| 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] |
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