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.

2. 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 appeal3. General elections to the Legislative Assembly of Maharashtra were held in February, 1978. The appellant Janardan Dattuappa Bondre, was declared elected to the 104Chikhli Assembly Constituency. He secured 27, 785 votes. The fifth respondent, Bharat Rajabhau Bondre was given 27, 604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 27, 447 votes. The election of the appellant was questioned by an election petition filed in the High Court of Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary4. 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 andrecountof 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 ordered 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 Bahekars 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 submission of learned for the parties have, therefore, centred mainly on this aspect of the case5. 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 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 were of candidate 3 Shri Janardan Bondre. Similarly, in the envelope of Shri Janardan 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 Janardan 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 Janardan Bondre6. 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 case in favour of the appellant and found in the packet of Bahekar because the order of the High Court directing arecountwas 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 v. M. Ambalam ((1973) 3 SCR 1016   : (1973) 2 SCC 170  ), 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 candidate8. The order for arecountwas 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, 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 appellants application on the ground that he had not filed a notice on 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 mechanicalrecountof 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 should 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 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 votes2. 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 appeal3. General elections to the Legislative Assembly of Maharashtra were held in February, 1978. The appellant Janardan Dattuappa Bondre, was declared elected to the 104Chikhli Assembly Constituency. He secured 27, 785 votes. The fifth respondent, Bharat Rajabhau Bondre was given 27, 604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 27, 447 votes. The election of the appellant was questioned by an election petition filed in the High Court of Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary4. 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 andrecountof 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 ordered 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 Bahekars 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 submission of learned for the parties have, therefore, centred mainly on this aspect of the case5. 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 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 were of candidate 3 Shri Janardan Bondre. Similarly, in the envelope of Shri Janardan 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 Janardan 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 Janardan Bondre6. 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 case in favour of the appellant and found in the packet of Bahekar because the order of the High Court directing arecountwas 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 v. M. Ambalam ((1973) 3 SCR 1016   : (1973) 2 SCC 170  ), 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

Reasoning:
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