TMI Blog1973 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... would become clear in due course. In paragraph (g) of his petition he has stated : The mixing of the papers, with rapid counting, has resulted in large number of votes polled in favour of the petitioner erroneously added and bundled in the votes polled by the respondent. This has also resulted in wrong counting. In paragraph (1) he has stated Therefore the petitioner submits that the ballot papers may be directed to be arranged according to the serial number and then counted.. The petitioner submits that this will reveal the introduction of unauthorised ballot papers, if any, and use of different inks for marking. Paragraph (n) runs as follows The petitioner states that a number of votes have been declared invalid without any justification whatsoever. Many of the votes declared invalid were cast in favour of the petitioner. In the counting, some of the invalid votes were taken in favour of the first respondent. In view of the mixing of the ballot papers counting was done hastily and rapidly without any opportunity to candidate or his agent to supervise the counting. In fact, some of the numbers of counting were wrongly mentioned and went to the respondent instead of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es in the way in which such papers should have been checked by him, having regard to the time within which he claims to have completed the checking and counting, whereas much longer time would be required to check up these bundles in the proper and prescribed way. This leads to the reasonable inference that each of the ballot papers contained in the, doubtful bundles was not checked. (v) The order of the Returning Officer directing recounting of the ballot papers treated as invalid lends support to the contention of the petitioner that the votes were not properly scrutinised. (vi) The failure of the Returning Officer to implement his order to recount has vitiated the declaration of the result. (vii) The Returning Officer and the Assistant Returning Officer totally failed to check up the valid votes and this is clearly a breach of the instructions issued by the Election Commission and also by the State Government. There is no assurance that the votes were properly sorted and counted. There is reasonable possibility to hold that the counting was not proper; and (viii) The test check conducted by me of some of the ballot papers treated as invalid clearly shows that some va ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the opposite side. Before him out of the votes which were held invalid by the Returning Officer, 2583 were agreed as rightly held invalid but there was dispute about 804 votes (it thus appears that there was a mistake even in the counting of the invalid votes). From out of the votes counted in rounds 8 to 11, 11,301 votes in favour of the respondent were conceded as valid and 395 were disputed; 11,951 were conceded as valid in favour of the appellant and 567 were disputed. Thus the total of these disputed votes amounting to over 1700 were decided by the Judge himself in the presence of the parties and their advocates, some on the basis of concessions, some as decided by the Judge himself, as already mentioned. It is necessary to mention also that as in the recount from among the votes held invalid by the Returning officer-petitioner conceded 65 were valid votes cast for the respondent. He also conceded that 11 votes counted by the Returning Officer in his favour were valid votes cast for the respondent. 19 votes held by the Returning Officer as validly cast for the petitioner were conceded by him to be invalid. The total came to 95. Similarly 126 votes cast for the petitioner but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Returning Officer came forward with a story totally devoid of truth. Nothing is said in the petition about all this which shows that our inference on this point is correct. The petition on behalf of the Returning Officer was wholly uncalled for. It would appear that he is not a free agent. After the counting was over, as already shown the majority in favour of the appellant was reduced from 127 to 75. Even so his election would have had to be sustained. But on behalf of the respondent it was urged before the learned Judge that in a case where an election petitioner had applied not merely for setting aside the election of the successful candidate but also for declaring himself (the defeated candidate) as elected, it was the duty of the successful candidate to have filed a Recrimination application under s. 97 of the Representation of the People Act.This argument was based on the decision of this Court in Jabar Singh v. Genda Lal([1964] (6) S.C.R. 54). This Court there referred to the earlier decisions on the subject and by a majority cf 4 to 1 held that in such a case it was the successful candidate's duty to have filed a recrimination petition. under s. 97 which woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of s. 100 (1) (d) itself. In fact s. 97 (1) has no application to the case falling under S. 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. (ii) There are cases in which the election petition makes a double claim; it claims that the election of a 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 as s. 101 would apply, and it is in respect of the additional claim for a declaration that some other ,candidate has been duly elected that s. 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case. The result of s. 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 candidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returning officer and that the returning officer had fully discharged his duties under section 63. It is true that after it was discovered that he had received 37 void votes respondent I attempted to make an allegation that the appellant may likewise have received similar void votes, but it was too late then, because the time for making such an allegation by way of a recriminatory proceeding had. elapsed and respondent I had failed to furnish the security of ₹ 1,000 as required by section 97(2) of the Act. If under these circumstances respondent I was not allowed to pursue his allegation against the appellant, he is to blame himself. It was urged before this Court that in a subsequent decision in Shankar v. Sakharam ([1965] (2) S.C.R, 403) this Court itself had differed from the earlier decision. The relevant sentence reads like this We also think that the enquiry under s. 100(1)(d) (iii) is outside the purview of s. 97. On an enquiry under s.100(1) (d) (iii) with regard to improper refusal of votes, the respondent to the election petition is en- titled to dispute the identity of the voters without filing any recrimination under s. 97 . This argument is clearly based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted calling in- question his election, the respondent must give a formal notice of recrimination and satisfy the other conditions specified in the proviso to s. petition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by s. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under ss. 117 and 118 in the case of an election petition. Looking at the object and scheme of S. 97 it is manifest that the. provisions of ss. 1 17 and 1 1 8 must be applied mutatis mutandis to a proceeding under s. 97. The recriminator must produce a government treasury receipt showing that a deposit of ₹ 2,000 has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commissioner as costs of the recrimination. As the notice of recrimination cannot be sent by post, it must be filed before the Tribunal, and reading S. 117 with consequential adaptati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lection 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 power. It is always to, be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do not get elected by flagrant breaches of that law or by corrupt practices (see the decisions in Kamaraja Nadar v. Kunju Thevar (1959] S.C.R. 583 at 596) Venkateswara v. Narasimha([1969] (1) S.C.R. 679 at 685) and Ch. Subbarao v. Member, Election Tribunal (1964 D.E.C. 270). We may, there- fore, look into the law regarding this matter. Under s. 81 of the Representation of the People Act 1951 an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (1) of section 100 and section 101 to the High Court by any candidate at such elect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operly rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- (i) by the improper acceptance of any nomi- nation, or (ii) by Any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (vi) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void. (2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied- (a) that no such corrupt practice was committed at the election by the candidate or his election agent, and. every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; (c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is intention to give such evidence and also given security and the further security referred to in ss. 117 and 118 respectively, and every such notice has to be accompanied by the. statement and particulars required tinder s. 83 in case of an election petition and shall be signed and verified in the like manner. None of these things was done in this case. The petition by the respondent had been filed on 23-4-1971. The orders for the appearance of the respondent were passed on 12-7-1971. The appellant, who was the respondent in that petition, should have given notice under S. 97 within 14 days of his appearance i.e. on 26-7-1971 and also complied with the other requirements specified therein. The issues were framed on 27-7-1971, the recount was ordered on 3-2-1972 and the judgment itself was pronounced on 13-3- 1972. It was on 10-3-1972 that an attempt was made to file a recrimination petition with a petition to excuse the delay. But even then the other requisites of s. 97 like giving security or the petition being accompanied by statement and particulars required by s. 83 were not complied with. A special leave petition was filed in this Court again applying for permission to recei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aper, or (f) if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or (g) if it bears a serial number, or is of a design, different from the serial number, or , as the case may be, design, of the ballot papers authorised for use at the particular polling station, or (h) if it does not bear both the mark and the signature which it should have borne under the provisions of sub-rule (1) of rule 38; Provided that where the returning officer is satisfied that any such defect as is mentioned in clause (g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely on the ground of such defect Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked. (3) Before rejecting any ballot paper under subrule (2), the returning officer shall allow each counting agent present a reasonable opportunity to inspect the ballot paper but shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary for the purpose of the respondent's case not merely that votes which were held invalid should be re- scrutinised but also votes which had been held to have been' cast in favour of the appellant. 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 received where it should not have been received and his vote rejected where it should not have been rejected. The improper rejection or reception con- templated 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 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 respondent was interested in no such thing. He made no such prayer. It was only the appellant that was interested and bound to do it if he wanted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resting to note that in the decision in jabar Singh v. Genda Lal (supra) the successful candidate n 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 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 that he-the returned candidate had in fact, obtained a 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 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 relief. What we have pointed out just now shows that it is not a question of mere pleading, it is a question of j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndent's admissions or leading independent evidence. In either case it would be giving evidence. And since giving- of evidence is barred, the concessions cannot be used as evidence in favour of the appellant. This is what the learned Judge has very clearly pointed out in his order. We have earlier quoted from the decision in Bhim Sen v. Gopali (supra) where the provisions of s. 97 had not been complied with. Even though as a matter of 'act the valid as well as the invalid votes in favour of both the petitioner as well as the respondent might have been counted, the evidence furnished by such votes, was not a admissible must because of failure to comply with the provisions of section 97. Finally, we must deal with the appeal made to us that the justice should be done irrespective of technicalities. Justice has got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be acting without jurisdiction. We are, therefore, satisfied that the learned Judge was right in holding that though a general recount had been ordered and an account taken of the valid votes given for b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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