P. MALAICHAMI V. M. ANDI AMBALAM &
ORS [1973] INSC 83 (18 April 1973)
ALAGIRISWAMI, A.
ALAGIRISWAMI, A.
PALEKAR, D.G.
CITATION: 1973 AIR 2077 1973 SCR (3)1016 1973
SCC (2) 170
CITATOR INFO :
R 1974 SC1032 (25)
ACT:
Representation of People's Act, Sec. 97
Recrimination petition--Necessity of--Respondent challenging election of
appellant and seeking declaration of election himself--Appellant not filing
Recrimination petition u/s 97--In general recount valid votes cast in favour of
appellant cannot be taken account for non-compliance of sec.
97--High Court would have no jurisdiction.
HEADNOTE:
The respondent filed an election petition,
not only questioning the election of the appellant but also claiming the seat
for himself, alleging infraction of the Conduct of Election Rules. Accordingly,
he prayed for recounting of the votes and for declarations that he was duly
elected and that the election of the appellant was void. The appellant in his
counter affidavit denied all the allegations in the petition. However, the
appellant did pot file any Recrimination application u/s 97 of the Act. The
respondent filed an interlocutory application for directing a scrutiny and
recounting of all the votes. The evidence was duly re- corded and the learned
Judge of the High Court eventually passed an order on various grounds for
recount of the votes.
As a result of the recount, 'it was finally
found that the majority of 127 votes by which the appellant had been declared
elected was reduced to 75 votes.
The respondent urged before the High Court
that in a case where the 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 u/s 97 of the Act. The High Court
took the view that in the absence of the Recrimination petition u/s 97 the
appellant was not entitled to question any votes which might have been
improperly received on behalf of the respondent. Consequently, the High Court
found that leaving out of account votes improperly received on behalf of the
respondent and taking into account only the votes which ought to have gone to
the respondent which had been improperly rejected, the respondent had secured
96 votes more than the appellant and declared him elected.
On appeal to this Court the appellant made
the following submissions : (i) Sec. 97 has no application to a case where a
prayer is for total count and. re-scrutiny; (ii) Sec. 97 has no application to
the present case where the returned candidate let in or did not have to let in
any evidence on any single vote all of which were produced and tendered in
evidence by the election petitioner notwithstanding the respondent's protest; iii)
Since no case has been made out in respect of individual votes and no finding
given for inspecting individual votes, the petitioner would not be entitled to
the benefit of the decision in Jabar Singh's case [(1964) 6 S.C.R. 54] and his
right is only to a general recount or none at all; (iv) The respondent is
estopped from questioning the result of the recount because of mutual
concessions; (v) The present case is wholly different from the one in jabar
Singh v. Genda Lal and the whole question should be reconsidered by a larger
1017 bench in view' of Justice Rajagopala Ayyangar's dissenting judgment; and
(vi) The democratic process should be allowed to have full sway and no more
technicality should be allowed to come in the way of. justice being done.
Dismissing the appeal,
HELD : (1) The appellant did not comply with
the requirements of Sec. 97 of the Act. The appellant bad not given notice u/s
97 within 14 days of his appearance to give evidence to prove that the election
,of the respondent would have been void if the respondent bad been the returned
candidate nor had he given the security and further security referred to in
sections 117 and 118 respectively nor was there any statement and particulars
as required u/s 83 in case of an election petition. Even when an attempt was
made to file a recrimination petition with a petition to excuse the delay, the
other requisites of See. 97 were not complied with. [1032-G-1033B] (2)The
respondent's prayer for recount was not a request for mere mechanical process of
counting but for counting contemplated u/r. 56 with all its implications. The
very grounds on the basis of which the recount was ordered by the learned Judge
show that there was a possibility of mistakes having arisen under any one of
the grounds set out in R. 56 (2) clauses (a) to (h) and it is to have them
taken into account and tested correctly that the respondent wanted recount.
When the respondent wants recount for the purpose of setting aside the
appellant's election, he necessarily has got to have not merely the benefit of
votes which. would have originally gone to him but which bad been wrongly given
to the appellant but also all votes which bad been cast in his favour but had
been rejected wrongly on one or the other grounds mentioned in R, 56(2) clauses
(a) to (b). it was necessary for the purpose of 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 the 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 contemplated
u/s lOO (i)(d)(iii) would include mistakes or wrong judgments made by the
Returning Officer while counting and exercising his powers under R. 56(2)
clauses (a) to (h).
[1035D-H] The appellant knew not only that
the respondent wanted his election to be set aside but also that he wanted
himself declared elected. He should have, therefore, filed a recrimination
petition in proper compliance with Sec. 97.
The election petition is not an action in law
or a suit in equity but one under the provisions of the. statute which has
specifically created that right. If a relief provided under the statute can be
obtained only by following a certain procedure laid down therein for that
purpose, that procedure must be followed if the relief is to be obtained.
It is not a question of mere pleading. it is
a question of jurisdiction. The Election Tribunal had no jurisdiction to go
into the question whether. any wrong votes had been counted 'in favour of the
election petitioner, who had claimed the seat for himself. unless the appellant
had filed a recrimination petition u/s 97. [1037D] 797Sup.Cl/73 1018 (3) It was
not necessary to lead evidence in respect of any individual vote about the
improper reception or improper rejection as the decision on that question had
been given mostly on concessions by both the parties and in disputed cases by
the Judge himself scrutinising the votes. There is no such thing, as a general
recount and there is no authority in law for suggesting that all that the
respondent could have asked for was either a general recount or none at all.
[1037F] (4) No question of estoppel arises, where the law provides that no
evidence can be given about the improper reception of votes in favour of the
defeated candidate who had claimed a seat for himself unless the successful
candidate had complied with Sec. 97. Concession is akin to admission and the
use of such an admission would be evidence. What is barred under the proviso to
Sec. 97 is the giving of evidence by the appellant. The evidence furnished by
the valid as well as invalid votes in favour of both the petitioner and the
respondent was not admissible because of the appellant's failure to comply with
the provisions of Sec. 97. [1038B] (5) There is no justification for ordering
that the case should be heard by a larger bench for reconsideration of the
decision in Jabar Singh's case.
(6)Courts in general are averse to allow
justice to be defeated by a mere technicality. But in deciding an election
petition, the High Court is merely a Tribunal deciding the election dispute.
Its powers are wholly the creature of the statute under which it is conferred
the power to hear the election petition. The election petition '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 possess no common law power. 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 people do not get elected by flagrant breaches of
that law or by corrupt practice. [1029C] Kamaraja Nadar v. Kunju Thevar, [1959]
S.C.R. 583 at 596, Venkateswar v. Narasimha, [1969] 1 S.C.R. 679 at 685, Ch.
Subborao Member, Election Tribunal, 1964
D.E.C. 270, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 649 of 1972.
Appeal under S. 116A of the Representation of
the People Act, 1951 from the judgment and order dated March 13, 1972 of the
Madras High Court in Application No. 648 of 1972, and E.P. No. 2 of 1971.
K. K. Venugopal and A. Subhashini, for the
appellant.
T. N. Srinivasa Varadacharya, G. Viswanathan,
K. Jayaram and R. Chandrasekhara, for respondent No. 1.
M. C. Chagla and A. V. Rangam, for
respondents Nos. 3 and 4.
1019 The Judgment of the Court was delivered
by ALAGIRISWAMI, J. This appeal arises out of the election held in March 1971
to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North)
constituency in Madurai district in which the appellant was declared elected by
a majority of 127 votes receiving 37,337 votes as against 37,210 received by
the respondent 3,381 votes were held invalid. The respondent filed an election
petition on 23-4- 1971 not only questioning the election of the appellant but
also. claiming the seat for himself. He made various allegations in his
petition which related to infraction of many of the rules regarding the conduct
of election. But we may refer to four important matters, which he had referred
to in his petition, the importance of which 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 counting in the name of the petitioner. If recount has been taken
the petitioner would have been declared elected." In paragraph (s) it is
stated :
"The petitioner also states that at the
time of counting, the votes in favour of the petitioner were bundled in the
bundles containing the votes in favour of the respon- 1020 dent and they were
counted for the first respondent. Number of ballot papers were found outside
the counting place." Finally, he prayed to the Court to:
(a) direct recounting of the votes;
(b) declare the petitioner duly elected;
(c) declare the election of the 1st
respondent to Melur North Constituency void, and
(d).................................
The appellant in his counter affidavit denied
all the allegations in the petition. The respondent filed an interlocutory
application for directing a scrutiny and recounting of all the votes. To this
application no counter affidavit was at all filed by the appellant. Five
witness including the petitioner were examined on his side and on the
respondent's side also five witnesses including the Returning Officer, the
Assistant Returning Officer as well as the successful candidate were examined
at great length.
The learned Judge after an elaborate,
careful, thorough and meticulous examination, which are almost a model of
judicial balance and propriety, passed an order for recount of the votes. We
consider it unnecessary to set them out at length. It may be useful to set out
the main grounds on which he ordered recount, These are found in paragraph 22
of his order.
"22. From the foregoing discussion, the
following facts emerge :
(i) Over worked and tried personnel were
employed for the counting. There are reasonable grounds to think that the
counting was not done properly.
(ii) When the counting was in progress, the
petitioner admittedly complained about the hasty counting, and there are
reasonable grounds to think that on account of the hurry and haste, in which
counting was done, the counting was not likely to be correct or proper.
(iii) The unlawful entry of Mr. O.P. Raman
into the counting hall, when the counting was going on, caused dislocation and
disturbance to the counting, which was likely to have affected the accuracy in
the counting.
(iv) The Assistant Returning Officer could
not have checked each of the ballot papers brought to him in the doubtful bundles
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
1021 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 valid votes
secured by the petitioner and some secured by the respondent have' been treated
as invalid and rejected. This clearly shows that the counting was wrong."
It would be noticed that the main attack was in respect of tie counting and the
findings of the learned Judge also.
related to the same question. The appellant
had very hotly contested the propriety of the request for recount. The learned
Judge considered the decisions in Ram Sewak v. H. K.
Kidwai(1), Jagjit Singh v. Kartar Singh(2),
Jitendra Bahadur v. Krishna Behari(3), Swami Rameshwara Nand v. Madho Ram (4),
Nathu Ram Mirdha v. Gordhaba Soni(5) and after a very elaborate consideration
of the facts as well as the principles involved in those decisions had held
that recount should be ordered. We are, satisfied that the High 'Court has
taken into consideration all the material circumstances and has appreciated the
evidence from the correct perspective in coming to the conclusion that the
circumstances under which the counting was carried out necessitated a recount.
The recount was ordered to be done by four
advocates acting as tellers, two from each side out of a list of four furnished
by each side. Both the parties and their respective counsel were permitted to
be present alongwith four counting agents for petitioner as well as the
respondent and an Assistant Registrar of the High Court was appointed to
preside over the recount of the (1) A.I.R. 1964 S C. 1249 (2) A I.R. 1966 S.C.
773 (3) A.I.R. 1970 S.C. 276 (4) 1968 (8) D.E.C. 163 (5) 1968 (8) D.E.C. 286,
1022 ballot papers and-to be assisted by the members of staff dealing with election
cases.. He, was ordered to submit his report within two days after the
completion of the recounting. It was ordered that on receipt of that report an
opportunity will be given to both parties to be heard on that report and
necessary orders will be passed thereon.
The Assistant Registrar submitted his reports
on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-21972, the Judge
himself took up for decision the validity or otherwise of the various votes
which were disputed and dictated orders then and there. Even before him some,
concessions were made in respect of certain votes by both the, parties and some
the Judge decided by himself. The Assistant Registrar himself dealt merely with
votes which were conceded by one side or the other as having been validly cast
in favour of 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 rejected by the Returning Officer were found valid and 14 votes counted by
the Returning Officer as cast for the respondent were found to have been really
cast for the petitioner. These facts clearly establish large scale mistakes in
counting.
As a result of all this it was finally found
that the appellant had got 37,372 votes and the respondent 37,297 votes. Thus
the majority obtained by the appellant was reduced from 127 to 75.
It may be remembered that one of the grounds
on which the learned Judge had come to the conclusion that recount should be
ordered was that the unlawful entry of a Minister, Mr. O.
P. Raman into the counting hall when the
counting was going on, had caused dislocation and disturbance to the counting
which was likely to affect the accuracy of the counting.
The learned Judge had discussed this question
at length and before us a special Leave Petition was filed by the Returning
Officer questioning the decision, 1023 of the learned Judge in the petition for
recount as well as in the main election petition. We had rejected that
petition. But we should make it clear that the learned Judge has been very fair
in his discussion of this matter.
It seems to have been contended before him
that Mr. Raman had a right to enter the place where the counting was going on,
under Rule 66 of the Conduct of Elections Rules in order to get the
certificate. The Minister concerned was the successful candidate for the Melur
(south) Constituency, the counting for which was over at 5 a.m. on 11-3-71- in
the same building. At 8 a.m. began the counting of the votes for the Melur
(North) Constituency, i.e. the election in dispute. Mr. Raman was not a
candidate in that election who was entitled going on.We cannot understand the
anxiety of the Returning Officer in questioning the orders of the learned Judge
in the petition for recount as well as the main election petition. After all
the concerned parties were fighting it out under the ostensible excuse of
questioning the decision of the learned Judge regarding his interpretation of
rules 53 and 66, it has been filed really due to the hypersensitiveness on the
part of the Minister.
Indeed the learned Judge has made fairly
strong remarks against the Returning Officer in other respects. He has stated
at one place that the Returning Officer had failed in his duty, and at another
place, that the Returning Officer and the Assistant 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(1). 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 would be like a counter
petition. It is unnecessary to set out the very instructive discussion in that
case at length. It would be enough if the headnote alone is set out (1) [1964]
(6) S.C.R. 54.
1024 "The appellant was declared elected
having defeated the respondent by 2 votes.
Thereafter the respondent filed an election
petition. The respondent challenged the validity of the appellant's election on
the ground of improper reception of votes in favour of the appellant and
improper rejection votes in regard to himself. His prayer was that the
appellant's election should be.
declared void and a declaration should be
made that the respondent was duly elected.
The appellant urged before the Tribunal that
there had been improper rejection of the votes, and improper acceptance of the
votes of the respondent, and his case was that if recounting and re-scrutiny
was made, it would be found that he had secured a majority of votes. The
respondent objected to this course; his case was that since the appellant had
not recriminated nor furnished security under s. 97 of the Act, it was not open
to him to make this plea. The Tribunal rejected the objection of the respondent
and accepted the plea of the appellant. The Tribunal re- examined the ballot
papers of the respondent as well as the appellant and came to the conclusion
that 22 ballot papers cast in favour of the respondent had been wrongly
accepted. The result was, that the respondent had not secured a majority of
votes. The Tribunal declared that the election of the appellant was void and
refused to grant a declaration to the respondent that he had been duly elected.
Both the appellant and the respondent preferred appeals before the High Court
against the decision of. the Tribunal.
The High Court dismissed both the appeals and
the decision of Tribunal was confirmed. Hence the appeal.
Held : (1) The scope of the enquiry in a case
falling under s. 100 (1) (d) (iii) is to determine whether any votes have been
improperly cast in favour of the returned candidate or any votes have been
improperly refused or rejected in regard to any other candidate. These are the
only two matters which would be relevant in deciding whether the election of
the returned candidate has been materially affected or not. At this enquiry the
onus is on the petitioner to prove his allegation. Therefore, in the case of a
petition where the only claim made is that the election 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 1025 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 candidate. In this
connection the returned candidate is required to comply with the provisions of
s. 97(1) and s. 97(2) of the Act. If the returned candidate does not
recriminate as required by s. 97, then he cannot make any attack against the
alternative claim made by the petitioner.
In other words 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.
(iii) The pleas of the returned candidate
under s. 97 of the Act, have to be tried after a declaration has been made
under s. 100 of the Act. The first part of the enquiry in regard to the
validity of the election of the returned candidate must be tried within the
narrow limits prescribed by s. 100 (1) (d) (iii) and the latter part of the
enquiry which is governed by s. 101 (a) will have to be tried, on a broader
basis permitting the returned candidate to lead evidence in support of the
pleas which he may have taken by way of recrimination under s. 97 (1) But 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 returned candidate has failed
to recriminate and in a case of this type the, duty of the Election Tribunal
will not be to count and scrutinise all the votes cast at the election. As a
result of r. 57, the Election Tribunal wall 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 the finding will have to be made under s. 101 (a).
Therefore, it is clear 1026 that in holding
an enquiry either under s. 100 (1) (d) (iii) or under s. 101 where s. 97 has
not been complied with it is not competent to the Tribunal to order a general
recount of the votes preceded by a scrutiny about their validity."
Rajagopala Ayyangar, J. was the solitary Judge who dissented from the majority
judgment and we have gone through his judgment with all the care and the
respect that it deserves and we do not see that it throws much light on the
subject.
It seems to ignore. 97.We may also point out
that in Bhim Sen v.Gopali,(1) which was considered in the above decision it was
observed :
"As we have already pointed out, in his
first written statement respondent I made a positive averment that no void
votes had been allowed to be used by the 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 Rs. 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
(2) 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 on a
misapprehension. The question that arises in this case did not arise there nor
was the earlier decision in Jabar Singh's case referred to or distinguished.
Indeed it was not necessary because they were dealing only with a case falling
under's. 100, i.e. a case where the election of the successful candidate was sought
to be set aside and not one also falling under s. 101 where the defeated
candidate also wants that he should be declared to have been elected.
(1) 1960 (22) E.L.R. 288.
(2) [1965] (2) S.C.R, 403.
1027 In the present case apparently neither
party was aware of the decision in Jabar Singh v. Genda Lal (supra) till after
the counting was over. The learned Judge took the view that in the absence of a
recrimination petition under s. 97 the appellant was not entitled to question
any votes which might have been improperly received on behalf of the
respondent.
If that had been done the appellant, as
indicated earlier, would still have won by a majority of 75 votes but as he was
not entitled to do so the result of leaving out of account votes improperly
received on behalf of the respondent and taking into. account only the votes
which ought to have gone to the respondent, which had been improperly rejected
it was found that the respondent had 96 votes more than the appel- lant and he
was declared elected.
The decision in Jabar Singh v. Genda Lal
(supra) has received reconsideration at the hands of this Court with approval
again in, Ravindra Nath v. Raghbir Singh(1) where it was observed :
"The object of s. 97 is to enable
recrimination when a seat is claimed for the petitioner filing the election
petition or any other candidate. In his election petition the petitioner may
claim a declaration that the election of all or any of the returned candidates
is void on one or more of the grounds specified in sub-s. (1) of s. 100 and may
additionally claim a further declaration that he himself or any other candidate
has been duly elected on the grounds specified in s. 101 (see ss. 81, 84, 98,
100 and 101). It is only when the election petition claims a declaration that
any candidate other than the returned candidate has been duly elected that s.
97 comes into play. If the respondent desires to contest this claim by, leading
evidence to prove that the election of the other candidate would have been void
if he had been the returned candidate and an election petition had been
presented 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.
(1) [1968] (1) S.C R. 104.
1028 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 Rs. 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 adaptations for the purposes of
the proviso to s. 97(1), it will appear that the treasury receipt showing the
deposit of the security must be produced before .the Tribunal along with the
notice of recrimination. It follows that the recriminator must give the security
referred to in S. 1 17 by producing the treasury receipt showing the deposit of
the security at the time of the giving of the notice under the proviso to S.
97(1).
If the recriminator fails to give the
requisite security under s. 117 at the time of giving the notice of
recrimination, he loses the right to lead evidence under S. 97 and the notice
of recrimination stands Virtually rejected.
Mr. K. K. Venugopal, appearing on behalf of
the appellant made four submissions :
1. Section 97 has no application to a case
where a prayer is for total count and re-scrutiny.
2. Section 97 has no application to the
present case where the returned candidate let in or did not have to let in any
evidence on any single vote all of which were produced and tendered in evidence
by the election petitioner notwithstanding the respondent's protest.
3. Since no case has been made out in respect
of individual votes and no finding given for inspecting individual votes the
petitioner would not be entitled to the benefit of the decision in Jabar
Singh's case and his right is only to a general recount or none at all.
4. The respondent is estopped from
questioning the result of the recount because of mutual concessions.
Though stated in a different form the sum and
substance of the ,very vigorous attempt on behalf of the appellant is to
question in 1029 effect the validity of the decision in so far as it is held
that s. 97 is applicable to the facts of this case. He even went so far as to
suggest that this case is totally different from the one in Jabar Singh v.
Genda Lal (supra) and the whole question, if necessary should be reconsidered
by a much larger Bench in view of Justice Rajagopala Ayyangar's dissenting
judgment. He finally urged that the democratic process should be allowed to have
full sway and no mere technicality should be allowed to come in the way of'
justice being done.
The last appeal is particularly interesting.
Courts in general,, are averse to allow justice to be defeated on a mere
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 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,(1) Venkateswara v. Narasimha(2)
and Ch.
Subbarao v. Member, Election Tribunal (3). 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 election or any elector within forty-five days from, but not
earlier than, the date of election of the returned candidate, or if there are
more than one returned candidate at the election and the dates of their
election are different, the later of those two dates." Section 83 reads :
"(1) An election petition- (a) shall
contain a concise statement of the material facts on which the petitioner
relies;
(b).............................
(c) shall be signed by the petitioner and
verified in the manner laid down in the Code (1) [1959] S.C.R. 583 at 596.
(2) [1969] (1) S.C.R. 679 at 685 (3) 1964
D.E.C. 270.
1030 of Civil Procedure, 1908 (5 of 1908) for
the verification of pleadings.
(2).........................." Section
84 reads "A petitioner may, in addition to claiming a declaration that the
election of all or any of the returned candidates is void , claim a further
declaration that he himself or any other candidate has been duly elected."
Section 97 reads "(1) 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.
(2) Every notice referred to in sub-section
(1) shall be accompanied by the statement and particulars required by section
83 in the case of an election petition and shall be signed and verified in like
manner." 'Section 100 reads "(1) Subject to the provisions of
sub-section (2) if .the High Court is of opinion- (a) that on the date of his
election a returned candidate was not qualified, or was disqualified, to be
chosen to fill the seat under the Constitution or this Act or the Government of
Union Territories Act, 1963; or (b) that any corrupt practice has been
committed by a returned candidate or his election agent or by any other person
with the consent of a returned candidate or his election agent; or (c) that any
nomination has been improperly rejected; or 1031 (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 practices at
the election; and (d) that in all other, respects the election was free from
any corrupt practice on the part of the candidate or any of his agents, then
the High Court may decide that the election of the returned candidate is not
void." Section 101 reads "If any person who has lodged a petition
has, in addition to calling in question the election of the returned candidate,
claimed a declaration that he himself or any other candidate has been duly
elected and the High Court is of opinion- (a) that in fact the petitioner or
such other candidate received a majority of the valid votes; or 1032 (b) that
but for the votes obtained by the returned candidate by corrupt practices the
petitioner or such other candidate would have obtained a majority of the valid
votes;
the High Court shall after declaring the
election of the returned candidate to be void declare the petitioner or such
other candidate, as the case may be, to have been duly elected." In the
present case the grounds for setting aside the election of the petitioner are
that the result of the election in so far as the appellant was concerned hag
been materially affected (i)...............................
(ii)..............................
(iii) by improper reception, refusal or
rejection of votes which is void, or (iv) by non-compliance with the provisions
of the Constitution or of the Act or of any rules or orders made under the Act.
The only ground on which the defeated
candidate could be declared to be elected is under s. 101(a) that in fact he
had received a majority of valid votes. But it is in deciding who has got the
majority of valid votes that s. 97 comes into play. 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. This right the appellant had but this right is
subject to the provision that he entitled to give, evidence to prove that the
election of the petitioner in this case i.e. the respondent would have been
void if he had been the returned candidate and the petitioner had presented
petition calling in question the election unless he had given notice of his
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 1033 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 receive a
recrimination petition. There is, thus, no doubt at all that the appellant did
not comply with the requirements of s. 97.
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 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 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 of all 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 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 mistake were likely to have arisen in the counting- and as revealed by the
instances which the learned Judge himself looked into and decided. It may be
useful at his stage to set out Rule 56 of the Conduct Election Rules, 1961 :
"56. Counting of Votes.--(1) Subject to
such general or special directions, if any, as may be given by Election
commission in this behalf, the 'ballot papers taken out of all boxes used in a
constituency shall be mixed together and then arranged in convenient bundles
and scrutinised.
(2) The returning officer shall reject a
ballot paper- (a) if it bears any mark or writing by which the elector can be
identified, or (b) if, to indicate the votes, it 'bears no mark at all or bears
mark made otherwise than with the instrument supplied for the purpose, or
8--L797SupCI 73 1034 (c) if votes are given on it in favour of more than one
candidate, or (d)if the mark indicating the vote thereon is placed in such
manner as to make it doubtful to which candidate the vote has been given, or
(e) if it is a spurious ballot paper, 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 not allow him to
handle it or any other ballot paper.
(4) The returning officer shall endorse on
every ballot paper which he rejects the word "Rejected" and the
grounds-of rejection in abbreviated form either in his own hand or by means of
a rubber stamp and shall initial such endorsement.
(5) All ballot papers rejected under this
rule shall be bundled together.
(6) Every ballot paper which is not rejected
under this rule shall be counted as one valid vote 1035 Provided that no cover
containing tendered ballot papers shall be opened and no such paper shall be'
counted.
(7) After the counting of all ballot papers
contained in all the ballot boxes used in a constituency has been completed,
the returning officer shall make the entries in a result sheet in Form 20 and announce
particulars.
Explanation.-For the purpose of this rule,
the expression "constituency" shall, in relation to an election from
a parliamentary constituency, mean the assembly constituency comprised
therein." So, when counting goes on the returning officer may have
rejected a ballot paper on any one of the grounds mentioned in sub-rule (2) of
that rule. He might have made a mistake or his decision may be wrong on any one
of the points. That is what explains the large number of concessions made by
either side when the recount was made before the Assistant Registrar of the
High Court as well as before the learned Judge. So, it is not proper to
interpret the respondent's prayer for recount as a request for a mere
mechanical process of counting. It was counting contemplated under Rule 56 with
all its implications that he was asking for.
The very grounds on the basis of which the
recount was ordered by the learned Judge show that there was a possibility of
mistakes having arisen under anyone of the grounds set out in Rule 56(2)
clauses (a) to (h) and it is to have them taken into account and decided
correctly that the respondent wanted a recount. Now, when lie wants a recount
for the purpose of setting aside the appellant's election he necessarily has
got to have not merely the benefits of votes which would have originally (,One
to him but which had been wrongly given to the appellant but also all votes
which had been cast in his favour (the respondent) but had been rejected
wrongly on one or other of the grounds mentioned in Rule 5 6 (2) clauses (a) to
(h). So, it was necessary 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 1036 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 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 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 his 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 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 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 rule 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 or 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. 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 s. 97. In this connection it is interesting 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, 1037 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 jurisdiction.
The Election Tribunal had no jurisdiction to
go into the question whether any wrong votes had been counted in favour of the
election-petitioner, who had claimed the seat for himself unless the successful
candidate had 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.
Point 3 raised by the appellant has .no
substance because it was not necessary to lead evidence in respect of any
individual vote about improper reception or improper rejection. The decision
about improper reception or improper rejection has been given in this case
mostly on concessions by both the parties and in a few cases by the Judge
himself scrutinising and deciding about all disputed cases. Indeed, there was
no need for any evidence except a proper scrutiny of the votes and a correct
decision based on such scrutiny as to the candidate for whom it was cast or whether
it was invalid. We may at the risk of repetition point out that the process of
recounting included decision- regarding the question of improper reception or
improper rejection and there, is no such thing as a general recount and there
is no authority in law for suggesting that all that the respondent could have
asked for was either a general recount or none at all. Indeed there is no pro-
vision in the Act for a petition to be filed alleging "'Let all' votes be
recounted and whoever gets more votes be declared elected." Nor do we
think that any question of Stopper arises. Estoppel may arise in respect of
each individual vote conceded by one party or the other as valid and given in
favour of the other in the sense that having conceded that a disputed vote
should have, gone to one or other of the parties the party who made that
concession cannot go black on it. But where the law provides that no evidence
1038 can be given about the improper reception of votes in favour of the
defeated candidate who had claimed a seat for himself unless the successful
candidate had complied with s.97, no question of estoppel arises. Concession is
akin to admission and the use of such an admission would be evidence. What is
barred under the proviso to s.97 is the giving of evidence by the appellant.
Appellant can give evidence either by relying on the respondent'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 both the candidates, it was not
possible to take into account any vote in favour of the appellant because of
his failure to comply with section 97. Nor are we satisfied that we would be
justified in ordering that this case should, be reconsidered by a larger Bench.
This appeal is, therefore, dismissed. The
appellant will pay the first respondent's costs. Special Leave petition 1347/72
preferred against Application No. 648/72 in.
Election Petition O.S. No. 2/1971 is
dismissed.
S.B.W.
Appeal dismissed.
L797Sup.Cl/73--2500 ---5-10-74--GIPF.
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