JANARDAN DATTUAPPA BONDRE, ETC. versus GOVINDPRASAD SHIVPRASAD CHOUDHARY & ORS. ETC.

Citation: [1979] 3 S.C.R. 897 · Decided: 03-05-1979 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Disposed off

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

897 
JANARDAN DATTUAPPA BONDRE, ETC. 
v. 
GOVINDPRASAD SHIVPRASAD CHOUDHARY & ORS. ETC. 
May 3, 1979 
[V. R. KRISHNA !YER AND R. S. PATHAK, JJ.] 
RepreS<11tation of the People Act 1951 (43 of 1951)-S. 97-Notice of r<-
crimination wllen neces,sary-Every order of recount does not bring the section 
into play. 
The appellant was declared elected to the State Assembly in the General 
Election in 1978. He secured 27785 votes. The fifth respondent was given 
27,604 votes and the third respondent 27,447 votes. 
The election of the appellant was questioned by an election petition filed 
in the High Court by a voter, the first respondent. 
Having regard to the allegations made in respect of a number of ballot papers, 
A 
B 
c 
the High Court allo\ved fresh scrutiny and recount of the votes, and entrll5ted 
D 
the task to a Special Officer of the High Court. The Special Officer pointed 
out that in one envelope from the box of the 3rd respondent out of· 278 ballot 
papers 28 were of the 3rd respondent while the balance of 250 \Vere the votes 
cast in favour of the appellant. Similarly in the envelope of the appellant out 
of 408 ballot papers found in this box only 158 were votes cast in his favour and 
250 were in favour of the 3rd respondent and that by reason of this 
some 
mistake \.vas committed by the Returning Officer while packing the ballot papers 
£ 
in the two. envelopes of the appellant and the 3rd re~pondent. On the report of 
the Special Officer, it was contended before the High Court on behalf of the 
fifth respondent that it was not permissible to take into account the 250 votes 
cast in favour of the appellant which v./ere found in the packet of the· third 
respondent because the order of the High Court directing a recount \'\'as limited 
to finding out whether any improper votes had been accepted in favour of the 
appellant and whether any proper vote!5 of the fifth re~pondent had been reject-
F 
ed. 
The High Court relying on P. Malaichami v. M. Ambalam. [1973) 3 SCR 
1016 took the view that as the appellant had not filed a notice of recrimination 
under s. 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 
~ome other candidate. 
G 
On the basis of the report of the Special Officer the High Court held that the 
fifth respondent had received 191 votes more than the appellant and declared 
the appellan't's election to be void. 
It declared the fifth respondent to be duly 
elected. 
In the appellant's appeal to this Court it was contended that the High Court 
H 
had erred in holding that s. 97 comes into play and that no notice of recrin1ina-
tion was necessary for the purpose of having the 250 votes, whose validity was 
A 
B 
c 
D 
E 
F 
G 
898 
SUPREME COURT REPORTS 
[1979] 3 S.C.R. 
never in dispute and \Vhich had been cast in favour of the appellant, counted in 
the total number of votes secured by the appellant. 
HELD : 1. When the High Court directed the "physical" count of the votes 
cast in favour of the appellant, third respondent and others, \Vhat was intended 
was a n1echanical recount of these votes and nothing more. 
It did not envi-
sage any inquiry into their validity, and \Vhether any of them had been improper-
ly received. 
When the appellant requested that the 250 votes cast in his favour 
but included in the packet pertaining to the third respondent should be counted 
in his total, he was asking for nothing more than the application of a mechani-
cal process. 
These votes had never been regarded as cast in favour of 
the 
third respondent. There \Vas never any dispute that they were vote:> for the 
appellant. 
Their validity was never doubted. Plainly what had happened was 
that by an error, 250 ballot papers cast in favour of the appellant had been 
erroneously placed in the packet of the third respondent. 
[901G-902A] 
2. The accident that they were not placed in his packet but in the 
third 
respondent's packet did not render them any the less votes belonging to 
the 
appellant. Their inclusion in calculating the appellant's total was a necessary 
part of the process involved in deciding \Vhether he had been duly elected or 
whether on the election petition his election should be declared void. It was a 
process relevant to the first of the reliefs claimed by the election petition. that 
is to say, the election of the appellant be declared void. 
The other relief claim-
ed by the election petit

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