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PETITIONER: JANARDAN DATTUAPPA BONDRE, ETC.

       Vs.

RESPONDENT: GOVINDPRASAD SHIVPRASAD CHOUDHARY & ORS. ETC.

DATE OF JUDGMENT03/05/1979

BENCH: PATHAK, R.S. BENCH: PATHAK, R.S. KRISHNAIYER, V.R.

CITATION:  1979 AIR 1617            1979 SCR  (3) 897  CITATOR INFO :  MV         1985 SC 150  (27,32,35)  RF         1987 SC 831  (8)

ACT:      Representation of  the People  Act 1951 (43 of 1951)-S. 97-Notice of  recrimination when  necessary-Every  order  of recount does not bring the section into paly.

HEADNOTE:      The  appellant   was  declared  elected  to  the  State Assembly in  the General  Election in 1978. He secured 27785 votes. The  fifth respondent  was given 27,604 votes and the third respondent 27,447 votes.      The election  of the  appellant was  questioned  by  an election petition  filed in  the High  Court by a voter, the first respondent.      Having regard  to the  allegations made in respect of a number of  ballot  papers,  the  High  Court  allowed  fresh scrutiny and recount of the votes, and entrusted the task to a Special  Officer of  the High  Court. The  Special Officer pointed out  that in  one envelope  from the  box of the 3rd respondent out  of 278  ballot papers  28 were  of  the  3rd respondent while  the balance  of 250 were the votes cast in favour of  the appellant.  Similarly in  the envelope of the appellant out  of 408  ballot papers  found in this box only 158 were  votes cast in his favour and 250 were in favour of the 3rd  respondent and  that by reason of this some mistake was committed  by the  Returning Officer  while packing  the ballot papers  in the two envelopes of the appellant and the 3rd respondent. On the report of the Special Officer, it was contended before  the High  Court on  behalf  of  the  fifth respondent that  it was not permissible to take into account the 250  votes cast  in favour  of the  appellant which were found in  the packet  of the  third respondent  because  the order of  the High  Court directing a recount was limited to finding out  whether any improper votes had been accepted in favour of  the appellant and whether any proper votes of the fifth respondent had been rejected.      The High  Court relying on P. Malaichami v. M. Ambalam, [1973] 3  SCR 1016  took the  view that as the appellant had not filed  a notice  of recrimination  under s.  97  of  the Representation of  the People  Act, 1951, it was not open to him to  allege that  any of  his votes  had been  improperly

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counted in favour of some other candidate.      On the  basis of  the report of the Special Officer the High Court  held that  the fifth respondent had received 191 votes more  than the  appellant and declared the appellant’s election to  be void. It declared the fifth respondent to be duly elected.      In  the   appellant’s  appeal  to  this  Court  it  was contended that  the High  Court had erred in holding that s. 97 comes  into play  and that no notice of recrimination was necessary for  the purpose  of having  the 250  votes, whose validity was 898 never in  dispute and  which had  been cast in favour of the appellant, counted  in the  total number of votes secured by the appellant. ^      HELD: 1.  When the  High Court  directed the "physical" count of  the votes  cast in  favour of the appellant, third respondent and  others, what  was intended  was a mechanical recount of these votes and nothing more. It did not envisage any inquiry 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  the third respondent should be counted in his total, he  was asking  for nothing more than the application of a mechanical process. These votes had never been regarded as cast  in favour  of the third respondent. There was never any dispute  that they  were votes  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  placed in the packet of the third respondent. [901G-902A]      2. The accident that they were not placed in his packet but in the third respondent’s packet did not render them any the less  votes belonging  to the appellant. Their inclusion in calculating the appellant’s total was a necessary part of the process  involved in  deciding whether  he had been duly elected or  whether on  the election  petition his  election should be  declared void.  It was  a process relevant to the first of  the reliefs claimed by the election petition, that is to  say, the  election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. [902C-E]      3. A  notice of recrimination under s. 97 of the Act is necessary only  when the  returned candidate  or  any  other candidate disputes the grant of the further declaration that he or  some other candidate should be declared duly elected. [902F]      In the  instant case  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 that question, and the question could properly be determined only after  giving to  the appellant  the benefit of all the votes cast  for him.  These would include the 250 votes cast in his  favour, even  though they  were found  placed in the third respondent’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 s. 97 was necessary. [902G-903A]      4. The  appellant was  concerned with  his claim to his 250 votes.  The claim did not involve any reconsideration of

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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. Every  order of recount does not bring s. 97 into play. [903D-E]      Jabar Singh  v. Genda  Lal [1964] 6 SCR 54, 60; Anirudh Prasad v. Rajeshwari Saroj Das & Ors., [1976] Suppl. SCR 91; referred to.      P.  Malaichami   v.  M.  Ambalam  [1973]  3  SCR  1016; distinguished.      5. The  High Court  should not have declined to include in the  appellant’s total votes the 250 votes cast in favour of the appellant but included in the packet 899 of the  third respondent. If those votes are included in the appellant’s total  the appellant  secures the highest number of votes and is entitled to be declared elected. [903F]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1936 of 1978.      From the  Judgment and  Order dated  19-8-78/3-10-78 of the Bombay High Court (Nagpur Bench) in E.P. No. 1/78.                             AND                Civil Appeal No. 2387 of 1978      From the  Judgment and Order dated 3-8-78/22-9-78/3-10- 78 of  the Bombay  High Court  (Nagpur  Bench)  in  Election Petition No. 1/78.      M. C.  Bhandare, B.  P. Salve, A. N. Karkhanis and Mrs. S. Bhandare for the Appellant in C.A. 1936/78.      N. M.  Ghatate and S. V. Deshpande for the Appellant in C.A. 2387/78.      M. N.  Phadke, Mrs. V. D. Khanna and P. G. Palsikar for R. 2 in C.A. 1936 of 1978.      U. R. Lalit and V. N. Ganpule for R. 5 in C.A. 1936/78.      The Judgment of the Court was delivered by      PATHAK, J.-These  two appeals under section 116A of the Representation of  the People Act, 1951 are directed against an order  of the  High Court  of Bombay  declaring void  the election of  Janardan Dattuappa  Bondre to  the  104-Chikhli Legislative Assembly Constituency, Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected.      Civil Appeal  No. 1936  (NCE) of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No. 2387 (NCE) of 1978 by  Keshavrao Jaiwantrao  Bahekar. The  parties will be referred to  hereinafter according  to their  array  in  the former appeal.      General  elections   to  the  Legislative  Assembly  of Maharashtra were  held  in  February,  1978.  The  appellant Janardan Dattuappa  Bondre, was declared elected to the 104- Chikhli Assembly  Constituency. He secured 27,785 votes. The fifth respondent,  Bharat Rajabhau  Bondre was  given 27,604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 27,447 votes. The election of the 900 appellant was  questioned by  an election  petition filed in the High  Court of  Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary.      The High  Court did  not find  substance in most of the grounds raised  in the  election petition, but having regard to the  allegations made  in respect  of a  number of ballot papers it  allowed fresh  scrutiny and recount of the votes. The task  was entrusted  to a  Special Officer  of the  High Court. After  considering his report and the material before

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it, the  High Court  made an  order dated September 22, 1978 allowing the  election petition,  declaring the  election of the appellant  to be  void and  further declaring  the fifth respondent to  be duly elected. The decision was rendered on the finding  that after  taking into  account the  votes now counted in  favour of  the different  candidates, the  fifth respondent was  found to  have received  191 votes more than the appellant.  This result was reached after denying to the appellant the  benefit of  250 ballot  papers  cast  in  his favour but  found included in the packet of Bahekar’s ballot papers. If  these 250 ballot papers are counted in favour of the appellant,  it is  not disputed  that the  result of the election  must   swing  in  favour  of  the  appellant.  The submissions  of   learned  counsel  for  the  parties  have, therefore, centred mainly on this aspect of the case.      The relevant  portion of  the  report  of  the  Special Officer reads:-      ’While the  counting was in progress, it was found that in one  envelope from  Box No.  2 of  candidate No.  4  Shri Bahekar, there were 278 ballot papers noted by the Returning Officer on  the envelope  but at the time of actual counting it was  found that  from them  28 ballot papers were of Shri Bahekar, while  the remaining  were of votes cast, in favour of candidate  No. 3 Shri Janardhan Bondre. Similarly, in the envelope of  Shri Janardhan  Bondre there  were  408  ballot papers noted  by the  Returning Officer  but at  the time of actual counting  of that  envelope it  was noticed that from out of  408 ballot  papers, 158  only were of Shri Janardhan Bondre and  the remaining  were of Shri Bahekar. It would be therefore clear that there was some mistake committed by the Returning Officer while packing the ballot papers in the two envelopes of Shri Bahekar and Janardhan Bondre."      On the  report of the Special Officer, it was contended before the High Court on behalf of the fifth respondent that it was not permis 901 sible to  take into  account the 250 votes cast in favour of the appellant and found in the packet of Bahekar because the order of  the High  Court directing a recount was limited to finding out  whether any improper votes had been accepted in favour of  the appellant and whether any proper votes of the fifth respondent had been rejected. Relying on P. Malaichami v. M.  Ambalam,(1), the High Court took the view that as the appellant had  not filed  a notice of recrimination under s. 97 of the Representation of the People Act, 1951, it was not open to  him to  allege that  any  of  his  votes  had  been improperly counted in favour of some other candidate.      In the  appeal filed  by Janardan Dattuappa Bondre, the principal contention  on behalf of the appellant is that the High Court  has erred  in holding that Section 97 comes into play.  It   is  vehemently   contended  that  no  notice  of recrimination was  necessary for  the purpose  of having the 250 votes, whose validity was never in dispute and which had been cast  in favour  of the appellant, counted in the total number of  votes secured  by the  appellant. It  seems to us that the appellant is right.      The order  for a  recount was made by the High Court on an  application   made  by   the  election  petitioner.  The directions in  the order required the Special Officer, among other things,  to physically  count the  votes  recorded  in favour of  the appellant,  Bahekar and  other candidates  in order to  ascertain whether  those votes  were less than the number of votes declared as having been respectively secured by them.  During the  recount, the  appellant applied to the Special Officer  that if  any votes  cast in his favour were

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found to have been erroneously counted in the total of other candidates the mistake should be rectified by including them in his total. A similar application was made by Bahekar. The High Court  rejected  the  appellant’s  application  on  the ground that  he had  not filed a notice of recrimination. It seems to us 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 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 shoud be counted in his total, he was asking for nothing more than the application of a mechanical process. Those  votes had  never been  regarded as  cast  in favour of  Bahekar. There  was never  any dispute  that they were votes  for the  appellant.  Their  validity  was  never doubted. Plainly 902 what had  happened was  that by  an error  250 ballot papers cast in  favour of the appellant had been erroneously placed in the packet of Bahekar. It is quite probable that as equal numbers  of   ballot  papers  of  the  two  candidates  were exchanged, the  error occurred  after the  ballot papers  of each candidate had been separately tied in bundles of 50, as is required  by the "Handbook for Returning Officers". After withdrawing the  250 votes  of Bahekar  from the appellant’s packet and  the appellant’s 250 votes from Bahekar’s packet, the Special  Officer could  not stop there. The 250 votes of each candidate  had then  to be  counted in  his total. They were not valid votes.      The inclusion  of the  250 votes  cast in favour of the appellant was  material for  the purpose  of determining the total number  of votes  received by  him. The  accident that they were  not placed  in his packet but in Bahekar’s packet did not  render them  any the  less votes  belonging to  the appellant. Their  inclusion in  calculating the  appellant’s total was  a necessary  part  of  the  process  involved  in deciding whether  he had been duly elected or whether on the election petition,  his election should be declared void. It was a  process relevant  to the first of the reliefs claimed by the  election  petitioner,  that  is  to  say,  that  the election of the appellant be declared void. The other relief claimed by  the  election  petitioner  was  that  the  fifth respondent be declared duly elected. Now. as was observed in Jabar Singh  v. Genda Lal,(1) 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   that  question,  and  the  question  could properly be  determined only  after giving  to the appellant the benefit  of all  the votes  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

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candidate with  the highest  number of  votes. His  election cannot be declared void. 903 That being  so, no  question arises of the appellant wanting to give  evidence to  prove that  the election  of any other canddiate 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.  Malaichami v.  M. Ambalam  (supra), on which the High Court  relied, the  facts were different. In that case, the recount  ordered did  not  inolve  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 Prassad v. Rajeshwari Saroj Das & Ors.(1)      We are  of opinion  that the High Court should not have declined to  include in  the appellant’s total votes the 250 votes cast  in favour  of the  appellant but included in the packet of  Bahekar. If  those  votes  are  included  in  the appellant’s total,  the appellant secures the highest number of votes and is entitled to be declared elected.      In the  circumstances, it  is not necessary to consider the other  contention of  learned counsel  for the appellant that the  High Court  was in error in directing a recount of the ballot papers.      A submission  was made by learned counsel for the fifth respondent that  the postal  ballot papers  were printed  in Hindi and  therefore, Rule  22 of  the Conduct  of  Election Rules, 1961 was contravened. The point was raised before the High Court  and, has, in our opinion, been rightly repelled. On the material before us it is not possible to say that the result of  the election has been materially effected by that irregularity. 904      In the  appeal filed  by Bahekar, the contention raised for him  is that  on a  proper and  complete recount  of the votes cast for the respective candidates it is he who should be declared  duly elected.  We are  not satisfied  that  the grounds raised  have any  substance, and  we see no force in his appeal.      In the  result, Civil  Appeal No. 1936 (NCE) of 1978 is allowed  and   Civil  Appeal  No.  2387  (NCE)  of  1978  is dismissed.  The  order  of  the  High  Court  declaring  the election of  the appellant  void  and  declaring  the  fifth respondent duly  elected is set aside. The election petition is  dismissed.  The  appellant  is  entitled  to  his  costs throughout against  the second  and the fifth respondents in the election petition as well as in the appeal filed by him. The remaining  respondents will bear their own costs in that appeal. All  the parties  will bear  their own  costs in the

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other appeal. N.V.K.                                  C.A.1936/78 allowed.        C.A.2387/78 dismissed. 905