Civil Appeal No 1936 of 1978
From the Judgment and Order dated 19 8 783 10 78 of the Bombay High Court Nagpur Bench in EP No 178
AND Civil Appeal No 2387 of 1978 From the Judgment and Order dated 3 8 7822 9 783 10 78 of the Bombay High Court Nagpur Bench in Election Petition No 178
M C Bhandare B P Salve A N Karkhanis and Mrs section Bhandare for the Appellant in CA 193678
N M Ghatate and section V Deshpande for the Appellant in CA 238778
M N Phadke Mrs V D Khanna and P G Palsikar for R 2 in CA 1936 of 1978
U R Lalit and V N Ganpule for R 5 in CA 193678
The Judgment of the Court was delivered by PATHAK J
These two appeals under section 116A of the Representation of the People Act 1951 are directed against an order of the High Court of Bombay declaring void the election of Janardan Dattuappa Bondre to the 104 Chikhli Legislative Assembly Constituency Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected
Civil Appeal No 1936 NCE of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No 2387 NCE of 1978 by Keshavrao Jaiwantrao Bahekar
The parties will be referred to hereinafter according to their array in the former appeal
General elections to the Legislative Assembly of Maharashtra were held in February 1978
The appellant Janardan Dattuappa Bondre was declared elected to the 104 Chikhli Assembly Constituency
He secured 27785 votes
The fifth respondent Bharat Rajabhau Bondre was given 27604 votes and the third respondent Keshavrao Jaiwantrao Bahekar 27447 votes
The election of the 900 appellant was questioned by an election petition filed in the High Court of Bombay by a voter the first respondent Govindprasad Shivprasad Choudhary
The High Court did not find substance in most of the grounds raised in the election petition but having regard to the allegations made in respect of a number of ballot papers it allowed fresh scrutiny and recount of the votes
The task was entrusted to a Special Officer of the High Court
After considering his report and the material before it the High Court made an order dated September 22 1978 allowing the election petition declaring the election of the appellant to be void and further declaring the fifth respondent to be duly elected
The decision was rendered on the finding that after taking into account the votes now counted in favour of the different candidates the fifth respondent was found to have received 191 votes more than the appellant
This result was reached after denying to the appellant the benefit of 250 ballot papers cast in his favour but found included in the packet of Bahekar s ballot papers
If these 250 ballot papers are counted in favour of the appellant it is not disputed that the result of the election must swing in favour of the appellant
The submissions of learned counsel for the parties have therefore centred mainly on this aspect of the case
The relevant portion of the report of the Special Officer reads While the counting was in progress it was found that in one envelope from Box No 2 of candidate No 4 Shri Bahekar there were 278 ballot papers noted by the Returning Officer on the envelope but at the time of actual counting it was found that from them 28 ballot papers were of Shri Bahekar while the remaining were of votes cast in favour of candidate No 3 Shri Janardhan Bondre
Similarly in the envelope of Shri Janardhan Bondre there were 408 ballot papers noted by the Returning Officer but at the time of actual counting of that envelope it was noticed that from out of 408 ballot papers 158 only were of Shri Janardhan Bondre and the remaining were of Shri Bahekar
It would be therefore clear that there was some mistake committed by the Returning Officer while packing the ballot papers in the two envelopes of Shri Bahekar and Janardhan Bondre
 On the report of the Special Officer it was contended before the High Court on behalf of the fifth respondent that it was not permis 901 sible to take into account the 250 votes cast in favour of the appellant and found in the packet of Bahekar because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected
Relying on P Malaichami vs M Ambalam1 the High Court took the view that as the appellant had not filed a notice of recrimination under section 97 of the Representation of the People Act 1951 it was not open to him to allege that any of his votes had been improperly counted in favour of some other candidate
In the appeal filed by Janardan Dattuappa Bondre the principal contention on behalf of the appellant is that the High Court has erred in holding that Section 97 comes into play
It is vehemently contended that no notice of recrimination was necessary for the purpose of having the 250 votes whose validity was never in dispute and which had been cast in favour of the appellant counted in the total number of votes secured by the appellant
It seems to us that the appellant is right
The order for a recount was made by the High Court on an application made by the election petitioner
The directions in the order required the Special Officer among other things to physically count the votes recorded in favour of the appellant Bahekar and other candidates in order to ascertain whether those votes were less than the number of votes declared as having been respectively secured by them
During the recount the appellant applied to the Special Officer that if any votes cast in his favour were found to have been erroneously counted in the total of other candidates the mistake should be rectified by including them in his total
A similar application was made by Bahekar
The High Court rejected the appellant s application on the ground that he had not filed a notice of recrimination
It seems to us that when the High Court directed the physical count of the votes cast in favour of the appellant Bahekar and others what was intended was a mechanical recount of those votes and nothing more
It did not envisage any enquiry into their validity and whether any of them had been improperly received
When the appellant requested that the 250 votes cast in his favour but included in the packet pertaining to Bahekar shoud be counted in his total he was asking for nothing more than the application of a mechanical process
Those votes had never been regarded as cast in favour of Bahekar
There was never any dispute that they were votes for the appellant
Their validity was never doubted
Plainly 902 what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of Bahekar
It is quite probable that as equal numbers of ballot papers of the two candidates were exchanged the error occurred after the ballot papers of each candidate had been separately tied in bundles of 50 as is required by the Handbook for Returning Officers
After withdrawing the 250 votes of Bahekar from the appellant s packet and the appellant s 250 votes from Bahekar s packet the Special Officer could not stop there
The 250 votes of each candidate had then to be counted in his total
They were not valid votes
The inclusion of the 250 votes cast in favour of the appellant was material for the purpose of determining the total number of votes received by him
The accident that they were not placed in his packet but in Bahekar s packet did not render them any the less votes belonging to the appellant
Their inclusion in calculating the appellant s total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void
It was a process relevant to the first of the reliefs claimed by the election petitioner that is to say that the election of the appellant be declared void
The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected
as was observed in Jabar Singh vs Genda Lal1 where both reliefs are claimed in an election petition the Court must first decide the question whether the election of the returned candidate is valid or not and if it is found that the said election is void it makes a declaration to that effect and then deals with the further question whether the petitioner himself or some other person can be said to have been duly elected
A notice of recrimination under section 97 of the Act is necessary only where the returned candidate or other candidate disputes the grant of the further declaration sought by the election petitioner that he or some other candidate should be declared duly elected
When the recount was taken the High Court had not yet concluded that the election of the appellant was invalid
It was in the process of determining that question and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him
These would include the 250 votes cast in his favour even though they were found placed in Bahekar s packet
Once the benefit of his 250 votes is given to the appellant he becomes the candidate with the highest number of votes
His election cannot be declared void
903 That being so no question arises of the appellant wanting to give evidence to prove that the election of any other canddiate would have been void if he had been the returned candidate
Therefore no notice for recrimination under section 97 was necessary
In the circumstances the High Court erred in declining to count the appellant s 250 votes in his total on the ground that no notice of recrimination under section 97 of the Act had been given
In P Malaichami vs M Ambalam supra on which the High Court relied the facts were different
In that case the recount ordered did not inolve the mere mechanical process of counting the valid votes cast in favour of the parties
It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules 1961 with all its implications
The validity of the votes was to be under re examination
And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate in whose favour the further declaration of being duly elected had been claimed it was necessary for him to file a notice of recrimination
In the present case the appellant was concerned with his claim to his 250 votes
The claim did not involve any reconsideration of the validity of any votes whether cast in his favour or any other candidate what was called for was a mere mechanical process of counting
That every order of recount does not bring section 97 into play was laid down by this Court in Anirudh Prassad vs Rajeshwari Saroj Das  Ors1 We are of opinion that the High Court should not have declined to include in the appellant s total votes the 250 votes cast in favour of the appellant but included in the packet of Bahekar
If those votes are included in the appellant s total the appellant secures the highest number of votes and is entitled to be declared elected
In the circumstances it is not necessary to consider the other contention of learned counsel for the appellant that the High Court was in error in directing a recount of the ballot papers
A submission was made by learned counsel for the fifth respondent that the postal ballot papers were printed in Hindi and therefore Rule 22 of the Conduct of Election Rules 1961 was contravened
The point was raised before the High Court and has in our opinion been rightly repelled
On the material before us it is not possible to say that the result of the election has been materially effected by that irregularity
904 In the appeal filed by Bahekar the contention raised for him is that on a proper and complete recount of the votes cast for the respective candidates it is he who should be declared duly elected
We are not satisfied that the grounds raised have any substance and we see no force in his appeal
In the result Civil Appeal No 1936 NCE of 1978 is allowed and Civil Appeal No 2387 NCE of 1978 is dismissed
The order of the High Court declaring the election of the appellant void and declaring the fifth respondent duly elected is set aside
The election petition is dismissed
The appellant is entitled to his costs throughout against the second and the fifth respondents in the election petition as well as in the appeal filed by him
The remaining respondents will bear their own costs in that appeal
All the parties will bear their own costs in the other appeal
NVK CA193678 allowed
CA238778 dismissed


Summary:
The appellant was declared elected to the State Assembly in the General Election in 1978
He secured 27785 votes
The fifth respondent was given 27604 votes and the third respondent 27447 votes
The election of the appellant was questioned by an election petition filed in the High Court by a voter the first respondent
Having regard to the allegations made in respect of a number of ballot papers the High Court allowed fresh scrutiny and recount of the votes and entrusted the task to a Special Officer of the High Court
The Special Officer pointed out that in one envelope from the box of the 3rd respondent out of 278 ballot papers 28 were of the 3rd respondent while the balance of 250 were the votes cast in favour of the appellant
Similarly in the envelope of the appellant out of 408 ballot papers found in this box only 158 were votes cast in his favour and 250 were in favour of the 3rd respondent and that by reason of this some mistake was committed by the Returning Officer while packing the ballot papers in the two envelopes of the appellant and the 3rd respondent
On the report of the Special Officer it was contended before the High Court on behalf of the fifth respondent that it was not permissible to take into account the 250 votes cast in favour of the appellant which were found in the packet of the third respondent because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected
The High Court relying on P Malaichami vs M Ambalam  took the view that as the appellant had not filed a notice of recrimination under section 97 of the Representation of the People Act 1951 it was not open to him to allege that any of his votes had been improperly counted in favour of some other candidate
On the basis of the report of the Special Officer the High Court held that the fifth respondent had received 191 votes more than the appellant and declared the appellant s election to be void
It declared the fifth respondent to be duly elected
In the appellant s appeal to this Court it was contended that the High Court had erred in holding that section 97 comes into play and that no notice of recrimination was necessary for the purpose of having the 250 votes whose validity was 898 never in dispute and which had been cast in favour of the appellant counted in the total number of votes secured by the appellant
 HELD 1
When the High Court directed the physical count of the votes cast in favour of the appellant third respondent and others what was intended was a mechanical recount of these votes and nothing more
It did not envisage any inquiry into their validity and whether any of them had been improperly received
When the appellant requested that the 250 votes cast in his favour but included in the packet pertaining to the third respondent should be counted in his total he was asking for nothing more than the application of a mechanical process
These votes had never been regarded as cast in favour of the third respondent
There was never any dispute that they were votes for the appellant
Their validity was never doubted
Plainly what had happened was that by an error 250 ballot papers cast in favour of the appellant had been erroneously placed in the packet of the third respondent
901G 902A 2
The accident that they were not placed in his packet but in the third respondent s packet did not render them any the less votes belonging to the appellant
Their inclusion in calculating the appellant s total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition his election should be declared void
It was a process relevant to the first of the reliefs claimed by the election petition that is to say the election of the appellant be declared void
The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected
902C E 3
A notice of recrimination under section 97 of the Act is necessary only when the returned candidate or any other candidate disputes the grant of the further declaration that he or some other candidate should be declared duly elected
902F In the instant case when the recount was taken the High Court had not yet concluded that the election of the appellant was invalid
It was in the process of determining that question and the question could properly be determined only after giving to the appellant the benefit of all the votes cast for him
These would include the 250 votes cast in his favour even though they were found placed in the third respondent s packet
Once the benefit of his 250 votes is given to the appellant he becomes the candidate with the highest number of votes
His election cannot be declared void
That being so no question arises of the appellant wanting to give evidence to prove that the election of any other candidate would have been void if he had been the returned candidate
Therefore no notice for recrimination under section 97 was necessary
902G 903A 4
The appellant was concerned with his claim to his 250 votes
The claim did not involve any reconsideration of the validity of any votes whether cast in his favour or any other candidate
What was called for was a mere mechanical process of counting
Every order of recount does not bring section 97 into play
903D E Jabar Singh vs Genda Lal   60 Anirudh Prasad vs Rajeshwari Saroj Das  Ors  referred to
P Malaichami vs M Ambalam   distinguished
The High Court should not have declined to include in the appellant s total votes the 250 votes cast in favour of the appellant but included in the packet 899 of the third respondent
If those votes are included in the appellant s total the appellant secures the highest number of votes and is entitled to be declared elected
903F