Anirudh Prasad Vs. Rajeshwari Saroj
Das & Ors [1976] INSC 120 (20 April 1976)
CHANDRACHUD, Y.V.
CHANDRACHUD, Y.V.
KRISHNAIYER, V.R.
GUPTA, A.C.
CITATION: 1976 AIR 2184 1976 SCR 91 1977 SCC
(1) 105
ACT:
Election-Representation of People Act,
1951-Sec. 97- Recriminatory petition-Nature and scope of-Conduct of Election
Rules 1961-Rule 73(2) (d)-Ballot papers containing identification marks.
HEADNOTE:
19 persons contested biennial elections to
the Bihar Legislative Council for filling 11 vacancies. The appellant and
respondents No. 1 to 10 were declared as the successful candidates. Election
was held by the system of proportional representation by a single transferable
vote. The votes were counted in accordance with the procedure prescribed in
para 7 of the Conduct of Election Rules 1961, read with the relevant provisions
of the Representation of the People Act, 1951. The Returning Officer rejected 9
ballot papers and accepted 306. The Returning Officer by application of rule 6
fixed the minimum quota of votes sufficient to secure the return of a candidate
at 2551. In first three rounds respondents 1 to 7 were declared elected. None
of the candidates could be declared successful in the fourth round.
In the fifth and 6th rounds respondents 8 and
9 were declared elected. In the seventh round, respondent No. 18 (Election
Petitioner) was eliminated and in the last round, i.e. the 8th round, the
appellant and respondent No. 10 were declared as the successful candidates.
Respondent No. 18 filed an Election Petition
in the High Court challenging the election of the successful candidates on the
ground that the rejection of 3 ballot papers having first preference votes in
its favour, the rejection of 2 ballot papers having first preference votes in
favour of respondent No. 9 the illegal acceptance of one ballot paper having
first preference vote in favour of respondent No. 8 and wrong counting of votes
in the fourth round of counting had materially affected the result of the
election. The Returning Officer had rejected one ballot paper on the ground
that it contained merely a horizontal line, another on the ground that it had a
faint mark and the third on the ground that the voter had scored through the
fourth preference vote in favour of one candidate and had assigned it to
another. Respondent No. 8 and some other respondents did not enter appearance
in the High Court.
Respondent No. 9 filed a written statement as
well as recriminatory petition. He contended that the Returning Officer had
wrongly rejected 2 ballot papers which contained first preference votes in his
favour and one other ballot paper having a second preference vote in his
favour. The appellant who was respondent No. 10 in the High Court contested the
petition. The High Court with the consent of parties decided as preliminary
issue whether the election petition was maintainable and whether the Returning
Officer wrongly and illegally rejected the ballot papers and, if so, whether
the result of the election had been materially affected. The High Court also
held that the three disputed ballot papers did not contain any identification
marks within the meaning of rule 73(2) (d) of Conduct of Election Rules, 1961
and, therefore, the Returning officer was in error in rejecting those ballot
papers as invalid. It was not disputed before the High Court that if the 3
ballot papers that were wrongly rejected were not eliminated respondent No. 18
would have been declared elected.
Consequently, the High Court recorded the
finding that the election of the Election Petitioner was materially affected by
the rejection of the ballot papers. The High Court also held that as a result
of the illegal rejection of the three votes respondent No. 9 was required to
trial behind until the sixth round and that but for the wrongful rejection
respondent No. 9 would have been declared elected in the very first round.
Special leave Petition filed by the Election Petition field by the Election
Petitioner in this Court against the findings of the High Court on issues No. 1,
2 and 3 was dismissed.
92 Thereafter, the High Court proceeded with
the election petition and tried the remaining issues. The votes were recounted
by an Officer appointed by the court in the presence of parties and their
counsel. A fair copy of the result sheet was thereafter prepared signed by all
concerned in token of its correctness. The High Court consequently allowed the
election petition, declared the election petitioner as elected and set aside
the election of the appellant who had secured the smallest number of votes on
recounting.
It was contended by the appellants before
this Court;
Since respondent No. 8 had not filed the
recriminatory petition he had disentided himself from claiming any benefit
under the ballot papers which were initially rejected by the Returning Officer
but which were accepted by the High Court as valid.
Dismissing the appeal, ^
HELD: Section 97 of the Representation of
People Act, 1951 provides that when in election petition a declaration is
sought that any candidate other than the returned candidate has been duly
elected 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. The proviso to the said section provides that the returned candidate
or such other party shall not be entitled to give such evidence unless he has
within 40 days from the date of commencement of the trial given notice to the
High Court of his intention to do so.
Section 97 applies if a composite claim
challenging the election of the returned candidate and for a declaration that
some other candidate should be declared elected is made. The returned candidate
in that case recriminates against the person in whose favour the declaration is
claimed. The recriminatory plea of defence in one's own election is in truth
and substance not so much a plea though that be its ultimate purpose and
effect, as a plea of attack by which a successful candidate assumes the role of
counter- petitioner and contends that the election of the candidate in whose
favour the declaration is claimed would have been void if he had been the
returned candidate and a petition had been presented calling his election in
question. Since the election petitioner had asked for a composite relief the
conditions necessary for attracting section 97 were undoubtedly present. The
contention of the appellant was, however, altogether of a different kind. It
was argued that respondent No. 8 cannot take advantage of the first preference
votes cast in his favour without a recriminatory petition. This contention is
outside the scope of s. 97, because in claiming the first preference vote
respondent No.
8 is not in any manner challenging the
validity of any of the votes cast and counted in favour of the election
petitioner or any step taken by or on behalf of the election petitioner in
furtherance of his election. Respondent No. 8 made no contention and wanted to
make none in regard to the claim of the election petitioner that he should be
declared elected. There was no conflict of interest between the election
petitioner and respondent No. 8 on the question whether the particular vote
should be counted in favour of the latter. If the 3 ballot papers in question
were valid they must be treated as valid for all purposes and, therefore, votes
cast in favour of respondent No. 8 under those ballot papers must be counted in
his favour.
[97 C, 98 A, D-F, 99-D] Jabar Singh v. Genda
Lal [1964] 6 S.C.R. 54, distinguished.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 714 of 1975.
From the Judgment and Order dated 18th April
1975 of the Patna High Court in Election Petition No. 2/74.
Pramod Swarup and K. K. Chaudhury; for the
Appellants.
K. P. Verma, B. B. Sinha and S. C. Patel; for
Respondents Nos. 8 93 J.P. Goyal and M.P. Mukerjee; for Respondent No. 18.
Shree Pal Singh; for Respondents Nos. 10, 12
and 17.
The Judgment of the Court was delivered by-
CHANDRACHUD, J.-Nineteen persons contested the biennial elections to the Bihar
Legislative Council which were held on March 29, 1974 for filling 11 vacancies.
The appellant, Anirudh Prasad, and respondents 1 to 10 were declared as the
successful candidates.
The elections having been held by the system
of proportional representation by a single transferable vote, votes were
counted in accordance with the procedure prescribed in Part VII of the Conduct
of Election Rules, 1961 (hereinafter called the Rules), read with the relevant
provisions of the Representation of the People Act, 1951 (hereinafter called
the Act). The Secretary of the Bihar Legislative Assembly who acted as the
Returning Officer rejected 9 ballot papers and accepted the remaining 306
ballot papers as valid. Considering that 11 seats were to be filled on the
basis of votes cast in 306 ballot papers, the Returning Officers by the
application of Rule 76, fixed the minimum quota of votes sufficient to secure
the return of a candidate at 2551. The technical arithmetical formulae were
applied during counting from time to time, votes were likewise added and
subtracted from one round to another of counting and the result of the
none-too-simple procedure was entered by the Returning Officer in a form
prescribed by the rules for that purpose.
In the first round of counting, respondents 1
to 5 were declared elected as they secured more votes than the fixed quota of
2551. In the second and third rounds of counting, respondent 6 (since deceased)
and respondent 7 were declared successful on the basis of transfer of surplus
votes. None of the candidates could be declared successful in the fourth round
but in the fifth round, respondents 8 and 9 and in the sixth round, respondent
9, were declared elected. In the seventh round of counting respondent 18 (Indra
Kumar) was eliminated and in the eighth round, which was the last round of
counting, the appellant Anirudh Prasad and respondent 10 were declared as the
successful candidates.
Respondent 18 filed an election petition in
the Patna High Court challenging the election of the successful candidates on
the ground that the rejection of 3 ballot papers having First Preference votes
in his favour, the rejection of 2 ballot papers having First Preference votes
in favour of respondent 9, the illegal acceptance of one ballot paper having a
first Preference vote in favour of respondent 8 and a wrong counting of votes
in the fourth round of counting had materially affected the result of the
election. Out of the 3 ballot papers which according, to respondent 18 were
wrongly rejected by the Returning Officer, one was rejected on the ground that
it contained a small horizontal line, another on the ground that it contained a
faint mark and the third on the ground that the elector had scored through the
Fourth Preference vote cast in favour of one candidate and had assigned it to
94 another. The rejection of these 3 ballot papers which contained First
Preference votes in favour of respondent 18 was partly based on the view that
while casting their votes, the voters connected with the particular ballot
papers had resorted to devices by which their identity could be established.
Respondent 18 prayed that the election of successful candidates or of the
candidate receiving the smallest number of votes on recount be declared as void
and that he himself be declared as duly elected. The rest of the 18 contestants
were impleaded as respondents to the Election Petition.
Respondents 1 to 6, 8 and 11 to 17 did not
enter appearance in the High Court. Respondents 7 and 10 appeared in the
election petition and filed their written statements.
But they took no further part in the
proceedings.
Respondent 9, Nathuni Ram, filed a written
statement as well as a recriminatory petition. He contended that the Returning
Officer had wrongly rejected 2 ballot papers which contained First Preference
votes in his favour and one other ballot paper having a Second Preference vote
in his favour.
According to respondent 9, even if the
grievance made by respondent 18 in the election petition was to be accepted as valid,
that would not affect his election as, in any view of the matter, he would be
entitled to additional votes which were wrongly rejected by the Returning
Officer.
The appellant Anirudh Prasad, who was
respondent 10 in the High Court, appeared in the case and filed his written
statement. The High Court accepted his written statement subject to the
condition that he paid costs of respondent 18 who had filed the election
petition and of respondent 9 who was the sole contesting respondent. This
condition was imposed by the High Court on the ground that the appellant had
filed his written statement much beyond the time fixed for that purpose. The
appellant did not pay, the costs as directed by the High Court and since the
payment of costs was a condition precedent to the acceptance of his written
statement, the High Court passed orders declining take the written statement on
record. The High Court, however, allowed the appellant's counsel to
cross-examine the witnesses examined by the election petitioner and by
respondent 9. limiting the cross examination to the statements made by the
witnesses in their examination-in- chief. The appellant was further permitted
by the High Court to lead evidence by way of rebuttal and to submit arguments
on the evidence in the case.
On the basis of the averments contained in
the election petition filed by respondent 18 and those contained in the written
statement and the recriminatory petition filed by respondent 9, the High Court
framed 5 issues for determination:
"Is the election petition, as framed,
maintainable?
2. Did the Returning Officer at the time of
counting of votes illegally and wrongly reject three, with first preference,
votes validly polled in favour of the petitioner ? If so, has the result of
election been materially affected on that account? 95
3. Did the Returning Officer at the time of
counting of votes illegally and wrongly reject two votes with first preference
and one vote with second preference validly polled in favour of respondent No.9
? If so, has the result of the election been materially affected thereby?
4. Whether the petitioner has received
majority of the valid votes and is entitled to be declared elected, as claimed
?
5. To what relief, if any, is the petitioner
entitled in this election petition?" Since the decision of issued 4 and 5
depended upon the answers to issues 1 to 3, the High Court, by consent of the
contesting parties, took up issues 1 to 3 for consideration in the first
instance. By its judgment dated February 28, 1975 it rejected the contention
that the election petition was defective and held on issue No. 1 that the
petition was maintainable. It held on issue No. 2 that the 3 disputed ballot
papers (Exhibits 4, 4/a and 4/b) did not contain any identifying marks within
the meaning of rule 73(2)(d) and therefore the Returning officer was in error
in rejecting those ballot papers as invalid. It was not disputed before the
High Court at that stage that the election petitioner (respondent 18) was
eliminated in the seventh round of counting because of his failure to receive
the required quota of 2551 votes and that if the 3 First Preference votes
contained in Exhibits 4, 4/a and 4/b had been counted in his favour, he would
have been declared as duly elected.
Consequently, the High Court recorded the
finding that the election of the election-petitioner was materially affected by
the rejection of the 3 ballot papers. On the 3rd issue, the question for
consideration of the High Court was whether 3 other ballot papers (Exhibits B,
B/1 and B/2) were rightly rejected by the Returning Officer. The High Court
held that the Returning Officer had rejected the 3 ballot papers wrongly and
that the votes cast therein in favour of respondent 9 had to be taken into
account. The wrong rejection of these 3 ballot papers had materially affected
the result of the election qua respondent 9 in the sense that if the votes cast
in his favour in the 3 ballot papers were taken into account, he would have
been declared elected in the very first round of counting and would not have
been required to trail behind until the sixth round. The High Court recorded
its finding on issue No. 3 accordingly.
The appellant filed a petition for special
leave in this Court against the aforesaid judgment of the High Court dated February
28, 1975 but that petition was rejected.
Thereafter the High Court proceeded with the
election petition and tried the remaining issues, 4 and 5. By consent of
parties it appointed Shri R. N. Thacore, Ex-Deputy Secretary of the Bihar
Legislative Council, to recount the votes on the basis of the findings recorded
on issues Nos. 2 and 3. Shri Thacore was expertly conversant with the
complicated mechanism of counting votes under the system of proportional
representation by single transferable vote. I earned counsel who appeared in
the High Court for the election petitioner and for respondent 10 would appear
to have been familiar with the particular 96 procedure and they agreed to
assist Shri Thacore. Respondent 9 agreed that counsel for the election petitioner
may deputies for him. Accordingly, the votes were recounted by Shri Thacore in
the presence of the parties and their counsel. A fair copy of the result sheet
was thereafter prepared by Shri Thacore in the presence of counsel for the
parties who affixed their signature thereon in token of its correctness.
The Returning Officer had declared the result
of the election on the basis that only 306 ballot papers were valid. The High
Court by its judgment of February 28, 1975 held that six ballot papers were
wrongly rejected by the Returning Officer with the result that the number of
valid balot papers rose from 306 to 312. The minimum quota consequently rose
from 2551 to 2601. On the basis of the recounting of votes done by Shri
Thacore, the High Court allowed the election petition and declared respondents
1 to 10 and respondent 18 (the election petitioner) as the successful
candidates. The appellant, Anirudh Prasad, who was respondent 10 in the High
Court and who had been declared elected by the Returning Officer was found, on
a recount of the votes, to have secured 2500 votes as against 2579 votes
secured by respondent 18. The High Court set aside the election of the
appellant who had secured the smallest number of votes. This appeal by special
leave is directed against the judgment of the High Court dated April 18, 1975.
After the preliminary finding of the High
Court that the six ballot papers were wrongly rejected by the Returning officer
and that those ballot papers were valid, the appellant made an application in
the High Court that since respondent 8, Janardan Prasad Varma, had not filed
any recrimination, the 1st preference vote cast in his favour under the ballot
paper Ex. B/2 and the 7th preference cast in his favour under Exhibits B and
B/1 should not be counted in his favour. By an order dated April 14, 1975 the
High Court rejected that application and directed that all the votes contained
in and cast under the ballot papers which were held to be valid should be
counted in favour of the candidates concerned according to the relevant rules.
Mr. Pramod Swaroop, who appears on behalf of
the appellant, made a fervent plea that since respondent 8 had not filed a
recriminatory petition, he had disentitled himself from claiming any benefit
under the ballot papers which were initially rejected by the Returning Officer
but which were accepted by the High Court as valid. It may be recalled that the
election-petitioner had asked for the scrutiny and acceptance of three ballot
papers only (Ex. 4, 4/a and 4/b), wherein he had secured 1st preference votes.
Respondent 9 filed a recrimination under
section 97 of the Act asking that two other ballot papers, Exhibits B and B/1,
wherein he had secured 1st preference votes and the ballot paper, Ex. B/2,
wherein he had secured a 2nd preference vote should be re-scrutinised and
accepted. These six ballot papers which were rejected by the Returning Officer
were accepted by the High Court as valid. Apart from the emphasis on the
failure of respondent 8 to file a recrimination, the grievance of the appellant
is this: Ex. B/2 which contains a 1st preference vote for respondent 97 8 was
not even considered for counting the votes secured by respondent 9 who had
filed his recrimination and at whose instance Ex. B/2 was held valid; because,
in order to get elected it was enough for respondent 9 to rely on the 1st
preference votes cast in his favour under Exhibits B and B/1. The second
preference vote cast in his favour under Ex.
B/2 was superfuous for his election.
According to the appellant, it is anomalous that respondent 8 who had taken no
part in the proceedings before the High Court should get the benefit of the 1st
preference vote cast in his favour under Ex. B/2 when he asked for no such
relief, especially when respondent 9 at whose instance the particular ballot
paper was treated as valid did not require for his election the addition of the
2nd preference vote cast in his favour there under.
This argument is founded on the provisions
contained in section 97 of the Act, which has been the subject-matter of
several decisions of this Court. That section provides:
"97. Recrimination when seat
claimed.-(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 section 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." An election-petitioner may either ask for the relief under
section 100 of the Act that the election of the returned candidate be declared
void or he may ask for the additional relief under section 101 that he or any
other candidate may be declared as elected. It is only if such a composite
claim is made that section 97 is attracted. The returned candidate can then
recriminate against the person in whose favour a declaration is claimed under
section 101.
The recriminatory plea is in truth and
substance not so much a plea in defence of one's own election, though that be
its ultimate purpose and effect, as a plea of attack by which the successful
candidate assumes the role of a counter petitioner and contends that the election
of the candidate in whose favour the declaration is claimed would have been
void if he had been the returned candidate and a petition had been presented
calling his election in question. Since respondent 18 who filed the election
petition had asked for a composite relief that the election of the successful
candidates or of that candidate who was found to have secured the 98 least
number of votes should be set aside and that he himself should be declared as a
successful candidate, the conditions necessary for attracting section 97 were
undoubtedly present. But that does not mean that every contention made by any
of the successful candidates or other parties is barred unless a recriminatory
petition is filed.
The plea of recrimination goes under section
97 to the claim of the election petitioner that he or any person other than the
successful candidate may be declared elected, the plea of the recriminator
being that the election of the person in whose favour the declaration is
claimed would have been void if he had been the returned candidate and a
petition were filed to challenge his election. For example, any of the
successful candidates can contend by a recriminatory petition that the election
of the election-petitioner, were he successful, suffered from defects by reason
of which it would be void. Such a challenge can be made only by a recriminatory
petition and unless such a petition is filed in compliance with section 97, it
is not open to the successful candidate or any other party to challenge the
additional claim made by the election petitioner.
The contention of the appellant before us is
altogether of a different kind. It is argued that respondent 8 cannot take
advantage of the 1st preference vote cast in his favour under Ex. B/2 without a
recriminatory petition. This contention is outside the scope of section 97
because, in claiming the 1st preference vote under Ex B/2, respondent 8 is not
in any manner challenging the validity of any of the votes cast and counted in
favour of the election-petitioner or any step taken by or on behalf of the
election-petitioner in furtherance of his election. In fact, respondent 8 made
no contention and wanted to make none in regard to the claim of the
election-petitioner that he should be declared elected. The election involved a
contest to 11 seats and the claim of respondent 8 to the 1st preference vote in
Ex. B/2 was not in derogation of any of the rights of the election- petitioner
who claimed the composite relief. The very fact that the election-petitioner succeeded
in the High Court despite the counting of the 1st preference vote in favour of
respondent 8 shows that there was no conflict of interest between the
election-petitioner and respondent 8 on the question whether the particular
vote should be counted in favour of the latter. Respondent 8's claim to the 1st
preference vote contained in Ex. B/2 did not have the effect, directly or
indirectly, of invalidating any of the votes counted originally in favour of
the election- petitioner. It may bear repetition that respondent 8, like the
appellant, was one of the successful candidates and it is respondent 18 who was
declared unsuccessful in the election, who filed the election petition. The
appellant's contention comes to this that one successful candidate must file a
recrimination against another successful candidate if an unsuccessful candidate
files an election-petition asking for a composite relief. We see no
justification for this contention on the language and intendment of section 97.
It is also necessary to bear in mind that the
election to the Legislative Council was held by the system of proportional re-presentation
by a single transferable vote.
Nineteen candidates contested 99 the election
for 11 seats. Rules 76 to 85 of the Conduct of Election Rules, 1961 provide an
elaborate procedure for counting of votes when more than one seat is to be
filled.
By rule 76, every valid ballot paper is
deemed to be of the value of 100 and putting it simply, the quota sufficient to
secure the return of a candidate is determined by multiplying the number of
valid ballot papers by 100, dividing the total by one more than the number of
vacancies to be filled and adding one to the quotient. Initially, 306 ballot
papers were accepted as valid by the Returning Officer. The minimum quota was
accordingly fixed at 2551:
(306x100=30600%11+1=2550+1=2551). The High
Court held that 6 ballot papers were wrongly rejected by the Returning Officer
as a result of which the number of valid ballot papers rose to 312. The minimum
quota correspondingly rose to 2601:
(312X100=31200%12=2600+1=2601). The minimum
quota which is fixed primarily on the basis of valid ballot papers is the
key-point of counting and transfer of surplus votes.
'Surplus votes' means votes in excess of the
minimum quota and it is such surplus votes that are transferred to other
candidates left in the field. The various rules and their working as
illustrated in the Schedule to the Rules show that the system of proportional
representation by a single transferable vote involves a progressive
inter-linked method of counting votes. It is therefore difficult to accept the
appellant's argument that a ballot paper may be treated as valid for fixation
of the minimum quota but should be ruled out for purposes of counting the votes
cast therein in favour of any candidate. If the ballot paper Ex. B/2 is valid,
it must be treated as valid for all purposes and therefore the 1st preference
vote contained therein in favour of respondent 8 must be counted in his favour.
This would be so especially when the process can involve no recrimination
between respondent 8 and the appellant, both of whom were successful
candidates. Nor indeed does such counting involve any recrimination between
respondent 8 and the election-petitioner who, as stated earlier, was declared
successful by the High Court despite the counting of the 1st preference vote in
favour of respondent 8.
On the facts of the case it is clear that
originally, respondent 8 had secured 2611 votes as against 2500 votes secured
by the appellant. That was without counting the 1st preference vote cast in
favour of respondent 8 under Ex. B/2. On that footing also the appellant cannot
claim priority over respondent 8 and his grievance that he, instead of
respondent 8, should be declared elected is without any substance.
Great reliance was placed by counsel for the
appellant on the decision of this Court in Jabar Singh v. Genda Lal(1), in
support of the contention that respondent 8 cannot claim the benefit of the 1st
preference vote cast in his favour under Ex. B/2 without a recriminatory
petition.
That was a typical case in which the
contention sought to be raised by the successful candidate could not have been
raised without a recriminatory petition under section 97 of the Act. The respondent
100 therein challenged the election of the appellant on the ground of improper
reception of votes in favour of the appellant and improper rejection of votes
in regard to himself. The respondent prayed that the appellant's election
should be declared void and he himself should be declared to have been duly
elected. The appellant urged before the tribunal that there had been improper
rejection of the votes and improper acceptance of the votes in favour of this
respondent. The respondent objected to this course and that objection was
upheld by this Court on the ground that in the absence of recriminations it was
not open to the appellant to take up the particular plea. As we have shown
earlier respondent 8 did not contend that there was any improper reception of
votes in favour of the election petitioner or for the matter of that in favour
of any other candidate.
There was therefore no question of his filing
a recrimination under section 97. Secondly, the voting in that case was not by
the system of proportional representation by a single transferable vote and the
complications which arise by reason of the peculiar system of counting which is
required to be adopted in the instant case had no place in the scheme of
counting in that case. In view of this position it seems unnecessary to discuss
the other decisions cited on behalf of the appellant which are reported in
Dhara Singh v. District Judge, Meerut & Anr.(1); P. Malaichami v.
M. Andi Ambalam & Ors.(2) and the
decision in Civil Appeal No. 83 of 1975 decided July 31, 1975. These decisions
are distinguishable for the same reason for which Jabar Singh's case has no
application to the facts of the instant case.
For these reasons we dismiss the appeal and
confirm the judgment of the High Court but there will be no order as to costs.
P.H.P. Appeal dismissed.
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