TMI Blog1984 (10) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... ting 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 papers of all the candidates should be recounted, to which respondent 1 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 as invalid but in the recounting by the Returning Officer 1377 ballot papers were rejected on that ground. The additional 100 ballot papers which were alleged to have been originally accepted in favour of respondent 1 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. Three ballot papers alleged to have been cast in favour of respondent 1 at booth No. 19 were alleged to have been rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 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 Officer consulted the Naib Tehsildar and thus allowed his opinion to influence his own discretion in accepting or rejecting the doubtful ballot papers. 11. The High Court rejected the next ground alleged by respondent 1 for claiming recount, namely, that about 100 ballot papers cast in his favour were rejected illegally because they bore some slight indecipherable impressions of the finger or the thumb 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 favo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 recounting of only the rejected ballot papers had been ordered because respondent I'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 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. 14. After the recounting was accordingly made by the District Judge (Vigilance), Punjab under the supervision of the Court it was found that respondent 1 and the appellant had gained 14 and 8 more votes respectively in addition to the votes already counted in their favour by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate. 15. The High Court rejected the contention urged on behalf of the appellant that the Election Tribunal cannot record the finding that the alternative candidate (respondent 1) has secured a majority of valid votes unless all the votes cast in the election are scrutinised and counted having regard to the fact the appellant had not filed any recrimination application under Section 97(1) of the Representation of People Act, 1951 which undoubtedly confers a right on 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 votes cast in his favour which had been improperly rejected ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 candidate and a petition had been presented calling in question his election : Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively. 18. In regard to the second 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 returned candidate merely because a recrimination application under Section 97(1) of the Act had not been filed ?; and (ii) what is the scope of the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent 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 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 Section 100 of the Act with which we are not concerned in this case, relates to corrupt practice by an agent other than the election agent of the returned candidate. The improper reception or the reception of any vote which is void, referred to in Section 100(1)(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 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 fav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that the admission of the observer, R.W. 4 that respondent 1 took objection to the presence of the Naib Tehsildar during the recounting probabilises the contention of respondent 1 that the Naib Tahsildar was influencing the opinion of the Returning Officer in his decision on doubtful votes. Admittedly, some ballot papers meant for the Kalka constituency had been issued and they had been cast in favour of respondent 1 and were rejected on the ground that they were not meant for use in this constituency. Under the proviso to Rule 56A(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 Returni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th 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 been given, to be elected under Section 66 and send signed copies thereof to the appropriate authority, the Election Commission and the Chief Electoral Officer; and complete and certify the return 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 1 in the original counting and 10 votes more than respondent 1 in the recounting by the Returning Officer and it has been found even in the recounting of the rejected ballot papers by the Court that 8 ballot papers relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the election of the returned candidate is void, then the Tribunal will proceed 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 that Section 101(a) requires the Tribunal to find that the petitioner or such other candidate for the declaration of whose election a prayer is made in the election petition has in fact received a majority of the valid votes. It is urged by Mr. Kapoor that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and counted. In our opin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Tribunal might have arrived at a conclusion that he had not received the majority of valid votes. Immediately that stage is reached and that conclusion is arrived at the Tribunal proceeds to declare the election void. If there is no claim to a seat there is nothing more to be done, with the result that it stops with 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 further inquiry which the Tribunal is called upon to conduct. For the purpose of declaring the election void the Tribunal would 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 not rejected under Rule 56 shall be counted as one valid vote. as throwing some light on the construction of Section 100(1)(d)(iii) and as favouring the interpretation which he invited us to put upon the provision. I consider that the rule has not bearing at all upon the point now in controversy. 23. While strongly relying upon the above dissenting view of N. Rajagopala Ayyangar, J. Mr. Shanti Bhushan submitted that the majority opinion in that case should be ordered to be reconsidered by a much larger bench in view of that dissenting judgment. Such a request was made by Mr. K.K. Venugopal when he appeared for the appellant in P. Malaichami v. M. Andi Ambalam and Ors. 1973 (3) SCR 1026 and it was rejected by Alagiriswami, who spoke in that case for him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irements 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 asked for a recount of votes. It may legitimately be presumed to mean a recount of all the voles, but such a recount is asked for the purpose of obtaining a declaration that the appellant's election was void and a further declaration that the respondent himself had been elected. This aspect of the matter should not be lost sight of. Now, when the respondent asked for a recount, it was not a mere mechanical process that he was asking for. The very grounds which he urged in support of his petition (to which we have referred at an earlier stage) as well as the application for recount and the various grounds on which the learned Judge felt that a recount should be ordered showed that many mistakes were likely to have arisen in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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, within 14 days of his appearance). It was not at the stage when the petitioner filed his application for recount that the opportunity of need for a petition under Section 97 arose. It was then urged that when all the material was before the court it was unnecessary for him to have done so, 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 respondent's claim that he should be declared elected he should have followed the procedure laid down in Section 97. In this connection it is interesting to note that in the decision in Jabar Singh v. Genda Lal (supra) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 remaining rejected ballot papers had been counted, the election petitioner would not have been found to have polled the majority of the valid votes. 27. 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 Prasad v. Rajeshwari Saroj Das and Ors. 1976 (Suppl.) SCR 91 and Janardan Dattuappa Bondre, etc. v. Govindprasad Shivprasad Choudary and Ors. etc. MANU/SC/0349/1979 : [1979]3SCR897 In these decisions, Y.V. Chandrachud, J., as he then was, speaking for himself and V.R Krishna Iyer and A.C. Gupta, JJ. has observed : An election-petitioner may either ask for the relief under Section 100 of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the mere mechanical process of counting the valid votes cast in favour of the parties. It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961 with all its implications . The validity of the votes was to be under re-examination. And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination. In the present case, the appellant was concerned with his claim to his 250 votes. The claim did not involve any reconsideration of the validity of any votes, whether cast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat 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 of this election petition, is the question 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 established in view of the terms of Section 100 and Section 101 of the Act and in the absence of any recrimination petition under 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. I would however, express my respectful agreement with the view and the observations of Ayyangar, J. in that decision. It seems to me that the conclusion and the views expressed by Justice Ayyangar are in consonance 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udge 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) 3 CR 7, 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 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 material of which it is woven, but he can and should iron out the creases. 31. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent 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 leave was rejected by this Court. Apart from that I am of the opinion that there was no Jurisdictional error-there was power of the High Court to order such a recount. Even if their was no such prayer in the petition before the High Court, it cannot be said that the High Court acted without jurisdiction. In such a situation, applying the principle of majority view of Jabar 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 in the case of Janardan Dattuappa Bondre, Etc. v. Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounting contemplated under Rule 56 of the Conduct of Election Rules, 1961, with all its implications . The validity of the votes was to be under re-examination. And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had been claimed, it was necessary for him to file a notice of recrimination. In the present case, the appellant was concerned with his claim to his 250 votes. The claim did not involve any reconsideration of the validity of any votes, whether cast in his favour of any other candidate; what was called for was a mere mechanical process of counting. That every order of recount does not bring Section 97 into play was laid down by this Court in Anirudh Prasad v. Rajeshwari Saroj Das and Ors. 33. In the instant case as a result of the recounting order directed by the High Court at the request of Respondent No. 1 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 dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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