# BHAGMAL v. CH. PARBHU RAM AND OTHERS - **Citation:** [1985] 1 S.C.R. 1099 - **Court:** Supreme Court of India - **Decided:** 1984-10-30 - **Case number:** Civil Appeal No. 1451 of 1984 - **Bench:** S. Murtaza Fazal Ali, A. Varadarajan, Sabyasachi Mukharji - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bhagmal-v-ch-parbhu-ram-and-others-8667 - **Pages:** 37 ## Headnote Representation of the People Act, 1951-S. 27 (1)-Recrimination petition-What is the effect of omission to make recrimination petition by A B returntd candidate-In absence of recrimination petition Election Tribunal C has no jurisdiction to go into the question whether any wrong votes were counted in favour of election petitioner-Parties must con/orm strictly to the teller of the law in regard to the procedure laid down under the Act and the Rules. Representation of the People Act, 1951-Election petition-Powers of the Election Tribunal (High Court) to decide election petition-Powers are wholly the creature of statute-Election petition is not an action at law or a D suit in equity-Election of successful candidate 1101 to be lightly interfered with -Purity of eleclion process must be safeguarded. Reliefs as are available according to law can only be granted Representation of People Act, 1951-S. 97-A rule of procedureMust be so construed that it serves wi.,hes of the voters. Interpretation of statute-Court must construe procedural provision of law in such a manner tliat procedure does not defeat purpose or object of la'wWhere plain and literal interpretation of a statutory provision produces a ma11J. festly absurd and unjust result Court may modify language used or even do some violence to it so as to achieve the obvious intention of th! legislature and produce a rational construction and just result. The appelJant was declared elected as a member of the Haryana Legislative Assembly from the Sadbura Scheduled Caste Reserved Constituency in the election held on 19th May, 1982. The contest was between the appellant and 12 others including respondent 1. The appellaot secured 20981 votes while respondent 1 secured 20971 votes, that is the appellant secured 10 votes more than the respondent 1. Respondent 1 filed an election petition in the High Court challenging the election of the appellant on the ground that the counting of votes was not proper. Respondent 1 prayed not only for recounting of the votes but also for declaration that he was the duly elected candidate. Respondent 1 alleged that on his application to which the appellant had also consented, though the Returning Officer had initially ordered recounting of all the ballot papers, the 'ballot papen of the appellanl aDd respongent I ouly were re~9qnteg and t4erefor e E F H A B c D E F G 1100 SUPREME COURT REPORTS [1985) I S.C.R. the recount was void. The respondent 1 also alleged that in the recounting, the Returning Officer had improperly rejtcted about 100 ballot papers said to have been cast in favour of respondent 1 as invalid under the influence of the Naib Tehsildar (Election). The issue framed by the High Court was as to whether respondent 1 was entitled to recount The High Court found that the discretidn of the Returning Officer in the matter of rejection of some doubtful ballot papers had been influenced by the opinion of the Naib Tehsildar. In those circumstances, the High Court found a pr/ma facie case made out for ordering rechecking and recounting of the rejected ballot papers. On March 15, 1983 the High Court ordered scrutiny and recount of only the rejected ballot paper~ of the appellcnt and respondent l by District Judge (Vigilance), Puojab. The High Court was of the opinion that no case had been made out for ordering recounting of all the votes. The appellant filed a special leave petition against the High Court~s order dated 15.3.1983 which was distnissed by this Court. After the recounting it ~as found that respondent l and the appellant had gained 14 and 8 moro votes respectively in addition -to the votes already counted in their favour by the Returning Officer. The High C'..ourt held that since the appellant had not filed any recrimination application under s. 97 (1) of the Representation of People Act, 1951 (hereinafter referred to as 'the Act'), the rejected votes of the appellant, the returned candidate, could not be secrutinised and the appellant could ## Text _Characters 0–39,946 of 94,772. This is a partial read: ask again with offset=39946 for what follows._ ' 1099 BHAGMAL v. CH. PARBHU RAM AND OTHERS October 30, 1984 (S. MURTAZA FAZAL ALI, A. VARADARAJAN AND SABYASACHI MUKHARJI, JJ.J Representation of the People Act, 1951-S. 27 (1)-Recrimination petition-What is the effect of omission to make recrimination petition by A B returntd candidate-In absence of recrimination petition Election Tribunal C has no jurisdiction to go into the question whether any wrong votes were counted in favour of election petitioner-Parties must con/orm strictly to the teller of the law in regard to the procedure laid down under the Act and the Rules. Representation of the People Act, 1951-Election petition-Powers of the Election Tribunal (High Court) to decide election petition-Powers are wholly the creature of statute-Election petition is not an action at law or a D suit in equity-Election of successful candidate 1101 to be lightly interfered with -Purity of eleclion process must be safeguarded. Reliefs as are available according to law can only be granted Representation of People Act, 1951-S. 97-A rule of procedureMust be so construed that it serves wi.,hes of the voters. Interpretation of statute-Court must construe procedural provision of law in such a manner tliat procedure does not defeat purpose or object of la'wWhere plain and literal interpretation of a statutory provision produces a ma11J. festly absurd and unjust result Court may modify language used or even do some violence to it so as to achieve the obvious intention of th! legislature and produce a rational construction and just result. The appelJant was declared elected as a member of the Haryana Legislative Assembly from the Sadbura Scheduled Caste Reserved Constituency in the election held on 19th May, 1982. The contest was between the appellant and 12 others including respondent 1. The appellaot secured 20981 votes while respondent 1 secured 20971 votes, that is the appellant secured 10 votes more than the respondent 1. Respondent 1 filed an election petition in the High Court challenging the election of the appellant on the ground that the counting of votes was not proper. Respondent 1 prayed not only for recounting of the votes but also for declaration that he was the duly elected candidate. Respondent 1 alleged that on his application to which the appellant had also consented, though the Returning Officer had initially ordered recounting of all the ballot papers, the 'ballot papen of the appellanl aDd respongent I ouly were re~9qnteg and t4erefor e E F H A B c D E F G 1100 SUPREME COURT REPORTS [1985) I S.C.R. the recount was void. The respondent 1 also alleged that in the recounting, the Returning Officer had improperly rejtcted about 100 ballot papers said to have been cast in favour of respondent 1 as invalid under the influence of the Naib Tehsildar (Election). The issue framed by the High Court was as to whether respondent 1 was entitled to recount The High Court found that the discretidn of the Returning Officer in the matter of rejection of some doubtful ballot papers had been influenced by the opinion of the Naib Tehsildar. In those circumstances, the High Court found a pr/ma facie case made out for ordering rechecking and recounting of the rejected ballot papers. On March 15, 1983 the High Court ordered scrutiny and recount of only the rejected ballot paper~ of the appellcnt and respondent l by District Judge (Vigilance), Puojab. The High Court was of the opinion that no case had been made out for ordering recounting of all the votes. The appellant filed a special leave petition against the High Court~s order dated 15.3.1983 which was distnissed by this Court. After the recounting it ~as found that respondent l and the appellant had gained 14 and 8 moro votes respectively in addition -to the votes already counted in their favour by the Returning Officer. The High C'..ourt held that since the appellant had not filed any recrimination application under s. 97 (1) of the Representation of People Act, 1951 (hereinafter referred to as 'the Act'), the rejected votes of the appellant, the returned candidate, could not be secrutinised and the appellant could not have the benefit of the 8 ballot papers found to have been wrongly rejected. The High Court found that the result of the returned candidate (appellant) had been materially affected by the wrongful rejection of valid votes cast in favour of respondent i and it accordingly allowed the election pe1ition and set aside the appellant's e1ection and declared respolldent 1 to be duly elected. Hence this appeaJ. The appe1Jant contended (1) that no recounting at all should have been ordered by the High Court and (2) that if the votes found in the recounting by the Conrt to have. been improperly rejected were to be taken into account at all they must be taken into account not only in regard to res .. pondent 1 but also in regard to the appellant. Relying upon the dissenting view of Ayyangar, J. in the case of Jabar Singh v. Genda Lal ( 1966) 6 SCR 66, the appellant submitted that it would not be in confirmity with !he princlples of democracy and the will of the electorate to hold, by refusing to take into account the 8 rejected ballot papers in favour of the appellant, that the election of the appellant had been materiaUy affected by the improper rejection of the 14 votes· cast in favour of respondent 1 aod declare respondent 1 to have been duly elected 'merely because the appellant had not filed a recrimination application under s. 97 (l) of the Act. Dismissing the appeal by majority, HELD : (Per S. Murtaza Fazal Ali and A. Varadarajan, JJ.) The High Court found that the allegation of respondent t that the Returning Officer obtained the guidance of the Naib Tebsildar in bis decision as regards the doubtful votes is probabilised by the evidence of not ff only the appollaQt but also of bis election agent. The H;igh Court also • EHAG !.!At V. PkAAHtl RAM found that the admission of the observer. R.W. 4 that respondent 1 toOk objection to the presence of the Naib Tehsildar during the recounting probabilises the contention of respondent 1 that the Naib Tehsildar was influencing the opinion of the Returning Officer in his decision on doubtful votes. Admittedly, some ballot papers meant for the Kalka Constituency bad been issued and they had been cast in favour of respondent 1 and Were rejecled on the ground that they were not meant for use in this consti· tuency. We think that the rejection of these ballot papers without any finding on the question whether the mistake in the use of the ballot papers relating to the Kalka constituency in this constituency had beeO caused by any mistake or failure on the part of the Returning Officer or polling officer as required by the proviso to rule 56 (2) (g) of the Conduct of Elections Rules, 1961 is a ground \Vhich could have been taken into consi .. deration for ordering recount of the rejected ballot papers of respondent J. On a perusal of the rejected ballot papers of the appellant and resPon· dent I. we :i.re satisfied about the correctness of the High Court~s finding regarding the number of ballot papers improperly rejected by the Returning Officer. In these circumstances, we are clearly of the opinion that the High Court was perfectly justified in ordering recount of the rejected ballot papers relating to respoudent I. [1114G-H; ll!SA-B; D-E; H] A B' c We agree with respondent l's submission that after di:lmissal of the· special leave pijtidon filed by the appellant the High court's order dated 1 D 15.3.1983 directing recount of the rejected ballot papers in so far as it is not in excess of the jurisdiction· of the Tribunal (High Court) has become final- and that it is not open to the appellant to reagitatO that question in this appeal which is no doubt under s. 116 of the Act,.as tbe·principle of construction res judicata applies. [ 1116A-B] ' The appellant7s contention that the will of the electorate sho-uld not ' be thwarted by holding that the result of.the appellanes election is mate .. 1 rially affected by the improper rejection of some ballot papers relating to' respondent I alone and declaring respondent 1 to be the duly elected ca.ad.(· date has do substanc;}. This c~lntention of the appellant bas already been answered by this Court in P. Malaicliami v. M. Andi Ambalam and Others. We agree with the following observations_ of th·e Court made "in that case. Courts in general are averse to allow justice .to· be dafeated ·on· a mere technicality. But in deciding an election petition the High Court is merely a Tribunal deciding an election dispute. Its powers are wholly the creature of the staLutc under which it is conferred the- power to bear election peti· '. tions. An election petition is not an action at· law or a suit in equity but ' is a purely statutory proceeding unknown to the common Jaw aad the Court possesses no common -law power. It is·aiways to·be borne in mind· that though the election of a successful candidate is not to be lightly inter .. fered with, or.e of the essentials of that law is also- to safegliltd the puritY of the election process and also to see that the people do not get elected by flagrant branches of that law or by con:upt practices. (1121E; l122B; ll21GH; li22A) P. Malaichami v. M. Andi An1balam and Others. (1973] 3 SCR 1026, referred to. E F 0 What is the effect of the omission to make a recrimination application ff A B c D E 110:2 litJl>Ri!ME CoURT REPoRTS (l!iS.5] l S.C.I\, under s. 97 ( 1) of the Act by the returned candidate within the time a1Jowcd by the statute in a case where the election petitioner makes a double pra7er, namely, declaration of the returned candidate's election as void and a further declaration that he is the duly elected candidate ? In Jabar Singh v. Genda Lal, the majority view of th is Court was that in an election ·petitioner where the election petitioner makes a double claim : it claims that the election of the returned candidate is void and also asks for a declaration that the petit ioaer himself or some otner person has been duly ekcted the returned candidate must make a recrimination petition under s. 97 (I) if he wants to raise pleas in support of bis cause that the other person in whose favour a declaration is claimed cannot be said to have been validly elected. Section 97(1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of agy 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 bis failure to make recrimination within time as required by s. 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 s. 10 1 ,a) on the basis that the other votes counted by the Returning Officer were valid votes and that votes in favour of .be returned candidates, if any, which were rejected were invalid. This Court in P. Malaichaml v. M. Arzdi Ambalam and Others observed that it is oat enough to say that what ought to be looked iato is the substance and not the form. If a relief provided understatute could be obtained only by following a certain procedure laid therein for that purpose, that procedure must be followed if he is to obtain that relief. It is not a question of mere pleading, it is a qurstion of jurisdiction. Tbe Election Tribunal had no jurisdiction to go into the quostion whether any wrong votes had been counted in favour of the election petition~r who had claimed the seat for himself unless the successful candidate bad filed a petition under s. 97. The law reports are full of cases where parties have failed bec1us~ of their failure strictly to conform to the letter of th-:: law ia regard to the procedure laid down under the Act and the rules. (11228-C; 1117e.c; lll8C-D; 1123G-H 1125A-A] Jabar Singh v. Genda Lal, [1964] 6 SCR 57 and P. Malaichami v. F M. Andi Ambalam and Othus, [1973) 3 SCR 1026, referred to. G The appellant's submission that the majority view in the case of Johar Singh v. Genda Lal should be ordered to be considered by a much larger bench in view of the dissenting judgment of Ayyang1r, J. cannot be accepted. Such a request ha<> al ready been considered and rejected by this Court in P. Malaichami v. 1\1. Andi Ambalam and Others on the ground, with which we agree, that the dissenting judgment does not throw much light on the subject. [112tA-B] Jabar Singh v. Genda Lal, [1964] 6 SCR 57 and P. Malaichami v. M. ·Andi Ambalam and Others, [1973] 3 SCR 1026, referred to. There is no scope for equity since the entire gamut of the process of c1ection is covered by statute. Reliefs as are available according to law H can only be granted. [1125E] j Arun Kumar Bose v. Mohd. Purkan Ansari and Others1 AIR 198,3 SC, A 1311, referred to. In the instant case, respondent 1 has chal1enged the appellant's , election on the ground of improper rejection of ballot papers whic~ is certainly a ground for declaring an election void. If it was the case of the appellant that any vote validily cast in his favour had been improperly .• rejected be could have urged it as a ground .. in a recrimination application 8 filed under s. 97 lt) of the Act against 1espondent l's prayer that he be decla.red as the duTy elected candidate. Therefore, wC do not agree with the appellant that s. 97 (1) will not apply to the facts of the present case and that it will apply only to cases where the returned candidate seek to challenge the prayer in the election petition that the election petitioner c.r some other candidate be declared to be the duly elected candidate on some other grounds such as corrupt pract'ice. [1128 AaC] C ~ In the absence of a recrimii:iation application under s. 97 ( 1) of the Act the High Court originally commited a jurisdictional error in directing the District Judge (Vigilance), Punjab to recheck and recount the reJected ballot papers relating to the appellant. But that mistake has been· reCti~ tied by the High Court subsequently by not taking into account the 8 ballot papers relating to the appellant which appear to have been wrongly 1 rejected. In these circumstances we hold that the· High Court was justified in directing recount of the rejected ballot papers relating to respondent 1 and declining to take into account the 8 ba1lot papers relating to the appellant found by the District Judge (Vigilance), Punjab to have been improperly rejected in the absence of a recrimination application under s. 97 (1) of the Act and holding that the election of the appellant had been 111aterially affected by the improper. rejection of 14 ballot pa(>ers relating to respondent 1 and that respondent 1 is entitled to be ·declared 'to have been duly elected. [1128 D-F) Jabar Singh v. Genda Lal, [1964] 6 SCR 57 (majority view), p. Ma/alchami v. M. Andi Ambalam and Others, [1973] 3 SCR· 1026 and Arun Ku1nar Bose v. Mohd. Furkan Ansari am/Others, AIR 1983 SC 1311, followed. Anirudh Prasad v. Rajeshwari Saro} Das & Others, [1976] Suppl. SCR 91 and Janardan Dattuappa Bondre, etc. v. Govindprasad Shivprasad Ch_oUdary & Others, etc., [1979) 3 SCR 897, referred to. . (Per Sabyadsachi Mukharji, J.) D F .1 The entire purpose of the cOnstitutional provisions as well as other G provisions of law is to ensure that true democracy functions in this country and the will of the people prevails. The purpose of the Representation of the People Act is to safeguard that one who obtains majority of valid votes by proper and due process of law alone should represent the consti- , tuency and will of the people. All the legal provisions and the procedures.} of the enactment should be so construed as to ensure that purpose. It would ·really be a mockery to the procedure of law if a situation here it is demonstrated duly in the court that a ·person who obtained four votes 11" B sUPRM COURT REPORTs' tl985] I s.c.n. Jess than the other next C3ndid'1tc sbo~ld bC d~clared elected in. preference to the others and J1.llowed to represent the constituency. It is not an appeal to any abstract justice nor it is an appeal to equity but it is to emphasise that procedure should be so construed that these rules of procedure such ass. 97 of the Act subserves the wishe.s. or the votCrs. For this reason. the Views expressed by Ayyaogar. J. in Jabar Singh v. Genda Lal appeal~ to me more reasonable though these may strain the literal provlsions of the seC:tion a bit. Even if the legislature has not amended the relevant provisions after the said decision, I am of the opinion that in a matter of this nature, this Court bas a responsibility to construe the procedural provisions or the law in such manner that the procedure does not dereat the purpose or object of the Act. (11l0 D·H , 113 l A] . c Jabar Singh v. Genda Lal, (1964] 6 SCR 66 and Income-Tax (Central) Cakutta v. B.N. Bhattachargee and Another, 118 I.T.R. 461 at 480 referred to. D' A Statutory provision_ mu.st be so constmed, if it is possibld, that absurdity : and mischief may be avoided. Where the· plain and literal interpretation of a· statutory provision produce.s a manifestly absurd and unjust rcsuit, the Court might modify the language used by tho legisJa1ure or even do some violence to it so as to achieve tho obvious intention of the legislature and produce a rational construction and just result. [1132B-C] K.P. Varghese v. Income-tax Ojficer,Ernakul1111l and Another, 131 I.T.R. S91, referred to. E I feel that in view of the lapse of time and the very convincing arguments advanced by Ayyangar, J., Jabar Singh's case requires reconsideralion by a larger Bench. (11320] : ···A party. cannot take. advantage of onC part or the order which is advantageous to him and discard th·e other part of the order which may not, be to hia advantage especieJJy' when an application tor special leave F--~,. from that order has beeo rejected. If that order has to be given effect tO 'as_ has been done in this case., it has been found that taking into account thC eight baJJot papers relating to the 3ppellant which bad been improperly rejected and also taking into account other ballC't papers which bad been improperly rejected in favour of respondent No. I, it is manifest by mechanical recounting that the appeJJant had secured fvur votes more than respondent No./t. If that is the position., then in my opinion this Court cannot G . and _should not declare respondent No. 1 to have obtained majority of the '! • valid vOtes. .The order of 1 Sth March, 198 3 must stand or fall together. Jn my opinion it cannot bC bifurcated. It cannot be Said that the recounting '·-·~in ·s0 far as it was directed of the rejected baJJot papers of respondent No. 1 thC High Court was within its jurisdiction and in so far as the High Court directed recounting of the rejected bal1ot papers or appellant also it had committed. a jurisdictional error. This is more so after the application for special leave was rejected by this Court. Apart from that I am 0£ the opinion that there was no jurisdictional error - there was power of the High H Court · to order such a recount. Even if there was no such prayer in ~ -ti>$-, . ... • BHAG MAL v. PRABHU RAM 1io5 petition before the High Court, it cannot be said that the High Court A acted without j•1risdiction. In such ·a situatiop, applying the princiiJle of majority view of Jablzr Singh's case, there certain exceptions where even without recrimination petition, a candidate like the appe1lant in the present case can take advantage of the ballot papers which have not been properly counted in his favour.[1132P-H; 1133A-D] Janardan Dattuappa Bondre, Etc. v. Govindprasad Shivprasad Choudhary B & Ors. Etc., [1979] 3 SCR 897, referred to. I must observed that reference has been made to certain observations in some of the decisions to the effect that in election petitions, there was no question of importing any equitable principle or of importing any principle of remedying injustice as such. With respect I cannot persuade myself to this angle of vision. In construing both statutory provisions as well as provisions giving remedy provided under special statute, efforts should be made that patent injustice and inequity which repels commonsense a~d which defeats the purpose of the statute, should be avoided. [! 135A-B] Io the instant ~case I find it difficult to declare respondent No. 1 who has admittedly received less votes than the appellant to have been duly elected. [1135C] In view of tl.te facts and circumstances of the instant case I am of the opinion that even proceeding on the basis that the views expresSed by majority of the learned judges in Jabar Singh's case is correct, upon which I must proceed for the purpose of this case but which I still feel should be reconsidered by a larger Bench, on the analogy of the decision in the c1se of Janardan !Jattuappa Bondre, Etc. v. Govindprasad Shivprasad Choudhary and Ors. Etc. I would allow this appeal. [1135D-E] Janardan Dattuappa Bondre, Etc. v. Govindprasad Shivprasad Choudhllry and Ors. Etc., [1979] 3SCR 897, referred to. CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1451 of 1984. From the Judgment and Order dated the 23rd February, 1984 of the Punjab and Haryana High Court in Election Petition No. 6 of 1984. Shanti Bhushan, N.M. Ghatate and S. V; Deshpande for the Appellant. Kapil Sibal, RN. Karanjawala and Mrs. Manik Karanjawala for the Respondent. The following Judgments were delivered c D E F G H 1106 S\JPkllME COURT REPORTS [1985) 1 s.c.k. A VARADARAJAN, J. This appeal is directed against the judgment 6 c D E F G of the Punjab and Haryana High Court allowing ·Election Petition 6 of 1982 filed by respondent I. The appellant, Bhag Mal, was declared elected as a Member of the Haryana Legislative Assembly (Vidhan Sabha) from No. 3, Sadhura Scheduled Caste reserved constituency in the election held on 19.5.1982. The contest was between the appellant and 12 others including respondent 1, Parbdu Ram, who was the election petitioner. The appellant secured 20981 votes while respondent I secured 20971 votes and he was declared to have been elected. Respondent 1 challenged the election of the appellant on the ground that the counting was not proper and invalid and he prayed not only for recounting of the votes but also for declaration that he is the duly elected candidate. Respondent 1 alleged in the election petition that the Returning Officer intially ordered the recount of the ballot papers of himself and the appellant in respect of all the booths after a sample checking but on the application of the appellant that the ballot papers of all the candidates should be recounted, to which respondent I consented, he ordered recount of all the votes. However, it was alleged that the Returning Officer recounted the ballot papers of the appellant and respondent 1 alone and therefore the recount was void. In the original counting 1277 ballot papers were rejected as invalid but in the recounting by the Returning Officer 1377 ballot papers were rejected on that ground. The additional :JOO ballot papers which were alleged to have been originally accepted in favour of respondent l were alleged to have been rejected by the Returning Officer under the influence of the Naib Tehsildar (Election) of Ambala who was alleged to have been favouring the appellant. 1hree ballot papers alleged to have been cast in favour of respondent I at booth No. 19 were alleged to have been rejected by the Returning Officer on the ground that they were meant for the Kalka constituency. Thus this ground alleged by respondent I relates to improper rejection of about 100 ballot papers said to have been cast in favour of respondent 1 in the recounting by the Returning Officer. Respondent l pleaded nine other grounds in his election petition but did not lead any evidence or advance any argument in respect of the same. H As stated already, respondent 1 prayed not only recounting llHAG MAL v. PRABFIU RAM (Varadarajan, J.) IH)7 and setting aside the election of the appellant but also for a declaraA tion that he is the duly elected candidate. The appellant alone contested the election petition. In his counter-affidavit he raised two preliminary objections, namely, that copies and annexures supplied to him were not duly attested to be true copies under the signature of respondent I and th~refore the election petition was liable to be dismissed and that the election petition had not been properly verified. These objections were rejected by the High Court by an order dated 4.10.1982. On merits the appellant admitted that recount of the ballot papers of all the candidates was ordered by Returning Officer but denied the other allegations made in the election petition and contended that the recountfog was properly made and that there is no ground to order recounting by the Court. On the pleadings the material issue framed by the High Court was as to whether respondent I is entitled to recount. Though the Returning Officer, R.W. 3, had stated in his oral evidence that only the ballot papers of the appellant _and respondent I were in fact rechecked and recounted the High Court found on the basis of his report Exh. P.W. 4/4 and the entries made in the two forms No. 20, Exh. P.W. I/I and P.W. l/2A, that the ballot papers of all the candidates were recounted by the Returning Officer and that in the application Exh. P,W. 2/5 presented to the Returning Officer by respondent I immediately after the recounting was over no grievance was made by respondent I that the ballot papers of any other candidate were not recounted. The High Court found that the allegation of respondent I that the Returning Officer obtained the guidance of the Naib Tehsildar, Dhan Singh, in making his decision regarding doubtful votes is probablised by the evidence of the appellant, R W. 1, and his election agent Suraj Bhan, R.W.2 who have admitted in. their evidence that the Naib Tehsildar had not been put on any particular duty during the recounting and that he was sitting near the dais and was consulted by the Returning Officer sometimes on the question of the doubtful nature of some ballot papers. The observer, R.W. 4, has admitted in his evidence that respondent I took objection to the presence of the Naib Tehsildar during the recounting by the Returning Officer. In these circumstances the High Court found that while making his quasijudicial decision regarding the doubtful ballot papers the Returning B c D E F G 't;) H A B c D E F G 1108 SUPREME COURt REPORTS (1985) 1 S.C.ll. Officer consulted the Naib Tehsildar and -thus allowed his opinion to influence his own discretion in accepting or rejecting the doubtful ballot papers. The High Court rejected the next ground alleged by respon· dent 1 for claiming recount, namely, that about JOO ballot papers cast in his favour were rejected illegally because thev bore some slight indecipherable impressions of the finger or the th~mb of the voters on the ground that sufficient acceptable evidence was not available to rebut the evidence of the Returning Officer. R.W. 3, that no valid ballot paper cast in favour of respondent 1 was rejected on any such flimsy ground. In reaching this conclusion the High Court took note of the fact that no such grievance was made by respondent I in his application Exh. P.W. 2/5 filed soon after the recounting was over. Admittedly some ballot papers meant for the Kalk.a constituency had been issued for use in this constituency and they had been cast in favour of respondent 1 and were rejected on the growid that those ballot papers were not meant for use in this constituency. Under the proviso to Rule 56A (2) (g) of the Conduct of Election Rules, 1961 (hereinafter referred to as 'the Rules') a ballot paper shall not be rejected on the ground that it bears a serial number or a design different from the serial number or design of the ballot papers authorised for use at a particular polling station if the Returning Officer is satisfid that such defect had been caused by any mistake or failure on the part of the presiding officer or polling officer. The Returning Officer, R.W. 3, when questioned in this regard, was unable to say anything positive in regard to the matter though he had admitted in his evinence that some ballot papers meant for use in the Kalka constituency had been used in this consti· tuency and were rejected. The High Court thought that the rejection of those ballot papers was probably due to inadvertance to the said proviso but however, it held that it is difficult to record a definite finding as to whether those ballot papers were rightly or wrongly rejected. The margin of difference between the votes polled to the appellant and respondent 1 was 5 in the original collllting and 10 · in the recounting made by the Returning Officer. Out of the JOO votes rejected by the Returning Officer in the recounting as invalid 93 related to the other candidates and only 7 related to the appellant H and respondent I, and the reason for rejection of those 7 ballot BRAG MAL v. PRABHU RAM (Varadarajan, J.) '1109 papers was not quite clear to the High Court.' There is also the doubt, according to the High Court, as to the correctness or otherwise of the rejection of the ballot papers meant for use in the Kalka constituency but actually used in this constituency. The High Court found, as already stated, that the discretion of the Returning Officer in the matter of rejection of some doubtful ballot papers has been influenced by the opinion of the Naib Tehsildar. In those circumstances, the High Court found a prima facie case made out for ordering· rechecking and recounting of the rejected ballot papers. Therefore, the High Court appoiqted the District Judge (Vigilance) Punjab as the agent of the Court to scrutinise and recount the invalid ballot papers in the presence and under the supervision of the Court, making it .clear that the rechecking and recounting of only the rejected ballot papers had been ordered became respondent l's claim was confined only to that relief in the application made before the Returning Officer and the High Court was of the opinion that no case had been made out for ordering a recount of all the votes. · Accordingly, the ·High Court ordered the District Election Officer, Ambala to produce only the rejected ballot papers for rechecking and recounting by the Court through the District Judge (Vigilance), Punjab in its presence and under its supervision. After the recounting was accordingly made by the District Judge (Vigilance), Punjab under the ·supervision of the Court it was found that respondent 1 and the appellant~ had.: gained 14 and 8 more votes respectively in ·addition to the votes already conuted in their favour by the Returning Officer in his recounting. If these 8 votes are taken into account it will be clear that the · appellant would still have a majority of 4 votes over respondent 1. But the appellant had not filed any recrimination application under s. 97 (1) of the Representation of People Act, 1951. (hereinafter referred to as 'the Act'~. Therefore, it was contended before the High Court on behalf of respondent 1 that the rejected votes of the appellant, the returned candidate, cannot be scrutinised and that the appellant cai;mot have the benefit of the 8 ballot papers found to have been wrongly rejected. This was naturally opposed by the learned counsel for the appellant before the High Court. The High Court rejected the appellant's contention and accepted the contention of respondent 1 and observed ' "There are, however, cases in which the election petition makes a double claim : it claims that the election of A B c D E F G the returne!I c~ndidate is void, and, also asl