Case: Janardan Dattuappa Bondre Versus Govind Prasad Shivprasad Choudhary And Others,. (Civil Appeal No. 1936 Of 1978) And Keshavrao Jaiwantrao Bahekar Versus Returning Officer And Others (Civil Appeal No. 2387 Of 1978) Vs.

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 appellant. It is quite probable that as equal number 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 appellants packet and the appellants 250 votes from Bahekars 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 invalid votes. 9. 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 Bahekars packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellants 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. Now, as we observed in Jabar Singh v. Genda Lal ((1964) 6 SCR 54 , 60 : AIR 1964 SC 1200 : 25 ELR 323), 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 7 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 re-count was taken, the High Court had not yet concluded that the election of the appellant was invalid. It was in the process of determining the 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 Bahekars 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. In the circumstances, the High court erred in declining to court the appellants 250 votes in his total on the ground that no notice of recrimination under Section 97 of the Act had been given. 10. In P. Malaichami v. M. Ambalam (supra) on which the High Court relied, the facts were different. In that case, the re-count ordered did not involve 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 re-count 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 re-count does not bring Section 97 into play was laid down by this Court in Anirudh Prasad v. Rajeshwari Saroj Das (1976 Supp SCR 91 : (1977) 1 SCC 105 ). 11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected. 12. 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 re-count of the ballot papers. 13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu 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 affected by that irregularity. 14. In the appeal filed by Bahekar, the contention raised for him is that on a proper and complete re-count 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected12. 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 arecountof the ballot papers13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu 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 affected by that irregularity14. In the appeal filed by Bahekar, the contention raised for him is that on a proper and completerecountof 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 appeal11. We are of opinion that the High Court should not have declined to include in the appellants total votes the 250 votes cast in favour of appellant but included in the packet of Bahekar. If those votes are included in the appellants total, the appellant secures the highest number of votes and is entitled to be declared elected12. 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 arecountof the ballot papers13. A submission was made by learned Counsel for the fifth respondent that the postal ballot papers were printed in Hindu 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 affected by that