Civil Appeal No 2618 of 1983
From the Judgment and Order dated the 18th January 1983 of the Patna High Court in Election Petition No 15 of 1980
section Rangarajan D P Mukherjee G section Chatterjee and R P Singh for the Appellant
section section Ray M P Jha and Ms Mridula Ray for the Respondents
121 The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal under section 116A of the Representation of the People Act 1951  Act  for short is directed against the decision of the High Court at Patna setting aside the appellant s election to the Bihar Legislative Assembly from 115 Jamtara Assembly Constituency polling for which was held on May 31 1980 and the result of which was declared on June 21980
Sixteen candidates being the appellant and the 15 respondents contested the election
The appellant was the candidate of the Communist Party of India and respondent No 1 was of the Congress I Party
At the poll the appellant received 13336 votes while the respondent No 1 polled 13312 votes
The appellant was therefore declared elected on the footing that he had received 24 more votes than the respondent No 1
Respondent no 2 had polled 13285 votes
As the election dispute has been confined to the appellant and respondent No 1 it is not necessary to refer to the other candidates or indicate particulars of their performance at the election
Respondent No 1 filed an election petition under section 81 of the Act asking for the appellant s election to be set aside and for a declaration that he should be declared as the successful candidate
In paragraph 9 of the election petition he pleaded the details of the illegalities and irregularities committed in the course of counting of ballot papers
It is not necessary to refer to the other details excepting what was pleaded in paragraph 9i as respondent No 1 did not press the election petition on those grounds
The pleading in the sub paragraph was to the following effect
On table No 10 booth No 10 Fukbandi Primary School 74 ballot papers of the petitioner were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer
Similarly 31 ballot papers of the petitioner were rejected on different tables on the ground that they do not contain the signature of the Presiding Officer
The aforesaid ballot papers were rejected by the Assistant Returning Officer inspite of the objections raised by the petitioner and his counting agents
 It is appropriate to indicate here that the High Court did not take into account the plea in regard to 31 ballot papers in the absence of particulars
The appellant in his written statement 122 before the High Court pleaded that the statements contained in paragraph 9 and its sub paragraphs were vague and incorrect
In paragraph 16 of the written statement it was stated During course of counting no illegality or irregularity of any kind was committed rather the same was held in proper legal and orderly manner nor any such imaginary illegality was pointed out or any objection was raised on behalf of the petitioner
 In paragraph 17 it was further pleaded that the statement contained in paragraph No 9i of the election petition is wrong
It is false to say that the ballot papers were rejected only on the ground of want of signature of the Presiding Officer
The fact is that the Assistant Returning Officer who was duly appointed after fully applying his mind and finding nearly 95 ballot papers of booth No 10 to be spurious and not genuine and after giving cogent legal and satisfactory reasons rejected the ballot papers
The petitioner has suppressed the fact that besides his 74 31 ballot papers of other contesting candidates including 3 of the respondent No 1 were also rejected for not bearing signature of the Presiding Officer and the distinguishing mark of the polling station No 10
 In paragraph 18 of the written statement the appellant pleaded that With reference to the contents of paragraph No 9i of the Election Petition the respondent no1 further begs to submit that counting of ballot papers of booth No 10 was completed before 12 noon in the very first round and the petitioner secured 3160 votes in that round while the respondent No 1 could get only 484 and one Parmanand Mishra got 1172 votes
Neither the petitioner nor his election agents nor counting agents all of whom were present in the counting hall did raise any objection at the time of rejection of the ballot papers or for the whole day rather they accepted the position that those ballot papers were rightly rejected being spurious and not genuine
However after announcement of the votes of last round and conclusion of counting of the votes and completion and submission of result sheet in Form 20 by the Assistant Returning Officer to the Re 123 turning Officer the petitioner having lost the election by a small margin lost all his senses and like a drowning man catching the last straw made out a false case of illegality in counting and thus on 261980 at 150 am for the first time raised an objection by filing a petition which was frivolous in nature to count the rejected ballot papers in his favour
After the evidence of both parties had been recorded on February 19 1982 the learned trial Judge made the following order Having considered the arguments of learned counsel for the parties and the materials on the record and in view of the decisions referred to above I am satisfied that the petitioner in his election petition has given adequate statements of material facts on which he relies in support of his case and has made out prima facie case for inspection of the ballot papers which have been cast in his favour and rejected
Without expressing any opinion regarding the merit of the claim of the parties I am of the view that in order to decide the dispute and to do justice between the parties inspection of ballot papers is necessary
I therefore direct that all those ballot papers which have been cast in favour of the petitioner and rejected by the Returning Officer at the time of counting ie 74 of Fukbandi Booth No 10 and 31 of other booths should be inspected by learned counsel for the parties in presence of a responsible officer of the Court
 The appellant sought to challenge this order by moving an application under Article 136 of the Constitution before this Court but that was rejected
On April 14 1982 the learned trial Judge on a petition of the appellant for clarification of the order dated February 19 1982 made the following direction In my opinion there is no ambiguity in the order passed by this Court on 19282 yet objection has been raised for which there is no basis
However learned counsel for the petitioner has submitted that he would be quite satisfied if only 74 rejected ballot papers from 124 booth No 10 Fukbandi booth are inspected
Let inspection of only 74 rejected ballot papers from Booth No 10 Fukbandi booth be made The learned trial Judge after inspection of the ballot papers and upon hearing counsel for the parties came to hold that the rejection of these 74 ballot papers for want of the Presiding Officer s signature was not justified and gave the election petitioner credit of all those votes
On that basis he came to hold that the respondent No 1 had received the majority of the valid votes polled at the election the excess being 50 and while setting aside the election of the appellant declared the respondent No 1 to have been duly elected
This decision is assailed in appeal
Mr Rangarajan in support of the appeal has taken the stand that i the particulars furnished in paragraph 9 of the election petition were inadequate and fall short of the requirements of the law ii inspection of the ballot papers should not have been granted and even on inspection the 74 ballot papers were not available to be counted in favour of respondent No 1 iii if inspection was to be granted and credit was to be given of rejected ballot papers all the 954 ballot papers should have been scrutinised and the examination for recount should not have been confined to 74 only and iv the view taken by the learned trial Judge of the High Court that in the absence of a prayer for recrimination under section 97 of the Act the appellant was precluded from asking for a recount of the other rejected ballot papers is not tenable in law
Before entering into an examination of the tenability of these contentions it would be proper to take note of the decision in the case of Jagan Nath vs Jaswant Singh  Ors of a five Judge Bench of this Court
Mahajan CJ spoke for the Court thus The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court possesses no common law power
 125 What was said in Jagan Nath s case continues to be the law binding this Court and in the recent case of Jyoti Basu  Ors
vs Debi Ghosal  Ors this Court reiterated the position by saying A right to elect fundamental though it is to democracy is anomalously enough neither a fundamental right nor a Common Law Right
It is pure and simple a statutory right
So is the right to be elected
So is the right to dispute an election
Outside of statute there is no right to elect no right to be elected and no right to dispute an election
Statutory creations they are and therefore subject to statutory limitation
An election petition is not an action at Common Law nor in equity
It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies
It is a special jurisdiction and a special jurisdiction has always to be exercised in accordance with the statute creating it
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied
A Court has no right to resort to them on considerations of alleged policy because policy in such matters as those relating to the trial of election disputes is what the statute lays down
In the trial of election disputes Court is put in a straight jacket
Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute if any concerning the election is regulated by the Representation of the People Act 1951 different stages of the process being dealt with by different provisions of the Act
There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act 1951 and again no such election may be questioned except in the manner provided by the Representation of the People Act
So the Representation of the People Act has been held to be a complete and self contained code within which must be found any right claimed in relation to an election or an election dispute
 126 We are bound by the decision of the larger Bench and we are in agreement with what has been said in Jyoti Basu s case
The first question to consider is whether the pleading in paragraph 9i of the election petition was adequate in view of the provisions of the Act
Section 94 of the Act provides for secrecy of voting
Detailed provisions have been made in the Conduct of Election Rules 1961 to give effect to this wholesome provision contained in section 94
An election petition is presented in terms of section 81 of the Act
Section 83 prescribes as to what the petition should contain
Sub section 1 a of section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies
Since there is no allegation of any corrupt practice in this case there is no necessity to refer to clause b of sub section
1 of section 83
Though initially Mr Rangarajan had contended that the verification was not in accordance with law he has abandoned this contention during the hearing in view of the statutory form of verification prescribed and the verification in the instant case conforms to it
According to Mr Rangarajan the pleading in paragraph 9i does not amount to a concise statement of the material facts
Appellant s learned counsel has placed reliance on the observation in Samant N Balakrishna etc
vs George Fernandez  Ors
 where with reference to section 83 of the Act it has been said that the petition must contain a concise statement of the material facts on which the petitioner relies and the fullest possible particulars should be given
Material facts and material particulars may overlap
Balakrishna s case where Hidayatullah CJ made these observations was one where allegations of corrupt practice had been made and the case came under section 831 b of the Act
Obviously allegations of corrupt practice being in the nature of a criminal charge the Act requires full particulars to be given
The scheme in section 831 of the Act makes the position very clear
Clause a refers to general allegations and requires a concise statement of material facts to be furnished while clause b referring to corrupt practice requires all details to be given
Appellant s counsel therefore was not entitled to rely upon the proposition in Balakrishna s case for the present purpose
So far as averment in paragraph 91 of the election petition is concerned we find that the number of ballot papers alleged to have been wrongly rejected has been furnished the counting table number has been given the booth 127 number has also been disclosed and the ground for rejection has even been pleaded
Respondent No 1 pleaded that the particulars of the ballot papers could not be obtained as during counting they were not shown
His counting agent at table No 10 has been examined as his witness No 3
He has stated The ballot box of Fukbandi booth No 10 was brought on my table and it was intact
That ballot box contained some ballot papers which were not bearing signature of the Presiding Officer
I raised objection in respect of those ballot papers that they should not be treated as doubtful ballot papers to be sent to the Returning Officer
Counting Supervisor did not listen to my protest and sent them to the Returning Officer as doubtful ballot papers
There were 74 such ballot papers
 The Assistant Returning Officer was examined as RW
4 on behalf of the appellant
In his evidence he stated that he had rejected some ballot papers of booth No 10
He again stated that counting agents of candidates were not allowed to note down the serial numbers of the ballot papers
In view of the statement of the counting agent of respondent no1 and the evidence of the Assistant Returning Officer there can be no scope to doubt and in our view the High Court was right in taking the view that the particulars of the rejected ballot papers were not available to the counting agents and therefore particulars of the numbers of the ballot papers had not been given in the election petition
We agree with the High Court that in the facts and circumstances of the case the pleading in paragraph 91 set out the material facts in a proper way and no defect can be found with it
Mr Rangarajan next canvassed that the High Court went wrong in allowing inspection of the ballot papers
Reliance was placed on the decision of this Court in the case of Bhabhi vs Sheo Govind  Ors
 where it has been held that the following conditions were imperative before the Court could grant inspection or sample inspection of ballot papers 1 That it is important to maintain the secrecy of the ballot which is sacrosanct and should not be allowed 128 to be violated on frivolous vague and indefinite allegations 2 That before inspection is allowed the allegations made against the elected candidate must be clear and specific and must be supported by adequate statement of material facts 3 The Court must be prima facie satisfied on the materials produced before the Court regarding the truth of the allegations made for a recount
4 That the discretion conferred on the Court should not be exercised in such a way so as to enable the applicant to indulge in a roving inquiry with a view to fish materials for declaring the election to be void and 5 That on the special facts of a given case sample inspection may be ordered to lend further assurance to the prima facie satisfaction of the Court regarding the truth of the allegations made for a recount and not for the purpose of fishing out materials
 We have already pointed out that the allegations made in paragraph 9i of the election petition were clear and definite
On the facts of the case the plea was confined to one aspect viz for want of the Presiding Officer s signature with reference to 74 ballot papers cast at a particular booth and counted on a particular table the same had been rejected
The only specific detail which was wanting was the serial number of the 74 ballot papers
We have on the evidence recorded in the case come to the conclusion that this particular was not available to the election petitioner in spite of attempts made on his behalf
While we agree with the view expressed in Bhabi s case on the facts before us we are inclined to think that inspection had rightly been ordered
Mr Ray for respondent no1 pressed before us the fact that the order of the High Court allowing inspection had been questioned before the Court and no interference was made
Appellant s counsel on the other hand contended that as the application under Article 136 of the Constitution had not been disposed of on merits this aspect was open to 129 challenge in regular appeal under section 116A of the Act
It is unnecessary to refer further to the consequences of non interference by this Court on the earlier occasion as on the facts we are satisfied that the action of the High Court in allowing inspection is not open to dispute
A number of authorities were cited by Mr Rangarajan in support of his contention that inspection should not have been granted
Since Bhabhi s case has considered most of the cases relied upon by Mr Rangarajan and tests have been laid down to which reference has been made by us we see no necessity to independently refer to and deal with the other cases
The 74 ballot papers which had been rejected were placed before us during the hearing
In the election petition it has been contended that the rejection was only on one ground viz absence of the signature of the Presiding Officer
The appellant in his written statement had taken the stand that the identifying mark was also wanting
The ballot papers have been scrutinised by us as also by learned counsel for both the parties
Mr Rangarajan has conceded on seeing the ballot papers that each of them bears the mark
Admittedly none of them contains the signature of the Presiding officer
Rule 56 of the Conduct of Election Rules 1961 makes detailed provision for counting of votes
Sub rule 2 requires the Returning Officer to reject a ballot paper when any of the seven infirmities indicated therein is found
In view of the contentions advanced before us the relevant infirmities would be as provided in sub clause e ie the ballot paper is a spurious one and h ie 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
Rule 381 provides Every ballot paper before it is issued to an elector and the counterfoil attached thereto shall be stamped on the back with such distinguishing mark as the Election Commission may direct and every ballot paper before it is issued shall be signed in full on its back by the Presiding Officer
 There 74 ballot papers cast in favour of the respondent No 1 which have been rejected were in two series 24 in one and 50 in the other
Though the Assistant Returning Officer had stated that according to him these were spurious he has in his cross examination clarified the position that by spurious  he meant that the ballot 130 papers did not contain the signature of the Presiding Officer
That these ballot papers were used at the election in booth No 10 is not open to doubt in view of the ballot paper account for this booth
That shows that 810 ballot papers in all had been received being from serial nos 006851 to 007660
424 ballot papers were used and ballot papers of the same number had been found in the ballot box and duly accounted for
The numbers of the ballot papers including the 74 in dispute are covered by the particulars of used ballot papers given in the ballot paper account which is Ext
2 in the case
The Presiding Officer himself has proved this document
The report made by the Returning Officer to the Election Commission Ext
A also shows that the ballot papers were not spurious
There is sufficient evidence on record from which it can be concluded that the rejection of these 74 ballot papers was on account of the fact that they did not contain the signature of the Presiding Officer as required under rule 381
Mr Rangarajan is right in his submission that if a ballot paper does not contain the signature of the Presiding Officer it has got to be rejected at the counting in view of the mandatory provision in rule 562 of the Conduct of Election Rules
The point for consideration now is whether the proviso which reads as follows was applicable 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
On the submissions at the Bar the question of mistake does not arise
It has to be found out whether these 74 ballot papers in dispute did not contain the signature of the Presiding Officer on account of his failure
Rule 38 makes it clear that the distinguishing mark and the signature of the Presiding Officer have to be put on the ballot paper before the same is issued to the voter at the booth
The distinguishing mark can be put by any one but the signature has got to be of the Presiding Officer and obviously he has to personally do that job
There is evidence that the Presiding Officer had been taken ill on the date of poll
He has been examined as PW2
From his evidence it appears that this was his first experience as a Presiding officer of a booth
He has stated On the day of poll my bowls was upset and I had visited the pokhra tank once on the day of 131 poll and during that period all the ballot papers were kept on the table
I had not put my signature on all the ballot papers
I had deputed one of the polling officers at the booth to watch the ballot papers when I had gone to the pokhra
For 5 to 10 minutes that I was absent from the polling booth on the day of poll I cannot say what had happened during that period
 The appellant had cross examined this witness and suggested to him that he had gone to attend to the call of nature three or four times
The appellant s witness No 2 who was also a candidate at the election and is a respondent here has stated I found the Presiding Officer at booth No 10 sleeping under a Neem tree at some distance from the booth when I visited the booth in the noon
 Once it is held that the 74 ballot papers were not spurious and had been issued to the voters at the booth in the course of the poll it would be reasonable to presume that the ballot papers had been issued to the voters without signatures of the Presiding Officer though the distinguishing mark had been put
The absence of the Presiding Officer from the place of poll has clearly been established
Whether it was for 5 to 10 minutes as deposed by him or it was no three or four occasions as suggested to him in cross examination or for a good length of time during which he was having a nap under a neem tree as deposed to by RW 2 it is clear that he was away from the place of polling for quite some time
The polling process must have continued and voters who came during his absence had obviously been issued these unsigned ballot papers
If the facts be these would it not be a case of failure of the Presiding Officer to put his signatures on the ballot papers is the question for consideration
It was the obligation of the Presiding Officer to put his signature on the ballot papers before they were issued to the voters
Every voter has the right to vote and in the democratic set up prevailing in the country no person entitled to share the franchise can be denied the privilege
Nor can the candidate be made to suffer
Keeping this position in view we are of the definite view that the present case is one of failure on the part of the Presiding Officer to put his signature on those ballot papers so as to satisfy the requirement of law
The proviso once it is applicable has also a mandate that the ballot paper is not to be rejected
We therefore hold that the ballot papers were not liable to be rejected as the proviso applied and the High Court in our opinion came to the 132 correct conclusion in counting these ballot papers and giving credit thereof to the respondent No 1
The next question for consideration is as to whether all the ballot papers which were rejected in the constituency should have been allowed to be inspected and recounted on the basis of inspection or should the inspection have been confined to 74 ballot papers as done
This question is connected with the fourth contention of the appellant s counsel ie whether in the absence of a recrimination the appellant who was the returned candidate could claim that the election petitioner would not succeed for the additional relief as he had not received the majority of the votes polled at the election
We have already indicated that the appellant as the elected candidate in his written statement had pleaded that the counting was in accordance with law and not objectionable
The effect of such a plea is that the ballot papers which had been cast in his favour but credit had not been given thereof had been validly rejected
In the election petition two reliefs had been claimed firstly for setting aside the election of the returned candidate ie the appellant and secondly for a declaration that the election petitioner respondent No 1 was the duly elected candidate
The relief claimed was in terms of section 1001 d iii and section 101 a of the Act
The election petitioner had claimed that there was improper rejection of votes cast in his favour and that he had received a majority of the valid votes at the election
The Act makes in section 97 provision for recrimination
Sub section1 of that section which is material reads thus When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has within fourteen days from the date of commencement of the trial given notice to the High Court of his intention to do so and has also given the security and the further security referred to in sections 117 and 118 respectively
 133 Admittedly no application for recrimination was filed
Mr Rangarajan has strenuously contended that keeping the scheme and the purpose of the law in view in a case of this type refusal to count the other rejected ballot papers on the plea of non filing of a recrimination petition would lead to injustice
We have already indicated the pronounced view of this Court in Jagan Nath s case which has been followed throughout and the last in series is the case of Jyoti Basu to which also we have adverted
There is no scope for equity since the entire gamut of the process of election is covered by statute
Reliefs as are available according to law can only be granted
It is true that in Kum
Shradha Devi vs Krishna Chandra Pant  Ors
 it has been observed If the allegation is of improper rejection of valid votes which is covered by the broad spectrum of scrutiny and recount because of miscount petitioner must furnish prima facie proof of such error
If proof is furnished of some errors in respect of some ballot papers scrutiny and recount cannot be limited to those ballot papers only
If the recount is limited to those ballot papers in respect of which there is a specific allegation of error and the correlation is established the approach would work havoc in a parliamentary constituency where more often we find 10000 or more votes being rejected as invalid
Law does not require that while giving proof of prima facie error in counting each head of error must be tested by only sample examination of some of the ballot papers which answer the error and then take into consideration only those ballot papers and not others
This is not the area of enquiry in a petition for relief of recount on the ground of miscount
 These observations came not in a case to which section 97 of the Act applied
This Court was considering a case of recount simpliciter
The position of law as to the imperative necessity of a recrimination in cases as before us is well settled
A Five Judge Bench in Jabar Singh vs Genda Lal examined at length the provisions of section 100 and section 97 of the Act
That was a case where the difference was of two votes and as application had been made asking for reliefs both 134 under section 1001 d iii as also section 101
In that background the question for consideration was whether in the absence of a petition for recrimination relief could be granted
Gajendragadkar J as the learned Judge then was spoke for himself and three other learned Judges
In the majority judgment it was held Confining ourselves to clause iii of section 1001 d what the Tribunal has to consider is whether there has been an improper reception of votes in favour of the returned candidate
It may also enquire whether there has been a refusal or rejection of any vote in regard to any other candidate for whether there has been a reception of any vote which is void and this can only be the reception of a void vote in favour of the returned candidate
In other words the scope of the enquiry in a case falling under section 1001 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 show that by reason of the infirmities specified in section 1001 d iii the result of the returned candidate s election has been materially affected and that incidentally helps to determine the scope of the enquiry
Therefore it seems to us that 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 section 1001 d itself
The enquiry is limited not because the returned candidate has not recriminated under section 971 in fact section 971 has no application to the case falling under section 1001 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
If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate the Tribunal has to make a declaration to that effect and that declaration brings to an end the proceedings in the election petition
135 There are however cases in which the election petition makes a double claim it claims that the election of the 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 section 100 as well as section 101 would apply and it is in respect of the additional claim for a declaration that some other candidate has been duly elected section 97 comes into play
Section 971 thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected and these would be pleas of attack and it would be open to the returned candidate to take these pleas because when he recriminates he really becomes a counter petitioner challenging the validity of the election of the alternative candidate
The result of section 971 therefore is that in dealing with a composite election petition the Tribunal enquires into not only the case made out by the petitioner but also the counter claim made by the returned candidate
That being the nature of the proceedings contemplated by section 971 it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by s971 proviso and section 972
If the returned candidate does not recriminate as required by section 97 then he cannot make any attack against the alternative claim made by the petition
In such a case an enquiry would be held under section 100 so far as the validity of the returned candidate s election is concerned and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void then the Tribunal will proceed to deal with alternative claim but in doing so the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate
It is true that section 101a requires the Tribunal to find that the petitioner or such other candidate for the declaration of whose election a prayer is made in the election petition has in fact received a majority of the valid 136 votes
It is urged by Mr Kapoor that the Tribunal cannot make a finding that the alternative candidate has in fact received a majority of the valid votes unless all the votes cast at the election are scrutinised and counted
In our opinion this contention is not well founded
We have already noticed that as a result of rule 57 now rule 566 of Conduct of Election Rules the Election Tribunal will 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 that the finding will have to be made under section 101a
Section 971 undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the validity of any vote cast in his favour which has been rejected but if by his failure to make recrimination within time as required by section 97 the returned candidate is precluded from raising any such plea at the hearing of the election petition there would be nothing wrong if the Tribunal proceeds to deal with the dispute under section 101a on the basis that the other votes counted by the returning officer were valid votes and that votes in favour of the returned candidate if any which were rejected were invalid
What we have said about the presumed validity of the votes in dealing with a petition under section 101a is equally true in dealing with the matter under section 1001diii
We are therefore satisfied that even in cases to which section 97 applies the enquiry necessary while dealing with the dispute under section 101a will not be wider if the returned candidate has failed to recriminate
 Ayanagar J did take a different view of the matter and it is on the minority view that strong reliance has been placed by Mr Rangarajan
He has even contended that the proposition in minority view was more appealing and had reminded us that there have been instances where the minority view lays down the law correctly and in due course is accepted to be the law of the country
As we shall presently show the ratio in the majority opinion is still holding the field and on the plea that the minority view may some day become the law relief in the present case cannot be granted
We are bound by the decision of the larger Bench
137 This Court in P Malaichami vs Mr Andi Ambalam and Ors considered this question again
Alagiriswami J spoke for the Bench which heard the appeal
There it had been contended by counsel that in view of the facts of that case recrimination and the requirement of section 97 need not have been insisted upon
This is how that contention was answered The question still remains whether the requirements of section 97 have to be satisfied in this case
It is argued by Mr Venugopal that the gravamen of the respondent s petition was breach of many of the election rules and that he asked for a total recount a request to which the appellant had no objection and that there was therefore no rule or need for filing a recrimination petition under section 97
This we are afraid is a complete misreading of the petition
No doubt the petitioner 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 mistakes where likely to have arisen in the counting and as revealed by the instances which the learned Judge himself looked into and decided  The ratio of the decision in Jabar Singh s case was followed and it was stated 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 138 had claimed the seat for himself unless the successful candidate had filed a petition under section 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
 Several decisions were cited before us by Mr Ray for respondent No 1 which we think unnecessary to refer to in view of the clear pronouncements and the state of the law as indicated by these decisions
In the absence of a recrimination petition conforming to the requirements of section 97 of the Act the appellant who happens to be an Advocate and is presumed to know the law was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted the election petitioner would not have been found to have polled the majority of the valid votes
For the reasons we have indicated this appeal has to be dismissed
In the circumstances we direct the parties to bear their respective costs throughout
HSK Appeal dismissed


Summary:
The first respondent who lost to the appellant by 24 votes in the Assembly Elections filed an election petition in the High Court under section 81 of the Representation of the People Act 1951 asking for the appellant s election to be set aside and for declaration that he should be declared as the successful candidate
In para 9i of the petition the respondent pleaded that 74 ballot papers cast in his favour were wrongly rejected on the ground that they did not contain the signature of the Presiding Officer
The High Court ordered inspection of these ballot papers
The High Court held that the rejection of these 74 ballot papers for want of the Presiding Officer s signature was not justified and gave the respondent No 1 credit of all those votes and on that basis while setting aside the election of the appellant declared the first respondent to have been duly elected
Hence this appeal
The appellant urged that the pleading in para 9i of the Election petition did not amount to a concise statement of the material facts as required by law the High Court went wrong in allowing inspection of the ballot papers the 74 ballot papers in dispute did not contain the signature of the presiding officer and were rightly rejected at the counting in view of the mandatory provision in rule 562 of the Conduct of Elections Rules 1961 and the High Court s view that in the absence of a prayer for recrimination under section 97 of the Act the appellant was precluded from asking for a recount of the other rejected ballot papers is not tenable in law
Dismissing the appeal HELD An election petition is presented in terms of section 81 of the Act
Section 83 prescribed as to what the petition should contain
Clause a of sub section
1 of section 83 states that an election petition shall contain a concise statement of the material facts on which the petitioner relies
In the instant 119 case the number of ballot papers alleged to have been wrongly rejected has been furnished the counting table number has been given the booth number has also been disclosed and the ground for rejection has even been pleaded
The only specific detail which was wanting was the serial number of the ballot papers
This particular was not available to the election petitioner in spite of attempts made on his behalf
The Court therefore agrees with the High Court that in the facts and circumstances of the case the pleading in paragraph 9i set out the material facts in a proper way and no defect can be found with it
The High Court had rightly ordered the inspection of the ballot papers
126 B C H 127 A 128 F G 127 F Samant N Balakrishan etc vs George Fernandez and Ors etc  explained and distinguished Bhabhi vs Sheo Govind and Ors 1975 Suppl
SCR 202 referred to
Rule 381 of the Conduct of Election Rules 1961 provides inter alia that every ballot paper before it is issued to an elector shall be stamped on the back with a distinguishing mark and shall be signed in full on its back by the presiding officer
The distinguishing mark can be put by anyone but the signature has got to be of the presiding officer and obviously he has to personally do that job
Rule 562h provides that the returning officer shall reject a ballot paper if it does not bear both the distinguishing mark and the signature as mentioned in sub rule 1 of rule 38
There is a proviso to sub rule 2 of rule 56 which says that where the returning officer is satisfied that any such defect as is mentioned in 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
The proviso once it is applicable is a mandate that the ballot paper is not to be rejected
129 F G 130 G 129 E F 130 E 131 H In the instant case the 74 ballot papers in dispute were rejected because they did not contain the signature of the presiding officer as required under rule 381
To see whether the proviso to sub rule 2 of rule 56 was applicable it has to be found out whether the absence of the signature of the presiding officer on these ballot papers was on account of mistake or of his failure
On the submissions at the bar the question of mistake does not arise
It was the obligation of the presiding officer to put his signature on the ballot papers before they were issued to the voters
Every voter has the right to vote and in the democratic set up prevailing in the country no person entitled to share the franchise can be denied the privilege
Nor can the candidate be made to suffer
Keeping this position in view the Court is of the definite view that the present case is one of the failure on the part of the presiding officer who had been taken ill on the date of poll and was away from the place of polling for quite some time to put his signature on those ballot papers so as to satisfy the requirement of law
The ballot papers therefore were not liable to be rejected as the proviso applied and the High Court came to the correct conclusion in counting these ballot papers and giving credit thereof to the respondent No 1
130 C F G 131 F H 130 H 131 E H 132 A 120 In a case in which the election petition claims that the election of the returned candidate is void and also asks for a declaration that the petitioner himself or some other person has been duly elected section 100 as well as section 101 of the Act would apply and it is in respect of the additional claim for such declaration that section 97 comes into play
Section 971 thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validity elected and these would be pleas of attack and it would be open to the returned candidate to take these pleas because when he recriminates he really becomes a counter petitioner challenging the validity of the election of the alternative candidate
The result of section 971 therefore is that in dealing with a composite election petition the Tribunal enquires into not only the case made out by the petitioner but also the counter claim made by the returned candidate
That being the nature of the proceedings contemplated by section 971 it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by section 971 proviso and section 972
If the returned candidate does not recriminate as required by section 97 then he cannot make any attack against the alternative claim made by the petition
135 A F Kum
Shradha Devi vs Krishna Chandra Pant  Ors
   Jabar Singh vs Genda Lal  and P Malaichami vs M Andi Ambalam  Ors  referred to
In the instant election petition two reliefs had been claimed firstly for setting aside the election of the returned candidate ie the appellant and secondly for a declaration that the election petitioner respondent No 1 was the duly elected candidate
The relief claimed was in terms of section 1001d iii and section 101a of the Act
Admittedly no application for recrimination was filed by the appellant
In the absence of a recrimination petition conforming to the requirement of section 97 of the Act the appellant who happens to be an advocate and is presumed to know the law was not entitled to combat the claim of the election petitioner on the ground that if the remaining rejected ballot papers had been counted the election petitioner would not have been found to have polled the majority of the valid votes
132 D E 133 A 138 C D