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PETITIONER: ANIRUDH PRASAD

       Vs.

RESPONDENT: RAJESHWARI SAROJ DAS & OTHERS

DATE OF JUDGMENT20/04/1976

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. KRISHNAIYER, V.R. GUPTA, A.C.

CITATION:  1976 AIR 2184            1976 SCR   91  1977 SCC  (1) 105

ACT:      Election-Representation of  People Act,  1951-Sec.  97- Recriminatory  petition-Nature   and  scope   of-Conduct  of Election Rules  1961-Rule 73(2) (d)-Ballot papers containing identification marks.

HEADNOTE:      19 persons  contested biennial  elections to  the Bihar Legislative Council  for filling 11 vacancies. The appellant and respondents  No. 1 to 10 were declared as the successful candidates. Election  was held by the system of proportional representation by a single transferable vote. The votes were counted in  accordance with the procedure prescribed in para 7 of  the Conduct  of Election  Rules 1961,  read  with  the relevant provisions of the Representation of the People Act, 1951. The  Returning Officer  rejected 9  ballot papers  and accepted 306. The Returning Officer by application of rule 6 fixed the  minimum quota  of votes  sufficient to secure the return of  a  candidate  at  2551.  In  first  three  rounds respondents 1  to 7  were  declared  elected.  None  of  the candidates could be declared successful in the fourth round. In the  fifth and  6th  rounds  respondents  8  and  9  were declared elected.  In the  seventh round,  respondent No. 18 (Election Petitioner)  was eliminated and in the last round, i.e. the 8th round, the appellant and respondent No. 10 were declared as the successful candidates.      Respondent No.  18 filed  an Election  Petition in  the High  Court  challenging  the  election  of  the  successful candidates on  the ground  that the  rejection of  3  ballot papers having  first preference  votes in  its  favour,  the rejection of  2 ballot  papers having first preference votes in favour  of respondent No. 9 the illegal acceptance of one ballot paper  having first  preference  vote  in  favour  of respondent No.  8 and  wrong counting of votes in the fourth round of  counting had materially affected the result of the election. The  Returning Officer  had  rejected  one  ballot paper on  the ground  that it  contained merely a horizontal line, another on the ground that it had a faint mark and the third on  the ground  that the  voter had scored through the fourth preference  vote in  favour of  one candidate and had assigned it  to another.  Respondent No.  8 and  some  other

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respondents did  not enter  appearance in  the  High  Court. Respondent No.  9 filed  a  written  statement  as  well  as recriminatory petition.  He  contended  that  the  Returning Officer had wrongly rejected 2 ballot papers which contained first preference  votes in  his favour  and one other ballot paper having  a second  preference vote  in his  favour. The appellant who  was respondent  No.  10  in  the  High  Court contested the  petition. The  High Court with the consent of parties decided  as preliminary  issue whether  the election petition was  maintainable and whether the Returning Officer wrongly and illegally rejected the ballot papers and, if so, whether the  result of  the  election  had  been  materially affected. The  High Court  also held that the three disputed ballot papers  did  not  contain  any  identification  marks within the  meaning of rule 73(2) (d) of Conduct of Election Rules, 1961  and, therefore,  the Returning  officer was  in error in  rejecting those  ballot papers  as invalid. It was not disputed  before the  High Court  that if  the 3  ballot papers  that  were  wrongly  rejected  were  not  eliminated respondent  No.   18  would   have  been  declared  elected. Consequently, the  High Court  recorded the finding that the election of  the Election Petitioner was materially affected by the  rejection of  the ballot papers. The High Court also held that  as a result of the illegal rejection of the three votes respondent  No. 9  was required  to trial behind until the sixth  round and  that but  for the  wrongful  rejection respondent No.  9 would  have been  declared elected  in the very first  round.  Special  leave  Petition  filed  by  the Election Petition  field by  the Election Petitioner in this Court against  the findings  of the High Court on issues No. 1, 2 and 3 was dismissed. 92      Thereafter, the  High Court proceeded with the election petition and  tried the  remaining issues.  The  votes  were recounted by  an Officer  appointed  by  the  court  in  the presence of  parties and  their counsel.  A fair copy of the result sheet was thereafter prepared signed by all concerned in token  of its  correctness. The  High Court  consequently allowed  the   election  petition,   declared  the  election petitioner as  elected and  set aside  the election  of  the appellant who  had secured  the smallest  number of votes on recounting.      It was contended by the appellants before this Court;      Since respondent  No. 8 had not filed the recriminatory petition he had disentided himself from claiming any benefit under the ballot papers which were initially rejected by the Returning Officer  but which were accepted by the High Court as valid.      Dismissing the appeal, ^      HELD: Section  97 of  the Representation of People Act, 1951 provides  that when  in election petition a declaration is  sought  that  any  candidate  other  than  the  returned candidate has  been duly  elected the  returned candidate or any other party may give evidence to prove that the election of such  candidate would  have been  void if he had been the returned candidate and a petition had been presented calling in question  his election.  The proviso  to the said section provides that  the returned  candidate or  such other  party shall not  be entitled  to give  such evidence unless he has within 40  days from  the date  of commencement of the trial given notice  to the  High Court  of his intention to do so. Section 97  applies if  a composite  claim  challenging  the election of  the returned  candidate and  for a  declaration that some  other candidate  should be  declared  elected  is

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made. The  returned  candidate  in  that  case  recriminates against the  person  in  whose  favour  the  declaration  is claimed. The  recriminatory plea  of defence  in  one’s  own election is in truth and substance not so much a plea though that be its ultimate purpose and effect, as a plea of attack by which a successful candidate assumes the role of counter- petitioner and  contends that  the election of the candidate in whose  favour the  declaration is claimed would have been void if  he had  been the  returned candidate and a petition had been  presented calling  his election in question. Since the election petitioner had asked for a composite relief the conditions  necessary   for  attracting   section  97   were undoubtedly present.  The contention  of the  appellant was, however, altogether  of a different kind. It was argued that respondent  No.   8  cannot  take  advantage  of  the  first preference votes  cast in his favour without a recriminatory petition. This  contention is  outside the  scope of  s. 97, because in claiming the first preference vote respondent No. 8 is  not in  any manner  challenging the validity of any of the votes  cast  and  counted  in  favour  of  the  election petitioner or any step taken by or on behalf of the election petitioner in  furtherance of his election. Respondent No. 8 made no  contention and wanted to make none in regard to the claim of  the election petitioner that he should be declared elected. There  was no  conflict  of  interest  between  the election petitioner  and respondent  No. 8  on the  question whether the  particular vote  should be counted in favour of the latter.  If the  3 ballot  papers in question were valid they  must  be  treated  as  valid  for  all  purposes  and, therefore, votes  cast in  favour of  respondent No. 8 under those ballot papers must be counted in his favour.                                      [97 C, 98 A, D-F, 99-D]      Jabar  Singh   v.  Genda   Lal  [1964]   6  S.C.R.  54, distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION : Civil Appeal No. 714 of 1975.      From the  Judgment and  Order dated  18th April 1975 of the Patna High Court in Election Petition No. 2/74.      Pramod Swarup and K. K. Chaudhury; for the Appellants.      K.  P.  Verma,  B.  B.  Sinha  and  S.  C.  Patel;  for Respondents Nos. 8 93      J.P. Goyal and M.P. Mukerjee; for Respondent No. 18.      Shree Pal Singh; for Respondents Nos. 10, 12 and 17.      The Judgment of the Court was delivered by-      CHANDRACHUD, J.-Nineteen persons contested the biennial elections to  the Bihar  Legislative Council which were held on March  29, 1974  for filling 11 vacancies. The appellant, Anirudh Prasad, and respondents 1 to 10 were declared as the successful candidates.      The  elections  having  been  held  by  the  system  of proportional representation  by a  single transferable vote, votes  were   counted  in   accordance  with  the  procedure prescribed in  Part VII  of the  Conduct of  Election Rules, 1961 (hereinafter  called the Rules), read with the relevant provisions of  the Representation  of the  People Act,  1951 (hereinafter called  the Act).  The Secretary  of the  Bihar Legislative Assembly  who acted  as  the  Returning  Officer rejected 9  ballot papers  and accepted  the  remaining  306 ballot papers as valid. Considering that 11 seats were to be filled on  the basis of votes cast in 306 ballot papers, the

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Returning Officers  by the application of Rule 76, fixed the minimum quota  of votes sufficient to secure the return of a candidate at  2551. The technical arithmetical formulae were applied during  counting  from  time  to  time,  votes  were likewise added  and subtracted  from one round to another of counting and the result of the none-too-simple procedure was entered by the Returning Officer in a form prescribed by the rules for that purpose.      In the first round of counting, respondents 1 to 5 were declared elected  as they  secured more votes than the fixed quota of  2551. In  the second and third rounds of counting, respondent 6 (since deceased) and respondent 7 were declared successful on  the basis  of transfer of surplus votes. None of the candidates could be declared successful in the fourth round but in the fifth round, respondents 8 and 9 and in the sixth round,  respondent 9,  were declared  elected. In  the seventh round  of counting  respondent 18  (Indra Kumar) was eliminated and in the eighth round, which was the last round of counting,  the appellant Anirudh Prasad and respondent 10 were declared as the successful candidates.      Respondent 18  filed an  election petition in the Patna High  Court  challenging  the  election  of  the  successful candidates on  the ground  that the  rejection of  3  ballot papers having  First Preference  votes in  his  favour,  the rejection of  2 ballot  papers having First Preference votes in favour  of respondent  9, the  illegal acceptance  of one ballot paper  having a  first Preference  vote in  favour of respondent 8  and a  wrong counting  of votes  in the fourth round of  counting had materially affected the result of the election. Out  of the  3 ballot  papers which  according, to respondent  18   were  wrongly  rejected  by  the  Returning Officer, one  was rejected on the ground that it contained a small  horizontal  line,  another  on  the  ground  that  it contained a  faint mark and the third on the ground that the elector had  scored through  the Fourth Preference vote cast in favour of one candidate and had assigned it to 94 another. The  rejection  of  these  3  ballot  papers  which contained First  Preference votes in favour of respondent 18 was partly based on the view that while casting their votes, the voters  connected with  the particular ballot papers had resorted  to  devices  by  which  their  identity  could  be established. Respondent  18  prayed  that  the  election  of successful candidates  or of  the  candidate  receiving  the smallest number  of votes on recount be declared as void and that he himself be declared as duly elected. The rest of the 18 contestants were impleaded as respondents to the Election Petition.      Respondents 1  to 6,  8 and  11 to  17  did  not  enter appearance in  the High Court. Respondents 7 and 10 appeared in the election petition and filed their written statements. But they took no further part in the proceedings.      Respondent 9, Nathuni Ram, filed a written statement as well as  a recriminatory  petition. He  contended  that  the Returning Officer had wrongly rejected 2 ballot papers which contained First Preference votes in his favour and one other ballot paper  having a Second Preference vote in his favour. According to  respondent 9,  even if  the grievance  made by respondent 18 in the election petition was to be accepted as valid, that would not affect his election as, in any view of the matter,  he would  be entitled to additional votes which were wrongly rejected by the Returning Officer.      The appellant  Anirudh Prasad, who was respondent 10 in the High  Court, appeared  in the case and filed his written statement. The  High Court  accepted his  written  statement

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subject to the condition that he paid costs of respondent 18 who had  filed the election petition and of respondent 9 who was the  sole  contesting  respondent.  This  condition  was imposed by  the High  Court on the ground that the appellant had filed  his written  statement much beyond the time fixed for that  purpose. The  appellant did  not pay, the costs as directed by  the High  Court and  since the payment of costs was a  condition precedent  to the acceptance of his written statement, the  High Court  passed orders declining take the written  statement  on  record.  The  High  Court,  however, allowed  the   appellant’s  counsel   to  cross-examine  the witnesses  examined   by  the  election  petitioner  and  by respondent  9.   limiting  the   cross  examination  to  the statements made  by the  witnesses in  their examination-in- chief. The appellant was further permitted by the High Court to lead  evidence by way of rebuttal and to submit arguments on the evidence in the case.      On the basis of the averments contained in the election petition filed  by respondent  18 and those contained in the written statement  and the  recriminatory petition  filed by respondent  9,   the  High   Court  framed   5  issues   for determination:           "Is   the    election   petition,    as    framed,      maintainable?           2. Did  the  Returning  Officer  at  the  time  of      counting of  votes illegally  and wrongly reject three,      with first  preference, votes  validly polled in favour      of the  petitioner ?  If so, has the result of election      been materially affected on that account? 95           3. Did  the  Returning  Officer  at  the  time  of      counting of  votes illegally  and  wrongly  reject  two      votes with  first preference  and one  vote with second      preference validly  polled in favour of respondent No.9      ? If so, has the result of the election been materially      affected thereby?           4. Whether the petitioner has received majority of      the valid votes and is entitled to be declared elected,      as claimed ?           5. To  what relief,  if  any,  is  the  petitioner      entitled in this election petition?" Since the  decision of  issued 4  and 5  depended  upon  the answers to  issues 1 to 3, the High Court, by consent of the contesting parties,  took up issues 1 to 3 for consideration in the  first instance.  By its  judgment dated February 28, 1975 it  rejected the  contention that the election petition was defective  and held on issue No. 1 that the petition was maintainable. It  held on  issue No.  2 that  the 3 disputed ballot papers  (Exhibits 4, 4/a and 4/b) did not contain any identifying marks  within the  meaning of  rule 73(2)(d) and therefore the  Returning officer  was in  error in rejecting those ballot  papers as  invalid. It was not disputed before the High  Court at  that stage  that the election petitioner (respondent 18)  was eliminated  in  the  seventh  round  of counting because  of his  failure to  receive  the  required quota of 2551 votes and that if the 3 First Preference votes contained in Exhibits 4, 4/a and 4/b had been counted in his favour,  he  would  have  been  declared  as  duly  elected. Consequently, the  High Court  recorded the finding that the election of  the election-petitioner was materially affected by the  rejection of  the 3 ballot papers. On the 3rd issue, the question for consideration of the High Court was whether 3 other ballot papers (Exhibits B, B/1 and B/2) were rightly rejected by  the Returning Officer. The High Court held that the Returning  Officer had  rejected  the  3  ballot  papers

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wrongly and  that  the  votes  cast  therein  in  favour  of respondent 9  had  to  be  taken  into  account.  The  wrong rejection of  these 3  ballot papers had materially affected the result  of the  election qua  respondent 9  in the sense that if  the votes cast in his favour in the 3 ballot papers were taken into account, he would have been declared elected in the  very first round of counting and would not have been required to  trail behind  until the  sixth round.  The High Court recorded its finding on issue No. 3 accordingly.      The appellant  filed a  petition for  special leave  in this Court  against the aforesaid judgment of the High Court dated February 28, 1975 but that petition was rejected.      Thereafter the  High Court  proceeded with the election petition and tried the remaining issues, 4 and 5. By consent of parties  it  appointed  Shri  R.  N.  Thacore,  Ex-Deputy Secretary of  the Bihar  Legislative Council, to recount the votes on the basis of the findings recorded on issues Nos. 2 and  3.  Shri  Thacore  was  expertly  conversant  with  the complicated mechanism  of counting votes under the system of proportional representation  by single  transferable vote. I earned counsel  who appeared  in  the  High  Court  for  the election petitioner  and for  respondent 10  would appear to have been familiar with the particular 96 procedure and they agreed to assist Shri Thacore. Respondent 9 agreed  that  counsel  for  the  election  petitioner  may deputies for  him. Accordingly,  the votes were recounted by Shri Thacore  in the  presence  of  the  parties  and  their counsel. A  fair copy  of the  result sheet  was  thereafter prepared by  Shri Thacore in the presence of counsel for the parties who  affixed their signature thereon in token of its correctness.      The Returning  Officer had  declared the  result of the election on  the basis  that only  306  ballot  papers  were valid. The  High Court  by its judgment of February 28, 1975 held that  six ballot  papers were  wrongly rejected  by the Returning Officer  with the  result that the number of valid balot papers  rose  from  306  to  312.  The  minimum  quota consequently rose  from 2551  to 2601.  On the  basis of the recounting of  votes done  by Shri  Thacore, the  High Court allowed the  election petition and declared respondents 1 to 10 and  respondent  18  (the  election  petitioner)  as  the successful candidates.  The appellant,  Anirudh Prasad,  who was respondent  10 in  the  High  Court  and  who  had  been declared elected  by the  Returning Officer  was found, on a recount of  the votes, to have secured 2500 votes as against 2579 votes  secured by  respondent 18.  The High  Court  set aside the  election of  the appellant  who had  secured  the smallest number  of votes.  This appeal  by special leave is directed against  the judgment of the High Court dated April 18, 1975.      After the  preliminary finding  of the  High Court that the six ballot papers were wrongly rejected by the Returning officer  and  that  those  ballot  papers  were  valid,  the appellant made  an application  in the High Court that since respondent 8,  Janardan Prasad  Varma,  had  not  filed  any recrimination, the  1st preference  vote cast  in his favour under the  ballot paper  Ex. B/2 and the 7th preference cast in his favour under Exhibits B and B/1 should not be counted in his  favour. By  an order  dated April  14, 1975 the High Court rejected  that application  and directed  that all the votes contained  in and  cast under  the ballot papers which were held  to be  valid should  be counted  in favour of the candidates concerned according to the relevant rules.      Mr. Pramod  Swaroop,  who  appears  on  behalf  of  the

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appellant, made  a fervent  plea that since respondent 8 had not filed  a  recriminatory  petition,  he  had  disentitled himself from  claiming any  benefit under  the ballot papers which were  initially rejected  by the Returning Officer but which were  accepted by  the High  Court as valid. It may be recalled that  the election-petitioner  had  asked  for  the scrutiny and  acceptance of three ballot papers only (Ex. 4, 4/a and  4/b), wherein  he had secured Ist preference votes. Respondent 9  filed a  recrimination under section 97 of the Act asking that two other ballot papers, Exhibits B and B/1, wherein he  had secured  Ist preference votes and the ballot paper, Ex. B/2, wherein he had secured a 2nd preference vote should be  re-scrutinised and  accepted.  These  six  ballot papers which  were rejected  by the  Returning Officer  were accepted by the High Court as valid. Apart from the emphasis on the  failure of respondent 8 to file a recrimination, the grievance of the appellant is this: Ex. B/2 which contains a Ist preference vote for respondent 97 8 was  not even considered for counting the votes secured by respondent 9  who had  filed his  recrimination and at whose instance Ex.  B/2 was  held valid;  because, in order to get elected it  was enough  for respondent  9 to rely on the Ist preference votes  cast in  his favour  under Exhibits  B and B/1. The second preference vote cast in his favour under Ex. B/2 was  superfuous  for  his  election.  According  to  the appellant, it  is anomalous  that respondent 8 who had taken no part  in the proceedings before the High Court should get the benefit  of the  Ist preference  vote cast in his favour under Ex.  B/2 when  he asked for no such relief, especially when respondent  9 at  whose instance  the particular ballot paper was  treated as valid did not require for his election the addition  of the  2nd preference vote cast in his favour thereunder.      This argument is founded on the provisions contained in section 97  of the Act, which has been the subject-matter of several decisions of this Court. That section provides:           "97. Recrimination  when seat claimed.-(1) When in      an election  petition a  declaration that any candidate      other than the returned candidate has been duly elected      is claimed,  the returned  candidate or any other party      may give  evidence to  prove that  the election of such      candidate would  have been  void if  he  had  been  the      returned candidate  and a  petition had  been presented      calling in question his election.           Provided that the returned candidate or such other      party, as  aforesaid shall not be entitled to give such      evidence unless  he has,  within fourteen days from the      date of  commencement of the trial, given notice to the      High Court of his intention to do so and has also given      the security  and the  further security  referred to in      section 117 and 118 respectively.           (2)  Every notice  referred to  in sub-section (1)      shall be  accompanied by  the statement and particulars      required by  section 83  in the  case  of  an  election      petition and  shall be  signed  and  verified  in  like      manner."      An election-petitioner  may either  ask for  the relief under section  100 of  the Act  that  the  election  of  the returned candidate  be declared  void or  he may ask for the additional relief  under section  101 that  he or  any other candidate may  be declared  as elected. It is only if such a composite claim  is made  that section  97 is attracted. The returned candidate  can then  recriminate against the person in whose  favour a declaration is claimed under section 101.

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The recriminatory plea is in truth and substance not so much a plea  in defence of one’s own election, though that be its ultimate purpose  and effect,  as a  plea of attack by which the successful  candidate assumes  the  role  of  a  counter petitioner and  contends that  the election of the candidate in whose  favour the  declaration is claimed would have been void if  he had  been the  returned candidate and a petition had been  presented calling  his election in question. Since respondent 18  who filed the election petition had asked for a composite  relief that  the  election  of  the  successful candidates or  of that  candidate  who  was  found  to  have secured the 98 least number  of votes  should be  set  aside  and  that  he himself should  be declared  as a  successful candidate, the conditions  necessary   for  attracting   section  97   were undoubtedly present.  But that  does  not  mean  that  every contention made by any of the successful candidates or other parties is  barred unless a recriminatory petition is filed. The plea of recrimination goes under section 97 to the claim of the  election petitioner that he or any person other than the successful  candidate may  be declared elected, the plea of the recriminator being that the election of the person in whose favour the declaration is claimed would have been void if he  had been  the returned  candidate and a petition were filed to  challenge his  election. For  example, any  of the successful  candidates   can  contend   by  a  recriminatory petition that  the election of the election-petitioner, were he successful,  suffered from  defects by reason of which it would be  void. Such  a challenge  can be  made  only  by  a recriminatory petition  and unless  such a petition is filed in compliance  with section  97,  it  is  not  open  to  the successful candidate  or any  other party  to challenge  the additional claim made by the election petitioner.      The contention of the appellant before us is altogether of a  different kind.  It is argued that respondent 8 cannot take advantage of the Ist preference vote cast in his favour under  Ex.   B/2  without  a  recriminatory  petition.  This contention is  outside the  scope of  section 97 because, in claiming the  Ist preference vote under Ex B/2, respondent 8 is not  in any manner challenging the validity of any of the votes cast  and counted in favour of the election-petitioner or any step taken by or on behalf of the election-petitioner in furtherance  of his  election. In fact, respondent 8 made no contention and wanted to make none in regard to the claim of  the  election-petitioner  that  he  should  be  declared elected. The election involved a contest to 11 seats and the claim of  respondent 8 to the Ist preference vote in Ex. B/2 was not  in derogation of any of the rights of the election- petitioner who  claimed the  composite relief. The very fact that the  election-petitioner succeeded  in the  High  Court despite the counting of the 1st preference vote in favour of respondent 8  shows that  there was  no conflict of interest between the  election-petitioner and  respondent  8  on  the question whether  the particular  vote should  be counted in favour of  the latter.  Respondent  8’s  claim  to  the  Ist preference vote  contained in  Ex.  B/2  did  not  have  the effect, directly  or indirectly,  of invalidating any of the votes  counted   originally  in   favour  of  the  election- petitioner. It  may bear  repetition that respondent 8, like the appellant,  was one  of the successful candidates and it is respondent  18  who  was  declared  unsuccessful  in  the election, who  filed the  election petition. The appellant’s contention comes  to this that one successful candidate must file a recrimination against another successful candidate if

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an unsuccessful  candidate files an election-petition asking for a  composite relief.  We see  no justification  for this contention on the language and intendment of section 97.      It is  also necessary to bear in mind that the election to the  Legislative  Council  was  held  by  the  system  of proportional representaion  by a  single transferable  vote. Nineteen candidates contested 99 the election  for 11 seats. Rules 76 to 85 of the Conduct of Election Rules,  1961 provide  an  elaborate  procedure  for counting of  votes when  more than one seat is to be filled. By rule  76, every valid ballot paper is deemed to be of the value of  100 and putting it simply, the quota sufficient to secure  the   return  of   a  candidate   is  determined  by multiplying the  number  of  valid  ballot  papers  by  100, dividing the  total by one more than the number of vacancies to be  filled and adding one to the quotient. Initially, 306 ballot papers  were  accepted  as  valid  by  the  Returning Officer. The  minimum quota  was accordingly  fixed at 2551: (306x100=30600%11+1=2550+1=2551). The High Court held that 6 ballot papers were wrongly rejected by the Returning Officer as a  result of which the number of valid ballot papers rose to 312.  The minimum  quota correspondingly  rose  to  2601: (312X100=31200%12=2600+1=2601). The  minimum quota  which is fixed primarily  on the  basis of valid ballot papers is the key-point  of   counting  and  transfer  of  surplus  votes. ’Surplus votes’  means votes  in excess of the minimum quota and it  is such  surplus votes that are transferred to other candidates left  in the  field. The  various rules and their working as  illustrated in  the Schedule  to the  Rules show that the  system of  proportional representation by a single transferable vote involves a progressive inter-linked method of counting  votes. It  is therefore difficult to accept the appellant’s argument  that a  ballot paper may be treated as valid for  fixation of the minimum quota but should be ruled out for  purposes of  counting the  votes  cast  therein  in favour of  any candidate.  If the  ballot paper  Ex. B/2  is valid, it  must be  treated as  valid for  all purposes  and therefore the  1st  preference  vote  contained  therein  in favour of  respondent 8  must be counted in his favour. This would be  so especially  when the  process  can  involve  no recrimination between  respondent 8  and the appellant, both of whom  were successful  candidates. Nor  indeed does  such counting involve  any recrimination between respondent 8 and the election-petitioner who, as stated earlier, was declared successful by the High Court despite the counting of the Ist preference vote in favour of respondent 8.      On the  facts of  the case it is clear that originally, respondent 8  had secured  2611 votes  as against 2500 votes secured by  the appellant. That was without counting the Ist preference vote  cast in  favour of  respondent 8  under Ex. B/2.  On  that  footing  also  the  appellant  cannot  claim priority over  respondent  8  and  his  grievance  that  he, instead of  respondent 8,  should  be  declared  elected  is without any substance.      Great reliance  was placed by counsel for the appellant on the  decision of  this Court  in  Jabar  Singh  v.  Genda Lal(1), in  support of  the  contention  that  respondent  8 cannot claim  the benefit of the Ist preference vote cast in his favour under Ex. B/2 without a recriminatory petition.      That was  a typical case in which the contention sought to be raised by the successful candidate could not have been raised without  a recriminatory petition under section 97 of the Act. The respondent 100

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therein challenged  the election  of the  appellant  on  the ground of  improper reception  of votes  in  favour  of  the appellant and  improper rejection  of  votes  in  regard  to himself. The respondent prayed that the appellant’s election should be declared void and he himself should be declared to have been  duly elected.  The  appellant  urged  before  the tribunal that there had been improper rejection of the votes and improper  acceptance of  the votes  in  favour  of  this respondent. The  respondent objected to this course and that objection was upheld by this Court on the ground that in the absence of  recriminations it  was not open to the appellant to take  up the  particular plea.  As we  have shown earlier respondent 8  did not  contend that  there was  any improper reception of  votes in  favour of the election petitioner or for the  matter of  that in  favour of  any other candidate. There  was   therefore  no   question  of   his   filing   a recrimination under section 97. Secondly, the voting in that case was not by the system of proportional representation by a single transferable vote and the complications which arise by reason  of the  peculiar  system  of  counting  which  is required to  be adopted  in the instant case had no place in the scheme  of counting  in  that  case.  In  view  of  this position it seems unnecessary to discuss the other decisions cited on behalf of the appellant which are reported in Dhara Singh v.  District Judge, Meerut & Anr.(1); P. Malaichami v. M. Andi  Ambalam &  Ors.(2) and the decision in Civil Appeal No. 83  of 1975  decided July  31, 1975. These decisions are distinguishable for  the same reason for which Jabar Singh’s case has no application to the facts of the instant case.      For these reasons we dismiss the appeal and confirm the judgment of  the High Court but there will be no order as to costs. P.H.P.                                     Appeal dismissed. 101