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PETITIONER: BHAG MAL

       Vs.

RESPONDENT: CH. PARBHU RAM AND OTHERS

DATE OF JUDGMENT30/10/1984

BENCH: VARADARAJAN, A. (J) BENCH: VARADARAJAN, A. (J) FAZALALI, SYED MURTAZA MUKHARJI, SABYASACHI (J)

CITATION:  1985 AIR  150            1985 SCR  (1)1099  1985 SCC  (1)  61        1984 SCALE  (2)702  CITATOR INFO :  R          1987 SC 831  (9)

ACT:      Representation  of  the  People  Act  1951-S.  27  (1)- Recrimination petition-What  is the  effect of  omission  to make recrimination petition by returned candidate-In absence of  recrimination   petition  Election   Tribunal   has   no jurisdiction to go into the question whether any wrong votes were counted  in favour  of election petitioner-Parties must conform strictly  to the  letter of the law in regard to the procedure laid down under the Act and the Rules.      Representation  of   the  People   Act,   1951-Election petition-Powers of  the Election  Tribunal (High  Court)  to decide election  petition-Powers are  wholly the creature of statute-Election petition  is not an action at law or a suit in equity-Election of successful candidate not to be lightly interfered  with   Purity  of   election  process   must  be safeguarded. Reliefs  as are  available according to law can only be granted      Representation of  People  Act  1951-S.  97-A  rule  of procedure-Must be  so construed that it serves wishes of the voters.      Interpretation   of    statute-Court   must    construe procedural provision  of law in such a manner that procedure does not  defeat purpose  or object  of law-Where  plain and literal interpretation  of a  statutory provision produces a manifestly  absurd   and  unjust  result  Court  may  modify language used  or even  do some  violence to  it  so  as  to achieve the obvious intention of the legislature and produce a rational construction and just result.

HEADNOTE:      The appellant  was declared  elected as a member of the Haryana Legislative  Assembly  from  the  Sadbure  Scheduled Caste Reserved  Constituency in  the election  held on  19th May, 1982.  The contest  was between  the appellant  and  12 others including  respondent 1.  The appellant secured 20981 votes while  respondent 1  secured 20971  votes, that is the appellant secured  10 votes  more  than  the  respondent  1. Respondent 1  filed an  election petition  in the High Court challenging the election of the appellant on the ground that

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the counting  of votes  was not  proper. Respondent 1 prayed not  only   for  recounting   of  the  votes  but  also  for declaration  that   he  was   the  duly   elected  candidate Respondent 1  alleged that  on his  application to which the appellant had  also consented,  though the Returning Officer had initially  ordered recounting  of all the ballot papers, the ballot  papers of  the appellant  and respondent  1 only were recounted and therefore 1100 the recount  was void. The respondent 1 also alleged that in the  recounting,   the  Returning   Officer  had  improperly rejected about  100 ballot  papers said to have been cast in favour of respondent 1 as invalid under the influence of the Naib Tehsildar  (Election). The  issue framed  by  the  High Court was as to whether respondent 1 was entitled to recount The High  Court found  that the  discretion of the Returning Officer in  the matter  of rejection of some doubtful ballot papers had  been influenced  by  the  opinion  of  the  Naib Tehsildar. In  those circumstances,  the High  Court found a prima facie  case  made  out  for  ordering  rechecking  and recounting of  the rejected ballot papers. On March 15, 1983 the High  Court ordered  scrutiny and  recount of  only  the rejected ballot  papers of the appellent and respondent 1 by District judge  (Vigilance), Punjab.  The High  Court was of the opinion  that no  case had  been made  out for  ordering recounting of  all the  votes. The appellant filed a special leave  petition   against  the   High  Court’s  order  dated 15.3.1983 which  was dismissed  by  this  Court.  After  the recounting it  was found that respondent 1 and the appellant had gained  14 and  8 more votes respectively in addition to the votes  already counted  in their favour by the Returning Officer. The  High Court  held that  since the appellant had not filed  any recrimination  application under s. 97 (1) of the Representation of People Act, 1951 (hereinafter referred to as  ’the Act’),  the rejected votes of the appellant, the returned  candidate,   could  not  be  scrutinized  and  the appellant could  not have the benefit of the 8 ballot papers found to  have been  wrongly rejected.  The High Court found that the  result of  the returned  candidate (appellant) had been materially  affected by the wrongful rejection of valid votes cast  in favour  of respondent  1 and  it  accordingly allowed the  election petition and set aside the appellant’s election and declared respondent 1 to be duly elected. Hence this appeal.      The appellant  contended (1)  that no recounting at all should have  been ordered  by the High Court and (2) that if the votes  found in the recounting by the Court to have been improperly rejected  were to  be taken  into account  at all they must  be taken  into account  not  only  in  regard  to respondent 1  but also  in regard  to the appellant. Relying upon the  dissenting view  of Ayyangar,  J. in  the case  of Jabar Singh  v. Genda  Lal (1966)  6 SCR  66, the  appellant submitted that  it would  not  be  in  conformity  with  the principles of  democracy and  the will  of the electorate to hold, by refusing to take into account the 8 rejected ballot papers in  favour of the appellant, that the election of the appellant had  been  materially  affected  by  the  improper rejection of the 14 votes cast in favour of respondent 1 and declare respondent  1  to  have  been  duly  elected  merely because  the   appellant  had   not  filed  a  recrimination application under s. 97 (1) of the Act.      Dismissing the appeal by majority, ^      HELD: (per  S. Murtaza  Fazal Ali  and A.  Varadarajan, JJ.)

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    The High  Court found that the allegation of respondent 1 that  the Returning  Officer obtained  the guidance of the Naib Tehsildar in his decision as regards the doubtful votes is probabilised  by the  evidence of  not only the appellant but also of his election agent. The High Court also 1101 found that  the admission  of  the  observer,  R.W.  4  that respondent I  took objection  to the  presence of  the  Naib Tehsildar during  the recounting probabilises the contention of respondent  I that the Naib Tehsildar was influencing the opinion of the Returning Officer in his decision on doubtful votes. Admittedly,  some ballot  papers meant  for the Kalka constituency had  been issued  and they  had  been  cast  in favour of  respondent I and were rejected on the ground that they were  not meant  for use in this constituency. We think that the  rejection  of  these  ballot  papers  without  any finding on  the question  whether the  mistake in the use of the ballot papers relating to the Kalka constituency in this constituency had  been caused  by any  mistake or failure on the part  of the  Returning Officer  or polling  officer  as required by the proviso to rule 56 (2) (g) of the Conduct of Conduct of  Elections Rules,  1961 is  a ground  which could have been  taken into  consideration for ordering recount of the rejected  ballot papers of respondent 1. On a perusal of the rejected  ballot papers of the appellant and respondent, 1, we  are satisfied  about  the  correctness  of  the  High Court’s  finding  regarding  the  number  of  ballot  papers improperly rejected  by  the  Returning  Officer.  In  these circumstances, we  are clearly  of the opinion that the High Court was  perfectly justified  in ordering  recount of  the rejected ballot  papers relating  to respondent 1. [1114G-H; 1115A-B; D-E; H]      We agree  with respondent  1’s  submission  that  after dismissal  of  the  special  leave  petition  filed  by  the appellant the  High court’s  order dated 15.3.1983 directing recount of the rejected ballot papers in so far as it is not in excess  of the  jurisdiction of the Tribunal (High Court) has become final and that it is not open to the appellant to reagitate that  question in  this appeal  which is  no doubt under s 116 of the Act, as the principle of construction res judicata applies. [1116A-B]      The  appellant’s   contention  that  the  will  of  the electorate should not be thwarted by holding that the result of the  appellant’s election  is materially  affected by the improper  rejection   of  some  ballot  papers  relating  to respondent I alone and declaring respondent I to be the duly elected candidate  has do  substance. This contention of the appellant has  already been  answered by  this Court  in  P. Malaichami v.  M. Andi Ambalam and Others. We agree with the following observations  of the  Court  made  in  that  case. Courts in general are averse to allow justice to be defeated on a mere technicality. But in deciding an election petition the High  Court is  merely a  Tribunal deciding  an election dispute. its  powers are  wholly the  creature of the statue under which  it is  conferred the  power  to  hear  election petitions. An election petition is not an action at law or a suit in  equity but is a purely statutory proceeding unknown to the  common law  and the  Court possesses  no common  law power. It  is always  to be  borne in  mind that  though the election of  a successful  candidate is  not to  be  lightly interfered with,  one of  the essentials of that law is also to safeguard  the purity of the election process and also to see that  the people do not get elected by flagrant branches of that law or by corrupt practices.                              [1121E; 1122B; 1121G H; 1122A]

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    P. Malaichami  v. M.  Andi Ambalam and Others, [1973] 3 SCR 1026, referred to.      What  is   the  effect   of  the  omission  to  make  a recrimination application 1102 under s.  97 (1) of the Act by the returned candidate within the time allowed by the statute in a case where the election petitioner makes a double prayer, namely, declaration of the returned  candidate’s   election  as   void  and  a  further declaration that he is the duly elected candidate ? In Jabar Singh v. Genda Lal, the majority view of this Court was that in an  election petitioner   where  the election  petitioner makes a  double claim:  it claims  that the  election of the returned candidate  is void  and also asks for a declaration that the  petitioner himself  or some  other person has been duly  elected   the   returned   candidate   must   make   a recrimination petition  under s.97  (1) if he wants to raise pleas in support of his cause that the other person in whose favour a  declaration is claimed cannot be said to have been validly  elected.   Section  97(1)   undoubtedly  gives   an opportunity  to   the  returned  candidate  to  dispute  the validity  of  any  of  the  votes  cast  in  favour  of  the alternative candidate  or to  plead for  the validity of any vote cast  in his  favour which has been rejected; but if by his failure to make recrimination within time as required by s. 97  the returned  candidate is precluded from raising any such plea  at the  hearing of  the election  petition, there would be nothing wrong if the Tribunal proceeds to deal with the dispute  under s.  101 (a)  on the  basis that the other votes counted  by the Returning Officer were valid votes and that votes  in favour  of the  returned candidates,  if any, which  were   rejected  were   invalid.  This  Court  in  P. Malaichami v. M. Andi Ambalam and Others observed that it is not enough  to say  that what ought to be looked into is the substance and  not the  form. If  a  relief  provided  under statute could  be  obtained  only  by  following  a  certain procedure laid therein for that purpose, that procedure must be followed  if he  is to  obtain that  relief. It  is not a question of mere pleading, it is a question of jurisdiction. The Election  Tribunal had  no jurisdiction  to go  into the question whether  any wrong votes had been counted in favour of the  election petitioner  who had  claimed the  seat  for himself unless the successful candidate had filed a petition under s. 97. The law reports are full of cases where parties have failed  because of their failure strictly to conform to the letter  of the  law in regard to the procedure laid down under the Act and the rules.                 [1122B-C; 1117B-C; 1118C-D; 1123G-H 1125A-A]      Jabar Singh  v. Genda  Lal, [1964]  6  SCR  57  and  P. Malaichani v. M. Andi Ambalam and Others, [1973] 3 SCR 1026, referred to.      The appellant’s  submission that  the majority  view in the case of Jabar Singh v. Genda Lal should be ordered to be considered by  a much larger bench in view of the dissenting judgment of  Ayyangar, J. cannot be accepted. Such a request has already been considered and rejected by this Court in P. Malaichami v.  M. Andi Ambalam and Others on the ground with which we  agree, that the dissenting judgment does not throw much light on the subject. [1121A-B]      Jabar Singh  v. Genda  Lal, [1964]  6  SCR  57  and  P. Malaichami v. M. Andi Ambalam and Others, [1973] 3 SCR 1026, referred to.      There is  no scope for equity since the entire gamut of the process  of election  is covered  by statute. Reliefs as are available according to law can only be granted. [1125E]

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1103      Arun Kumar  Bose v. Mohd. Purkan Ansari and Others, AIR 1983 SC 1311, referred to.      In the  instant case,  respondent 1  has challenged the appellant’s election  on the ground of improper rejection of ballot papers  which is  certainly a ground for declaring an election void.  If it was the case of the appellant that any vote  validity  cast  in  his  favour  had  been  improperly rejected  he   could  have   urged  it  as  a  ground  in  a recrimination application  filed under  s. 97(1)  of the Act against respondent  1’s prayer  that he  be declared  as the duly elected  candidate. Therefore, we do not agree with the appellant that  s. 97 (1) will not apply to the facts of the present case  and that it will apply only to cases where the returned candidate  seek to  challenge  the  prayer  in  the election petition that the election petitioner or some other candidate be  declared to  be the  duly elected candidate on some other grounds such as corrupt practice. [1128 A-C]      In the  absence of  a recrimination  application  under s.97 (1)  of the  Act the  High Court originally committed a jurisdictional  error   in  directing   the  District  Judge (Vigilance), Punjab  to recheck  and  recount  the  rejected ballot papers  relating to  the appellant.  But that mistake has been  rectified by  the High  Court subsequently  by not taking into  account the  8 ballot  papers relating  to  the appellant which  appear to  have been  wrongly rejected.  In these  circumstances   we  hold  that  the  High  Court  was justified in directing recount of the rejected ballot papers relating to  respondent I and declining to take into account the 8  ballot papers  relating to the appellant found by the District Judge  (Vigilance), Punjab  to have been improperly rejected in the absence of a recrimination application under s.97 (1)  of the  Act and  holding that  the election of the appellant had  been  materially  affected  by  the  improper rejection of  14 ballot  papers relating to respondent 1 and that respondent  1 is  entitled to  be declared to have been duly elected. [1128D-F]      Jabar Singh  v. Genda  Lal, [1964]  6 SCR  57 (majority view), p. Malaichami v. M. Andi Ambalam and Others, [1973] 3 SCR 1026  and Arun  Kumar Bose  v. Mohd.  Furkan Ansari  and Others, AIR 1983 SC 1311, followed.      Anirudh Prasad v. Rajeshwari Saroj Das & Others, [1976] Suppl.  SCR  91  and  Janardan  Dattuappa  Bondre,  etc.  v. Govindprasad Shivprasad  Choudary &  Others, etc.,  [1979] 3 SCR 897, referred to.      (Per Sabyadsachi Mukharji, J.)      The entire  purpose of the constitutional provisions as well as  other provisions  of law  is to  ensure  that  true democracy functions  in this  country and  the will  of  the people prevails.  The purpose  of the  Representation of the People Act  is to safeguard that one who obtains majority of valid votes  by proper  and due  process of law alone should represent the  constituency and  will of the people. All the legal provisions  and the procedures of the enactment should be so  construed as  to ensure that purpose. It would really be a  mockery to the procedure of law if a situation here it is demonstrated duly in the court that a person who obtained four votes 1104 less than   other  next candidate should be declared elected in preference  to the  others and  allowed to  represent the constituency. It  is not  an appeal  to any abstract justice nor it  is an  appeal to  equity but it is to emphasise that procedure  should  be  so  construed  that  these  rules  of procedure such  as s.  97 of the Act subserves the wishes of

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the voters. For this reason the views expressed by Ayyangar, J. in Jabar Singh v. Genda Lal appeals to me more reasonable though these  may  strain  the  literal  provisions  of  the section a  bit, Even  if the legislature has not amended the relevant provisions  after the  said decision,  I am  of the opinion that  in a  matter of  this nature, this Court has a responsibility to  construe the procedural provisions of the law in  such manner  that the  procedure does not defeat the purpose or object of the Act. [1130 D-H] 1131 A]      Jabar Singh  v. Genda  Lal, [1964] 6 SCR 66 and Income- tax (Central)  Calcutta v.  B.N. Bhattachargee  and Another, 118 I.T.R. 461 at 480 referred to.      A Statutory  provision must  be so  construed. if it is possible, that  absurdity and mischief may be avoided. Where the  plain   and  literal   interpretation  of  a  statutory provision produces  a manifestly  absurd and  unjust result, the Court  might modify the language used by the legislature or even  do some violence to it so as to achieve the obvious intention  of   the  legislature   and  produce  a  rational construction and just result [1132B-C]      K.P. Varghese  v.  Income-tax  Officer,  Ernakulam  and Another, 131 I.T.R. 597, referred to.      I feel  that in  view of the lapse of time and the very convincing arguments  advanced by Ayyangar, J.,Jabar Singh’s case requires reconsideration by a larger Bench. [1132D]      A party  cannot take advantage of one part of the order which is  advantageous to  him and discard the other part of the order  which may not be to his advantage especially when an application  for special  leave from  that order has been rejected. If  that order  has to  be given  effect to as has been done  in this  case, it has been found that taking into account the  eight ballot  papers relating  to the appellant which had  been improperly  rejected and  also  taking  into account  other  ballot  papers  which  had  been  improperly rejected in  favour of  respondent No  1, it  is manifest by mechanical recounting  that the  appellant had  secured four votes more  than respondent  No. 1. If that is the position, then in  my opinion this Court cannot and should not declare respondent No.  1 to  have obtained  majority of  the  valid votes. The  order of  15th March,  1983 must  stand or  fall together. In  my opinion  it cannot be bifurcated. It cannot be said  that the recounting in so far as it was directed of the rejected  ballot papers  of respondent  No. 1  the  High Court was  within its jurisdiction and in so far as the High Court directed  recounting of  the rejected ballot papers of appellant also it had committed a jurisdictional error. This is more  so after  the application  for  special  leave  was rejected by  this Court. Apart from that I am of the opinion that there  was no  jurisdictional error-there  was power of the High Court to order such a recount. Even if there was no such prayer in hot 1105 petition before  the High  Court, it cannot be said that the High Court  acted without jurisdiction. In such a situation, applying the  principle of  majority view  of Jabar  Singh’s case,  there   certain   exceptions   where   even   without recrimination petition,  a candidate  like the  appellant in the present  case can  take advantage  of the  ballot papers which have not been properly counted in his favour.[1132F-H; 1133A-D]      Janardan  Dattuappa   Bondre,  Etc.   v.   Govindprasad Shivprasad Choudhary & Ors. Etc., [1979] 3 SCR 897, referred to.      I must observed that reference has been made to certain observations in  some of the decisions to the effect that in

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election petitions,  there was  no question of importing any equitable  principle   or  of  importing  any  principle  of remedying injustice  as such. With respect I cannot persuade myself to this angle of vision. In construing both statutory provisions as  well as  provisions  giving  remedy  provided under special  statute, efforts  should be  made that patent injustice and  inequity which  repels commonsense  and which defeats the  purpose of  the  statute,  should  be  avoided. [1135A-B]      In the  instant case  I find  it difficult  to  declare respondent No. 1 who has admittedly received less votes than the appellant to have been duly elected.[1135C]      In view  of the  facts and circumstances of the instant case I  am of  the opinion that even proceeding on the basis that the  views expressed  by majority of the learned judges in Jabar  Singh’s case is correct, upon which I must proceed for the  purpose of  this case but which I still feel should be reconsidered  by a  larger Bench,  on the  analogy of the decision in  the case  of Janardan  Dattuappa Bondr, Etc. v. Govindprasad Shivprasad  Choudhary and  Ors.  Etc.  I  would allow this appeal.[1135D-E]      Janardan  Dattuappa   Bondre,  Etc.   v.   Govindprasad Shivprasad  Choudhary   and  Ors.  Etc.,  [1979]  3SCR  897, referred to.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION; Civil Appeal No. 1451 of 1984.      From the  Judgment and  Order dated  the 23rd February, 1984 of  the Punjab  and  Haryana  High  Court  in  Election Petition No. 6 of 1984.      Shanti Bhushan,  N.M. Ghatate  and S.  V. Deshpande for the Appellant.      Kapil  Sibal,   R  N.   Karanjawala  and   Mrs.   Manik Karanjawala for the Respondent.      The following Judgments were delivered 1106      VARADARAJAN, J.  This appeal  is directed  against  the judgment of  the Punjab  and  Haryana  High  Court  allowing Election Petition 6 of 1982 filed by respondent 1.      The appellant,  Bhag Mal,  was declared  elected  as  a Member of  the Haryana  Legislative Assembly  (Vidhan Sabha) from No. 3, Sadhura Scheduled Caste reserved constituency in the election  held on  19.5.1982 The contest was between the appellant and  12 others including respondent 1, Parbdu Ram, who was the election petitioner. The appellant secured 20981 votes while  respondent 1  secured 20971  votes and  he  was declared to  have been  elected. Respondent 1 challenged the election of  the appellant  on the  ground that the counting was not  proper and  invalid and  he  prayed  not  only  for recounting of  the votes but also for declaration that he is the duly elected candidate.      Respondent 1  alleged in the election petition that the Returning Officer  initially  ordered  the  recount  of  the ballot papers of himself and the appellant in respect of all the booths after a sample checking but on the application of the appellant  that the  ballot papers of all the candidates should be  recounted, to  which respondent  1 consented,  he ordered recount  of all  the votes.  However, it was alleged that the  Returning Officer  recounted the  ballot papers of the appellant  and respondent  1  alone  and  therefore  the recount was  void. In  the  original  counting  1277  ballot papers were rejected as invalid but in the recounting by the

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Returning Officer  1377 ballot  papers were rejected on that ground. The additional ,100 ballot papers which were alleged to have  been originally  accepted in favour of respondent I were alleged  to have been rejected by the Returning Officer under the  influence of  the Naib  Tehsildar  (Election)  of Ambala who was alleged to have been favouring the appellant. Three ballot  papers alleged  to have been cast in favour of respondent I  at booth  No. 19  were alleged  to  have  been rejected by  the Returning  Officer on  the ground that they were meant  for the  Kalka constituency.  Thus  this  ground alleged by  respondent 1  relates to  improper rejection  of about 100  ballot papers said to have been cast in favour of respondent 1 in the recounting by the Returning Officer.      Respondent 1 pleaded nine other grounds in his election petition but  did not  lead  any  evidence  or  advance  any argument in respect of the same.      As  stated   already,  respondent  1  prayed  not  only recounting 1107 and setting aside the election of the appellant but also for a declaration that he is the duly elected candidate.      The appellant alone contested the election petition. In his counter-affidavit  he raised two preliminary objections, namely, that  copies and  annexures supplied to him were not duly attested  to be  true copies  under  the  signature  of respondent I  and therefore the election petition was liable to be  dismissed and that the election petition had not been properly verified.  There objections  were rejected  by  the High Court by and order dated 4.10.1982.      On merits  the appellant  admitted that  recount of the ballot papers of all the candidates was ordered by Returning Officer  but  denied  the  other  allegations  made  in  the election petition  and contended  that  the  recounting  was properly  made   and  that  there  is  no  ground  to  order recounting by the Court.      On the  pleadings the material issue framed by the High Court was as to whether respondent 1 is entitled to recount.      Though the Returning Officer, R.W. 3. had stated in his oral evidence  that only  the ballot papers of the appellant and respondent  1 were  in fact  rechecked and recounted the High Court found on the basis of his report Exh. P.W.4/4 and the entries  made in  the two  forms No. 20, Exh.P.W.1/1 and P.W.1/2A, that  the ballot papers of all the candidates were recounted  by   the  Returning   Officer  and  that  in  the application Exh.P.W.  2/5 presented to the Returning Officer by respondent 1 immediately after the recounting was over no grievance was made by respondent 1 that the ballot papers of any other candidate were not recounted.      The High  Court found that the allegation of respondent 1 that  the Returning  Officer obtained  the guidance of the Naib Tehsildar, Dhan Singh, in making his decision regarding doubtful  votes  is  probablised  by  the  evidence  of  the appellant, R.W.1,  and his  election agent Suraj Bhan, R.W.2 who have  admitted in their evidence that the Naib Tehsildar had  not   been  put  on  any  particular  duty  during  the recounting and  that he  was sitting  near the  dais and was consulted by the Returning Officer sometimes on the question of the  doubtful nature of some ballot papers. The observer, R.W. 4,  has admitted in his evidence that respondent 1 took objection to  the presence  of the Naib Tehsildar during the recounting by  the Returning Officer. In these circumstances the High  Court found  that while  making his quasi-judicial decision regarding the doubtful ballot papers the Returning 1108 Officer consulted  the Naib  Tehsildar and  thus allowed his

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opinion to  influence his  own discretion  in  accepting  or rejecting the doubtful ballot papers.      The High  Court rejected  the next  ground  alleged  by respondent 1  for claiming  recount, namely,  that about 100 ballot papers  cast in  his favour  were rejected  illegally because they  bore some slight indecipherable impressions of the finger  or the  thumb of  the voters  on the ground that sufficient acceptable  evidence was  not available  to rebut the evidence of the Returning Officer. R.W. 3, that no valid ballot paper  cast in favour of respondent 1 was rejected on any such flimsy ground. In reaching this conclusion the High Court took  note of the fact that no such grievance was made by respondent  1 in  his application Exh.P.W. 2/5 filed soon after the recounting was over.      Admittedly some  ballot  papers  meant  for  the  Kalka constituency had  been issued  for use  in this constituency and they  had been  cast in  favour of respondent 1 and were rejected on  the ground  that those  ballot papers  were not meant for  use in  this constituency.  Under the  proviso to Rule 56A  (2) (g)  of the  Conduct of  Election Rules,  1961 (hereinafter referred to as ’the Rules) a ballot paper shall not be  rejected on the ground that it bears a serial number or a  design different  from the  serial number or design of the ballot papers authorised for use at a particular polling station if  the Returning  Officer is  satisfied  that  such defect had been caused by any mistake or failure on the part of the  presiding officer  or polling officer. The Returning Officer, R.W.  3. when questioned in this regard, was unable to say  anything positive  in regard to the matter though he had admitted  in his  evidence that some ballot papers meant for use  in the  Kalka constituency  had been  used in  this constituency and  were rejected. The High Court thought that the rejection  of those  ballot papers  was probably  due to inadvertence to  the said  proviso but however, it held that it is  difficult to  record a definite finding as to whether those ballot papers were rightly or wrongly rejected.      The margin  of difference  between the  votes polled to the appellant  and  respondent  1  was  5  in  the  original counting and  10 in  the recounting  made by  the  Returning Officer. Out  of the  100 votes  rejected by  the  Returning Officer in the recounting as invalid 93 related to the other candidates  and   only  7   related  to  the  appellant  and respondent 1, and the reason for rejection of those 7 ballot 1109 papers was  not quite clear to the High Court, There is also the  doubt,   according  to   the  High  Court,  as  to  the correctness or  otherwise of  the rejection  of  the  ballot papers meant  for use in the Kalka constituency but actually used in  this constituency. The High Court found, as already stated, that  the discretion of the Returning Officer in the matter of  rejection of some doubtful ballot papers has been influenced by  the opinion  of the  Naib Tehsildar. In those circumstances, the  High Court found a prima facie case made out for  ordering rechecking  and recounting of the rejected ballot papers.  Therefore,  the  High  Court  appointed  the District Judge  (Vigilance) Punjab as the agent of the Court to scrutinize  and recount  the invalid ballot papers in the presence and  under the  supervision of the Court, making it clear  that  the  rechecking  and  recounting  of  only  the rejected ballot  papers had  been ordered because respondent 1’s  claim   was  confined   only  to  that  relief  in  the application made  before the  Returning Officer and the High Court was  of the opinion that no case had been made out for ordering a  recount of  all the votes. Accordingly, the High Court ordered  the  District  Election  Officer,  Ambala  to

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produce only  the rejected  ballot papers for rechecking and recounting  by   the  Court   through  the   District  Judge (Vigilance),  Punjab   in  its   presence  and   under   its supervision.      After  the  recounting  was  accordingly  made  by  the District Judge  (Vigilance), Punjab under the supervision of the Court  it was  found that respondent 1 and the appellant had gained  14 and  8 more votes respectively in addition to the votes  already counted  in their favour by the Returning Officer in  his recounting.  If these 8 votes are taken into account it will be clear that the appellant would still have a majority  of 4  votes over respondent 1. But the appellant had not  filed any recrimination application under s. 97 (1) of the  Representation of  People  Act,  1951.  (hereinafter referred to as ’the Act’) Therefore, it was contended before the High  Court on  behalf of respondent 1 that the rejected votes of  the appellant,  the returned  candidate, cannot be scrutinised and  that the  appellant cannot have the benefit of the  8 ballot papers found to have been wrongly rejected. This was  naturally opposed  by the  learned counsel for the appellant before the High Court. The High Court rejected the appellant’s  contention   and  accepted  the  contention  of respondent 1 and observed:           "There are,  however, cases  in which the election      petition makes  a double claim: it claims that election      of the  returned candidate  is void,  also  ask  for  a      declara- 1110      tion that  the petitioner  himself or some other person      has been  duly elected.  It is  in  regard  to  such  a      composite case  that section 100 as well as section 101      would apply,  and it  is in  respect of  the additional      claim for  a declaration  that some other candidate has      been duly  elected that  section 97  comes  into  play.      Section 97  (1) thus  allows the  returned candidate to      recriminate and raise pleas in support of his case that      the person  in whose favour a declaration is claimed by      the petition  cannot be  said to be validly elected and      these would  be pleas of attack and it would be open to      the returned  candidate to  take these  pleas,  because      when he  recriminates, he  really  becomes  a  counter-      petitioner challenging  the validity of the election of      the alternative candidate. The result of section 97 (1)      there  fore,  is  that  in  dealing  with  a  composite      election petition  the Tribunal  enquires into only the      case made  out by  the petitioner but also the counter-      claim made  by the  returned candidate.  That being the      nature of  the proceedings  contemplated by  section 97      (1), it  is not  surprising that the returned candidate      is required  to make his recrimination and serve notice      in that  behalf in  the  manner  and  within  the  time      specified by section 97 (1) proviso and section 97 (2).      If the  returned  candidate  does  not  recriminate  as      required by  section 97, then he cannot make any attack      against the  alternative claim made by the petition. In      such a  case an enquiry would be held under section 100      so far  as the  validity of the returned candidate’s is      concerned and  if as  a  result  of  the  said  enquiry      declaration is  made that  the election of the returned      candidate is  void, then  the Tribunal  will proceed to      deal with  the alternative  claim, but in doing so, the      returned candidate  will not  be allowed  to  lead  any      evidence because he is precluded from raising any pleas      against the  validity of  the claim  of the alternative      candidate."

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    The High  Court rejected the contention urged on behalf of the  appellant that  the Election  Tribunal cannot record the finding  that the  alternative candidate  (respondent 1) has secured  a majority  of valid votes unless all the votes cast in  the election  are scrutinised  and  counted  having regard to  the fact  that the  appellant had  not filed  any recrimination  application   under  s.   97   (1)   of   the Representation of People Act, 1951 which undoubtedly confers a right on 1111 the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to pled for the  validity of votes cast in his favour which had been improperly rejected. The High Court thus held that the votes gained by  the appellant on scrutiny and recount by the High Court had  to be ignored in determining whether the election of the  returned candidate  (appellant) had  been materially affected by the improper rejection or reception of any vote. In so  doing, the  High Court  found that  respondent I  had secured 20985  votes and  the appellant  had  secured  20981 votes  and   that  the  result  of  the  returned  candidate (appellant) had  been materially  affected by  the  wrongful rejection of valid votes cast in favour of respondent 1, and it accordingly  allowed the  election petition and set aside the appellant’s  election and  declared respondent  1, to be duly  elected   and  directed  the  parties  to  bear  their respective costs.      As stated earlier, the margin of difference between the votes polled  by the appellant and respondent 1 was 5 in the original counting  and 10  in the  recounting  made  by  the Returning Officer,  R.W. 3,  in  favour  of  the  appellant. Although respondent  1 prayed  in the  election petition for the recounting  of all  the votes  of all the candidates the High Court  ordered recounting  of only  the rejected ballot papers of  all  the  candidates,  and  with  regard  to  the appellant and  respondent 1  it was  found by  the  District Judge (Vigilance),  Punjab who  made the  recounting of  the rejected ballot  papers under  the supervision  of the  High Court that  respondent 1 had gained 14 and the appellant had gained 8 more votes in addition to the votes already counted in their  favour by the Returning Officer in his recounting. If, as  already stated, these 8 votes are taken into account the appellant  would still  have a  majority of 4 votes over respondent I  and his  election could  not be  set aside and respondent 1  could not  be declared  to have  been  validly elected.      Mr. Shanti  Bhushan, learned  senior counsel  appearing for the  appellant submitted  (I) that  no recounting at all should have  been ordered  by the  Court and (2) that if the votes found  in the  recounting by  the Court  to have  been improperly rejected are to be taken into account at all they must be  taken into account not only in regard to respondent I but  also in  regard to the appellant. These 8 votes found by the Court to have not been improperly rejected as regards the appellant have been taken into account by the High Court having regard  to the  fact that the appellant had not filed any recrimination  application under  s. 97  (1) of the Act. S.97 (1) and the proviso there to read thus:           "When in  an election  petition a declaration that      any 1112      candidate other  than the  returned candidate  has been      duly elected  is claimed, the returned candidate or any      other  parry  may  give  evidence  to  prove  that  the      election of  such candidate  would have been void if he

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    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 sections 117 and 118 respectively."      In regard  to the second submission the questions posed by Mr. Shanti Bhushan are:      (i)  whether the  Court was  justified in  not counting           the votes  improperly rejected  qua the  appellant           who is  the returned  candidate merely  because  a           recrimination application  under s.  97 (1) of the           Act had not been filed?: and      (ii) what is  the scope of the High Court’s order dated           15.3.1983 directing recount of the rejected ballot           papers not  only of  respondent I  but also of the           appellant  which  forms  the  first  part  of  the           judgment of  the High  Court which  pronounced its           second part on 23.2.1984 holding that the election           of  the  appellant  is  void  on  account  of  the           improper  rejection  of  14  valid  ballot  papers           relating to  respondent I and that respondent I is           duly elected from the constituency concerned?      Mr.  Kapil   Sibal,  learned   counsel  appearing   for respondent I  submitted that  though respondent I had prayed for recount  of the  votes of  all the  candidates the  High Court ordered  recount of only the rejected ballot papers of the appellant  and respondent  I and  that  the  High  Court committed a  jurisdictional error in its earlier order dated 15.3.1983 in  directing the  recount of  the rejected ballot papers  of   even  the  appellant  in  the  absence  of  any recrimination application  under s.  97 (1)  of the  Act but that error  has been  subsequently rectified  in  the  final judgment in  which the 8 ballot papers found by the District Judge (Vigilance),  Punjab to  have been improperly rejected qua the appellant had not been taken into account. Mr. Sibal submitted that the High Court was justified 1113 in not  taking into  account those  8 ballot  papers  having regards to  the fact that no recrimination application under s. 97(1)  of the Act. had been filed, that the appellant did not have  recourse to  r. 63(2) of the Rules and that on the other  hand   the  appellant’s  contention  in  his  written statement as  well as  his evidence was that the counting by the Returning  Officer, R.W.3.  was proper  and there  is no ground for recounting.      The first contention of Mr. Shanti Bhushan is short and can be  disposed of  first. In  this connection,  Mr. Shanti Bhushan invited  our attention  to ground No. 2 urged in the election petition.  There it is alleged that respondent I in the  election  petition,  namely,  the  appellant  filed  an application before the Returning Officer requesting that the ballot papers of the other candidates also should be checked to make  the recounting  fair as  in fact  respondent 1 also wanted recounting  of all  the  ballot  papers  of  all  the candidates in  order to  make the  recounting fair  and  the election agent  of respondent 1 consented to the application filed by  the  appellant  and  submitted  a  note  that  the election agent  of respondent  I had  no  objection  to  the application  of  the  appellant  being  allowed.  The  other grounds urged  in the  election Petition  are grounds relied upon by  respondent 1  for the Court ordering recount of the

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rejected ballot  papers. Under  s. 100  (1) (d) (iii) of the Act, subject  to the  provisions of  sub-section (2), if the High Court  is  of  the  opinion  that  the  result  of  the election, in so far as it concerns a returned candidate, has been materially  affected by the improper reception, refusal or rejection  of any vote or the reception of any vote which is void  the High  Court shall  declare the  election of the returned candidate  to be void. Sub-section (2) of s. 100 of the Act  with which  we are  not  concerned  in  this  case, relates to  corrupt practice  by an  agent  other  than  the election agent  of  the  returned  candidate.  The  improper reception or  the reception  of  any  vote  which  is  void, referred to  in s.  100 (1) (d) (iii) can relate only to the improper reception  of any  vote or  reception of  any  vote which is  void in  regard to  the returned candidate and the refusal or  rejection of  any vote  referred to in that sub- clause could relate only to refusal or rejection of any vote cast in  favour of  any candidate  other than  the  returned candidate.      The submission of Mr. Sibal that whereas respondent 1 1114 complied with  the requirement of r. 63 (2) of the Rules the appellant did  not do  so, was  not disputed  by Mr.  Shanti Bhushan. Under  r.  63  (1)  after  the  completion  of  the counting the  Returning Officer  shall record  in the result sheet in  Form 20  the total  number of votes polled by each candidate and  announce the  same. R.  63 (2) lays down that after such  announcement has  been made,  a candidate or, in his absence,  his election  agent or  any  of  his  counting agents may  apply in  writing to  the Returning  Officer  to recount the  votes either  wholly or  in  part  stating  the grounds on which he demands such recount. R. 63(6) lays down that  after  the  total  number  of  votes  polled  by  each candidate has  been announced under sub-rule (1) or sub-rule (5), the  Returning Officer  shall  complete  and  sign  the result sheet in Form 20 and no application for recount shall be entertained thereafter. The proviso to that sub-rule lays down that  no step  under this  rule shall  be taken  on the completion of the counting until the candidates and election agents present  at the  completion thereof have been given a reasonable opportunity  to exercise  the right  conferred by sub-rule (2).  Mr.Sibal submitted  that the appellant or his election agent or counting agent did not apply in writing to the Returning  Officer or  any recount  of the  votes either wholly or  in part  stating the grounds on which he demanded recount as  required by  r. 63  (2) and  therefore it is not open to the appellant to ask for any recount of his rejected ballot papers  having regard to the bar of the proviso to r. 63 (6)  of the  Rules. Mr.  Sibal also  submitted  that  the contention  of   the  appellant  not  only  in  his  written statement filed  in the  election petition  but also  in his evidence given  before the  High Court  was that  there  was nothing wrong  in the  counting by  the  Returning  Officer. These facts  were not disputed by Mr. Shanti Bhushan. On the other hand,  the case of respondent 1 was that the result of the appellant’s election has been meterially affected by the improper rejection  of votes validly cast in his favour, The High Court  has found  that the  allegation of  respondent 1 that the  Returning Officer R.W. 3, obtained the guidance of the Naib  Tehsildar, Dhan  Singh, in his decision as regards the doubtful  votes is  probablised by  the evidence  of not only the  appellant  examined  by  R.W.1  but  also  of  his election agent,  Suraj  Bhan,  R.W.  2  both  of  whom  have admitted in  their evidence  that the Naib Tehsildar had not been put  on any  particular duty  during the recounting and

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that he  was however sitting near the dais and was consulted by the Returning Officer sometimes on the ques- 1115 tion of  doubtful ballot  papers. The  High Court found that the admission of the observer, R.W. 4 that respondent 1 took objection to  the presence  of the Naib Tehsildar during the recounting probablises  the contention  of respondent 1 that the Naib  Tehsildar  was  influencing  the  opinion  of  the Returning  Officer   in  his  decision  on  doubtful  notes. Admittedly,  some   ballot  papers   meant  for   the  Kalka constituency had  been issued  and they  had  been  cast  in favour of  respondent 1 and were rejected on the ground that they were  not meant for use in this constituency. Under the proviso to  rule 56  A (2)  (g) of  the Rules a ballot paper shall not  be rejected  on the ground that it bears a serial number or  a design  different from  the  serial  number  or design of  the  ballot  paper  authorised  for  use  at  the particular polling  station  if  the  Returning  Officer  is satisfied that such defect has been caused by any mistake or failure on  the part  of the  Returning Officer  or  polling officer. Though  we do not agree with the High Court that it is difficult  to record  a definite  finding as  to  whether those ballot  papers were  rightly or  wrongly  rejected  we think that  the rejection of these ballot papers without any finding on  the question  whether the  mistake in the use of the ballot papers relating to the Kalka constituency in this constituency had  been caused  by any  mistake or failure on the part  of the  Returning Officer  or polling officer is a ground which  could have  been taken  into consideration for ordering recount of the rejected ballot papers of respondent 1. On  a perusal  of  the  rejected  ballot  papers  of  the appellant and  respondent  1  with  the  assistance  of  the learned counsel  for the parties, we are satisfied about the correctness of the High Court’s finding regarding the number of  ballot  papers  improperly  rejected  by  the  Returning Officer. For reasons which will become clear from what would appear later  in this  judgment we agree with Mr. Sibal that the High  Court originally  committed a jurisdictional error in directing  the  District  Judge  (Vigilance),  Punjab  to recheck and  recount the  rejected ballot papers of even the appellant in  the absence  of  a  recrimination  application required by s. 97 (1) of the Act especially having regard to the fact  that it  was not  the case  of the  appellant that there was  anything wrong with the counting by the Returning Officer, as  mentioned above. In these circumstances, we are clearly of  the opinion  that the  High Court  was perfectly justified in  ordering recount of the rejected ballot papers relating to  respondent 1.  We may  also  observe  that  the appellant filed  a special  leave petition  against the High Court’s order dated 15. 3. 1983 directing recount of the 1116 rejected ballot papers of the appellant and respondent 1 and that it  was dismissed after the issue of notice and hearing both the  parties. We  agree with  Mr. Sibal  that the order directing recount of the rejected ballot papers in so far as it is  not in excess of the jurisdiction of the Tribunal has become final  and that  it is  not open  to the appellant to reagitate that  question in  this appeal  which is  no doubt under s.  116 of  the Act,  as the principle of constructive res judicata  applies. We  do  not  agree  with  Mr.  Shanti Bhushan that it can be reagitated in this appeal.      Now we proceed to consider the second contention. Under r. 64  of the  Rules the returning officer shall, subject to provisions of  s.65 which relates to counting at two or more places, and  so far  as they  apply to  any particular case,

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declare in  Form 21 C of Form 21D as may be appropriate, the candidate to  whom the  largest number  of valid  votes have been given,  to be elected under s.66 and send signed copies thereof  to   the  appropriate   authority,   the   Election Commission and the Chief Electoral Officer; and complete and certify the  return of  election in Form 21E and send signed copies thereof  to the  Election Commission  and  the  Chief Electoral officer.  Thus, a candidate to be declared to have been duly  elected must  have secured  the largest number of valid votes.  Mr. Shanti  Bhushan vehemently  submitted that since the  appellant has  been found to have secured 5 votes more than respondent I in the original counting and 10 votes more than  respondent 1  in the  recounting by the Returning officers and it has been found even in the recounting of the rejected ballot  papers by  the Court  that 8  ballot papers relating to  the appellant  have been improperly rejected it is clear  that the  appellant has  secured 4 votes more then respondent 1  even if  the  14  votes  found  to  have  been improperly rejected  qua respondent I are taken into account and it  would not  be in  conformity with  the principles of democracy and  the  will  of  the  electorate  to  hold,  by refusing to take into account these 8 rejected ballot papers in  favour  of  the  appellant  that  the  election  of  the appellant has  been  materially  effected  by  the  improper rejection of the 14 votes cast in favour of respondent I and declare respondent  I  to  have  been  duly  elected  merely because a  recrimination application under s. 97 (1) has not been filed.  Mr. Shanti Bhushan invited our attention to the decision of  a Constitution  Bench of  this Court  in  Jabar Singh v. Genda Lal and relied very 1117 strongly  upon   the  dissenting   view  of   N.  Rajagopala Ayyangar,J. in  that case.  Gajenderagadkar, J.  (as he then was) who spoke for the majority of four has observed:           "There are,  however, cases  in which the election      petition makes a double claims that the election of the      returned  candidate  is  void,  and  also  asks  for  a      declaration that  the petitioner  himself or some other      person has been duly elected. It is in regard to such a      composite case  that s.  100 as  well as  s. 101  would      apply, and it is in respect of the additional claim for      a declaration  that some  other candidate has been duly      elected that  s. 97  comes into  play. S.  97 (1)  thus      allows the  returned candidate to recriminate and raise      pleas in  support of  his case that the other person in      whose favour  a declaration  is claimed by the petition      can not  be said to be validly elected, and these would      be pleas of attack and it would be open to the returned      candidate  to   take  these   pleas,  because  when  he      recriminates, he  really becomes  a counter  petitioner      challenging  the   validity  of  the  election  of  the      alternative  candidate.   The  result   of  s.  97  (1)      therefore, is that in dealing with a composite election      petition, the  Tribunal enquires into not only the case      made out  by the petitioner, but also the counter-claim      made by  the returned  candidate. That being the nature      of the proceedings contemplated by s. 97 (1), it is not      surprising that  the returned  candidate is required to      make his  recrimination and serve notice in that behalf      in the  manner and  within the  time specified by s. 97      (1) proviso  and s.  97 (2).  If the returned candidate      dose not  recriminate as  required by  s. 97,  then  he      cannot make  any attack  against the  alternative claim      made by  the petition. In such a case, an enquiry would      be held  under s.  100 so  far as  the validity  of the

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    returned candidate’s election is concerned, and if as a      result of  the said  enquiry a declaration is made that      the election  of the  returned candidate  is void, then      the Tribunal  will proceed  to  deal  with  alternative      claim, but in doing so, the returned candidate will not      be allowed to lead any evidence because he is precluded      from raising  any pleas  against the  validity  of  the      claim of the alternative candidate.           It is  true that s. 101 (a)’ requires the Tribunal      to find that 1118      the  petitioner   or  such   other  candidate  for  the      declaration of  whose election  a prayer is made in the      election petition  has in  fact received  a majority of      the valid  votes. It  is urged  by Mr.  Kapoor that the      Tribunal cannot  make a  finding that  the  alternative      candidate has  in fact received a majority of the valid      votes unless  all the  votes cast  at the  election are      scrutinised  and   counted.  In   our   opinion,   this      contention is not well founded. we have already noticed      that as a result of rule 57, the Election Tribunal will      have to  assume that  every ballot  paper which had not      been rejected under r.56 constituted one valid vote and      it is  on that  basis that  the finding will have to be      made under  s. 101  (a). S. 97 (1) undoubtedly gives an      opportunity to  the returned  candidate to  dispute the      validity of  any of  the votes  cast in  favour of  the      alternative candidate  or to  plead for the validity of      any vote  cast in  his favour  which has been rejected;      but if by his failure to make recrimination within time      as  required   by  s.  97  the  returned  candidate  is      precluded from  raising any such plea at the hearing of      the election  petition, there would be nothing wrong if      the Tribunal proceeds to deal with the dispute under s.      101 (a)  on the  basis that the other votes count ed by      the returning  officer were  valid votes and that votes      in favour of the returned candidate, if any, which were      rejected were  invalid. What  we have  said  about  the      presumed validity  of  the  votes  in  dealing  with  a      petition under  s. 101  (a) is  equally true in dealing      with the  matter under  s. 100  (1) (d)  (iii). We are,      therefore, satisfied  that even in cases to which s. 97      applies, the  enquiry necessary  while dealing with the      dispute under  s. 101  (a) will  not be  wider  if  the      returned candidate has failed to recriminate.      N. Rajagopala Ayyangar, J. who dissented from the above view has observed:           The language  used in  s. 101 (a) is, no doubt, in      fact received  the majority  of the  valid votes." I do      not, however,  consider that  the use  of the words ’in      fact’ involves  scrutiny of  a type different from that      which the Tribunal conducts for ascertaining whether by      reason of  the improper reception or rejection of votes      the  election   of  a   returned  candidate   has  been      materially affected  so as  to Justify  its  being  set      aside. The inquiries are identical. If every vote 1119      which has  been improperly  received is  eliminated and      every  vote   which  has  been  improperly  refused  or      rejected is  added   you get  the totality of the valid      votes cast  in favour of a candidate. That is precisely      the inquiry  which is  prescribed to be conducted under      s. 100  (1) (d) read with cl. (iii). The word ’in fact’      used in  s. 101  (a) to  my mind  do not  add  any  new      element as regards either the scrutiny or the counting.

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    If so,  on the construction which I have endeavoured to      explain. when once it is as certained that the returned      candidate has  obtained a majority of valid votes there      is no  question of his election having to be set aside.      But it  might be  shown that  he had  not obtained  the      majority  of  valid  votes.  In  other  words.  by  the      scrutiny that  has taken  place in  order to  test  the      validity  of  his  election  the  Tribunal  might  have      arrived at  a conclusion  that he  had not  receive the      majority of  valid votes.  Immediately  that  stage  is      reached and  that conclusion is arrived at the Tribunal      proceeds to  declare the  election void. If there is no      claim to  a seat there is nothing more to be done, with      the result  that is  stops with  declaring the election      void in  which event  there would  be a re-election. If      however, the seat is claimed by a defeated candidate or      on his  behalf there  has to be a further inquiry which      the Tribunal is called upon to conduct. For the purpose      of declaring  the election void the Tribunal would have      arrived at  the figures  of the  valid  votes  cast  in      favour of  the several candidates. It might be that the      petitioner who made the claim to the seat or the person      on whose  behalf that  is made  might not have obtained      the highest  number of  valid votes  in which  case, of      course, a  claim to  the seat  would be rejected. It is      this situation  which is  indicated by  s. 101  (a). It      provides that  there cannot  be a declaration in favour      of the  claimant to  a seat merely because the election      of the returned candidate has been declared void but he      must in  addition have  secured  the  majority  of  the      lawful votes  cast. A  question might  arise as  to how      this total is to be ascertained. It is obvious that for      this purpose  the  Tribunal  ought  to  scrutinise  not      merely the  ballot  papers  of  the  claimant  and  the      returned candidate  but also  of the  other candidates.      Thus,  for  instance,  taking  the  case  only  of  the      petitioner who  is a  claimant, among the votes counted      in his  favour might  be some  which were  really votes      cast in favour of a defeated candidate and similarly 1120      votes properly  cast for him might have been improperly      counted as  the votes of the other defeated candidates.      Undoubtedly  the   irregularities  would   have  to  be      pleaded, but  I am  now concerned  with whether even if      pleaded, the  Tribunal would on a proper interpretation      of ss.  100 and  101 have jurisdiction to entertain the      pleas and embark on such a scrutiny. Proceeding then on      the footing  that the necessary averment have been made      in the  pleadings  filed  there  would  have  to  be  a      scrutiny  of   the  ballot  papers  before  it  can  be      ascertained whether  or not  the person who or on whose      behalf the  seat is  clammed has obtained a majority of      valid votes  in order to sustain the claim to the seat.      After this stage is passed and the Tribunal has reached      the conclusion that the claimant has, in fact, received      the majority  of valid  votes that the Tribunal embarks      on the  further inquiry  as to  whether there  are  any      reasons why  he should  not be  declared. And  it is at      this stage  that the  provisions of  s. 97 in regard to      recrimination come  into play.  If no  recrimination is      filed then  on the  terms of  s .  101 (a) the claimant      would be immediately declared elected but if there is a      recrimination then  s. 101  (b) is  attracted  and  the      Tribunal would  have to inquire whether if the claimant      were a  returned candidate  there are  circumstances in

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    which his  election could  be declared void. This would      indicate that  the recrimination  is concerned  with  a      stage which emerges after the scrutiny is completed and      assumes that  the scrutiny has resulted in the claimant      being found  to have  obtained the  majority  of  valid      votes. This construction would harmonise the provisions      of ss.  97, 100  (1) (d)  and 101  and would  lead to a      rational result.           This brings  me to  a submission  based upon  rule      57(1) to  which reference  was made  by  Mr.  Garg.  He      referred us to the words of that rule reading;                "Every ballot  paper which  is  not  rejected                under Rule  56 shall  be counted as one Valid                vote."      as throwing some light on the construction of s.100 (1)      (d) (iii)  and as favouring the interpretation which he      invited us  to put  upon the provision. I consider that      the rule  has not  bearing at all upon the point now in      controversy." 1121      While strongly  relying upon  the above dissenting view of N.  Rajagopala Ayyangar,  J. Mr. Shanti Bhushan submitted that the  majority opinion in that case should be ordered to be reconsidered  by a  much larger  bench in  view  of  that dissenting judgement.  Such a  request was  made by Mr. K.K. Venugopal  when   he  appeared   for  the  appellant  in  P. Malaichami v.  M. Andi Ambalam & Others. and it was rejected by Alagiriswami,  who spoke  in that  case for  himself  and Palekar, J. in these words;           "N. Rajagopala Ayyangar, J. was solitary Judge who      dissented from  the majority  judgment and we have gone      through his  judgment with all the care and the respect      that it  deserves and we do not see that it throws much      light on the subject."      With respect we are also of the same opinion as regards the dissenting  view of  N. Rajagopala  Ayyangar, J. in that decision and  decline to  comply with  the  request  of  Mr. Shanti Bhushan.      The decision  in P.  Malaichami v.  M. Ambalam & Others (supra) provides  an answer  to the contention of Mr. Shanti Bhushan that  the will  of  the  electorate  should  not  be thwarted by  holding that  the  result  of  the  appellant’s election is materially affected by the improper rejection of some ballot  papers  relating  to  respondent  1  alone  and declaring respondent  1 to  be the  duly elected  candidate. There, the learned Judges have observed;           "The  last  appeal  is  particularly  interesting.      Courts in  general are  averse to  allow justice  to be      defeated on  a mere  technicality. But  in deciding  an      election petition  the High  Court is merely a Tribunal      deciding an election dispute. Its powers are wholly the      creature of the Statute under which it is conferred the      power to hear election petitions. An election petition,      as has  been pointed  out again  and again,  is not  an      action at  law or  a suit  in equity  but is  a  purely      statutory proceeding  unknown to the common law and the      Court possesses no common law power. It is always to be      borne in  mind that though the election of a successful      candidate is  not to be lightly interfered with, one of      the essentials of that law is also 1122      to safeguard  the purity  of the  election process  and      also to  see that  the people  do not  get  elected  by      flagrant branches of that law or by corrupt practices."      We agree  with this  view and  hold that  there  is  no

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substance in the above contention of Mr. Shanti Bhushan.      The learned Judges in that case also had considered the effect of  the omission  to make a recrimination application under s.  97 (1)  of the  Act by the returned candidate with the time allowed by the Statute in a case where the election petitioner makes a double prayer, namely, declaration of the returned  candidate’s   election  as   void  and  a  further declaration that  he is  the  duly  elected  candidate.  The learned Judges observed:           "The   question    still   remains   whether   the      requirements of s.97 have to be satisfied in this case.      It is  argued by Mr. Venugopal that the gravamen of the      respondent’s  petition   was  breach  of  many  of  the      election rules and that he asked for a total recount, a      request to  which the  appellant had  no objection  and      that there was, therefore, no rule or need for filing a      recrimination  petition  under  s.  97.  This,  we  are      afraid, is  a complete  misreading of  the petition. No      doubt the  petitioner has asked for a recount of votes.      It may  legitimately be  presumed to  mean a recount of      all the  votes, but  such a  recount is  asked for  the      purpose of obtaining a declaration that the appellant’s      election was  void and  a further  declaration that the      respondent himself had been elected. This aspect of the      matter should  not be  lost sight  of.  Now,  when  the      respondent asked  for a  recount, it  was  not  a  mere      mechanical process  that he  was asking  for. The  very      grounds which  he urged  in support of his petition (to      which we  have referred at an earlier stage) as well as      the application  for recount and the various grounds on      which the  learned Judge  felt that a recount should be      ordered showed  that many  mistakes were likely to have      arisen in the counting and as revealed by the instances      which  the   learned  Judge  himself  looked  into  and      decided................................................      ......................  The   improper   reception   or      rejection, therefore,  would, include  not merely cases      where a  voter appears  before the presiding officer at      the time of polling and his vote is 1123      received where it should not have been received and his      vote rejected  where it  should not have been rejected.      The improper  rejection or reception contemplated under      s.100 (1)  (d) (iii)  would include  mistakes or  wrong      judgments made  by the returning officer while counting      and exercising his powers under Rule 56 (2) clauses (a)      to (h).  The fact, therefore, that the respondent asked      for recounting  of all  the votes does not mean that he      wanted also  that votes  which had been wrongly held to      have been  cast in  his favour  but should have gone to      the appellant  as also  votes which  had been rejected,      but which  should have  gone to the appellant should be      taken into account. The respondent was interested in no      such thing.  He made  no such  prayer. It  was only the      appellant that  was interested and bound to do it if he      wanted to  defeat the respondent’s claim that he should      be declared  elected and s.97 is intended for just such      a purpose.  It was asked what was the purpose and where      was  the  need  for  the  appellant  to  have  filed  a      recrimination under  s.97 and  what he could have filed      when the respondent had asked for a total recount. What      we have  stated above  furnishes the  necessary answer.      The appellant  knew not only that the respondent wanted      his election  to be  set aside  but also that he wanted      himself (the  respondent) to  be declared  elected.  He

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    should have,  therefore, stated  whatever material  was      necessary to  show that  the respondent, if he had been      the successful  candidate and  the  petition  had  been      presented  calling   in  question   his  election,  his      election would  have been  void, in  other words comply      with s.83.  He could  have stated  therein setting  out      that while  he had  no objection  to a  recount  to  be      ordered (we have already shown that he strongly opposed      the recount)  there were  many votes  which would  have      rightly gone  to him (the appellant) which have wrongly      been given  to the  respondent, that  there  were  many      votes which  should have  rightly gone to him but which      have been  improperly rejected.  He  should  also  have      complied with  the other  requirements of  s. 97. If he      had  done   that  that   could  have  been  taken  into      consideration. There was no difficulty at all about his      doing all this. His contention that he had no objection      to the recount and there was no role or any need 1124      for him  to file  a recrimination  is wholly beside the      point. He  had in  his counter  to  the  main  election      petition repudiated every one of the allegations in the      election petition.  It was at that stage that he should      have filed  the petition under. s.97 (of course, within      14 days  of his  appearance.) It  was not  at the stage      when the  petitioner filed  his application for recount      that the  opportunity of need for a petition under s.97      arose.           It was  then urged  that when all the material was      before the  court it  was unnecessary  for him  to have      done so.  As we have already pointed out this is not an      action at  law or  a suit  in equity  but one under the      provisions  of   the  statute  which  has  specifically      created  that   right.  If   the  appellant  wanted  an      opportunity to  question the respondent’s claim that he      should be  declared elected he should have followed the      procedure laid  down in s. 97. In this connection it is      interesting to note that in the decision in Jabar Singh      v. Genda  Lal (supra)  the successful  candidate in his      own petition had pleaded that many votes cast in favour      of himself  had been  wrongly rejected,  in  regard  to      which details  were given,  and that  similarly several      votes were  wrongly accepted  in favour of the election      petitioner and  in regard  to which  also details  were      given, and  it ended  with the  prayer that if a proper      scrutiny and  recount were  made  of  the  valid  votes      received  by  each,  it  would  be  found  that  he-the      returned candidate-had  in fact, obtained larger number      of votes  than the  election petitioner  and  for  this      reason he submitted that the election petition ought to      be dismissed.  In spite of this it was held that he had      to fail  because  he  had  not  filed  a  recrimination      petition under  s. 97.  So it is not enough to say that      what ought  to be  looked into is the substance and not      the form. If a relief provided under a statute could be      obtained only  by following  a certain  procedure  laid      therein  for  that  purpose,  that  procedure  must  be      followed if he is to obtain that relief.           What we have pointed out just now shows that it is      not a  question of  mere pleading,  it is a question of      jurisdiction. The Election Tribunal had no jurisdiction      to go  into the  question whether  any wrong  votes had      been 1125      counted in  favour of  the election petitioner, who had

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    claimed the  seat for  himself  unless  the  successful      candidate had  filed a  petition under  s. 97.  The law      reports are  full of  cases where  parties have  failed      because of  their failure  strictly to  conform to  the      letter of  the law in regard to the procedure laid down      under the Act and the rules."      Mr. Sibal  invited our attention to another decision of this Court  rendered in  Arun Kumar  Bose  v.  Mohd.  Furkan Ansari  &  others  where  learned  brother  R.N.  Misra,  J. speaking for himself and A.N. Sen, J. has observed thus:           "Admittedly no  application for  recrimination was      filed. Mr.  Rangarajan has  strenuously contended  that      keeping the scheme and the purpose of law in view, in a      case of  this type  refusal to count the other rejected      ballot  papers   on  the   plea  of   non-filing  of  a      recrimination petition would lead to injustice. We have      already indicated  the pronounced view of this Court in      Jagan Nath’s  case (AIR  1954 SC  210) which  has  been      followed throughout  and the last in series is the case      of Jyoti  Basu (AIR  1982 SC 983) to which also we have      adverted. There is no scope for equity since the entire      gamut of the process of election is covered by statute.      Reliefs as  are available  according to law can only be      granted................................................      ..........      .......................................................      .......................In    the     absence    of    a      recrimination petition  conforming to  the requirements      of Section  97 of  the Act the appellant who happens to      be an Advocate and is presumed to know the law, was not      entitled to combat the claim of the election petitioner      on the  ground that  if the  remaining rejected  ballot      papers had  been counted, the election petitioner would      not have  been found to have polled the majority of the      valid votes."      These three  decisions provide  a  complete  answer  to Mr.Shanti Bhushan’s  said contention. But Mr. Shanti Bhushan relied strongly  upon the decisions of this Court in Anirudh Prasad  v.  Rajeshwari  Saroj  Das  &  Others  and  Janardan Dattuappa Bondre, etc. v. Govindprasad Shivprasad Choudary & Others etc. In these 1126 decisions, Y.V,  Chandrachud, J.,  as he  then was, speaking for himself  and V.R.  Krishna Iyer  and A.C. Gupta, JJ. has observed:           "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.   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."      We do  not think  that this  observation or  any  other portion of  the judgment  in that  case helps  or  aids  the

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contention  of  Mr.  Shanti  Bhushan.  In  the  second  case R.S.Pathak, J. speaking for himself and V.R.Krishna Iyer, J. has observee:           "Now, as  was observed in Jabar Singh v. Genda Lal      (supra) where  both reliefs  are claimed in an election      petition the  Court must  first  "decide  the  question      whether the election of the returned candidate is valid      or not,  and if  it is  found that the said election is      void, it  makes a  declaration to  that effect and then      deals with  the further question whether the petitioner      himself or  some other  person can be said to have been      duly elected,  A notice  of recrimination under section      97 of  the Act  is necessary  only where  the  returned      candidate or  other candidate disputes the grant of the      further declaration  sought by  the election petitioner      that he or some other candidate should be declared duly      elected. When the recount was taken, the High Court had      not yet  concluded that  the election  of the appellant      was invalid.  It was  in  the  process  of  determining      giving to the appellant the benefit of all the votes 1127      cast for him. These would include the 250 votes cast in      his favour,  even though  they  were  found  placed  in      Bahekar’s packet.  Once the benefit of his 250 votes is      given to  the appellant,  he becomes the candidate with      the highest  number of  votes. His  election cannot  be      declared void. That being so, no question arises of the      appellant wanting  to give  evidence to  prove that the      election of any other candidate would have been void if      he had  been  the  returned  candidate.  Therefore,  no      notice  for   recrimination  under   section   97   was      necessary. In  the circumstances,  the High Court erred      in declining  to count the appellant’s 250 votes in his      total on  the ground  that no  notice of  recrimination      under section 97 of the Act had been given.           In P.  Malichami v.  M. Ambalalm  (supra) on which      the High  Court relied,  the facts  were different.  In      that case  the recount ordered did not involve the mere      mechanical process  of counting the valid votes cast in      favour of the parties. It involved the kind of counting      contemplated under  Rule 56  of the conduct of Election      Rules, 1961  ’with all  its implications". The validity      of the votes was to be under re-examination. And if the      returned candidate intended to take the benefit of such      a recount  against the  election  petitioner  or  other      candidate, in  whose favour  the further declaration of      being duly  elected had  been claimed, it was necessary      for him  to file  a notice  of  recrimination.  In  the      present case,  the appellant  was  concerned  with  his      claim to  his 250  votes. The claim did not involve any      reconsideration of  the validity  of any votes, whether      cast in  his favour  or any  other candidate;  what was      called for  was a  mere mechanical process of counting.      That every  order of  recount does not bring section 97      into play was laid down by this Court in Anirudh Prasad      v. Rajeswari Saroj Das & Ors. (Supra).      With respect we are unable to follow what has been laid down by the learned Judges in this decision having regard to the earlier  view of  Palekar and  Alagiriswami, JJ.  in  P. Malaichami v.  M. Andi  Ambalam &  Others  (supra)  and  the majority view  in Jabar Singh v. Genda Lal (supra). Improper rejection of ballot 1128 papers is certainly a ground for declaring an election void. It is  only this ground that respondent 1 has challenged the

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appellant’s election.  If it  was the  case of the appellant that any vote validly cast in his favour had been improperly rejected  he   could  have   urged  it  as  a  ground  in  a recrimination application  filed under  s. 97 (1) of the Act against respondent  1’s prayer  that he  be declared  as the duly elected  candidate. Therefore, we do not agree with Mr. Shanti Bhushan that s. 97 (1) will not apply to the facts of the present  case and that it will apply only to cases where the returned  candidate seeks  to challenge  prayer  in  the election petition that the election petitioner or some other candidate be  declared to  be the  duly elected candidate on some other  grounds such  as corrupt  practice. Respectfully following these two decisions and the decision in Arun Kumar Bose v.  Mohd. Furkan Ansari and others (supra) we hold that in the  absence of  a recrimination  application under s. 97 (1) of  the  Act  the  High  Court  originally  committed  a jurisdictional  error   in  directing   the  District  Judge (Vigilance), Punjab  to recheck  and  recount  the  rejected ballot papers  relating to the appellant. As stated earlier, that  mistake   has  been   rectified  by   the  High  Court subsequently by  net taking into account the 8 ballot papers relating to  the appellant which appear to have been wrongly rejected. In  these circumstances, we hold that the Election Tribunal (High  Court) was justified in directing recount of the rejected  ballot papers  relating to  respondent  1  and declining to  take into account the 8 ballot papers relating to the  appellant found  by the  District Judge (Vigilance), Punjab to  have been improperly rejected in the absence of a recrimination application  under s.  97 (1)  of the  Act and holding  that   the  election  of  the  appellant  had  been materially affected  by the  improper rejection of 14 ballot papers relating  to respondent  1 and  that respondent  1 is entitled to  be declared  to have  been  duly  elected.  The appeal accordingly  fails and  is dismissed  with  costs  of respondent 1.      SABYASACHI MUKHARJI,  J. Whether  a candidate  who  has undisputably and  demonstratively received  four votes  less than the  other contesting  candidates  is  entitled  to  be declared elected  as a  result of this election petition, is the question that arises in this appeal under Section 116 of the Representation  of People  Act, 1951, hereinafter called the ’Act’.  Is that the correct position in law or should it be so  ? This conclusion is sought to be established in view of the terms of Section 100 and Section 101 of the 1129 Act and  in the  absence of any recrimination petition under Section 97  of the  Act by the elected candidate who has now been declared  to be  the defeated  candidate. The  facts of this case  have been  set out elaborately in the judgment of Varadarajan, J.  No  useful  purpose,  therefore,  would  be served by  reiterating these  again.  It  may,  however,  be pointed out,  as noticed  by my learned brother that general recounting and re-checking of all the rejected ballot papers was ordered  by the  High Court  on 15th  March, 1983 in the initial stage of the hearing of this election petition. That recounting  was   of  the  rejected  ballot  papers  of  the appellant as  well as of respondent No. 1 only. The order of recount was  the subject  matter of  the application  by the appellant for special leave in this Court. That application, after giving  notice to  the parties,  was dismissed by this Court. No  reason,  however,  was  indicated  in  the  order dismissing that special leave petition. It has been observed by my learned brother that it was contended on behalf of the respondent that  the order  of High  Court dated 15th March, 1983 directing the recounting of rejected ballot papers even

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of the  appellant,  in  the  absence  of  any  recrimination petition under  Section 97  of the  Act was a jurisdictional error, and  that error, according to the appellant, has been rectified in the final order passed by the High Court by not taking into  account valid  votes  cast  in  favour  of  the appellant which  were initially rejected in the counting. My learned brother  has come  to the  conclusion that the order directing recount  of the  ballot papers  passed by the High Court on  15th March,  1983 was due to jurisdictional error. Though I  have some reservations about the question whether, on the  dismissal of the application for special leave under Article 136  of the Constitution, any question which is open to a  party under  statutory appeal  to be  filed thereafter becomes barred by res-judicata, it is however, not necessary for the purpose of this appeal for me to express any opinion on that  point. I  am, however,  of the  opinion that if any question involved  in that  special  leave  application  has become barred  by res-judicata  then the  order of  the High Court directing the recounting of the rejected ballot papers of the  appellant and  respondent No.  1, as directed by the order dated  15th March,  1983 has  become final. If that is so, then  what happened thereafter was a physical rechecking of the ballot papers.      With this  background in  mind and  keeping in view the other facts  as observed  in  the  judgment  of  my  learned brother, the 1130 question which  we have  to consider  is, whether in view of the decision  of this  Court in  the case  of Jabar Singh v. Genda Lal,  the appellant  was disentitled  from asking this Court to  take into  account in his favour the ballot papers in respect  of the  votes cast  in  his  favour  which  were rejected initially,  but which  have now  been  found  as  a result of  recounting directed  by the  High Court  and done under the  supervision  of  the  High  Court  to  have  been improper. That  decision has  been  the  subject  matter  of consideration in several subsequent decisions of this Court. It is,  therefore, not  necessary for  me to  re-examine the decisions again.  I would  however,  express  my  respectful agreement with the view and the observations of Ayyangar, J. in that decision. It seems to me that the conclusion and the views expressed  by Justice  Ayyangar are in consonance with the purpose  of the  Act and  would  further  the  cause  of democratic process,  which the Constitution aims. It is true that in  spite of  that decision  of this  Court rendered as early as December, 1963, the legislature has not amended the relevant provisions  to make the Act more responsive on this aspect to  the wishes  of the  people. The entire purpose of the constitutional provisions as well as other provisions of law is  to ensure  that true  democracy  functions  in  this country and  the will of the people prevails. The purpose of the Act  is to  safeguard that  one who  obtains majority of valid votes  by proper  and due  process of law alone should represent the  constituency and  will of the people. All the legal provisions  and the procedures of the enactment should be so  construed as  to ensure that purpose, It would really be a mockery to the procedure of law if a situation where it is demonstrated duly in the court that a person who obtained four votes  less than  the other  next candidate  should  be declared elected  in preference to the others and allowed to represent the  constituency. It  is not  an  appeal  to  any abstract justice  nor it  is an  appeal to  equity but is to emphasise that  procedure should  be so construed that these rules of  procedure such  as Section 97 of the Act subserves the wishes     of the  voters. For  this  reason  the  views

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expressed by  Ayyangar, J.  appeals to  me  more  reasonable though these  may  strain  the  literal  provisions  of  the section a  bit. Even  if the legislature has not amended the relevant provisions  after the  said decision,  I am  of the opinion that in a matter of this, nature this 1131 Court  has  a  responsibility  to  construe  the  procedural provisions of the law in such manner that the procedure does not defeat  the purpose or object of the Act. This Court has done that on appropriate occasions. Reference may be made to the  observations  of  Krishna  Iyer,  J.  in  the  case  of Commissioner  of  Income-tax  (Central),  Calcutta  v.  B.N. Bhattachergee and Another.           "Whenever a  statute comes up for consideration it      must be  remembered that  it is not within human powers      to foresee  the manifold sets of facts which may arise,      and, even if it were, it is not possible to provide for      them in  terms free  from all  ambiguity.  The  English      language  is   not  an   instrument   of   mathematical      precision. Our  literature would  be much the poorer if      it were.  This  is  where  the  draftsman  of  Acts  of      Parliament  have  often  been  unfairly  criticised.  A      judge, believing himself to be fettered by the supposed      rule that  he must  look to  the language  and  nothing      else, laments  that the draftsman have not provided for      this or  that, or  have been  guilty of  some or  other      ambiguity. It  would certainly  save the judges trouble      if  Acts   or  Parliament   were  drafted  with  divine      prescience and  perfect clarify.  In the absence of it,      when a  defect appears  a judge  cannot simply fold his      hands and  blame the  draftsman. He must set to work on      the constructive  task  of  finding  the  intention  of      Parliament, and  he must  do this  not  only  from  the      language of the social conditions which gave rise to it      and of  the mischief which it was passed to remedy, and      then he  must supplement the written word so as to give      ’force and  life’ to  the intention of the legislature.      That was  clearly laid  down by  the resolution  of the      judges....... in  the Heydon’s case [1584] 3 Co Rep 7b,      and it  is the  safest  guide  to-day.  Good  practical      advice on  the subject was given about the same time by      Plowden........ Put  into homely metaphor it is thus: A      judge should ask himself the question: If the makers of      the Act  had themselves  come across  this ruck  in the      texture of it-how would they have straightened it out ?      He must  then do  as they would have done. A judge must      not alter the 1132      material of  which it  is woven,  but he can and should      iron out the creases."      A Statutory  provision must  be so  construed, if it is possible, that  absurdity and mischief may be avoided. Where the  plain   and  literal   interpretation  of  a  statutory provision produces  a manifestly  absurd and  unjust result, the court  might modify the language used by the legislature or even  do some violence to it so as to achieve the obvious intention  of   the  legislature   and  produce  a  rational construction and  just result.  See in  this connection  the observations of Bhagwati, J. in the case of K.P. Varghese v. Income-tax Officer, Ernakulam and another.      In view  of  the  fact  that  several  submissions  for reconsideration of the position expressed by the majority of the learned  judges in  Jabar Singh’s case have been refused in subsequent  decisions as  has been  noticed by my learned brother, subject  to the judicial discipline as I am, I must

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proceed to  decide this  case on  the  basis  of  the  views expressed by  the majority  of the  learned judges  in Jaber Singh’s case  I must,  however, make  it clear that speaking for myself, I feel that in view of the lapse of time and the very convincing  arguments advanced  by Ayyangar,  J., Jabar Singh’s case  requires reconsideration by a larger Bench. In view, however,  of the position in law, even if I proceed on the basis  of the  majority view  in Jabar  Singh’s case, on that basis  I  think  the  facts  of  this  case  warrant  a different conclusion  as I  shall presently  notice. In this case as  has been  mentioned by my learned brother there was an order  for recount  of the  rejected  ballot  papers  for respondent No.  1 and  the appellant.  As indicated  before, that  order   of  recount  was  the  subject  matter  of  an application  for   special  leave  and  that  special  leave application was  rejected. A  party cannot take advantage of one part  of the  order which  is advantageous  to  him  and discard the  order part of the order which may not be to his advantage specially  when an  application for  special leave from that  order has  been rejected. If that order has to be given effect  to as has been in this case, it has been found that taking into account the eight ballot papers relating to the appellant  which had  been improperly  rejected and also taking into  account other  ballot  papers  which  had  been improperly rejected  in favour  of respondent  No.1,  it  is manifest by  mechanical recounting  that the  appellant  had secured four  votes more then respondent No.1. This position has been  noted in  the judgment  delivered  by  my  learned brother. If 1133 that is  the position,  then in my opinion this Court cannot and should  not declare  respondent No.1  to  have  obtained majority of  the valid  votes. The order of 15th March, 1983 must stand  or fall  together. In  my opinion  it cannot  be befurcated. It  cannot be said that the recounting in so far as  it  was  directed  of  the  rejected  ballot  papers  of respondent No. 1, the High Court was within its jurisdiction and in  so far  as the High Court directed recounting of the rejected ballot papers of appellant also, it had committed a jurisdictional error.  This is more so after the application for special  leave was  rejected by  this Court.  Apart from that I  am of  the opinion  that there was no jurisdictional error there  was power  of the  High Court  to order  such a recount. Even  if there  was no  such prayer in the petition before the High Court, it cannot be said that the High Court acted without  jurisdiction. In  such a  situation, applying the principal  of majority view of Jabar Singh’s case, there are certain  exceptions  where  even  without  recrimination petition, a candidate like the appellant in the present case can take  advantage of the ballot papers which have not been properly counted  in his  favour. Such  an exception  can be found  in   the  case   of  Janarden   Dattuappa  Bondre  v. Govindprasad Shivprasad  Choudhary &  Ors,  Etc.  There  the appellant was  declared elected to the State Assembly in the General Election  in 1978.  He has  secured 27785 votes. The fifth respondent  got 27,604  votes and the third respondent 27,447 votes.  At page  901 of  the report,  Justice  Pathak observed that  the High  Court had  ordered recount  on  the application of  the election petitioner. What the High Court required was  to physically  count  the  votes  recorded  in favour of the appellant and the other candidates in order to ascertain whether  those votes  were less  in number  of the votes declared  as having been respectively secured by them. During the  recount, the  appellant in this case had applied to the  Special Officer that if any votes cast in his favour

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were found  to have been erroneously counted in the total of other  candidates,  that  mistake  should  be  rectified  by including these in his total. A similar application was made by Bahekar,  the third  respondent. The  High Court rejected the appellant’s  application on  the ground  that he had not filed a  petition for  recrimination. This Court observed in that  decision   that  when  the  High  Court  directed  the "physical"  count  of  the  votes  cast  in  favour  of  the appellant, Bahekar  and  others  what  was  intended  was  a mechanical recount  of those  votes and nothing more. It did not envisage any other 1134 enquiry into their validity and whether any of them had been improperly received.  When the  appellant requested that the 250 votes  cast in  his favour  but included  in the  packet pertaining to Bahekar should be counted in his total, he was asking for nothing more than the application of a mechanical process. Those  votes had  never been  recorded as  cast  in favour of  Bahekar. There  was never  any dispute that these votes were  cast for the appellant. Their validity was never doubted. Plainly  what had happened was that by an error 250 ballot papers  cast in  favour of  the  appellant  had  been erroneously included in the packet of Bahekar. It is in such a case  that it  did not require any recrimination petition. This Court observed at page 903 as follows:           "In P.  Malaichami v. M. Ambalam (supra), on which      the High  Court relied,  the facts  were different.  In      that case,  the recount the ordered did not involve the      mere mechanical  process of  counting the  valid  votes      cast in  favour of the parties. It involved the kind of      counting contemplated  under Rule  56 of the Conduct of      Election Rules,  1961, "with all its implications." The      validity of  the votes  was to be under re-examination.      And if  the returned  candidate intended  to  take  the      benefit  of   such  a   recount  against  the  election      petitioner or  other candidate,  in  whose  favour  the      further declaration  of being  duly  elected  had  been      claimed, it  was necessary  for him to file a notice of      recrimination. In  the present  case, the appellant was      concerned with  his claim  to his  250 votes. The claim      did not  involve any reconsideration of the validity of      any votes,  whether cast  in his  favour or  any  other      candidate; what  was called  for was  a mere mechanical      process of  counting. That  every order of recount does      not bring  section 97  into play  was laid down by this      Court in Anirudh Prasad v. Rajeshwari Saroj Das & Ors."      In the instant case as a result of the recounting order directed by  the High Court at the request of Respondent No. 1 and  after the  special leave  against that order had been rejected, it  was found  on  a  physical  counting  and  re- checking the  validity of  the votes  in favour of appellant which were  initially rejected  and about which there was no dispute nor that the appellant had received four more votes. 1135      Before I  conclude, I  must observe  that reference has been made  to certain  observations in some of the decisions to the  effect that  in election  petitions,  there  was  no question  of   importing  any   equitable  principle  or  of importing any principle of remedying injustice as such. With respect I cannot persuade myself to this angle of vision. In construing both  statutory provisions  as well as provisions giving remedy provided under special statute, efforts should be made  that patent  injustice and  inequity  which  repels commonsense and  which defeats  the purpose  of the statute, should be  avoided. In  this case  I find  it  difficult  to

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declare respondent  No. I  who has  admittedly received less votes than the appellant to have been duly elected.      In view  of the facts and circumstances of this case as I have  indicated hereinbefore I am of the opinion that even proceeding on the basis that the views expressed by majority of the learned judges in Jabar Singh’s case is correct, upon which I  must proceed for the purpose of this case but which I still  feel should  be reconsidered  by a larger Bench, on the  analogy  of  the  decision  in  the  case  of  Janardan Dajtuappa Bondre,  Etc. v. Govindprasad Shivprasad Choudhary & Ors.  Etc. (supra) I would allow this appeal with no order as to costs. H.S.K.                                     Appeal dismissed. 1136