Holding

The appeal is dismissed and the High Court's order setting aside the returned candidate's election is upheld.

Summary

In the 1980 Haryana Legislative Assembly election for constituency No.5 (Hathin), the returned candidate Azmatkhan secured 12,828 votes and was declared elected. Respondent Khillan Singh filed an election petition, and the returned candidate filed a recrimination petition under Section 97 of the Representation of the People Act, 1951, alleging counting errors for the respondent. All parties agreed to a recount, which resulted in Khillan Singh obtaining 12,751 votes and Azmatkhan 12,698, leading the Punjab and Haryana High Court to set aside Azmatkhan's election and declare Khillan Singh elected. Azmatkhan appealed to the Supreme Court, relying on the precedent Jabar Singh v. Genda Lal. The Supreme Court held that the facts were distinguishable because, unlike in Jabar Singh, the appellant had duly recriminated under Section 97, and therefore dismissed the appeal, upholding the High Court's decision.

Issues considered

Whether the Supreme Court can overturn the High Court's recount decision when the returned candidate had filed a recrimination petition under Section 97 of the Representation of the People Act, 1951.

Legislation cited

Representation of the People Act, 1951s. 97

Subjects

election petitionrecrimination petitionSection 97recountHigh CourtSupreme CourtHaryana Legislative Assemblyelection dispute

Judgment

795

' AZMATKHAN.

t
A
v.
KHILLAN SINGH & OTHER.S

Nov.ember 8, 1983
B
[S• .MURTAZA FAZAL ALI AND E.S. VBl'IKATARAMIAH, JJ.J.

~epresent~ti~~ of the P;op/e Act, 1951-Sec. 97-Recrimination Petition-
Necessity and effect of. . ' · .

The .appellant, who was· a returned candidate, filed a re~riminatiori c.
petition in the election petition filed by the·first respondent and another. As ·a
result Or the Tecouflt to. which all the parti.es had agreed;··the High cOurt
declared ~he first. resPondent .as e.lected. Henc~ this·api)e·a1.

Dismissing thC appeal.

HELD : The case of Jabar Singh v. Genda Lal. on. which the ·appellant D
relies· iS.Or no assistance to· him ·because t_he facts of the present Case,, are c~eS:rly·
·distinguishable from that.case. In.that case the r.eturned candidate did ilot
. recriminate as provided under sec. 97 of the Representation or the People Act,
1951. · In .the instant Case, the appellant. had admittedly recriminated and in•
the recri.mination petition one of the .grounds taken related to the-errors
"committed at the time of.. the counting or" votes Of the ls~. r.espondent by .tire
...
Returning Officer .•The appellant had· a"ls·o agree~d tb the rect?unting of the
E
votes secured by all·the parties. [796 E-OJ

Jabar Singh v. Genda Lal, [1964] 6 S.C.R. 54, referred to and
disti~gUis~ed.

.. CIVIL APPELLATE JURISDICTION. Civil. Appeal No. 236 of · F
1983. •
. Froin tht Judgment and Order dated the J Ith January, 1983
of the Punjab and Haryana High Co,urt.in Election Petition No.2
of f982.
G
4 M; C. Bhandare and Prem Malhotra for the Appellant.

Hardev Singh and R. S. Sodhi for the Respondent.

. The Order of the Court was ,delivered by H
t FAZAL ALI, J. This election appeal arises out of the election.
held in 1980 from the constituency No. 5() called Hathin to th~
796 . SUPREME 'COURT REPORTS [1984) .1 s.c.ll.
•
Legisiative Assembly of the State of Haryana •. At the counting held
A by the Returning Officer, the Appellant secured 12,828 votes whereas
respondent No. I Khillan Singh got 12,655 votes and one Ramjii'!"I
got 12,2 l3 votes. 'Accordingly the .appellant was declared as elected. ·
Aggrieved by the result of the election, Khillan Singh and Ramjilal
filed election petitions in the High Court. In the course of the
election petition, the appellant filed a recrimination petition in which
B
one of the grounds related to tho errors committed in the co \In ting
of votes ofrespbndent No .. I. All the parties agreed that the court
should Order a recount and that .the parties wpu!d be bo'und by the
result of the recount. · The recount was accordingly held as a result
of which Kbillan Singh respondent No. I got 12,751 i.e. tl).e highest
.c number of valid votes and the appellant got 12,698 votes. In view·
of the higher votes secured by Khillan Singh respondent No. I ·at the
«ecount ordered by the High Court, bis petition was allowed, the
election of the appellant wa.s set aside and Khillan Singh was declared
as elected. This appeal' is filed against the. decision of the '
High Court.
D
In support ofthe appeal,. Mr. Bhandare with the, usual inge-
. nuity pressed only one point before. us. .He submitted on the basis
pf the Judgment ofthis .Court in labor Singh v. Genda Lal(') that
even if the result had gone in favour of respondent No. I he could·
E• not have been declared elected. We have gone. through this authority
and we find that the facts of the present case are clearly distinguish-
able. In the decision referred to above the returned candidate did ·not
recriminate as provided.under section 97 of the Representation of the
People Act, 1951. and this was the important ground on which the
Court said that it could not make any attack against the alternative
F claim made by the petitioner. In the instant case, the appellant bad •
.admittedly recriminated and in the recrimination petition one 'of the
. grounds taken related t.o the .errors committed at the time of . the
)
counting· of .votes of the Ist respondent by. the Returnil)g Officer.
The."appellant bad also ag~ed to the re.counting of the votes sec!lred
by all the parties. In these circumstances, this case does not appear
G to be of any assistance to the appellant. The decision :of the High .
•· Court is.in accordance with the result of the recount ordered by it. ·•
For the foregoing reasons, the appeal is dismissed but in the
circumstances of the case there will be no order as to costs.·
H
H.S.K . ApJeal dfamissed. ·

. (1) ; (196416 S.C,R. 54.
,.