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PETITIONER: AZMAT KHAN

       Vs.

RESPONDENT: KHILLAN SINGH & OTHERS

DATE OF JUDGMENT08/11/1983

BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA VENKATARAMIAH, E.S. (J)

CITATION:  1984 AIR  304            1984 SCR  (1) 795  1984 SCC  (1) 143        1983 SCALE  (2)760

ACT:      Representation  of   the  People   Act,  1951-Sec.  97- Recrimination Petition-Necessity and effect of.

HEADNOTE:      The appellant,  who was  a returned  candidate, filed a recrimination petition in the election petition filed by the first respondent  and another. As a result of the recount to which all  the parties  had agreed,  the High Court declared the first respondent as elected. Hence this appeal.      Dismissing the appeal. ^      HELD: The case of Jabar Singh v. Genda Lal on which the appellant relies  is of  no assistance  to him  because  the facts of  the present  case are clearly distinguishable from that case.  In that  case the  returned  candidate  did  not recriminate as  provided under sec. 97 of the Representation of the  People Act, 1951. In the instant case, the appellant had  admittedly   recriminated  and   in  the  recrimination petition one  of the  grounds taken  related to  the  errors committed at  the time  of the  counting of votes of the Ist respondent by  the Returning Officer. The appellant had also agreed to  the recounting  of the  votes secured  by all the parties. [796 E-G]      Jabar Singh  v. Genda Lal, [1964] 6 S.C.R. 54, referred to and distinguished.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeal No. 236 of 1983.      From the  Judgment and  Order dated  the 11th  January, 1983 of  the Punjab  and  Haryana  High  Court  in  Election Petition No.2 of 1982.      M. C. Bhandare and Prem Malhotra for the Appellant.      Hardev Singh and R. S. Sodhi for the Respondent.      The Order of the Court was delivered by      FAZAL ALI,  J. This  election appeal  arises out of the election held  in 1980  from the  constituency No. 56 called Hathin to the 796

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Legislative  Assembly  of  the  State  of  Haryana.  At  the counting  held  by  the  Returning  Officer,  the  Appellant secured 12,828  votes whereas respondent No. 1 Khillan Singh got  12,655   votes  and  one  Ramjilal  got  12,213  votes. Accordingly the appellant was declared as elected. Aggrieved by the  result of  the election,  Khillan Singh and Ramjilal filed election petitions in the High Court. In the course of the election  petition, the  appellant filed a recrimination petition in  which one  of the grounds related to the errors committed in  the counting of votes of respondent No. 1. All the parties agreed that the court should order a recount and that the  parties would  be  bound  by  the  result  of  the recount. The  recount was  accordingly held  as a  result of which Khillan  Singh respondent  No. 1  got 12,751  i.e. the highest number  of valid  votes and the appellant got 12,698 votes. In  view of the higher votes secured by Khillan Singh respondent No.  1 at  the recount ordered by the High Court, his petition  was allowed, the election of the appellant was set aside  and Khillan  Singh was  declared as elected. This appeal is filed against the decision of the High Court.      In support  of the  appeal, Mr. Bhandare with the usual ingenuity pressed  only one point before us. He submitted on the basis  of the  Judgment of  this Court in Jabar Singh v. Genda Lal  that even  if the  result had  gone in  favour of respondent No. 1 he could not have been declared elected. We have gone  through this authority and we find that the facts of the  present case  are clearly  distinguishable.  In  the decision referred  to above  the returned  candidate did not recriminate  as   provided   under   section   97   of   the Representation of  the People  Act, 1951  and this  was  the important ground  on which  the Court said that it could not make any  attack against  the alternative  claim made by the petitioner.  In   the  instant   case,  the   appellant  had admittedly recriminated  and in  the recrimination  petition one of  the grounds taken related to the errors committed at the time  of the  counting of votes of the Ist respondent by the Returning  Officer. The appellant had also agreed to the recounting of the votes secured by all the parties. In these circumstances, this  case does  not  appear  to  be  of  any assistance to  the appellant. The decision of the High Court is in  accordance with  the result of the recount ordered by it.      For the  foregoing reasons, the appeal is dismissed but in the  circumstances of  the case there will be no order as to costs. H.S.K.                                     Appeal dismissed. 797