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1984 (10) TMI 248

, Advs For the Respondents : Kapil Sibal, R.N. Karanjawala and Manik Karanjawala, Advs. JUDGMENT A. Vardarajan, J. 1. This appeal is directed against the judgment of the Punjab & Haryana High Court allowing Election Petition 6 of 1982 filed by respondent 1. 2. The appellant, Bhag Mal, was declared elected as a Member of the Haryana Legislative Assembly (Vidhan Sabha) from No. 3, Sadhura Scheduled Caste reserved constituency in the election held on 19.5.1982. The contest was between the appellant and 12 others including respondent 1, Parbhu Ram, who was the election petitioner. The appellant secured 20981 votes while respondent 1 secured 20971 votes and he was declared to have been elected. Respondent 1 challenged the election of the appellant on the ground that the counting was not proper and invalid and he prayed not only for recounting of the votes but also for declaration that he is the only elected candidate. 3. Respondent 1 alleged in the election petition that the Returning Officer initially ordered the recount of the ballot papers of himself and the appellant in respect of all the booths after a sample checking but on the application of the appellant that the ballot pape .....

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hat only the ballot papers of the appellant and respondent 1 were in fact rechecked and recounted the High Court found on the basis of his report Exh. P.w. 4/4 and the entries made in the two forms No. 20, Exh. P.w. 1/1 and P.w. 1/2A, that the ballot papers of all the candidates were recounted by the Returning Officer and that in the application Exh. P.w. 2/5 presented to the Returning Officer by respondent 1 immediately after the recounting was over no grievance was made by respondent 1 that the ballot papers of any other candidate were not recounted. 10. The High Court found that the allegation of respondent 1 that the Returning Officer obtained the guidance of the Naib Tehsildar, Dhan Singh, in making his decision regarding doubtful votes is probabilised by the evidence of the appellant, R.w. I, and his election agent Suraj Bhan, R.w. 2, who have admitted in their evidence that the Naib Tehsildar had not been put on any particular duty during the recounting and that he was sitting near the dais and was consulted by the Returning Officer sometimes on the question of the doubtful nature of some ballot papers. The observer, R.w. 4, has admitted in his evidence that respondent 1 too .....

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lled to the appellant and respondent 1 was 5 in the original counting and 10 in the recounting made by the Returning Officer. Out of the 100 votes rejected by the Returning Officer in the recounting as invalid 93 related to the other candidates and only 7 related to the appellant and respondent 1, and the reason for rejection of those 7 ballot papers was not quite clear to the High Court. There is also the doubt, according to the High Court, as to the correctness or otherwise of the rejection of the ballot papers meant for use in the Kalka constituency but actually used in this constituency. The High Court found, as already stated, that the discretion of the Returning Officer in the matter of rejection of some doubtful ballot papers had been influenced by the opinion of the Naib Tehsildar. In those circumstances, the High Court found a prima facie case made out for ordering rechecking and recounting of the rejected ballot papers. Therefore, the High Court appointed 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 recount .....

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d candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97(1) therefore, is that in dealing with a composite election petition the Tribunal enquires into not only the case made out by the petitioner but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be a .....

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otes are taken into account the appellant would still have a majority of 4 votes over respondent 1 and his election could not be set aside and respondent 1 could not be declared to have been validly elected. 17. Mr. Shanti Bhushan, learned senior Counsel appearing for the appellant submitted (1) that no recounting at all should have been ordered by the Court and (2) that if the votes found in the recounting by the Court to have been improperly rejected are to be taken into account at all they must be taken into account not only in regard to respondent 1 but also in regard to the appellant. These 8 votes found by the Court to have been improperly rejected as regards the appellant have not been taken into account by the High Court having regard to the fact that the appellant had not filed any recrimination application under Section 97(1) of the Act. Section 97(1) and the proviso thereto read thus : When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candid .....

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er, 1 R.w. 3, was proper and there is no ground for recounting. 20. The first contention of Mr. Shanti Bhushan is short and can be disposed of first. In this connection, Mr. Shanti Bhushan invited our attention to ground No. 2 urged in the election petition. There it is alleged that respondent 1 in the election petition, namely, the appellant filed an application before the Returning Officer requesting that the ballot papers of the other candidates also should be checked to make the recounting fair as in fact respondent 1 also wanted recounting of all the ballot papers of all the candidates in order to make the recount-fair and the election agent of respondent 1 consented to the application 2 filed by the appellant and submitted a note that the election agent of respondent 1 had no objection to the application of the appellant being allowed. The other grounds urged in the election petition are grounds relied upon by respondent 1 for the Court ordering recount of the rejected ballot papers. Under Section 100(1)(d)(iii) of the Act, subject to the provisions of Sub-section (2), if the High Court is of the opinion that the result of the election, in so far as it concerns a returned can .....

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lot papers having regard to the bar of the proviso to Rule 63(6) of the Rules. Mr. Sibal also submitted that the contention of the appellant not only in his written statement filed in the election petition but also in his evidence given before the High Court was that there was nothing wrong in the counting by the Returning Officer. These facts were not disputed by Mr. Shanti Bhushan. On the other hand, the case of respondent 1 was that the result of the appellant's election has been materially affected by the improper rejection of votes validly cast in his favour. The High Court has found I that the allegation of respondent 1 that the Returning Officer R.w. 3, obtained the guidance of the Naib Tesildar, Dhan Singh, in his decision as regards the doubtful votes is probabilised by the evidence of not only the appellant examined by R.w. 1 but also of his election agent, Suraj Bhan, R,W. 2 both of whom have admitted in their evidence that the Naib Tehsildar had not been put on any particular duty during the recounting and that he was however sitting near the dais and was consulted by the Returning Officer sometimes on the question of doubtful ballot papers. The High Court found tha .....

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High Court was perfectly justified in ordering recount of the rejected ballot papers relating to respondent 1. We may also observe that the appellant filed a special leave petition against the High Court's order dated 15.3.1983 directing recount of the rejected ballot papers of the appellant and respondent 1 and that it was dismissed after the issue of notice and hearing both the parties. We agree with Mr. Sibal that the order directing recount of the rejected ballot papers in so far as it is not in excess of the jurisdiction of the Tribunal has become final and that it is not open to the appellant to reagitate that question in this appeal which is no doubt under Section 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. 22. Now we proceed to consider the second contention. Under Rule 64 of the Rules the returning officer shall, subject to provisions of Section 65 which relates to counting at two or more places, and so far as they apply to any particular case, declare in Form 21C of Form 21D, as may be appropriate, the candidate to whom the largest number of valid votes have b .....

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ose favour a declaration is claimed by the petition cannot be said to be validly elected, and these would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97(1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such a case, an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry a declaration is made that th .....

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, consider that the use of the words 'in fact' involves scrutiny of a type different from that which the Tribunal conducts for ascertaining whether by reason of the improper reception or rejection of votes the election of a returned candidate has been materially affected so as to justify its being set aside. The inquiries are identical. If every vote which has been improperly received is eliminated and every vote which has been improperly refused or rejected is added you get the totality of the valid votes cast in favour of a candidate. That is precisely the inquiry which is prescribed to be conducted under Section 100(1)(d) read with Clause (iii). The words 'in fact' used in Section 101(a) to my mind do not add any new element as regards either the scrutiny or the counting. If so, on the construction which I have endeavoured to explain, when once it is ascertained that the returned candidate has obtained a majority of valid votes there is no question of his election having to be set aside. But it might be shown that he had not obtained the majority of valid votes. In other words, by the scrutiny that has taken place in order to test the validity of his election the .....

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he Tribunal has reached the conclusion that the claimant has, in fact, received the majority of valid votes that the Tribunal embarks on the further inquiry as to whether there are any reasons why he should not be declared elected. And it is at this stage that the provisions of Section 97 in regard to recrimination come into play. If no recrimination is filed then on the terms of Section 101(a) the claimant would be immediately declared elected but if there is a recrimination then Section 101(b) is attracted and the Tribunal would have to inquire whether if the claimant were a returned candidate there are circumstances in which his election could be declared void. This would indicate that the recrimination is concerned with a stage which emerges after the scrutiny is completed and assumes that the scrutiny has resulted in the claimant being found to have obtained the majority of valid votes. This construction would harmonise the provisions of Sections 97, 100(1)(d) and 101 and would lead to a rational result. This brings me to a submission based upon Rule 57(1) to which reference was made by Mr. Garg. He referred us to the words of that rule reading : Every ballot paper which is no .....

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rd the purity of the election process and also to see that the people do not get elected by flagrant branches of that law or by corrupt practices. We agree with this view and hold that there is no substance in the above contention of Mr. Shanti Bhushan. 25. The learned Judges in that case also had considered the effect of the omission to make a recrimination application under Section 97(1) of the Act by the returned candidate within the time allowed by the Statute in a case where the election petitioner makes a double prayer, namely, declaration of the returned candidate's election as void and a further declaration that he is the duly elected candidate. The learned Judges observed : The question still remains whether the requirements of Section 97 have to be satisfied in this case. It is argued by Mr. Venugopal that the gravamen of the respondent's petition was breach of many of the election rules and that he asked for a total recount, a request to which the appellant had no objection and that there was, therefore, no rule or need for filing a recrimination petition under Section 97. This, we are afraid, is a complete misreading of the petition. No doubt the petitioner has .....

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re, stated whatever material was necessary to show that the respondent, if he had been the successful candidate and the petition had been presented calling in question his election, his election would have been void, in other words comply with Section 83. He could have stated therein setting out that while he had no objection to a recount to be ordered (we have already shown that he strongly opposed the recount) there were many votes which would have rightly gone to him (the appellant) which have wrongly been given to the respondent, that there were many votes which should have rightly gone to him but which have been improperly rejected. He should also have complied with the other requirements of Section 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 for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under Section 97 (of course, wi .....

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dered in Arun Kumar Bose v. Mohd. Furkan Ansari and Ors. MANU/SC/0202/1983 : [1984]1SCR118 where learned brother R.N. Misra, J. speaking for himself and A.N. Sen, J. has observed thus : Admittedly no application for recrimination was filed. Mr. Rangarajan has strenuously contended that keeping the scheme and the purpose of law in view, in a case of this type refusal to count the other rejected ballot papers on the plea of non-filing of a recrimination petition would lead to injustice. We have already indicated the pronounced view of this Court in Jagan Nath's case MANU/SC/0094/1954 : [1954]1SCR892 which has been followed throughout and the last in series is the case of Jyoti Basu MANU/SC/0144/1982 : [1982]3SCR318 to which also we have adverted. There is no scope for equity since the entire gamut of the process of election is covered by statute. Reliefs as are available according to law can only be granted.... In the absence of a recrimination petition conforming to the requirements of Section 97 of the Act the appellant who happens to be an Advocate and is presumed to know the law, was not entitled to combat the claim of the election petitioner on the ground that if the remaini .....

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claration sought by the election petitioner that he or some other candidate should be declared duly elected. When the recount was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining giving to the appellant the benefit of all the votes cast for him. These would include the 250 votes cast in his favour, even though they were found placed in Bahekar's packet. Once the benefit of his 250 votes is given to the appellant, he becomes the candidate with the highest number of votes. His election cannot be declared void. That being so, no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate. Therefore, no notice for recrimination under Section 97 was necessary. In the circumstances, the High Court erred in declining to count the appellant's 250 voles in his total on the ground that no notice of recrimination under Section 97 of the Act had been given. In P. Malaichani v. M. Ambalal (supra) on which the High Court relied, the facts were different. In that case the recount ordered did not involve t .....

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t Judge (Vigilance), Punjab to recheck and recount the rejected ballot papers relating to the appellant. As stated earlier, that mistake has been rectified by the High Court subsequently by not taking into account the 8 ballot papers relating to the appellant which appear to have been wrongly rejected. In these circumstances, we hold that the Election Tribunal (High Court) was justified in directing recount of the rejected ballot papers relating to respondent 1 and declining to take into account the 8 ballot papers relating to the appellant found by the District Judge (Vigilance), Punjab to have been improperly rejected in the absence of a recrimination application under Section 97(1) of the Act and holding that the election of the appellant had been materially affected by the improper rejection of 14 ballot papers relating to respondent 1 and that respondent 1 is entitled to be declared to have been duly elected. The appeal accordingly fails and is dismissed with costs of respondent 1. Sabyasachi Mukherjee, J. 29. Whether a candidate who has undisputably and demonstratively received four votes less than the other contesting candidates is entitled to be declared elected as a result .....

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owever, of the opinion that if any question involved in that special leave application has become barred by res-judicata, then the order of the High Court directing the recounting of the rejected ballot papers of the appellant and respondent No. I, as directed by the order dated 15th March, 1983 has become final. If that is so, then what happened thereafter was a physical rechecking of the ballot papers. 30. With this background in mind and keeping in view the other facts as observed in the judgment of my learned brother, the question which we have to consider, is, whether in view of the decision of this Court in the case of Jabar Singh v. Genda Lal MANU/SC/0125/1963 : [1964]6SCR54 the appellant was disentitled from asking this Court to take into account in his favour the ballot papers in respect of the votes cast in his favour which were rejected initially, but which have now been found as a result of recounting directed by the High Court and done under the supervision of the 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. .....

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and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticised. A judge, believing himself to be fettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen 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 of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the social conditions which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the written word so as to give 'force and life' to the intention of the legislature. That was clearly laid down by the resolution of the judges... in the Heydon's case (1584 .....

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his advantage especially when an application for special leave from that order has been rejected. If that order has to be given effect to as has been done in this case, it has been found that taking into account the eight ballot papers relating to the appellant which had been improperly rejected and also taking into account other ballot papers which had been improperly rejected in favour of respondent No. 1, it is manifest by mechanical recounting that the appellant had secured four votes more than respondent No. 1. This position has been noted in the judgment delivered by my learned brother. If that is the position, then in my opinion This Court cannot and should not declare respondent No. 1 to have obtained majority of the valid votes. The order of 15th March, 1983 must stand or fall together. In my opinion it cannot be bifurcated. It cannot be said that the recounting in so far as it was directed of the rejected ballot papers of respondent No. 1, the High Court was within its jurisdiction and in so far as the High Court directed recounting of the rejected ballot papers of appellant also, it had committed a jurisdictional error. This is more so after the application for special .....

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votes had never been recorded as cast in favour of Bahekar. There was never any dispute that these votes were cast for the appellant. Their validity was never doubted. Plainly what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously included in the packet of Bahekar. It is in such a case that it did not require any recrimination petition. This Court observed at page 903 as follows : In P. Malaichami v. M. Ambalam (supra), on which the High Court relied, She facts were different. In that case, the recount ordered did not involve the mere mechanical process of counting the valid votes cast in favour of the parties. It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961, "with all its implications". The validity of the votes was to be under re-examination. And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination. In the present case, the appellant was concerned with his cl .....

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