Holding

Without a recrimination petition under Section 97(1), the election tribunal cannot consider the appellant's rejected votes, and the election is void, making the petitioner duly elected.

Summary

In the 1982 Haryana Legislative Assembly election, Bhagmal was declared elected by a margin of ten votes over Parbhuram. Parbhuram filed an election petition alleging improper counting and the influence of a Naib Tehsildar on the Returning Officer, leading to a recount of rejected ballot papers. The High Court ordered a recount of the rejected papers of both candidates, but Bhagmal had not filed a recrimination petition under Section 97(1) of the Representation of the People Act, 1951. The Supreme Court held that without such a recrimination, the Tribunal could not consider the eight votes wrongly rejected for Bhagmal, and therefore the election was materially affected by the fourteen votes wrongly rejected for Parbhuram. Consequently, the High Court’s order to declare Parbhuram duly elected was upheld. The appeal was dismissed. A dissenting opinion argued that the appellant should be declared elected, but it did not prevail.

Issues considered

The effect of the appellant's failure to file a recrimination petition under S.97(1) on the recount of rejected ballot papers.
Whether the High Court had jurisdiction to order recount of the appellant's rejected votes in the absence of a recrimination petition.
Whether the election of the returned candidate was materially affected by the improper rejection of votes for the petitioner.
The applicability of res judicata under S.116 of the Act to the High Court's recount order.

Legislation cited

Conduct of Election Rules, 1961s. Rule 56(2)(g), s. Rule 57, s. Rule 63(2), s. Rule 64
Representation of the People Act, 1951s. 100(1)(d)(iii), s. 101, s. 116, s. 27(1), s. 97(1)

Subjects

election petitionrecriminationballot paper rejectionjurisdictionres judicataelectoral recountstatutory interpretationRepresentation of the People Act

Judgment

1099
'

BHAGMAL A
v.
CH. PARBHU RAM AND OTHERS

October 30, 1984
B
(S. MURTAZA FAZAL ALI, A. VARADARAJAN AND SABYASACHI
MUKHARJI, JJ.J
Representation of the People Act, 1951-S. 27 (1)-Recrimination
petition-What is the effect of omission to make recrimination petition by
returntd candidate-In absence of recrimination petition Election Tribunal C
has no jurisdiction to go into the question whether any wrong votes were counted
in favour of election petitioner-Parties must con/orm strictly to the teller 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 D
suit in equity-Election of successful candidate 1101 to be lightly interfered with
-Purity of eleclion 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 wi.,hes of the voters.
E
Interpretation of statute-Court must construe procedural provision of
law in such a manner tliat procedure does not defeat purpose or object of la'w-
Where plain and literal interpretation of a statutory provision produces a ma11J.
festly absurd and unjust result Court may modify language used or even do
some violence to it so as to achieve the obvious intention of th! legislature and F
produce a rational construction and just result.

The appelJant was declared elected as a member of the Haryana
Legislative Assembly from the Sadbura Scheduled Caste Reserved Consti-
tuency in the election held on 19th May, 1982. The contest was between
the appellant and 12 others including respondent 1. The appellaot 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 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 H
papen of the appellanl aDd respongent I ouly were re~9qnteg and t4erefor e
1100 SUPREME COURT REPORTS [1985) I S.C.R.

A the recount was void. The respondent 1 also alleged that in the recounting,
the Returning Officer had improperly rejtcted 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 discretidn of the Returning Officer in the matter of rejection
of some doubtful ballot papers had been influenced by the opinion of the
B Naib Tehsildar. In those circumstances, the High Court found a pr/ma
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 paper~ of the appellcnt and respondent
•
l by District Judge (Vigilance), Puojab. 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
c order dated 15.3.1983 which was distnissed by this Court. After the
recounting it ~as found that respondent l and the appellant had gained
14 and 8 moro votes respectively in addition -to the votes already counted
in their favour by the Returning Officer. The High C'..ourt 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
D be secrutinised 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 i and
it accordingly allowed the election pe1ition and set aside the appellant's
e1ection and declared respolldent 1 to be duly elected. Hence this appeaJ.

E The appe1Jant 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 Conrt to have. been improperly rejected were to be taken into
account at all they must be taken into account not only in regard to res..
pondent 1 but also in regard to the appellant. Relying upon the dissent-
ing 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 confirmity with
!he princlples of democracy and the will of the electorate to hold, by
F refusing to take into account the 8 rejected ballot papers in favour of the
appellant, that the election of the appellant had been materiaUy affected
by the improper rejection of the 14 votes· cast in favour of respondent 1
aod declare respondent 1 to have been duly elected 'merely because the
appellant had not filed a recrimination application under s. 97 (l) of
the Act.
G
Dismissing the appeal by majority,

HELD : (Per S. Murtaza Fazal Ali and A. Varadarajan, JJ.)

The High Court found that the allegation of respondent t that the
Returning Officer obtained the guidance of the Naib Tebsildar in bis deci-
sion as regards the doubtful votes is probabilised by the evidence of not
ff only the appollaQt but also of bis election agent. The H;igh Court also
EHAG !.!At V. PkAAHtl RAM

found that the admission of the observer. R.W. 4 that respondent 1 toOk A
objection to the presence of the Naib Tehsildar during the recounting
probabilises the contention of respondent 1 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
bad been issued and they had been cast in favour of respondent 1 and
Were rejecled on the ground that they were not meant for use in this consti·
tuency. We think that the rejection of these ballot papers without any B'
finding on the question whether the mistake in the use of the ballot papers
relating to the Kalka constituency in this constituency had beeO 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
Elections Rules, 1961 is a ground \Vhich could have been taken into consi ..
deration for ordering recount of the rejected ballot papers of respondent
J. On a perusal of the rejected ballot papers of the appellant and resPon· c
dent I. we :i.re 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 respoudent I. [1114G-H; ll!SA-B; D-E; H]

We agree with respondent l's submission that after di:lmissal of the·
special leave pijtidon filed by the appellant the High court's order dated 1 D
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 reagitatO that question in
this appeal which is no doubt under s. 116 of the Act,.as tbe·principle of
construction res judicata applies. [ 1116A-B] '

The appellant7s contention that the will of the electorate sho-uld not ' E
be thwarted by holding that the result of.the appellanes election is mate .. 1
rially affected by the improper rejection of some ballot papers relating to'
respondent I alone and declaring respondent 1 to be the duly elected ca.ad.(·
date has do substanc;}. This c~lntention of the appellant bas already been
answered by this Court in P. Malaicliami v. M. Andi Ambalam and Others.
We agree with the following observations_ of th·e Court made "in that case.
Courts in general are averse to allow justice .to· be dafeated ·on· a mere F
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 staLutc under which it is conferred the- power to bear election peti· '.
tions. An election petition is not an action at· law or a suit in equity but '
is a purely statutory proceeding unknown to the common Jaw aad the
Court possesses no common -law power. It is·aiways to·be borne in mind·
that though the election of a successful candidate is not to be lightly inter .. 0
fered with, or.e of the essentials of that law is also- to safegliltd 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 con:upt practices.
(1121E; l122B; ll21GH; li22A)
P. Malaichami v. M. Andi An1balam and Others. (1973] 3 SCR 1026,
referred to.
What is the effect of the omission to make a recrimination application ff
110:2 litJl>Ri!ME CoURT REPoRTS (l!iS.5] l S.C.I\,

A under s. 97 ( 1) of the Act by the returned candidate within the time
a1Jowcd by the statute in a case where the election petitioner makes a
double pra7er, 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 th is 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
B also asks for a declaration that the petit ioaer himself or some otner
person has been duly ekcted the returned candidate must make a
recrimination petition under s. 97 (I) if he wants to raise pleas in support
of bis 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
agy of the votes cast in favour of the alternative candidate or to plead
c for the validity of any vote cast in his favour which has been rejected; but
if by bis 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. 10 1 ,a) on the basis that the
other votes counted by the Returning Officer were valid votes and that votes
in favour of .be returned candidates, if any, which were rejected were invalid.
D This Court in P. Malaichaml v. M. Arzdi Ambalam and Others observed that it
is oat enough to say that what ought to be looked iato is the substance and
not the form. If a relief provided understatute 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 qurstion of jurisdiction. Tbe Election Tribunal had no
jurisdiction to go into the quostion whether any wrong votes had been
counted in favour of the election petition~r who had claimed the seat for
E himself unless the successful candidate bad filed a petition under s. 97. The
law reports are full of cases where parties have failed bec1us~ of their failure
strictly to conform to the letter of th-:: law ia regard to the procedure laid
down under the Act and the rules.
(11228-C; 1117e.c; lll8C-D; 1123G-H 1125A-A]

Jabar Singh v. Genda Lal, [1964] 6 SCR 57 and P. Malaichami v.
F M. Andi Ambalam and Othus, [1973) 3 SCR 1026, referred to.

The appellant's submission that the majority view in the case of
Johar Singh v. Genda Lal should be ordered to be considered by a much
larger bench in view of the dissenting judgment of Ayyang1r, J. cannot be
accepted. Such a request ha<> al ready been considered and rejected by this
Court in P. Malaichami v. 1\1. Andi Ambalam and Others on the ground,
G with which we agree, that the dissenting judgment does not throw much
light on the subject. [112tA-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 c1ection is covered by statute. Reliefs as are available according to law
H can only be granted. [1125E]
Arun Kumar Bose v. Mohd. Purkan Ansari and Others1 AIR 198,3 SC, A
1311, referred to.

In the instant case, respondent 1 has chal1enged the appellant's ,
election on the ground of improper rejection of ballot papers whic~ is
certainly a ground for declaring an election void. If it was the case of the
appellant that any vote validily cast in his favour had been improperly .•
rejected be could have urged it as a ground.. in a recrimination application 8
filed under s. 97 lt) of the Act against 1espondent l's prayer that he be
decla.red as the duTy elected candidate. Therefore, wC 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 c.r
some other candidate be declared to be the duly elected candidate on some
other grounds such as corrupt pract'ice. [1128 AaC] C~

In the absence of a recrimii:iation application under s. 97 ( 1) of the
Act the High Court originally commited 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· reCti~
tied by the High Court subsequently by not taking into account the 8
ballot papers relating to the appellant which appear to have been wrongly
1
D
rejected. In these circumstances we hold that the· High Court was justified
in directing recount of the rejected ballot papers relating to respondent 1
and declining to take into account the 8 ba1lot 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
111aterially affected by the improper. rejection of 14 ballot pa(>ers relating
to respondent 1 and that respondent 1 is entitled to be ·declared 'to have
been duly elected. [1128 D-F)

Jabar Singh v. Genda Lal, [1964] 6 SCR 57 (majority view), p. Ma/al-
chami v. M. Andi Ambalam and Others, [1973] 3 SCR· 1026 and Arun Ku1nar
Bose v. Mohd. Furkan Ansari am/Others, AIR 1983 SC 1311, followed.
F
Anirudh Prasad v. Rajeshwari Saro} Das & Others, [1976] Suppl. SCR
91 and Janardan Dattuappa Bondre, etc. v. Govindprasad Shivprasad Ch_oUdary
& Others, etc., [1979) 3 SCR 897, referred to. .

(Per Sabyadsachi Mukharji, J.)
j .1
The entire purpose of the cOnstitutional provisions as well as other G
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 consti- ,
tuency 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 11"
sUPRM COURT REPORTs' tl985] I s.c.n.
...
.
Jess than the other next C3ndid'1tc sbo~ld bC d~clared elected in. preference
to the others and J1.llowed 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 ass. 97 of the Act subserves the wishe.s. or the votCrs. For this
reason. the Views expressed by Ayyaogar. J. in Jabar Singh v. Genda Lal
appeal~ to me more reasonable though these may strain the literal provlsions
B of the seC:tion 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 bas a responsibility to construe the procedural
provisions or the law in such manner that the procedure does not dereat •
the purpose or object of the Act. (11l0 D·H , 113 l A] .

Jabar Singh v. Genda Lal, (1964] 6 SCR 66 and Income-Tax (Central)
c Cakutta v. B.N. Bhattachargee and Another, 118 I.T.R. 461 at 480
referred to.

A Statutory provision_ mu.st be so constmed, if it is possibld, that
absurdity : and mischief may be avoided. Where the· plain and literal
interpretation of a· statutory provision produce.s a manifestly absurd and
D' unjust rcsuit, the Court might modify the language used by tho legisJa1ure
or even do some violence to it so as to achieve tho obvious intention of
the legislature and produce a rational construction and just result. [1132B-C]

K.P. Varghese v. Income-tax Ojficer,Ernakul1111l and Another, 131 I.T.R.
S91, referred to.

E I feel that in view of the lapse of time and the very convincing
arguments advanced by Ayyangar, J., Jabar Singh's case requires reconsi-
deralion by a larger Bench. (11320]

: ···A party. cannot take. advantage of onC part or the order which is
advantageous to him and discard th·e other part of the order which may
not, be to hia advantage especieJJy' when an application tor special leave
F--~,. from that order has beeo 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
thC eight baJJot papers relating to the 3ppellant which bad been improperly
rejected and also taking into account other ballC't papers which bad been
improperly rejected in favour of respondent No. I, it is manifest by mechanical
recounting that the appeJJant had secured fvur votes more than respondent
No./t. If that is the position., then in my opinion this Court cannot
G . and _should not declare respondent No. 1 to have obtained majority of the
'! • valid vOtes. .The order of 1Sth March, 198 3 must stand or fall together. Jn
my opinion it cannot bC bifurcated. It cannot be Said that the recounting
'·-·~in ·s0 far as it was directed of the rejected baJJot papers of respondent No. 1
thC High Court was within its jurisdiction and in so far as the High Court
directed recounting of the rejected bal1ot papers or 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 0£ the
opinion that there was no jurisdictional error - there was power of the High
H Court · to order such a recount. Even if there was no such prayer in ~
-ti>$-,
BHAG MAL v. PRABHU RAM 1io5
petition before the High Court, it cannot be said that the High Court A
acted without j•1risdiction. In such ·a situatiop, applying the princiiJle of
majority view of Jablzr Singh's case, there certain exceptions where even
without recrimination petition, a candidate like the appe1lant in the present
case can take advantage of the ballot papers which have not been properly
counted in his favour.[1132P-H; 1133A-D]

Janardan Dattuappa Bondre, Etc. v. Govindprasad Shivprasad Choudhary B
& 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 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 c
as well as provisions giving remedy provided under special statute, efforts
should be made that patent injustice and inequity which repels commonsense
a~d which defeats the purpose of the statute, should be avoided. [! 135A-B]

Io 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 D
elected. [1135C]

In view of tl.te 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 E
c1se of Janardan !Jattuappa Bondre, Etc. v. Govindprasad Shivprasad Choudhary
and Ors. Etc. I would allow this appeal. [1135D-E]

Janardan Dattuappa Bondre, Etc. v. Govindprasad Shivprasad Choudhllry
and Ors. Etc., [1979] 3SCR 897, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1451 of F
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. G

Shanti Bhushan, N.M. Ghatate and S. V; Deshpande for the
Appellant.

Kapil Sibal, RN. Karanjawala and Mrs. Manik Karanjawala for
the Respondent.

The following Judgments were delivered H
1106 S\JPkllME COURT REPORTS [1985) 1 s.c.k.

A 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 I.
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
6 on 19.5.1982. The contest was between the appellant and 12 others
including respondent 1, Parbdu Ram, who was the election peti-
tioner. The appellant secured 20981 votes while respondent I
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
c 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 intially ordered the recount of the ballot papers of himself
and the appellant in respect of all the booths after a sample checking
D but on the application of the appellant that the ballot papers of
all the candidates should be recounted, to which respondent I
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
E
as invalid but in the recounting by the Returning Officer 1377 ballot
papers were rejected on that ground. The additional :JOO ballot
papers which were alleged to have been originally accepted in
favour of respondent l 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.
F 1hree ballot papers alleged to have been cast in favour of respon-
dent 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 I
relates to improper rejection of about 100 ballot papers said to
have been cast in favour of respondent 1 in the recounting by the
G Returning Officer.
Respondent l pleaded nine other grounds in his election
petition but did not lead any evidence or advance any argument in
respect of the same.

H As stated already, respondent 1 prayed not only recounting
llHAG MAL v. PRABFIU RAM (Varadarajan, J.) IH)7

and setting aside the election of the appellant but also for a declara- A
tion 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 th~refore the B
election petition was liable to be dismissed and that the election
petition had not been properly verified. These objections were
rejected by the High Court by an 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 c
denied the other allegations made in the election petition and con-
tended that the recountfog 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 I is entitled to recount. D

Though the Returning Officer, R.W. 3, had stated in his oral
evidence that only the ballot papers of the appellant _and respondent
I 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. I/I and P.W. l/2A, that the ballot E
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 I immediately after the recounting was over
no grievance was made by respondent I that the ballot papers of any
other candidate were not recounted.
F
The High Court found that the allegation of respondent I that
the Returning Officer obtained the guidance of the Naib Tehsildar,
Dhan Singh, in making his decision regarding doubtful votes is probab-
lised 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 recoun- G
't;)
ting 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 evid-
ence that respondent I 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 H
1108 SUPREME COURt REPORTS (1985) 1 S.C.ll.

A Officer consulted the Naib Tehsildar and -thus allowed his opinion
to influence his own discretion in accepting or rejecting the doubtful
ballot papers.

The High Court rejected the next ground alleged by respon·
dent 1 for claiming recount, namely, that about JOO ballot papers
B cast in his favour were rejected illegally because thev bore some
slight indecipherable impressions of the finger or the th~mb 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
c Court took note of the fact that no such grievance was made by
respondent I in his application Exh. P.W. 2/5 filed soon after the
recounting was over.

Admittedly some ballot papers meant for the Kalk.a con-
D stituency had been issued for use in this constituency and they had
been cast in favour of respondent 1 and were rejected on the growid
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
E papers authorised for use at a particular polling station if the
Returning Officer is satisfid 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 evinence that some ballot papers
F
meant for use in the Kalka constituency had been used in this consti·
tuency and were rejected. The High Court thought that the
rejection of those ballot papers was probably due to inadvertance
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
G wrongly rejected.

The margin of difference between the votes polled to the
appellant and respondent 1 was 5 in the original collllting and 10 ·
in the recounting made by the Returning Officer. Out of the JOO
votes rejected by the Returning Officer in the recounting as invalid
93 related to the other candidates and only 7 related to the appellant
H and respondent I, and the reason for rejection of those 7 ballot
BRAG MAL v. PRABHU RAM (Varadarajan, J.) '1109

papers was not quite clear to the High Court.' There is also the A
doubt, according to the High Court, as to the correctness or other-
wise 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
B
influenced by the opinion of the Naib Tehsildar. In those circum-
stances, the High Court found a prima facie case made out for
ordering· rechecking and recounting of the rejected ballot papers.
Therefore, the High Court appoiqted the District Judge (Vigilance)
Punjab as the agent of the Court to scrutinise 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
c
only the rejected ballot papers had been ordered became respondent
l'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 D
Officer, Ambala to 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 E
was found that respondent 1 and the appellant~ had.: gained 14
and 8 more votes respectively in ·addition to the votes already
conuted 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 F
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 cai;mot have the benefit of the 8 ballot papers found
to have been wrongly rejected. This was naturally opposed by G
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 the election of
the returne!I c~ndidate is void, and, also asl<s for a qeclara- q
1!10 SUPREME COURT REPORTS [1985] 1 S.C.R.
A .ti on that the petitioner himself or some other person has
been duly elected. It is in regard to such a composite case
that section I 00 as well as section IOI 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
B comes into play. Section 97 (I) 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
c he recriminates, he really becomes a counter-petitioner
challenging the validity of the election of the alter-
native candidate. The result of section 97 (I) 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
D candidate. That being the nature of the proceedings con-
templated by section 97 (!), 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 (I) proviso and section
E 97 (2l. 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 wonld be held under section I 00 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
F election of the returned candidate is void, then the Tri-
bunal 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."

G The High Court rejected the contention urged on beha If of
the appellant that the Election Tribunal cannot record the finding
that the alternative candidate (respondent I) 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 nnder s. 97 (I) of the Represen-
ff.' tation of People Act, 19$ 1 which undoubtedly confers a right on
BHAG MAL v. PRABHU MM (Varadarajan, J.) 11 ll

the returned candidate to dispute the validity of any of the votes A
cast in favour of the alternative candidate or to plead for the validity
of votes cast in his fav0ur wh;ch had been improperly' rejected.
The High Court thus held that the votes gain.ed by the appellant
on scrutiny arid recount by the High Court had to be ignored in
determing whether the election of the returned candidate (appellant)
had been materially affected by the improper rejection or reception B
of any vote. In so doing, the High Court found that respondent 1
• 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 I, and it accordingly allowed the election
petition and set aside the appellant's election and declared res- c
pondent 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 count-
ing and 10 in the recounting made by the Returning Officer, R.W. 3,
D
in favour of the appellant. Although respondent 1 prayed in the
election petition for the recounting of all the votes of all the candi-
dates the High Court ordered recounting of only the -rejected ballot
papers of all the candidates, and with regard to the appellant and
respondent I h 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 E
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
I could not be declared to have been validly elected. F
Mr. Shan.ti Bhushan, learned senior counsel appearing for the
appellant submitted(!) that no recounting at all should have been
ordered by the Court and (2) that if the votes found in the recount-
ing by the Court to have been improperly rejected are to be taken
into account at all they mnst be taken into account not only in
regard to respondent I but also in regard to the appellant. These 8 G
votes found by the Court to have not been improperly rejected as
regards the appellant have been taken into . account by the High
CQurt having regard to the fact that the appellant had not flied
any recrimination application under s. 97 (I) of the Act. S. 97 (1)
and the proviso there to read thus :

"Wljen in an election petition a declaration that any fl
1112 SUPREME COURT REPORTS (1985) l S.C.R.

A candidate other than the returned candidate has been duly
elected is claimed, the returned candidate or any other
pany may give evidence to prove that the election of such
candidate would have been void if he had been the return-
ed candidate and a petition had been presented calling in
question his election:
B
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 cio so and has also
given the security and the further security referred to in sections 117
c and 118 respectively." ·

In regard to the secound 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
D
returned candidate merely because a recrimination
application under s. 97 (!) of the Act had not been
f1!ed?; and

(ii) what is the scope of the High Court's order dated
!S.3.1983 directing recount of the rejected ballot papers
E not only of respondent 1 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 1
is duly elected from the constituency concerned ?
F
Mr. Kapil Sibal, learned counsel appearing for respondent 1
submitted that though respondent 1 had prayed for rccoun t of the
votes of all the candidates the High Court ordered recount of only
the rejected ballot papers of the appellant and respondent 1 and
that the High Court committed a jurisdictional error in its earlier
G 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 improporly rejected qua the appellant had not been taken into
a ;iCCOIIJ\t. Mr. Sil)al submitt(!d t\lat tl\e Hi~h Court was justified
BHAGMAL v. PARBHU RAM (VaradOfa}an J.) 1113

in not taking into account those 8 ballot papers having regards to
A
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 count-
ing by the Returning Officer, R.W.3. was proper and there is no IJ
ground for recounting.

The first contention of Mr. Shanti Bhnshan is short and
can be disposed of first. Jn this connection, Mr. Shanti Bhnshan
invited our attention to gronnd No. 2 urged in the election peti-
tion. There it is ·alleged that respondent I in the election C
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 I 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 I consented to the application filed o
by the appellant and submitted a note that the election agent of
re~pondent 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 I for the Court ordering
recount of the rejected ballot papers. Under s. 100 (I) (d) (iii)
of the Act, subject to the provisions of sub-section (2), if the High E
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 F
case, relates to corrupt practice by an agent other than the elec-
tion agent of the returned candidate. The improper reception
or the reception of any vote which is void, referred to in s. 100
(I) (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 G
· 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 l If
1114 SUPREME COURT REPORTS (1985] l s.c.R.
complied with the requirment of r. 63 (2) of the Rules the appel-
A
lant did not do so, was not disputed by Mr. Shanti Bhushan.
Under r. 63 (!) after the completion of the counting the Re-
turning 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
B 1'een made, a candidate or, in his absence, bis election agent or
any of his counting agents may apply in writing to the Return-
ing Officer to recount the votes either wholly or in part stating the
i:rounds on which he demands such recount. R. 63(6) Jays
clown that after the total number of votes polled by each candi-
clate has been announced under sub-rule (1) or sub-rule (5), the
c Returning Officer shall complete and sign the result sheet in Form
;:o and no application for recount shall be entertained there-
t.fter. 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
D rignt conferred by sub-rule (2). Mr. Sibal submitted that the
t.ppellant or his election agent or counting agent did not apply
in writing to the Returning Officer or any recount of the votes
dther wholly or in part stating the grounds on which he deman-
ded recount as required by r. 63 (2) and therefore it is not open
E to the appellant to ask for any recount of bis 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 bis 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 Return-
F
ing Officer. Tbese 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 I
that the Returning Officer R. W. 3, obtained the guidance of the
G Naib Tehsildar, Ohan Singh, in bis decision as regards the doubt·
ful 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 evidenoe that the
Naib Tehsildar had not been put on any particular duty during
the recounting and that he was however sitting near the dais and
H was consulted by the Returning Officer sometimes on the ques-
BHAGMAL v. PARBl'IU RAM ( Varadarajan, J.) 1115
tion of doubtful ballot papers. The High Court found that
the admission of the observer, R.W. 4 that respondent 1 took A
objection to the presence of the Naib Tehsildar during the re-
counting 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 constitue~cy had been issued and they had
been cast in favour of respondent 1 and were :rejected on the
B
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 0
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 fiinding on the ques-
tion whether the mistake in the use of the ballot papers relating D
to the Kalka constitnency 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 con-
sideration for ordering recount of the rejected ballot papers of
respondent I. On a perusal of the rejected ballot papers of the
appellant and respondent'! with the assistance of the learned E
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
F
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 requi-
red by s. 97 (I) of the Act especially having regard to the fact
that it was not the case of the appellant that there was anything G
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
rejcctcd!ballot papers relating to respondent I. We may also
o.IJ.serve that the appellant filed a special leave petition against
the High Court's or<ler <lateq 1S. ~- 1983 directing recount of the q
1116 SUPREME COURT REPORTS [1985] ! S.C.R.

rejected ballot papers of the appellant and respondent I and
A 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
B 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
c s.65 which relates to counting at two or more places, and so far as
they apply to any particular case, 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 andsend signed
copies thereof to the appropriate authority, the Election Commission
and the ~hief Electoral Officer ; and complete and certify the return
D
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 IO votes more than
E respondent I in the recounting by the Returning officers and it has
been found· even in the recounting of the rejected ballot papers by
the Conrt 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
F improperly rejected qua respondent 1 are taken into account and
it would not be in confirmity with the principles of democracy and
the will of the electorate to hold, by refusing to take into accocut
these 8 rejected ballot papers in favour of the appellant that the elec-
tion of the appellant has been materially effected by the improper
rejection of the 14 votes cast in favour of respondent 1 and declare
G
respondent 1 to have been duly elected merely because a recrimina-
tion 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 (1)and relied very

H (1) [!966] 6 S.C.R. 66
llitAGMAL v. PA'.RBHU RAM (Varadarajan, J.) 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 peti-
tion makes a double claim : it claims that the election of the 8
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 ass. 101 would apply, and it is in respec(of
the additional claim for a declaration that some other can-
didate has been duly elected thats. 97 comes into play. S. c
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 {)
becdmes 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 peti-
tion, the Tribunal enquires into not only the case made out
by the petitioner, but also the counter-claim made by the
E
returned candidate. That being the nature of the procee-
dings 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 bys. 97 (1) proviso ands. 97 (2). If the
returned candidate dose· not recriminate as required by s. F
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. I 00 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 G
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 thats. 101 (a)'.requires the Tribunal to find that H
ills SUPRrME COURT RrPOR1S [1985] I s.c.R.

A 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
B 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 fiinding will have to be made under s. 101 (a). S. 97 (I)
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.
D 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 dis-
pute 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 rejec-
ted 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 ,_
(I) (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
F returned candidate has failed to recriminate.

N. Rajagopala Ayyangar, J. who dissented from the above.view
has observed :

The language used ins. IOI (a) is, no doubt, in fact
G received the majority of the valid votes." I do not, how- --
ever, 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 imporper
reception or rejection of votes the election of a returned can-
didate has been materially affected so as to Justify its be-
H ing set aside. The inquiries are idendtical. If every vote
BHAGMAL v. PARBHU RAM (Varadarajan, i.) 1119
which has been improperly received is eliminated and every
vote which has been improperly refused or rejected is added A
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 ins. 101 (a) to my mind do not add any
new element as regards either the scrutiny or the counting. B
If so, on the costruction which I have endeavoured to exp-
lain. when once it is as certained that the returned candi-
date has obtained a majority of valid votes there is no ques-
··~ tion 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 c
to test the validity of his election the Tribunal might have
arrived at a conclusion that he had not received the majo-
rity of valid votes. Immediately that stage is reached and
that conclusion is arrived at the Tribunal proceeds to dec-
lare 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 D
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 futher inquiry
which the Tribunal is called upon to conduct. For the
purpose of declaring the election void the Tribunal would
K
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 be-
half that is made might not have obtained the highest num-
ber of valid votes in which case, of course, a claim to the
seat would be rejected. It is this situation which is indic- F
ated by s. 101 (a). It provides that there cannot be a
declaration in favour of the claimant to a seat merely bec-
ause 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 pur- G
pose 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 H
iI20 SUR!lEME COURT l\EPORTS (1985] 1 S.C.R.
votes properly cast for him might have been- improperly
A
counted as the votes of the other defeated candidates. Un-
doubtedly the irregularities would have to be pleaded, but
I am now concerned with whether even if pleaded, the Tri-
bunal would on a proper interpretation of ss. 100 and JO I
have jurisdiction to entertain the pleas and embark on such
B a scrutiny. Proceeding then on the footing that the nece-
sary averment have been made in the pleadings filed there
would have to he a scrutiny of the ballot papers before it
can be ascertained whether or not the person who or on
whose behalf the seat is damed has obtained a majority of
valid votes in order to sustain the calim to the seat. After this
c 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 dec-
lared. And it is at this stage that the provisions of s. 97 in
regard to recrimination come into play' If no recrimina-
D
tion is filed then on the terms of s . JOI (a) the claimant
would be immediately declared elected but if there is a rec-
rimination thens. 101 (b) is attracted and the Tribunal
would have to inquire whether if the claimant were a retur-
ned candidate there are circumstances in which his election
E could be declared void. This would indicate that the recr-
imination is concerned with a stage which emerges after the
scrutiny is completed and assumes that the scrutiny has res-
ulted in the claimant being found to have obtained the
majority of valid votes. This construction would harmonise
the provisions of ss. 97, JOO (l) (d) and IOI and would lead
F 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
G Rule 56 shall be counted as one Valid vote."
as throwing some light on the construction of s.100
(I) (d) (iii) and as fav ouring the interpretation which he
invited us to put upon the provision. I consider that the
rule bas not bearing at all upon the point now in
H controversy.,,
BHAGMAL v. PARBHU RAM (Varadara}an, i.) 1121
While strongly relying upon the above dissenting view of
A
N. Rajagopala Ayyangar, J. Mr. Shanti Bhushan submitted that
the majority opinion in that case should be ordered to be reconsi-
dered by a much larger bench in view of that dissenting judgment.
Such a request was made by Mr. K.K. Venug0pal when he appeared
for the appellant in P. Ma/aichami v. M. Andi Ambalam & Others.(')
and it was rejected by Alagiriswami, who spoke in that case for B
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 tha!
it deserves and we do not see that it throws much light on
c
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. D

The decision in P. Ma!aichami v. M. Ambalam & Others
(supra) provides an answer to the contention of Mr. Shanti Bhushan
that the will of the electorate should not he 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.
There, the learned Judges have observed;
.
"The last appeal is particularly interesting. Courts in
general are averes to allow justice to be defeated OU a
mere technicality. But in deciding an election petition
the High Court is merely a Tribunal decirling an election F
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 G
power. It is always to be borne in mind that though the
election of a sucessful candidate is not to be lightly
interfered with, one of the essentials of that Jaw is also

(I) [1973]. J S.C.R. 1026· ff
SUPREME COURT REPORTS [1985J I s.c.ll..
to safeguard the ourity of the election process and also to
A see that the people do not get elected by flagrant branches
of that law .or by corrupt practices."
••
We agree witl:l this view and hold that there is no substance in
the above contention of Mr. Shanti Bhushan.

B The learned Judge; in that case also had considered the effect
of the omission to make a recrimination application under s. 97 ( l)
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
c 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
D he asked for a total recount, a request to which the appellant
had no objectio;; 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 uf all
E 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 kst sight of. Now, when the respondent asked for a
recount, it was not a mere mechanical process that he was
F
asking for. The very grounds which he urged in support
of hio 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
G 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
llliAGMAL v. PaRhHu RAM (Varadarajan, i.)

received where it should not have been received and his
A
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 B
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 respon-
dent was interested in no such thing. He made no such
prayer. It was only the appellant that was interested and c
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
D
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 liis
election to be set aside but also that he wanted himself
(the respondent) to be declared elected. He should have,
therefore, stated whatever material was necessary to show E
·,' 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 opp posed F
the recount) there were many votes which would have
rightly gone to him (the appellant) which have wro-
ngly 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 G
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
H
1124 SUPREME COURT REPORTS [198$J l S.C.R.

A for him to file a recrimination is wholly beside the point.
He had in his counter to the main election petition
repudfated 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
B 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. ,.,.._
c
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 respon-
dent's claim that he should be declared elected he should
have followed the procedure laid down in s. 97. In this
D 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
E 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
l
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
F 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
G
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
B go into the question whether any wrong votes had been
DHAGMAL v. PARBHU RAM (Varadarajan, J.) 1125

counted in favour of the election petitioner, who had claimed
the seat for himself unless the successful candidate had A
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 B
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 c
keeping the scheme and the purpose of law in view, in a
case of th'is type refusal to count the other rejected ballot
papers on the plea of non-filing of a recrimination peti·
tion would lead to injustice. We have already indicated
the pronounced view of this Court in Jagan Nath's case
D
(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 .......................... .. E
.................................................................- ....... ..
In the absence of a recrimination petition conforming
r
to the requir,ements 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 ele-
tion petitioner on the ground that if the remaining rejec· F
ted ballot papers had been counted, the election peti·
tioner 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 Pra;ad v. G
Rajeshwari Saroj Das & Others(') and Janardan Dattuappa Bondre,
etc. v. Govindprasad Shivprasad Choudary & Others etd') In these
(I) AIR 119831 S.C 1311-
(2) (1976] (Suppl.) S.C.R. 91
(Jl (I979J J s.c.R. sn n
1126 SUPREME COURT REPORTS [1985] 1 s.c.R.

decisions, Y. V, Chandrachud, J., as he then was, speaking for
A himself and V.R. Krishna Iyer and AC. Gupta, JJ. has obser-
ved:
"An election-petitioner may either ask for the relief
under section 100 of the Act that the election of the re-
turned candidate be declared void or he may ask
for the additional relief under section JOI that he
B
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
c 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
D been the returned candidate and a petition had been pre-
sented 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 contention of Mr.
Shanti Bhushan. In the second case R.S. Pathak, J. speaking
E for himself and V.R. Krishna Iyer, J. bas ohservee:

"Now, as was observed in Jabar Singh v. Genda '
Lal (supra) where both reliefs are claimed in an election
petttion 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
declaratiol' 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 dis-
putes 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 deter-
ming giving to the appellant the benefit of all the vot~s

"
BHAGMAL v. PARBHU RAM (Varadarajan, J.) 1127

cast for him. These would include the 250 votes cast in
his favour, even though they were found placed in A
Bahekar's packet. Once the benefit of his 250 votes is
given to the appelfant, he becomes t~e candidate with
the highest number of votes. His elect10n cannot be de-
clared void. That being so, no question arises of the
appellant wanting to give evidence to prove that the elec-
tion of any other candidate would have been void if he B
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. c

Jn P. Ma/ichami v. M. Amba/alm (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 D
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 candi-
date intended to take the benefit of such a -recount
against the election petitioner or other candidate, in E
·'·
whose favour the further declaration of being duly elec-
_, ) ted had been claimed, it was necessary for him to file a
notice of recrimination. In the present case, the appel-
lant 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 F
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
G

down by the learned Judges in this decision having regard to the
earlier view of Palekar and Alagiriswami, JJ. in P. Ma/aichami v.
M.Andi Amba/am & Others (supra) and the majority view in
la/Jar Silt¥h v, Genda Lal (supra). Improper rejection of ballot
ff
1128 SUPREME COURT REPORTS [1985) I S.C.R.
papers is certainly a ground for declaring an election void. It is
A
only this grand that respondent 1 has challenged the appellant's
election. If it~ was the case of the appellant that any vote validly
cast in his favonr had been improperly rejected he could have
urged it as a ground in a recriminat;on applicatian filed under
s. 97 (I) of the Act against respondent l's prayer that he be dec-
n lared 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 candi-
date be declared to be the duly elected candidate on some other
c 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 (I) of the Act the High
Court originally committed a jurisdictional error in directing the
District Judge (Vigilance), Punjab to recheck and recount the re-
D jected ballot papers relating to the appellant. As stated earlier,
that mistake has been rectified by the High Court subsequently
hy net taking into account the 8 ballot papers relating to the
appeltant which appear to have been wrongly rejected. Jn these
circumstances, we hold that the Election Tribunal (High Court)
E 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
F affected by the i:nproper 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 dis-
missed with costs of respondent I.

SABYASACHI MUKHARJI, J. Whether a candidate who has
G 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 q•1estion 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 establi-
ff shed in view of the terms of Section JOO and Section IOI of the
BHAGMAL v. PARBHU RAM (Varadarajan, J.) 1129

Act and in the absence of any recrimination petition under
A
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 rejec- B
ted 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 c
parties, was dismissed by this Court. No reason, however, was
indicated in the order dis missing that special leave petition. 1t
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 of the appellant, in the absence of any recrimination D
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
E
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 F
becomes barred by res-judicata, it is however, not necessary for
the purpose of thi~ appeal for me to express any opinion on that
point. I am, however, of the opinion that if any question involved
in that special ]eave application has become barred by res-judicata
then the order of the High Court directing the recounting of the
rejected ballot popers of the appellant and respondent No. 1, as G
directed by the order dated 15th March, 1983 has become final.
If that is so, then what happened thereafter was a physical rechec-
king of the ballot papers.

With this background in mind and keeping in·view the
o:,her facts as observed in the judgment of my learned brother, the ff
1130 SUPREME COURT REPORTS (1985] 1 s.c.R..

A question which we have to consider is, whether in view of the
decision of this Court in the case of Jabar Singh v. Genda La/(1),
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
B 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.
c It seems to me that the conclusion and the views expressed by
Justice Ayyangar are in consonence 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
D 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 th at one who obtains majority
E 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
F 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
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 expressed by
G
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

H (I) [1964] 6 S·C.R. p, 66.
BHAGMAL v. PARDHU RAM (Varadarajan, I. I 1131
Court has a responsibility to construe the procedural provisions of
the Jaw in such manner that the procedure does not defeat the pur- A
pose 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 Commistinor of Income-tax
(Central), Calcutta v. B.N. Bhattachergee and Another(').
B
"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
c
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 mu~t look to the
language and nothing else, laments that the draftsman CI
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
devine 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 E
on the constructive task of finding the intention of
Parliament, and he must do this not only from the
language of the social conditions whicn 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
I!'
'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 G
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

(1) 1J8 I.T.R. 461 a\ 48Q,
1132 SUPREME COURT REPORTS [1985] 1 S.C.R.

material of which it is woven, but he can and should iron
A 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
B by the legislature or even do some violence to it so as to achieve the
obvious intention of the legislature and produce a rational construc-
tion 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.(')

c In view of the fact that several submissions for reconsideration of
the position expressed by the majority of the learned judges in Jaber
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 proceed to decide this case on the basis of the views
, expressed by the majority of the learned judges in Jaber Singh' J case
D 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
ifl 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 conclu-
E
sion 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. l 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
F party cannot take advantage of one part of the order which is advan-
tageous ·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
G 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. I. This position has
been noted in the judgment delivered by my learned brother. If

H (I} 131 J.T.R. p.597.
1lliAGMAL v, PAlrnliu RAM {Varadarajan, J.) 1133

that is the position, then in my opinion this Conrt cannot and should A
not declare respondent No. I 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. l, the High Court was within its jurisdiction and in
so far as the High Court directed recounting of the rejected ballot B
papers of appellant also, it had committed a jursidictional 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 juris-
dictional 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 c
jurisdiction. In such a situation, applying the principal of majority
view of .labar 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 D
in the case of Janarderi Dattuappa Bondre v. Govindprasad Shivprasad
Choudhary & Ors, EtcC1>. There the appellent 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 E
-- 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 sec-
ured by them. During the recount, the appellant in this case had
F
applied to the Special Officer that if any votes cast in his favour
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 respon·
dent. The High Court rejected the appellant's application on the
ground that he had not filed a petition for recrimination. This Court G
observed in that decision that when the High Court directed the
"physical" count of the votes cast in favour of the appellant, Bahe-
kar and others what was intended was a mechanical recount of
those votes and nothing more. It did not envisage any other

(I) [1979] 3 S.C.R, p. 897. H
1134 SUPREME COURT REPORTS [198511 s.c.R.

A 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 mechnical process. Those
votes had never been recorded as cast in favour of Bahekar. There
B 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 :
c
"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 favo-
D urofthe parties.It involved the kind of counting contempla-
ted under Rule 56 of the Conduct of Election Rules, 1961,
"with all its implications's." The validity oft he votes was to
be under re-examination. And if the returned candidate in-
tended to take the benefit of such a recountagainst the eleu-
tion petitioner or other candidate, in whose favour the fur-
E ther 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, whe-
ther cast in his favour or any other candidate ; what was
F 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."

G In the instant case as a result of the recounting order direc-
ted by the High Court at the request of Respondent No. I and
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 app. llant had re-
H ceived four more votes.
illlAGMAi. v. PARBHU RAM (Varadarajan, J.)

Before I conclude, I must observe that reference has been
A
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 B
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 diffiicult to declare respondent
No. I who has admittedly received less votes than the appellant
to have been duly elected. c
In view of the facts and circumstances of this case as I have
indicated hereinbefore I am of the opinion that even pro-
ceeding on the basis that the views expressed by majority of the
learned judges in Jabar Singh's case is correct, upon which I must D
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 Janardun DaJtuappa Bondre, Etc. v. Govindprasad
Shivprasad Choudhary & Ors. Etc. (spra) I would allow this appeal
with no order as to costs. E

- H.S.K>. Appeal dismissed.