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PETITIONER: ARUN KUMAR BOSE

       Vs.

RESPONDENT: MOHD. FURKAN ANSARI & OTHERS

DATE OF JUDGMENT28/09/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH SEN, AMARENDRA NATH (J)

CITATION:  1983 AIR 1311            1984 SCR  (1) 118  1984 SCC  (1)  91        1983 SCALE  (2)483  CITATOR INFO :  R          1984 SC 135  (8)  F          1985 SC 150  (26,28)  D          1986 SC1534  (11)  RF         1987 SC 831  (7)

ACT:      Representation of  the People  Act. 1951-Sec.  81  read with sec.  83(1)(a)-Election  Petition  to  contain  concise statement  of   facts-Scope  of.  Sec.  97-When  applicable- Recrimination proceedings-Necessity  of making recrimination when additional relief under sec. 101 claimed.      Conduct of  Election Rules,  1961-Rule 38(1)  read with rule 56(2)-Interpretation  of-Proviso  to  rule  56(2)  when applicable. Presiding  officer absent from place of poll-Did not sign  ballot papers-Whether  constitutes failure to sign ballot papers.

HEADNOTE:      The first  respondent who  lost to  the appellant by 24 votes in  the Assembly  Elections filed an election petition in the  High Court  under s. 81 of the Representation of the People Act,  1951 asking  for the appellant’s election to be set aside  and for declaration that he should be declared as the successful  candidate. In  para 9(i) of the petition the respondent pleaded  that 74 ballot papers cast in his favour were wrongly  rejected on  the  ground  that  they  did  not contain the  signature of  the Presiding  Officer. The  High Court ordered  inspection of  these ballot  papers. The High Court held  that the rejection of these 74 ballot papers for want of  the Presiding Officer’s signature was not justified and gave  the respondent No. 1 credit of all those votes and on that  basis while  setting  aside  the  election  of  the appellant, declared  the first  respondent to have been duly elected. Hence  this appeal.  The appellant  urged that  the pleading in  para 9(i)  of the  Election  petition  did  not amount to  a concise  statement of  the  material  facts  as required by  law; the  High Court  went  wrong  in  allowing inspection of  the ballot  papers; the  74 ballot  papers in dispute did  not contain  the  signature  of  the  presiding officer and were rightly rejected at the counting in view of the mandatory  provision in  rule 56(2)  of the  Conduct  of Elections Rules,  1961 and the High Court’s view that in the

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absence of  a prayer  for recrimination  under s.  97 of the Act, the  appellant was  precluded from asking for a recount of the other rejected ballot papers is not tenable in law.      Dismissing the appeal,      HELD: An  election petition is presented in terms of s. 81 of the Act. Section 83 prescribed as to what the petition should contain.  Clause (a)  of sub-s.  (1) of  s. 83 states that an  election petition shall contain a concise statement of the material facts on which the petitioner relies. In the instant 119 case the  number of  ballot  papers  alleged  to  have  been wrongly rejected  has been  furnished,  the  counting  table number has  been given,  the  booth  number  has  also  been disclosed  and  the  ground  for  rejection  has  even  been pleaded. The  only specific detail which was wanting was the serial number  of the ballot papers. This particular was not available to  the election  petitioner in  spite of attempts made on  his behalf.  The Court,  therefore, agrees with the High Court  that in  the facts and circumstances of the case the pleading in paragraph 9(i) set out the material facts in a proper  way and  no defect  can be found with it. The High Court had  rightly ordered  the  inspection  of  the  ballot papers. [126 B-C; H; 127 A; 128 F-G; 127 F]      Samant N.  Balakrishan etc.,  v. George  Fernandez  and Ors, etc., [1969] 3 S.C.R. 603 explained and distinguished,      Bhabhi v.  Sheo Govind  and Ors.,  [1975] Suppl. S.C.R. 202, referred to.      Rule 38(1)  of the  Conduct  of  Election  Rules,  1961 provides inter  alia that  every ballot  paper before  it is issued to  an elector  shall be  stamped on  the back with a distinguishing mark  and shall be signed in full on its back by the presiding officer. The distinguishing mark can be put by anyone  but the  signature has got to be of the presiding officer and obviously he has to personally do that job. Rule 56(2)(h) provides  that the returning officer shall reject a ballot paper  if it  does not  bear both  the distinguishing mark and  the signature as mentioned in sub-rule (1) of rule 38. There is a proviso to sub-rule (2) of rule 56 which says that where  the returning officer is satisfied that any such defect as  is mentioned in clause (h) has been caused by any mistake or  failure on  the part  of a  presiding officer or polling officer,  the ballot  paper shall  not  be  rejected merely on the ground of such defect. The proviso, once it is applicable is  a mandate  that the ballot paper is not to be rejected. [129 F-G; 130 G; 129 E-F; 130 E; 131 H]      In the  instant case  the 74  ballot papers  in dispute were rejected  because they did not contain the signature of the presiding  officer as  required under rule 38(1). To see whether  the   proviso  to  sub-rule  (2)  of  rule  56  was applicable, it  has to  be found  out whether the absence of the signature  of the  presiding  officer  on  these  ballot papers was  on account  of mistake or of his failure. On the submissions at  the bar,  the question  of mistake  does not arise. It was the obligation of the presiding officer to put his signature  on the  ballot papers before they were issued to the  voters. Every voter has the right to vote and in the democratic set  up  prevailing  in  the  country  no  person entitled to share the franchise can be denied the privilege. Nor can  the candidate  be  made  to  suffer.  Keeping  this position in  view the Court is of the definite view that the present case  is one  of the  failure on  the  part  of  the presiding officer,  who had  been taken  ill on  the date of poll and  was away  from the place of polling for quite some time, to  put his  signature on those ballot papers so as to

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satisfy the  requirement of law. The ballot papers therefore were not  liable to  be rejected  as the proviso applied and the High  Court came  to the  correct conclusion in counting these  ballot  papers  and  giving  credit  thereof  to  the respondent No. 1. [130 C; F-G; 131 F-H; 130 H; 131 E; H; 132 A] 120      In a  case in  which the  election petition 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, s. 100 as well as s. 101 of the  Act would  apply,  and  it  is  in  respect  of  the additional claim  for such declaration that s. 97 comes into play. Section  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 cannot  be said  to be  validity 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 does not recriminate  as required  by s.  97, then he cannot make any  attack  against  the  alternative  claim  made  by  the petition. [135 A-F]      Kum. Shradha  Devi v.  Krishna  Chandra  Pant  &  Ors., [1982] 3  S.C.C. 389;  Jabar Singh  v. Genda  Lal, [1964]  6 S.C.R. 54 and P. Malaichami v. M. Andi Ambalam & Ors. [1973] 3 S.C.R. 1016 referred to.      In the  instant election  petition two reliefs had been claimed, firstly,  for setting  aside the  election  of  the returned candidate,  i.e. the appellant, and secondly, for a declaration that  the election petitioner (respondent No. 1) was the  duly elected  candidate. The  relief claimed was in terms of  s. 100(1)(d)  (iii) and  s.  101(a)  of  the  Act. Admittedly no application for recrimination was filed by the appellant.  In  the  absence  of  a  recrimination  petition conforming to  the requirement  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. [132 D-E; 133 A; 138 C-D]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 2618 of 1983.      From the  Judgment and  Order dated  the 18th  January, 1983 of  the Patna High Court in Election Petition No. 15 of 1980.      S. Rangarajan, D. P. Mukherjee, G. S. Chatterjee and R. P. Singh for the Appellant.      S. S.  Ray, M.  P. Jha  and Ms.  Mridula  Ray  for  the Respondents.

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121      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. This  appeal under section 116A of the Representation  of  the  People  Act,  1951  (’Act’  for short), is  directed against  the decision of the High Court at Patna setting aside the appellant’s election to the Bihar Legislative Assembly  from 115 Jamtara Assembly Constituency polling for  which was  held on May 31, 1980, and the result of which  was declared  on June  2,1980. Sixteen  candidates being the  appellant and  the 15  respondents contested  the election. The  appellant was  the candidate of the Communist Party of  India and respondent No. 1 was of the Congress (I) Party. At  the poll the appellant received 13336 votes while the respondent  No. 1 polled 13312 votes. The appellant was, therefore, declared  elected on  the  footing  that  he  had received 24 more votes than the respondent no. 1. Respondent no, 2  had polled  13285 votes.  As the election dispute has been confined  to the  appellant and  respondent no. 1 it is not necessary  to refer  to the other candidates or indicate particulars of their performance at the election. Respondent No. 1  filed an  election petition  under s.  81 of  the Act asking for  the appellant’s election to be set aside and for a declaration  that he  should be declared as the successful candidate. In  paragraph  9  of  the  election  petition  he pleaded the  details of  the illegalities and irregularities committed in  the course of counting of ballot papers. It is not necessary  to refer  to the other details excepting what was pleaded  in paragraph  9(i) as  respondent no. 1 did not press the  election petition  on those grounds. The pleading in the sub-paragraph was to the following effect.           "On table  No. 10  booth No.  10 (Fukbandi Primary      School) 74 ballot papers of the petitioner were wrongly      rejected on  the ground  that they  did not contain the      signature of the Presiding Officer. Similarly 31 ballot      papers of  the petitioner  were rejected  on  different      tables on  the ground  that they  do  not  contain  the      signature  of  the  Presiding  Officer.  The  aforesaid      ballot papers  were rejected by the Assistant Returning      Officer  inspite   of  the  objections  raised  by  the      petitioner and his counting agents."      It is  appropriate to indicate here that the High Court did not  take into  account the  plea in regard to 31 ballot papers in  the absence  of particulars. The appellant in his written statement 122 before the  High Court pleaded that the statements contained in  paragraph  9  and  its  sub-paragraphs  were  vague  and incorrect. In  paragraph 16  of the written statement it was stated:           "During  course   of  counting  no  illegality  or      irregularity of any kind was committed; rather the same      was held  in proper,  legal and orderly manner, nor any      such  imaginary  illegality  was  pointed  out  or  any      objection was raised on behalf of the petitioner." In paragraph  17 it  was further pleaded that "the statement contained in  paragraph No. 9(i) of the election petition is wrong. It  is false  to say  that  the  ballot  papers  were rejected only  on the  ground of  want of  signature of  the Presiding Officer.  The fact is that the Assistant Returning Officer, who  was duly  appointed, after  fully applying his mind and  finding nearly 95 ballot papers of booth no. 10 to be spurious  and not  genuine and after giving cogent, legal and satisfactory  reasons, rejected  the ballot  papers. The petitioner has  suppressed the  fact that besides his 74, 31 ballot papers  of other contesting candidates including 3 of

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the respondent  no. 1  were also  rejected for  not  bearing signature of  the Presiding  Officer and  the distinguishing mark of the polling station No. 10."      In paragraph  18 of the written statement the appellant pleaded that:           "With reference  to the  contents of paragraph no.      9(i) of  the Election  Petition,  the  respondent  no.1      further begs  to submit  that counting of ballot papers      of booth  no. 10  was completed  before 12  noon in the      very first  round and the petitioner secured 3160 votes      in that round while the respondent no. 1 could get only      484 and  one Parmanand  Mishra got  1172 votes. Neither      the petitioner  nor his  election agents  nor  counting      agents, all  of whom were present in the counting hall,      did raise any objection at the time of rejection of the      ballot papers or for the whole day rather they accepted      the position  that those  ballot  papers  were  rightly      rejected being spurious and not genuine. However, after      announcement of  the votes of last round and conclusion      of counting  of the votes and completion and submission      of result  sheet in  Form 20 by the Assistant Returning      Officer to the Re- 123      turning  Officer,   the  petitioner   having  lost  the      election by a small margin lost all his senses and like      a drowning  man catching  the last  straw, made  out  a      false case  of  illegality  in  counting  and  thus  on      2.6.1980 at  1.50 a.m.  for the  first time  raised  an      objection by  filing a  petition which was frivolous in      nature to  count the  rejected  ballot  papers  in  his      favour".      After the  evidence of  both parties had been recorded, on February  19, 1982,  the learned  trial  Judge  made  the following order:-           "Having  considered   the  arguments   of  learned      counsel for the parties and the materials on the record      and in  view of  the decisions  referred to above, I am      satisfied that  the petitioner in his election petition      has given  adequate statements  of  material  facts  on      which he relies in support of his case and has made out      prima facie  case for  inspection of  the ballot papers      which have  been  cast  in  his  favour  and  rejected.      Without expressing  any opinion  regarding the merit of      the claim  of the  parties, I  am of  the view  that in      order to  decide the  dispute and to do justice between      the parties  inspection of  ballot papers is necessary.      I, therefore, direct that all those ballot papers which      have been cast in favour of the petitioner and rejected      by the  Returning Officer at the time of counting, i.e.      74 of  Fukbandi Booth  No. 10  and 31  of other booths,      should be  inspected by learned counsel for the parties      in presence of a responsible officer of the Court."      The appellant  sought to challenge this order by moving an application  under Article 136 of the Constitution before this Court  but that  was rejected.  On April  14, 1982, the learned trial  Judge on  a petition  of  the  appellant  for clarification of the order dated February 19, 1982, made the following direction:           "In my opinion, there is no ambiguity in the order      passed by this Court on 19.2.82, yet objection has been      raised for  which there  is no  basis. However, learned      counsel for  the petitioner has submitted that he would      be quite  satisfied if  only 74  rejected ballot papers      from 124

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    booth  No.   10  Fukbandi   booth  are  inspected.  Let      inspection of only 74 rejected ballot papers from Booth      No. 10 Fukbandi booth be made." The learned  trial Judge  after  inspection  of  the  ballot papers and  upon hearing  counsel for  the parties,  came to hold that  the rejection  of these 74 ballot papers for want of the  Presiding Officer’s  signature was not justified and gave the  election petitioner  credit of all those votes. On that basis  he came  to hold  that the  respondent no. 1 had received the  majority of  the valid  votes  polled  at  the election (the  excess being  50) and while setting aside the election of  the appellant, declared the respondent no. 1 to have been duly elected. This decision is assailed in appeal.      Mr. Rangarajan  in support  of the appeal has taken the stand that:  (i) the particulars furnished in paragraph 9 of the election  petition were inadequate and fall short of the requirements of  the law;  (ii)  inspection  of  the  ballot papers should  not have been granted and even on inspection, the 74  ballot papers  were not  available to  be counted in favour of  respondent no.  1; (iii)  if inspection was to be granted and  credit was  to  be  given  of  rejected  ballot papers,  all   the  954   ballot  papers  should  have  been scrutinised and  the examination for recount should not have been confined  to 74  only; and  (iv) the  view taken by the learned trial Judge of the High Court that in the absence of a prayer  for recrimination  under s.  97 of  the  Act,  the appellant was  precluded from  asking for  a recount  of the other rejected ballot papers is not tenable in law.      Before entering  into an  examination of the tenability of these contentions, it would be proper to take note of the decision in  the case of Jagan Nath v. Jaswant Singh & Ors., of a five Judge Bench of this Court. Mahajan, C.J. spoke for the Court thus:           "The  general   rule  is  well  settled  that  the      statutory requirements of election law must be strictly      observed and  that an election contest is not an action      at law  or a  suit in  equity but is a purely statutory      proceeding unknown to the common law and that the Court      possesses no common law power." 125 What was  said in  Jagan Nath’s case continues to be the law binding this  Court and  in the  recent case of Jyoti Basu & Ors. v.  Debi  Ghosal  &  Ors,  this  Court  reiterated  the position by saying:           "A right  to elect,  fundamental though  it is  to      democracy,   is,    anomalously   enough,   neither   a      fundamental right  nor a  Common Law  Right. It is pure      and simple,  a statutory  right. So  is the right to be      elected. So  is  the  right  to  dispute  an  election.      Outside of  statute, there  is no  right to  elect,  no      right  to  be  elected  and  no  right  to  dispute  an      election. Statutory  creations they are, and therefore,      subject to  statutory limitation.  An election petition      is not  an action at Common Law, nor in equity. It is a      statutory proceeding  to which  neither the  common law      nor the principles of equity apply but only those rules      which the  statute makes  and applies.  It is a special      jurisdiction, and  a special jurisdiction has always to      be exercised  in accordance  with the  statute creating      it. Concepts  familiar to  Common Law  and Equity  must      remain strangers  to Election  Law  unless  statutorily      embodied. A  Court has  no right  to resort  to them on      considerations of alleged policy because policy in such      matters, as  those, relating  to the  trial of election      disputes, is  what the  statute lays down. In the trial

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    of election  disputes,  Court  is  put  in  a  straight      jacket. Thus  the entire  election  process  commencing      from the  issuance of  the notification  calling upon a      constituency to  elect a  member or members right up to      the final resolution of the dispute, if any, concerning      the election  is regulated by the Representation of the      People Act, 1951, different stages of the process being      dealt with  by different  provisions of  the Act. There      can  be   no  election   to  Parliament  or  the  State      Legislature except as provided by the Representation of      the People  Act, 1951,  and again, no such election may      be questioned  except in  the manner  provided  by  the      Representation of the People Act. So the Representation      of the  People Act  has been  held to be a complete and      self-contained code  within which  must  be  found  any      right claimed in relation to an election or an election      dispute." 126 We are  bound by the decision of the larger Bench and we are in agreement with what has been said in Jyoti Basu’s case.      The first question to consider is, whether the pleading in paragraph  9(i) of  the election petition was adequate in view of  the provisions  of the  Act. Section  94 of the Act provides for  secrecy of  voting. Detailed  provisions  have been made  in the  Conduct of  Election Rules, 1961, to give effect to  this wholesome  provision contained  in s. 94. An election petition is presented in terms of s. 81 of the Act. Section  83  prescribes  as  to  what  the  petition  should contain. Sub-section  (1)  (a)  of  s.  83  states  that  an election petition  shall contain  a concise statement of the material facts  on which  the petitioner relies. Since there is no  allegation of any corrupt practice in this case there is no  necessity to  refer to clause (b) of sub-s. (1) of s. 83. Though  initially Mr.  Rangarajan had contended that the verification  was   not  in  accordance  with  law,  he  has abandoned this  contention during the hearing in view of the statutory  form   of   verification   prescribed   and   the verification in  the instant  case conforms to it. According to Mr.  Rangarajan the  pleading in  paragraph 9(i) does not amount  to  a  concise  statement  of  the  material  facts. Appellant’s learned  counsel  has  placed  reliance  on  the observation  in   Samant  N.   Balakrishna  etc.  v.  George Fernandez & Ors. etc., where, with reference to s. 83 of the Act it  has been  said that  the  petition  must  contain  a concise  statement  of  the  material  facts  on  which  the petitioner  relies  and  the  fullest  possible  particulars should be given. Material facts and material particulars may overlap. Balakrishna’s  case where  Hidayatullah, C.J.  made these observations  was one  where  allegations  of  corrupt practice had  been made and the case came under s. 83(1) (b) of the Act. Obviously, allegations of corrupt practice being in the  nature of  a criminal  charge, the Act requires full particulars to  be given.  The scheme in s. 83(1) of the Act makes the  position very clear. Clause (a) refers to general allegations and  requires a  concise statement  of  material facts to  be furnished while clause (b) referring to corrupt practice requires  all  details  to  be  given.  Appellant’s counsel, therefore,  was  not  entitled  to  rely  upon  the proposition in  Balakrishna’s case  for the present purpose. So far  as  averment  in  paragraph  9(1)  of  the  election petition is  concerned, we  find that  the number  of ballot papers alleged  to  have  been  wrongly  rejected  has  been furnished, the  counting table  number has  been given,  the booth 127

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number has  also been disclosed and the ground for rejection has even  been pleaded.  Respondent No.  1 pleaded  that the particulars of  the ballot  papers could  not be obtained as during counting  they were  not shown. His counting agent at table no.  10 has been examined as his witness No. 3. He has stated:           "The ballot  box of  Fukbandi  booth  No.  10  was      brought on  my table and it was intact. That ballot box      contained some  ballot papers  which were  not  bearing      signature of  the Presiding Officer. I raised objection      in respect  of those ballot papers that they should not      be treated  as doubtful ballot papers to be sent to the      Returning Officer.  Counting Supervisor  did not listen      to my protest and sent them to the Returning Officer as      doubtful ballot  papers.  There  were  74  such  ballot      papers." The Assistant  Returning Officer  was examined  as RW.  4 on behalf of  the appellant.  In his evidence he stated that he had rejected  some ballot  papers of  booth no. 10. He again stated that  "counting agents of candidates were not allowed to note  down the  serial numbers  of the  ballot papers. In view of  the statement  of the  counting agent of respondent no.1 and  the evidence  of the  Assistant Returning  Officer there can  be no  scope to  doubt, and  in our view the High Court was  right in taking the view, that the particulars of the  rejected  ballot  papers  were  not  available  to  the counting agents  and, therefore,  particulars of the numbers of the  ballot papers  had not  been given  in the  election petition. We agree with the High Court that in the facts and circumstances of the case the pleading in paragraph 9(1) set out the  material facts in a proper way and no defect can be found with it.      Mr. Rangarajan  next canvassed that the High Court went wrong in  allowing inspection of the ballot papers. Reliance was placed  on the  decision of  this Court  in the  case of Bhabhi v.  Sheo Govind  & Ors.,  where it has been held that the following  conditions were  imperative before  the Court could  grant  inspection  or  sample  inspection  of  ballot papers:      (1)  That it  is important  to maintain  the secrecy of           the ballot  which is  sacrosanct and should not be           allowed 128           to be  violated on frivolous, vague and indefinite           allegations;      (2)  That before inspection is allowed, the allegations           made against  the elected  candidate must be clear           and specific  and must  be supported  by  adequate           statement of material facts;      (3)  The Court  must be  prima facie  satisfied on  the           materials produced  before the Court regarding the           truth of the allegations made for a recount.      (4)  That the  discretion conferred on the Court should           not be exercised in such a way so as to enable the           applicant to  indulge in  a roving  inquiry with a           view to  fish materials for declaring the election           to be void; and      (5)  That on  the special  facts of a given case sample           inspection  may   be  ordered   to  lend   further           assurance to  the prima  facie satisfaction of the           Court regarding  the truth of the allegations made           for a  recount, and not for the purpose of fishing           out materials."      We have  already pointed  out that the allegations made in paragraph  9(i) of  the election  petition were clear and

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definite. On  the facts of the case the plea was confined to one aspect,  viz.,  for  want  of  the  Presiding  Officer’s signature with  reference to  74 ballot  papers  cast  at  a particular booth  and counted on a particular table the same had been  rejected.  The  only  specific  detail  which  was wanting was  the serial  number of  the 74 ballot papers. We have, on  the evidence  recorded in  the case,  come to  the conclusion that  this particular  was not  available to  the election petitioner in spite of attempts made on his behalf. While we  agree with  the view expressed in Bhabi’s case, on the facts before us we are inclined to think that inspection had rightly  been  ordered.  Mr.  Ray  for  respondent  no.1 pressed before  us the fact that the order of the High Court allowing inspection had been questioned before the Court and no interference  was made.  Appellant’s counsel on the other hand contended  that as the application under Article 136 of the Constitution  had not  been disposed  of on merits, this aspect was open to 129 challenge in  regular appeal under s. 116A of the Act. It is unnecessary to  refer further  to the  consequences of  non- interference by this Court on the earlier occasion as on the facts we  are satisfied that the action of the High Court in allowing inspection  is not  open to  dispute. A  number  of authorities were  cited by  Mr. Rangarajan in support of his contention that  inspection should  not have  been  granted. Since Bhabhi’s  case has considered most of the cases relied upon by  Mr. Rangarajan  and tests  have been  laid down  to which reference  has been made by us, we see no necessity to independently refer to and deal with the other cases.      The 74  ballot papers  which  had  been  rejected  were placed  before  us  during  the  hearing.  In  the  election petition it  has been  contended that the rejection was only on one  ground,  viz.,  absence  of  the  signature  of  the Presiding Officer.  The appellant  in his  written statement had taken  the stand  that the  identifying  mark  was  also wanting. The  ballot papers  have been  scrutinised by us as also by learned counsel for both the parties. Mr. Rangarajan has conceded  on seeing  the ballot papers that each of them bears  the  mark.  Admittedly  none  of  them  contains  the signature of  the Presiding  officer. Rule 56 of the Conduct of  Election  Rules;  1961,  makes  detailed  provision  for counting of  votes.  Sub-rule  (2)  requires  the  Returning Officer to  reject a  ballot paper  when any  of  the  seven infirmities indicated  therein is  found.  In  view  of  the contentions advanced  before  us  the  relevant  infirmities would be  as provided  in sub-clause  (e), i.e.  the  ballot paper is  a spurious one and (h), i.e. it does not bear both the mark  and the signature which it should have borne under the provisions  of sub-rule  (1)  of  rule  38.  Rule  38(1) provides:           "Every ballot  paper before  it is  issued  to  an      elector, and  the counterfoil attached thereto shall be      stamped on  the back  with such  distinguishing mark as      the Election  Commission may  direct, and  every ballot      paper, before  it is issued, shall be signed in full on      its back by the Presiding Officer."      There 74 ballot papers cast in favour of the respondent No. 1 which have been rejected were in two series, 24 in one and 50  in the other. Though the Assistant Returning Officer had stated that according to him these were spurious, he has in his  cross-examination clarified  the  position  that  by spurious’ he meant that the ballot 130 papers did  not  contain  the  signature  of  the  Presiding

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Officer. That  these ballot papers were used at the election in booth  no. 10  is not open to doubt in view of the ballot paper account  for this  booth. That  shows that  810 ballot papers in  all had  been received  being  from  serial  nos. 006851 to  007660. 424  ballot papers  were used  and ballot papers of  the same  number had been found in the ballot box and duly  accounted for.  The numbers  of the  ballot papers including the  74 in  dispute are covered by the particulars of used  ballot papers  given in  the ballot  paper  account which is  Ext. 2  in the case. The Presiding Officer himself has proved  this document.  The report made by the Returning Officer to  the Election  Commission Ext.  A also shows that the ballot  papers were  not spurious.  There is  sufficient evidence on  record from  which it can be concluded that the rejection of  these 74  ballot papers  was on account of the fact  that  they  did  not  contain  the  signature  of  the Presiding  Officer   as  required   under  rule  38(1).  Mr. Rangarajan is right in his submission that if a ballot paper does not  contain the  signature of the Presiding Officer it has got  to be  rejected at  the counting  in  view  of  the mandatory provision in rule 56(2) of the Conduct of Election Rules. The  point  for  consideration  now  is  whether  the proviso which reads as follows was applicable:           "Provided that  where  the  returning  officer  is      satisfied that  any such  defect  as  is  mentioned  in      clause (g) or clause (h) has been caused by any mistake      or failure  on the  part  of  a  presiding  officer  or      polling officer, the ballot paper shall not be rejected      merely on the ground of such defect".      On the  submissions at the Bar, the question of mistake does not  arise. It  has to  be found  out whether  these 74 ballot papers  in dispute  did not  contain the signature of the Presiding  Officer on  account of  his failure.  Rule 38 makes  it   clear  that  the  distinguishing  mark  and  the signature of  the Presiding  Officer have  to be  put on the ballot paper  before the  same is issued to the voter at the booth. The distinguishing mark can be put by any one but the signature has  got  to  be  of  the  Presiding  Officer  and obviously he  has  to  personally  do  that  job.  There  is evidence that  the Presiding  Officer had  been taken ill on the date  of poll.  He has  been examined  as PW2.  From his evidence it  appears that this was his first experience as a Presiding officer  of a booth. He has stated: "On the day of poll my  bowls was upset and I had visited the pokhra (tank) once on the day of 131 poll and  during that period all the ballot papers were kept on the  table. I  had not put my signature on all the ballot papers. I  had deputed  one of  the polling  officers at the booth to  watch the  ballot papers  when I  had gone  to the pokhra. For  5 to  10 minutes  that I  was absent  from  the polling booth  on the  day of  poll, I  cannot say  what had happened during  that  period."  The  appellant  had  cross- examined this  witness and suggested to him that he had gone to attend  to the  call of  nature three  or four times. The appellant’s witness  No. 2  who was  also a candidate at the election (and is a respondent here) has stated:           "I found  the Presiding  Officer at  booth no.  10      sleeping under  a Neem  tree at  some distance from the      booth when I visited the booth in the noon."      Once it  is held  that the  74 ballot  papers were  not spurious, and  had been issued to the voters at the booth in the course  of the  poll, it  would be reasonable to presume that the ballot papers had been issued to the voters without signatures   of    the   Presiding    Officer   though   the

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distinguishing  mark  had  been  put.  The  absence  of  the Presiding Officer  from the  place of  poll has clearly been established. Whether  it was  for 5 to 10 minutes as deposed by him  or it was no three or four occasions as suggested to him in cross-examination or for a good length of time during which he was having a nap under a neem tree as deposed to by RW. 2,  it is  clear that  he was  away from  the  place  of polling for  quite some  time. The polling process must have continued  and  voters  who  came  during  his  absence  had obviously been  issued these  unsigned ballot papers. If the facts be  these, would  it not  be a  case of failure of the Presiding Officer to put his signatures on the ballot papers is the  question for consideration. It was the obligation of the Presiding  Officer to  put his  signature on  the ballot papers before  they were  issued to  the voters. Every voter has  the  right  to  vote  and  in  the  democratic  set  up prevailing in  the country  no person  entitled to share the franchise can be denied the privilege. Nor can the candidate be made  to suffer. Keeping this position in view, we are of the definite view that the present case is one of failure on the part  of the  Presiding Officer  to put his signature on those ballot papers so as to satisfy the requirement of law. The proviso,  once it is applicable, has also a mandate that the ballot  paper is not to be rejected. We, therefore, hold that the ballot papers were not liable to be rejected as the proviso applied  and the High Court, in our opinion, came to the 132 correct conclusion  in  counting  these  ballot  papers  and giving credit thereof to the respondent no. 1.      The next  question for  consideration is  as to whether all  the   ballot  papers   which  were   rejected  in   the constituency should  have been  allowed to  be inspected and recounted  on   the  basis   of  inspection  or  should  the inspection have  been confined  to 74 ballot papers as done. This question is connected with the fourth contention of the appellant’s counsel,  i.e.  whether  in  the  absence  of  a recrimination the  appellant who was the returned candidate, could claim  that the  election petitioner would not succeed for the  additional  relief  as  he  had  not  received  the majority of  the votes  polled  at  the  election.  We  have already  indicated   that  the   appellant  as  the  elected candidate in  his written  statement had  pleaded  that  the counting was  in accordance  with law and not objectionable. The effect  of such  a plea  is that the ballot papers which had been  cast in  his favour  but credit had not been given thereof had  been validly rejected. In the election petition two reliefs had been claimed, firstly, for setting aside the election of  the returned candidate, i.e. the appellant, and secondly, for  a declaration  that the  election  petitioner (respondent no.  1) was  the  duly  elected  candidate.  The relief claimed  was in  terms of  s. 100(1) (d) (iii) and s. 101 (a) of the Act. The election petitioner had claimed that there was improper rejection of votes cast in his favour and that he  had received  a majority  of the valid votes at the election.  The   Act  makes   in   s.   97   provision   for recrimination.  Sub-section(1)  of  that  section  which  is material reads thus:           "When in  an election  petition a declaration that      any candidate  other than  the returned  candidate  has      been duly elected is claimed, the returned candidate or      any other  party may  give evidence  to prove  that the      election of  such candidate  would have been void if he      had been the returned candidate and a petition had been      presented calling in question his election:

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         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." 133      Admittedly no  application for recrimination was filed. Mr. Rangarajan  has strenuously  contended that  keeping the scheme and the purpose of the 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  which  has  been followed throughout  and the  last in  series is the case of Jyoti Basu 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. It  is true  that in Kum. Shradha Devi v. Krishna Chandra Pant & Ors., it has been observed:           "If the  allegation is  of improper  rejection  of      valid votes  which is  covered by the broad spectrum of      scrutiny and  recount because  of miscount,  petitioner      must furnish  prima facie proof of such error. If proof      is furnished  of some  errors in respect of some ballot      papers, scrutiny and recount cannot be limited to those      ballot papers  only. If the recount is limited to those      ballot papers  in respect  of which there is a specific      allegation of error and the correlation is established,      the  approach  would  work  havoc  in  a  parliamentary      constituency where  more often  we find  10,000 or more      votes being  rejected as  invalid. Law does not require      that  while  giving  proof  of  prima  facie  error  in      counting each  head of  error must  be tested  by  only      sample examination  of some  of the ballot papers which      answer the  error and then take into consideration only      those ballot  papers and  not others.  This is  not the      area of  enquiry in a petition for relief of recount on      the ground of miscount." These observations  came not in a case to which s. 97 of the Act applied.  This Court  was considering  a case of recount simpliciter. The  position  of  law  as  to  the  imperative necessity of  a recrimination  in cases as before us is well settled. A  Five Judge  Bench in  Jabar Singh  v. Genda Lal, examined at length the provisions of s. 100 and s. 97 of the Act. That  was a  case where the difference was of two votes and as application had been made asking for reliefs both 134 under s. 100(1) (d) (iii) as also s. 101. In that background the question for consideration was whether in the absence of a  petition  for  recrimination  relief  could  be  granted. Gajendragadkar, J.  (as the  learned Judge  then was), spoke for himself  and three other learned Judges. In the majority judgment it was held:           "Confining ourselves  to clause (iii) of s. 100(1)      (d), what the Tribunal has to consider is whether there      has been  an improper  reception of  votes in favour of      the returned  candidate. It  may also  enquire  whether      there has  been a  refusal or  rejection of any vote in      regard to  any other  candidate for  whether there  has      been a reception of any vote which is void and this can      only be  the reception  of a void vote in favour of the      returned candidate.  In other  words, the  scope of the      enquiry in  a case falling under s. 100(1) (d) (iii) is

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    to determine  whether any  votes have  been  improperly      cast in  favour of  the returned candidate or any votes      have been  improperly refused  or rejected in regard to      any other  candidate. These  are the  only two  matters      which  would   be  relevant  in  deciding  whether  the      election of  the returned candidate has been materially      affected or  not. At  this enquiry,  the onus is on the      petitioner to  show that  by reason  of the infirmities      specified in  s. 100(1)  (d) (iii),  the result  of the      returned  candidate’s   election  has  been  materially      affected, and  that, incidentally,  helps to  determine      the scope  of the  enquiry. Therefore,  it seems  to us      that in  the case  of a  petition where  the only claim      made is  that the election of the returned candidate is      void, the  scope of  the enquiry  is clearly limited by      the requirement of s. 100(1) (d) itself. The enquiry is      limited not  because the  returned  candidate  has  not      recriminated under  s. 97(1);  in fact  s. 97(1) has no      application to  the case  falling under  s. 100(1)  (d)      (iii), the  scope of  the enquiry  is limited  for  the      simple reason  that what  the  clause  requires  to  be      considered is  whether the  election  of  the  returned      candidate has  been  materially  affected  and  nothing      else. If  the result of the enquiry is in favour of the      petitioner who  challenges the election of the returned      candidate, the  Tribunal has  to make  a declaration to      that effect,  and that declaration brings to an end the      proceedings in the election petition. 135           There are,  however, cases  in which  the election      petition 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.  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 s. 97 comes into play.      Section 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  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 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  does 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  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

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    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  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 136      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 (now rule 56(6) of Conduct      of Election  Rules), 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). 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,  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."      Ayanagar, J.  did take  a different  view of the matter and it is on the minority view that strong reliance has been placed by  Mr. Rangarajan.  He has  even contended  that the proposition in  minority view  was more  appealing  and  had reminded  us  that  there  have  been  instances  where  the minority view  lays down the law correctly and in due course is accepted  to be  the law  of the  country.  As  we  shall presently show,  the ratio  in the majority opinion is still holding the field and on the plea that the minority view may some day  become the  law, relief in the present case cannot be granted.  We are  bound by  the decision  of  the  larger Bench. 137      This Court  in P.  Malaichami v.  Mr. Andi  Ambalam and Ors., considered this question again. Alagiriswami, J. spoke for the  Bench which  heard the  appeal. There  it had  been contended by counsel that in view of the facts of that case, recrimination and  the requirement  of s.  97 need  not have been  insisted   upon.  This  is  how  that  contention  was answered:           "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

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    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 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 where likely to have      arisen  in   the  counting,  and  as  revealed  by  the      instances which  the learned  Judge himself looked into      and decided....." The ratio of the decision in Jabar Singh’s case was followed and it was stated:           "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 counted in favour of the election petitioner, who 138      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."      Several decisions  were cited  before us by Mr. Ray for respondent No.  1 which  we think unnecessary to refer to in view of the clear pronouncements and the state of the law as indicated  by   these  decisions.   In  the   absence  of  a recrimination petition  conforming to the requirements of s. 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.      For the  reasons we  have indicated, this appeal has to be dismissed.  In the circumstances we direct the parties to bear their respective costs throughout. H.S.K.    Appeal dismissed. 139