling Stations named in the election petition, but in some other polling Stations also. Therefore, if recount was to be ordered, the recount cannot be restricted only to the named polling Stations in the election petition, but it would have to be a general recount where the void votes would have to be avoided. Therefore, there would have to be an opportunity to the elected candidate to prove that there were void votes in other polling Stations also and for that purpose, there should be recount of all the votes of all the Polling Stations. It is only thereafter that the true position as regards majority of votes could be obtained. In this view also, I cannot agree with my learned brother Sharma J, as also the Judgment of the High Court holding that it is only the votes cast in the named polling Stations which are liable to be counted and not those which have been named in the questioned paragraphs which have been ordered to be deleted from the Written Statement of the elected candidate.

5. In order to appreciate the contention of the counsel appearing for the parties, the relevant portion of the prayer made in the election petition viz., paras iii to v, is extracted hereinbelow: -

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iii) to order a re-count of the votes after excluding the void votes if required;
iv) to declare the election of the Respondent No. 1 as void;
v) to pass other and further orders as may be deemed fit by the Hon'ble Court in the facts and circumstances of the case."