# ' ' T.A. AHAMMED KABEER v. A.A. AZEEZ AND ORS

- **Citation:** [2003] 3 S.C.R. 511
- **Court:** Supreme Court of India
- **Decided:** 2003-04-10
- **Case number:** Civil Appeal No. 3531-3532 of 2002
- **Bench:** R.C. Lahoti, Brijesh Kumar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/t-a-ahammed-kabeer-v-a-a-azeez-and-ors-19101
- **Pages:** 22

## Headnote

B
Election laws:
Representation of the People Act, 1951-Sections !00(/)(d)(iii), (iv)
~9W
C
Election petition-Enquiry-Scope of-Discussed.
Election petition-Seeking declaration that election of returned candidate
void and also that petitioner be declared elected-Recrimination petition filedCase made out for decoding of votes cast through electronic voting machine- D
Decoding and recounting of ballot cast-Dismissal of election petition on the
ground that election result not materially affected-Appeal-Plea that High
Court could not have travelled beyond pleadings specifically raised in
recrimination petition-Held: Ballot having been merely recounted during the
process of decoding bar on enquiry not attracted and matter covered under E
Section JOO (J)(d)(iv) and not /OO{l)(d)(ii;) . .
Election/Recrimination petition-Recounting of votes-Result of recount
at variance with the pleadings-Effect of-Held: Once the jurisdiction to order
recount is found to have been rightly exercised, result of recounting has to be
given effect even though it is at variance with the pleadings.
F
Election to a State Legislative Assembly seat was held, using
electronic voting machines. Respondent No. 1 was declared elected. He
defeated his nearest rival viz. the appellant by a margin of 21 votes.
Aggrieved appellant challenged the election of respondent No. I alleging
that there was double voting, impersonation, defective voters' list and
invalid postal votes. He prayed that the election of respondent No. I be
set aside and he be declared elected. Respondent No. I gave recrimination
notice as contemplated by proviso to section 97(1) of the Representation
of the People Act, 1951 alleging double voting and impersonation. The
511
G
H
512
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A Designated Election Judge held that the case warranted recounting and
decoding of votes cast through electronic voting machines. Decoding and
recounting of votes was carried out. Thereafter, the election petition was
dismissed on the ground that the election result was not materially affected.
Hence the present appeals.
B
Appellant contended that in the matter of decoding and thereafter
re-counting of votes, High Court could not have travelled beyond the
pleadings specifically raised in the Recrimination Petition and validity or
invalidity of votes beyond the one specifically pleaded in the Recrimination
Petition could not have been taken into consideration by the High Court
C even if it had come to its notice; and that for the rule of divergence between
pleadings and evidence applied with all force and rigour to the trial of
any election dispute and any evidence contrary to the pleadings is liable
to be ignored.
Dismissing the appeals, the Court
D
HELD: I. In the instant case on the available evidence an inference
as to the result of the election having been materially affected could not
be drawn insofar as the returned candidate is concerned. There was a
divergence between the pleadings and proof and hence the plea was rightly
discarded by the High Court. Further, a Recrimination Petition was filed
E and the High Court has on the basis of material available arrived at a
finding that a case for decoding of votes (equivalent to inspection of ballot
papers) cast through electronic voting machines was made out and
thereupon proceeded to decode the ballots cast. To the extent to which
the ballots have been merely recounted through the process of decoding,
p the case would be covered by Section 100 (1 )( d)(iv) and not Section
toO(l)(d)(iii). Thus, Jabar Singh 's case has no applicability to the instant
case. [531-D, G, H; 532-A-B[
Jabar Singh v. Genda Lal, [1964[ 6 SCR 54, distinguished.
G
Janardan Dattuappa Bondre v. Govind Prasad Shivprasad Choudhari
and Ors., (1979[ 4 SCC 516; Azmat Khan v. Khillan Singh and Ors., [1984[
I SCC 143; P. Malai Chami v. M Andi Ambalam and Ors., (1973[ 2 SCC
170; Arun Kumar Bose v. Mohd. Furkan Ansari and Ors., (1984) I SCC 91;
Bhag Mal v. Ch. Prabhu Ram an

## Text

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'
'
T.A. AHAMMED KABEER
A
V.
A.A. AZEEZ AND ORS.
APRIL 10, 2003
[R.C. LAHOTI AND BRIJESH KUMAR, JJ.]
B
Election laws:
Representation of the People Act, 1951-Sections !00(/)(d)(iii), (iv)
~9W
C
Election petition-Enquiry-Scope of-Discussed.
Election petition-Seeking declaration that election of returned candidate
void and also that petitioner be declared elected-Recrimination petition filedCase made out for decoding of votes cast through electronic voting machine- D
Decoding and recounting of ballot cast-Dismissal of election petition on the
ground that election result not materially affected-Appeal-Plea that High
Court could not have travelled beyond pleadings specifically raised in
recrimination petition-Held: Ballot having been merely recounted during the
process of decoding bar on enquiry not attracted and matter covered under E
Section JOO (J)(d)(iv) and not /OO{l)(d)(ii;) . .
Election/Recrimination petition-Recounting of votes-Result of recount
at variance with the pleadings-Effect of-Held: Once the jurisdiction to order
recount is found to have been rightly exercised, result of recounting has to be
given effect even though it is at variance with the pleadings.
F
Election to a State Legislative Assembly seat was held, using
electronic voting machines. Respondent No. 1 was declared elected. He
defeated his nearest rival viz. the appellant by a margin of 21 votes.
Aggrieved appellant challenged the election of respondent No. I alleging
that there was double voting, impersonation, defective voters' list and
invalid postal votes. He prayed that the election of respondent No. I be
set aside and he be declared elected. Respondent No. I gave recrimination
notice as contemplated by proviso to section 97(1) of the Representation
of the People Act, 1951 alleging double voting and impersonation. The
511
G
H
512
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A Designated Election Judge held that the case warranted recounting and
decoding of votes cast through electronic voting machines. Decoding and
recounting of votes was carried out. Thereafter, the election petition was
dismissed on the ground that the election result was not materially affected.
Hence the present appeals.
B
Appellant contended that in the matter of decoding and thereafter
re-counting of votes, High Court could not have travelled beyond the
pleadings specifically raised in the Recrimination Petition and validity or
invalidity of votes beyond the one specifically pleaded in the Recrimination
Petition could not have been taken into consideration by the High Court
C even if it had come to its notice; and that for the rule of divergence between
pleadings and evidence applied with all force and rigour to the trial of
any election dispute and any evidence contrary to the pleadings is liable
to be ignored.
Dismissing the appeals, the Court
D
HELD: I. In the instant case on the available evidence an inference
as to the result of the election having been materially affected could not
be drawn insofar as the returned candidate is concerned. There was a
divergence between the pleadings and proof and hence the plea was rightly
discarded by the High Court. Further, a Recrimination Petition was filed
E and the High Court has on the basis of material available arrived at a
finding that a case for decoding of votes (equivalent to inspection of ballot
papers) cast through electronic voting machines was made out and
thereupon proceeded to decode the ballots cast. To the extent to which
the ballots have been merely recounted through the process of decoding,
p the case would be covered by Section 100 (1 )( d)(iv) and not Section
toO(l)(d)(iii). Thus, Jabar Singh 's case has no applicability to the instant
case. [531-D, G, H; 532-A-B[
Jabar Singh v. Genda Lal, [1964[ 6 SCR 54, distinguished.
G
Janardan Dattuappa Bondre v. Govind Prasad Shivprasad Choudhari
and Ors., (1979[ 4 SCC 516; Azmat Khan v. Khillan Singh and Ors., [1984[
I SCC 143; P. Malai Chami v. M Andi Ambalam and Ors., (1973[ 2 SCC
170; Arun Kumar Bose v. Mohd. Furkan Ansari and Ors., (1984) I SCC 91;
Bhag Mal v. Ch. Prabhu Ram and Ors., [1985) I SCC 61; N.E. Haro v.
H Leander Tiru and Ors., [1989[ 4 SCC 364; N Gopal Reddy v. Bona/a
' '
..
T.A. AHAMMED KABEER v. A.A. AZEEZ
513
Krishnamurthy and Ors., [1987) 2 SCC 58; Anirudh Prasad v. Rajeshwari A
Saro) Das and Ors., [1977) I SCC 105 and Ram Sewak Yadav v. Hussain
Kami/ Kidwai and Ors., [1964) 6 SCR 238, referred to.
2. I. In an election petition wherein the limited relief sought for is
the declaration that the election of returned candidate is void on the
ground that under Section 100(1 )(d)(iii) of the Representation of the People B
Act, 1951 the scope of enquiry shall remain confined to two questions:
finding out any votes having been improperly cast in favour of the returned
candidate, and any votes having been improperly refused or rejected in
regard to any other candidate. In such a case an enquiry cannot be held
into and the election petition decided on the finding that any votes have C
been improperly cast in favour of a candidate other than the returned
candidate, or any votes were improperly refused or rejected in regard to
the returned candidate. [529-E-FJ
2.2. A recrimination petition by the returned candidate or any other
party can be filed, under Section 97(1) in a case where in an election D
petition an additional declaration is claimed that any candidate other than
the returned candidate has been duly elected. [529-G[
2.3. For the purpose of enabling an enquiry that any votes have been
improperly cast in favour of any candidate other than the returned E
candidate or any votes have been improperly refused or rejected in regard
to the returned candidate the election Court shall acquire jurisdiction to
do so only on the two conditions being satisfied: the election petition seeks
a declaration that any candidate other than the returned candidate has
been duly elected over and above the declaration that the election of the
returned candidate is void; and the recrimination petition under Section F
97(1) is filed. [529-H; 530-A[
2.4. A recrimination petition must satisfy the same requirements as
that of an election petition in the matter of pleadings, signing and
verification as an election petition is required to fulfill within the meaning G
of Section 83 of the Act and must be accompanied by the security or the
further security referred to in Sections It 7 and 118. [530-B-C[
2.5. The bar on enquiry enacted by Section 97 read with Section
lOO(I)(d)(iii) of the Act is attracted when the validity of the votes is to be
gone into and adjudged or in other words the question of improper H
514
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A reception, refusal or rejection of any vote or reception of any vote which
is void is to be gone into. The bar is not attracted to a case where it is
merely a question of correct counting of the votes without entering into
adjudication as to propriety, impropriety or validity of acceptance,
rejection or reception of any vote. In other words, where on a recount
B the Election Judge finds the result of recount to be different from the one
arrived at by the returning officer or when the election Judge finds that
there was an error of counting, the bar is not attracted because the Court
in a pure and simple counting carried out by it or under its directions is
not adjudicating upon any issue as to improper reception, refusal or
rejection of any vote or the reception of any vote which is void but is
C performing mechanical process of counting or recounting by placing the
vote at the place tthere it ought to have been placed. A case of error in
counting would fall within the purview of sub clause (iv), and not subclause (iii) of Clause (d) of sub-Section (I) of Section 100 of the Act.
D
1530-C-Fl
3. I. It is true that a recount is not to be ordered merely for the asking
or merely because the Court is inclined to hold a recount. In order to
protect the secrecy of ballots the Court would permit a recount only upon
a clear case in that regard having been made out. To permit or not to
permit a recount is a question involving jurisdiction of the Court. Once a
E recount has been allowed the Court cannot shut its eyes to the result of
recount on the ground that the result of recount as found is at variance
with the pleadings. Once the Court has permitted recount within the wellsettled parameters of exercising jurisdiction, the result of the recount has
to be given effect to. 1526-F-Hl
F
3.2. Once the Court exercises its jurisdiction to enter into the question
of improper reception, refusal or rejection of any vote, or the reception
of any vote which is void by reference to the election result of the returned
candidate under Section JOO(l)(d)(iii), as also as to the result of the election
of any other candidate by reference to Section 97 of the Act and enters
G into scrutiny of the votes polled, followed by recount, consistently with its
findings on the validity or invalidity of the votes, it cannot refuse to give
effect to the result of its findings as to the validity or invalidity of the votes
for the purpose of finding out true result of recount though the actual
finding as to validity or otherwise of the voters by reference to number
H may be at variance with the pleadings. The pleadings and proof in. the
matter of recount have relevance for the purpose of determining the
-
•j
T.A. AHAMMED KABEER v. A.A. AZEEZ [R.C. LAHOTI, J.]
SIS
question of jurisdiction to permit or not to permit recount. Once the A
jurisdiction to order recount is found to have been rightly exercised,
thereafter it is the truth, as revealed by the result of recounting that has
to be given effect to. [526-H; 527-.A-CI
N. E. Haro v. Leander Tiru and Ors., [ 1989) 4 SCC 364 and S. Raghubir
Singh Gill v. Gurcharan Singh Tohra, (1980) Supp. SCC 53, referred to.
B
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3531-3532 of
2002.
From the Judgment and Order dated 9.1.2002' of the Kerala High Court C
in E.P. No. 4 of 2001.
V.R. Reddy, Abinush K. Misra, Sanjay Parikh, K. George, M.A. Anzar
and Ms. Vandana Sudan, for the Appellant.
G. Prakash for the Respondents.
The Judgment of the Court was delivered by
D
R.C. LAHOTI J. Unsuccessfull as a candidate and also as an election
petitioner, the appellant is in appeal, exercising his statutory right of appeal
under Section I 16A of the Representation of the People Act, 1951, (hereinafter E
'the Act', for short) against the decision of the High Court dismissing his
election petition.
Election for the Kerala Legislative Assembly Seat No. 125 Eravipuram
Legislative Assembly Constituency were held on I 0.5.200 I. There were five F
candidates in the fray including the appellant and the respondent No. I. The
results were announced on 13.5.2001. The candidates secured the votes as
under:-
S.No.
Candidate
Votes secured
G
I.
Appellant, Ahammed Kabeer
55617
2.
Respondent No. I, A.A. Azeez
55638
3.
Respondent No. 2
11108
H
516
SUPREME COURT REPORTS
(2003) 3 S.C.R.
A
4.
Respondent No. 4
531
5.
Respondent No. 5
2756
The first respondent was declared elected defeating his nearest rival,
B the appellant, by a margin of 21 votes.
The poll was held by using electronic voting machines.
An election petition was filled by the appellant laying challenge to the
election of the respondent No. I on very many grounds. The appellant in his
C election petition submitted, inter alia, that there were three voters who had
voted twice, that there were nine voters who were actually dead, thirty-voters
were actually abroad and twenty seven voters were actually out of station:
and hence these forty voters were not available for voting on the date of
polling and yet ballots in their names were cast by impersonators; that five
D voters who reached the polling station were told that impersonators had already
cast ballots in their names and therefore they were permitted to cast tender
ballots: that forty eight voters could not cast their ballot as the copy of the
voter list supplied at booth No. 185 was defective and the relevant pages on
which the names of these voters appeared were missing; that six voters entitled
to exercise their franchise through postal ballots could not do so as some
E impersonators had exercised franchise in their place; that there were postal
ballots attested by incompetent officers and hence invalid and so on. There
were other illegalities committed during polling and also at counting, alleged
the election petition.
F
The relief sought for by the appellant was the setting aside of the
election of the respondent No. I as also declaring the appellant as elected.
The respondent No. I filed his written statement and also delivered a
recrimination notice as contemplated by proviso to Section 97(1) of the Act.
Briefly stated the pleas raised by way of recrimination by the respondent No.
G I are; that there were four persons who had voted twice in favour of the
appellant and therefore the votes were liable to be excluded from the votes
counted in favour of the appellant; that five persons were dead and not
available for casting the ballots yet impersonators cast ballots in the names
of the dead persons in favour of the appellant; that seven persons whose
H names were deleted from the voters list were also permitted to vote by the
Presiding Officer, which ballots were cast in favour of the petitioner. The
-
T.A. AHAMMED KABEER v. A.A. AZEEZ [R.C. LAHOTI, J.]
517
recrimination petition was filed within the prescribed period of limitation, in A
the prescribed manner, and was accompanied by the security deposits as
required by Section 117 of the Act.
It is not necessary for us to go into other details of the pleadings and
it would suffice to state that both the appellant and the respondent No. I ·in
their respective election petition and recrimination petition pleaded the material B
facts with relevant particulars and no deficiency was to be found in the
pleadings.
The learned designated Election Judge framed all the relevant issues
arising from the pleadings and set down the petition for trial. Both the parties C
adduced evidence and evidence in rebuttal. Vide order dated 9.1.2002, the
learned designated Election Judge found that there was a narrow margin of
twenty one votes between the votes secured by the appellant and the first
respondent; while the appellant had made out a primafacie case for declaring
twenty nine votes secured by the first respondent as invalid, the first respondent
had made out a prima facie case for invalidating three votes cast in favour D
of the appellant. Prima facie the cases of double voting by two persons,
thirteen votes cast by impersonation and nine votes cast by persons whose
names were removed from the final electoral roll were made out. A case was
also made out on evidence for counting a tendered vote which was ignored
by the Returning Officer. On the abovesaid findings, the learned designated E
Election Judge held, vide his order dated 9.1.2002, that the case warranted
recount and decoding of votes cast through electronic voting machines. The
standing counsel for the Election Commission of India made available to the
learned Judge a circular bearing No. 51/8/99-Vol.Jll dated 2.6.1999 issued to
the Chief Electoral Officers of all States with regard to the procedure to be
followed in the matter of decoding of votes cast through electronic voting F
machines. The learned Judge also called for a detailed report from the standing
counsel for the Election Commission of India with regard to the procedure
to be followed in the matter of decoding based on which directions would be
given after hearing all the parties. On 17 .1.2002, the respondent No. I filed
a special leave petition in this Court putting in issue the order dated 9.1.2002, G
which was dismissed by this Court, forming an opinion that the matter was
yet to be finally decided by the High Court and interference at an interim
stage was uncalled for under Article 136 of the Constitution.
The Election Commission of India submitted a report, rather a note,
regarding the procedure to be followed in the matter of decoding. On 5.2.2002, H
518
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A thirty one votes were decoded and one tender ballot was opened. Decoding
was carried out under the supervision of Shri A.A. Seshshai, Senior Technical
Officer of the Electronic Corporation of India Ltd., Hyderabad. He was
examined as a court witness and the documents which came into existence
during the process of decoding were marked as exhibits.
B
The learned Designated Election Judge heard the learned counsel for
the parties in the light of the result of decoding as reported to the Court. Vide
order dated 6th February, 2002, the High Court directed the Election Petition
to be dismissed because in the light of the result of decoding and re-count it
could not be said that the result of the election was materially affected insofar
C as the returned candidate is concerned. It will be useful to extract and reproduce
the following findings from the judgment of the High Court :
D
E
F
"The cumulative effect of Ext. Cl I series is that out of the impugned
28 votes which had been taken into account by the Returning Officer
21 votes secured by the first respondent have to be ignored as void.
That sets off the majority declared in favour of the first respondent.
The decoding also shows that out of the remaining 7 votes
impugned by the petitioner, the vote relating to Ext.x34(b) (see
Ext.Cl l{h)) has gone in favour of candidate No. 3 (second respondent
herein) and that the votes exercised by voters vide Exts.x 32(g), x
30(a), x 46(b), x 46(a) x 25(a) and x 38(a) entries in the Register of
Voters which are indicated in Exts. Cl l{a), Cl I, Cl l{b), Cl l(b) and
C 11 (k) decoding reports had actually gone in favour of the petitioner
himself. They are also void votes on the petitioner's own showing.
But then Ext. X 18 tendered vote has gone in favour of the petitioner.
If the aforesaid six votes are taken as void and credit is given for
Ext.XIS vote, the consequence would be that the petitioner would
lose the election by a margin of five votes."
On behalf of the election petitioner it was submitted that the 6 votes
abovementioned could not be treated as void as they were not specifically
G impugned as void in the Recrimination Petition filed by the first respondent.
The learned Judge found such resistance on behalf of the election petitioner
to be devoid of any merit and held - "I find no merit in the said contention
of the petitioner. This Court had made clear in paragraphs 60, 71 and 83 of
the judgment pronounced on 9.1.2002 that after decoding necessary
H adjustments would be made regarding all the 28 votes. That includes the said
T.A. AHAMMED KABEER v. A.A. AZEEZ [R.C. LAHOTI, J.]
519
6 votes as well. Ext.x. I 8 tendered vote has also to be given credit. There is A
no reason to take a different stand at this stage. More over the prohibition
contained in Section 97 of the Representation of Peoples Act 1951 relied on
by the petitioner is only against reception of evidence from the returned
candidate in the absence of any recrimination petition. First of all, in the
instant case there exists a valid recrimination petition filed by the first B
respondent. That apart, I find nothing in Section 97 which stands in the way
of ignoring the votes which are found to be void even on the showing of the
petitioner himself, i.e., without the aid of any recrimination petition. On
evidence I had already found in the relevant paragraphs of the judgment,
mentioned supra that the petitioner has established the fact that the votes
covered by Exts. x32(g), x30(a), x46(b), x46(a), x25(a) and x38(a) are void. C
It necessary follows that the petitioner cannot take shelter under Section 97
to contend that those votes are really valid. The petitioner cannot be allowed
to blow hot and cold. He cannot wriggle out of the situation created by
himself by pleading and proving that the aforesaid six votes are in fact void.
A void vote means it was a vote that was never in existence at all. The
petitioner cannot seek to resuscitate or resurrect the said 6 votes."
In conclusion the learned Judge held - "I shall now consider the merit
D
of the recrimination petition field by the first respondent which question will
arise in case the finding of this Court regarding invalidity of the 6 votes is
revered in appeal by accepting the technical stand of the petitioner based on E
Section 97. In that case the petitioner will have a lead of one vote over the
I'' respondent and the merits of the recrimination petition will assume
significance. There was specific allegation therein with regard to the validity
of votes of Naseem Beevi, Aliyar and George, which are covered by Exts.
x75(a), 75(b) and 75(c) entries in the Register of voters. In paragraphs IOI
and 102 of the judgement of this Court dt. 9. I .2002 it was found that the said F
three votes were obviously received in an improper manner and that after
decoding necessary adjustments would be made based on the details divulged
therein as regards the correct number of votes. The contents of Ext. Cl J(n)
decoding report shows that all the said three votes have gone in favour of the
present petitioner. They are void votes. The result then would be that the G
number of votes that the petitioner has obtained has to be reduced by 3 and
then again the first respondent will have a lead of two votes."
"I find that the coJTect number of votes secured by the first respondent
as a result of the implementation of the result of decoding would be 55617
.·.
and the correct number of votes secured by the petitioner is only 55612. In H
520
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A case the plea of the petitioner regarding validity of the 6 votes is accepted
and the recrimination is also taken into account, then also the election of the
first respondent is not liable to be declared invalid. Found accordingly."
In the backdrop of the above facts, two question arise for consideration
which only have been seriously pressed by Shri V.R. Reddy, the learned
B senior counsel appearing for the appellant. The same are stated and dealt with
hereunder.
Firstly, it was submitted that in the matter of decoding and thereafter
re-count of the votes, the High Court could not have travelled beyond the
C pleadings specifically raised in the Recrimination Petition and validity or
invalidity of votes beyond the one specifically pleaded in the Recrimination
Petition could not have been taken into consideration by the High Court even
if it had come to its notice; for, the rule of divergence between pleadings and
evidence applied with all force and rigour to the trial of an election dispute
and any evidence contrary to the pleadings is liable to be ignored. Implicit
D reliance was placed on behalf of the appellant on a Constitution Bench decision
of this Court in Jabar Singh v. Genda la/, [1964] 6 SCR 54. The majority
opinion in Jabar Singh 's case is that in the absence of recriminatory petition
the High Court had no jurisdiction to reconsider the rejected votes qua the
returned candidate. However, as we will presently show Jabar Singh 's case
E does not help the appellant at all, since the law laid down by the Constitution
Bench does not cause any dent in the view of the law taken by the High
Court.
In Jabar Singh 's case the Constitution Bench drew a distinction between
the election petitions claiming a single relief and those claiming a double,
F composite or additional relief. Under Section I 00( I) of the Act the election
petitioner claims a single relief that the election of the returned candidate be
declared by the High Court to be void. If such a relief is founded on the
ground of the improper reception, refusal or rejection of any vote or the
reception of any vote which is void as contemplated by Section I 00( I)( d)
(iii), in such a case the scope of the enquiry shall be limited to finding out
G the infirmities specified in Section IOO(l)(d)(iii), i.e., whether the result of
the returned candidate has been materially affected by (a) any votes having
been improperly cast in favour of the returned candidate or (b) any votes
having been improperly refused or rejected in regard to any other candidate.
The scope of enquiry is limited by force of Section IOO(l)(d)(iii) which
H concentrates on a pure and simple issue whether the election of the returned
T.A. AHAMMED KABEER v. A.A. AZEEZ [R.C. LAHOTI, J.]
521
candidate has been materially affected and nothing else. It cannot be sai:I that A
the enquiry is limited because the returned candidate has not recriminated
under Section 97(1). Section 97(1) has no application to the case falling
under Section IOO(l)(d)(iii). If the result of the enquiry confined within the
scope laid down by Section 100(1 )( d)(iii) is in favour of the petitioner the
High Court shall declare the election of the returned candidate to be void and B
that is an end of the proceedings in the election petition. Those cases will be
different where not only the election of the returned candidate is sought to
be declared void but a declaration is also asked for that the petitioner himself
or some other person has been duly elected within the meaning of Section
100(1) of the Act. In such case Section 100 shall have to be read along with
Section I 00(1) and Section 97 would also come into play. The returned C
candidate can recriminate and raise pleas in support of his case that the
candidate who is sought to be declared as elected cannot be so declared and
an enquiry would be held under Section IOO(l)(d)(iii) as to the votes received
by the candidate recriminated against. The Recrimination Petition under
Section 97( I) would give an opportunity to the returned candidate to dispute
the validity of any of the votes cast in favour of the alternative candidate or D
to plead for the validity of any vote cast in his favour which has been
rejected. TI1ese pleas will not be available to be raised by the returned candidate
in the absence of a recrimination petition. In the absence of a recrimination
petition, the High Court can proceed on the basis that the other votes counted
by the returning officer were valid votes and that the votes in favour of the E
returned candidate, if any, which were rejected, were invalid. In the case of
a relief of the nature contemplated by Section I 0 I having been sought for the
election petition and a recrimination petition having been preferred by the
returned candidate, the scope of enquiry is widened and proceeds beyond the
limitation imposed by Section IOO(l)(d)(iii). Whether the petitioner or some
other person has received a majority of the valid votes, is an enquiry which
would be possible only if the returned candidate had recriminated. Absence
F
of recrimination by the returned candidate deprives him of the right to
challenge the validity of votes cast in favour of the candidate sought to be
declared elected, or to contend that any of his votes were improperly rejected.
Clearly, in an enquiry whether under Section 100(1 )(d)(iii) or under Section G
IOI, in the absence of recrimination a general re-count of the votes preceded
by a scrutiny about their validity cannot be ordered. How far the law so laid
down by the Constitution Bench applies to the facts of the present case, we
shall see a linle later. We shall now proceed to take up for consideration a
few subsequent decisions of this Court wherein the ratio of Jabar Singh 's
case came up for consideration and was sought to be applied.
H
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[2003] 3 S.C.R.
A
In Janardan Dattuappa Bondre v._Govind Prasad Shivprasad Choudhari
and Ors., [1979] 4 SCC 516 while holding a re-count it was found by the
High Court that there were 250 votes cast in favour of the returned candidate,
but they were placed in another candidate's packet. There was no recriminatory
notice under Section 97. The two-Judge Bench held that the claim of the
B returned candidate did not involve reconsideration of the validity of the votes
and therefore the returned candidate could not be denied the benefit of 250
votes being counted for him even in the absence of a recriminatory petition.
Jabar Singh 's case was noticed and distinguished by holding that when the
re-count was taken the High Court was still at the stage of concluding whether
the election of the returned candidate was invalid, which was an enquiry
C confined to Section IOO(l)(d).
In Azmat Khan v. Khi/lan Singh and Ors., [1984] I SCC 143, a
recrimination petition was filed by the winning candidate wherein one of the
grounds taken was that errors were committed in the counting of votes of the
candidate who was sought to be declared elected. All the parties agreed that
D the Court should order a recount. Jabar Singh 's case was distinguished by
the two Judge Bench primarily on the ground that in Jabar Singh 's case there
was no recrimination petition filed while it was so filed in Azmat Khan's
case. In Jabar Singh 's case an attack against the alternative claim made by
the election petitioner was not permissible but the same was permissible here.
E In addition the appellant had also agreed to the recount of the votes secured
by all the parties. For these reasons fault could not be found with the decision
of the High Court.
In P. Malai Chami v. M. Andi Amba/am and Ors., [ 1973] 2 SCC 170,
this Court held that the Election Judge could not have gone into the question
F of whether any wrong votes had been counted in favour of the election
petitioner who had claimed the seat for himself, unless the successful candidate
had filed a petition under Section 97. It was held that it was not a question
of mere pleadings but a question of jurisdiction.
In Arun Kumar Bose v. Mohd. Furkan Ansari and Ors., [1984] I SCC
G 91, the successful candidate was held not entitled to combat the claim of the
election petitioner on the ground that if the remaining rejected ballot papers
of the successful candidate had been counted, the election petitioner would
not have been found to have polled the majority of the votes for want of a
recrimination petition confirming to the requirement of Section 97 of the Act.
H
In Bhag Mal v. Ch. Prabhu Ram and Ors., [1985] I SCC 61, i;; ~
1
T.A. AHAMMED KABEER v. A.A. AZEEZ [R.C. LAHOTI, J.]
523
recount held at the instance of the election petitioner it was-rn;ticed that :here A
were eight more votes secured by the returned candidate but they were not
counted in his favour. A three-Judge Bench by a majority of 2: I held that in
the_ absence of recrimination petition having been filed by the returned
candidate the High Court, though justified in directing recount of the rejected
ballot papers relating to the election petitioner, was also justified in declining B
to take into account the eight ballot papers relating to the returned candidate
in the absence of a recrimination petition under Section 97(1) of the Act.
In N.E. Haro v. Leander Tiru and Ors., (1989] 4 SCC 364, not only
there was no recrimination petition by the elected candidate, but on the other
hand the plea was taken in the written statement and also during his statement ·c
recorded in the Court that there was no irregularity committed in the process
of counting ballots. It was held that the High Court was justified in directing
inspection of ballet papers polled in favour of elected and other candidates
but refusing inspection of ballots polled in favour of election petitioner at the
instance of the returned candidate so as to enter into the question whether the D
votes secured by the returned candidate were rightly so counted.
Jabar Singh 's_case was decided by the Constitution Bench by a majority
of 4: I. N. Rajagopala Ayyangar, J. recorded a dissenting opinion. His Lordship
analysed the scheme of the Act and the setting in which Sections 97,
IOO(l)(d)(iii) and IOl(a) were placed, reading also the rules relating to counting E
of ballots, specially Rules 56 and 57, along with the provisions of the Act.
Ayyangar, J. noticed the settled law that the petitioner is not as a matter of
right entitled to have a scrutiny of ballot papers and recount merely because
he prays for such a relief, but he has to allege, make out and prove the
specific grounds to establish that the scrutiny or counting was improper and
that the result was in consequence erroneous. If one reaches that stage and
the Tribunal is satisfied that a case for scrutiny and recount is made out it
would mean that the returning officer had not discharged his duties properly
in the matter of the scrutiny of the ballot papers and their counting. The
respondent, i.e., the returned candidate can allege similar failure on the part
F
of returning officer and on that being done it would be unjust to deprive him G
of the opportunity of proving his allegations and thus maintaining his seat
unless of course the statutory provision clearly precludes him from doing so.
A narrow construction on Section IOO(l)(d)(iii) cannot be placed because the
expression employed by the Legislature is "by the improper reception, refusal
or rejection of any vote or the reception of any vote which is void." The H
opening expression in clause (d) "insofar as it concern a returned candidate"
524
SUPREME COURT REPORTS
(2003] 3 S.C.R.
A cannot limit the width of sub-clause (iii). In the opinion of Ayyangar, J.
unjust and anomalous results would follow which would be contradictory to
the basic principles underlying the election law if the narrow view propounded
by the majority was to be followed. The basic principles underlying election
law are : (i) that apart from disqualification, corrupt practices etc. the election
B of a candidate who obtains the majority of valid votes shall not be set aside,
and (ii) no candidate shall be declared duly elected who has not obtained the
majority of valid votes. Giving hypothetical but practical illustrations,
Ayyangar, J. in his dissenting opinion demonstrated that once an inspection
and recount was carried out and yet narrow construction on the power of the
Court was placed, then there may be cases (i) where the election of the
C returned candidate may be liable to be set aside notwithstanding that he had
in fact obtained majority of valid votes, and (ii) where a seat is claimed by
the election petitioner he may be declared elected notwithstanding that as a
fact he has not obtained the majority of lawful votes. In short, in the opinion
of Ayyangar, J., once an inspection has been allowed, every vote which has
D been improperly refused or rejected ought to be eliminated and every vote
which has been improperly refused or rejected ought to be added so as to get
the totality of valid votes and give effect to the result. That would meet the
object of election law and aspirations of democracy.
In N. Copa! Reddy v. Bona/a Krishnamurthy and Ors., (1987] 2 SCC
E 58, a two-Judge Bench of this Court fonned an opinion that the view of law
taken by the majority in Jabar Singh 's_case is entailing apparently unjust and
unreasonable consequences because in spite of the recount pointing out to the
result of the election being sustained in favour of the returning candidate and
inspite of variation in the exact number of votes polled by different candidates,
F the High Court was deprived of giving benefit of these votes to the returned
candidate simply for want of recrimination petition, and the result was that
the elector's will and desire was defeated. The Court opined for the majority
view in Jabar Singh 's case requiring reconsideration and sought for a reference
to a larger Bench, preferably a Bench of seven Judges. However, on 22.11.1995
it was reported to the Coult that the appeal had become infructuous because
G the term for which the elected candidate was to hold office pursuant to
impugned declaration of result had come to an end and therefore the Court
directed the appeal to be dismissed without any adjudication on merits. The
reference sought for in N. Gopar Reddy 's case cou Id not be answered and the
majority view in Jabar Singh 's case could not be reconsidered.
H
Earlier also an effort at seeking reconsideration of the majority opi;iion
T.A. AHAMMED KABEER v. A.A. AZEEZ [R.C. LAHOTI, J.]
525
in Jabar Singh 's case was made before a three-Judge Bench of this Court in A
Bhagmal v. Ch. Parbhu Ram and Ors., (supra) and there too it did not
succeed. Sabyasachi Mukharji, J. (as His Lordship then was) held in his
minority opinion that the view taken by Ayyangar, J. (the minority opinion)
in Jabar Singh 's case was more correct as that view was in consonance with
the purpose of the Act and would further the cause of the democratic process
at which the Constitution aims. The Constitution and connected laws aim at B
ensuring true democracy functioning in the country, and the will of the people
to prevail. That can be achieved by allowing the one to represent the
constituency who has obtained the majority of valid votes by proper and due
process of law. It would really be a mockery of the procedure of law in a
situation where it is demonstrated duly in the Court that a person who obtained C
four votes less than the other next candidate should be declared elected in
preference to the others and allowed to represent the constituency. The failure
on the part of the Parliament to amend the law suitably in view of the Jabar
Singh 's case was also regretted.
The task before an Election Judge is ticklish. It is often urged and also D
held that the success of a winning candidate should not be lightly set aside
and the secrecy of ballot must be zealously guarded. On account of a rigid
following of these principles the election courts are inclined to lean in favour
of the returned candidates and place the onus of proof on the person
challenging the result of election, insisting on strict compliance with the rules E
of pleadings and excl~ding such evidence from consideration as is in
divergence with the pleadings. However, what has so developed as a rule of
practice should not be unduly stretched; for the purity of the election process
needs to be preserved unpolluted so as to achieve the predominant goal of
democracy that only he should represent the constituency who has been
chosen by the majority of the electors. This is the purpose and object of the F
election law.
Though the inspection of ballot papers is to be allowed sparingly and
the Court may refuse the prayer of the defeated candidate for inspection if,
in the garb of seeking inspection, he was indulging into a roving enquiry in G
order to fish out materials to set aside the election, or the allegations made
in support of such prayer were vague or too generalized to deserve any
congnizance. Nevertheless, the power to direct inspection of ballot papers is
there and ought to be exercised if, based on precise allegations of material
facts, also substantiated, a case for permitting inspection is made out as is
necessary to determine the issue arising for decision in the case and in the H
526
SUPREME COURT REPORTS
[2003] 3 S.C.R.
A interest of justice. As held by the Constitution Bench in Ram Sewak Yadav
v. Hussain Kami/ Kidwai and Ors., [1964) 6 SCR 238, an Election Tribunal
has undoubtedly the power to direct discovery and inspection of documents
within the narrow limits of Order XI of Code of Civil Procedure. Inspection
of documents under Rule 15 of Order XI of Code of Civil Procedure may be
B ordered of documents which are referred to in the pleadings or particulars as
disclosed in the affidavit of documents of the other party, and under Rule
18(2) of other documents in the possession or power of the other party. The
returning officer is not a party to an election petition and an order for
production of the ballot paper cannot be made under Order XI of Code of
Civil Procedure.