Case Note & Summary
The appeal arose out of an election held in March 1971 to the Tamil Nadu Legislative Assembly from Melur (North) constituency in Madurai district. The appellant, P. Malaichami, was declared elected by a majority of 127 votes, receiving 37,337 votes against the respondent M. Andi Ambalam's 37,210 votes, with 3,381 votes held invalid. The respondent filed an election petition on 23-04-1971 before the Madras High Court, not only questioning the appellant's election but also claiming the seat for himself, alleging infractions of the Conduct of Election Rules, including mixing of ballot papers, hasty counting, erroneous bundling of votes, invalid votes improperly accepted and rejected, and unauthorized ballot papers. He prayed for recounting of votes, declaration that he was duly elected, and declaration that the appellant's election was void. The appellant denied all allegations but did not file a recrimination petition under Section 97 of the Representation of the People Act, 1951. The respondent filed an interlocutory application for scrutiny and recounting; the appellant filed no counter affidavit. The High Court recorded evidence of five witnesses on each side and, after a detailed order, directed recount, noting overworked personnel, hasty counting, complaints during counting, and unlawful entry of O.P. Raman causing disturbance. After recount, the appellant's majority was reduced from 127 to 75 votes. Before the High Court, the respondent argued that in a case where the election petitioner sought not merely setting aside the election but also declaration of himself as elected, the returned candidate was required to file a recrimination petition under Section 97; without it, the appellant could not question any votes improperly received on behalf of the respondent. The High Court accepted this argument, excluded votes improperly received in favour of the respondent, and included votes improperly rejected but cast in favour of the respondent, ultimately declaring the respondent elected by 96 votes. The appellant appealed to the Supreme Court under Section 116A of the Act, contending that Section 97 did not apply to a total recount, individual vote evidence was not required, concessions and estoppel operated, and Jabar Singh v. Genda Lal should be reconsidered. The Supreme Court dismissed the appeal. It held that the appellant had not complied with Section 97, as he did not give notice within 14 days, furnish security, or provide statement and particulars. The Court explained that improper reception or rejection under Section 100(1)(d)(iii) includes mistakes by the Returning Officer during counting under Rule 56(2) of the Conduct of Election Rules, and the respondent's prayer for recount was not merely mechanical but included scrutiny of votes improperly assigned to the appellant. The Court emphasized that the Election Tribunal's jurisdiction to consider votes improperly received in favour of the election petitioner who claims the seat is conditional on the returned candidate filing a recrimination petition; this is a question of jurisdiction, not mere pleading. Concessions akin to admissions cannot override the statutory bar. There is no concept of general recount, and no need to lead evidence on individual votes because the decision was based on concessions and the judge's scrutiny of votes. The Court found no justification for a larger bench to reconsider Jabar Singh v. Genda Lal. It reiterated that an election petition is a statutory proceeding and the High Court's powers are creatures of the statute, though purity of the election process must be safeguarded. Accordingly, the Supreme Court affirmed the High Court's order declaring the respondent elected.
Headnote
A) Election Law - Recrimination Petition - Necessity of Recrimination Petition - Representation of the People Act, 1951, Section 97 - When an election petitioner not only questions the election of the returned candidate but also claims the seat for himself, the returned candidate must file a recrimination petition within 14 days of his appearance with notice, security under Sections 117 and 118, and statement and particulars under Section 83 if he wants to prove that the election petitioner would have been void if he had been the returned candidate; non-compliance is fatal. Held that appellant did not comply with Section 97 and therefore the Election Tribunal had no jurisdiction to consider evidence of improper reception of votes in favour of respondent (Paras 1032-G-1033B). B) Election Law - Improper Reception and Rejection of Votes - Scope of Section 100(1)(d)(iii) - Representation of the People Act, 1951, Section 100(1)(d)(iii); Conduct of Election Rules, 1961, Rule 56(2) - Improper reception or rejection includes mistakes or wrong judgments made by the Returning Officer while counting and exercising powers under Rule 56(2) clauses (a) to (h); recount is not a mere mechanical process but includes scrutiny of votes improperly received or rejected. Held that respondent's prayer for recount included scrutiny of votes improperly given to appellant, and absence of recrimination petition barred such consideration (Paras 1035D-H). C) Election Law - Jurisdiction of Election Tribunal - Jurisdictional Bar - Representation of the People Act, 1951, Section 97 - In absence of recrimination petition, Election Tribunal has no jurisdiction to go into question whether any wrong votes had been counted in favour of election petitioner who claimed seat; it is a question of jurisdiction, not mere pleading. Held that High Court correctly excluded votes improperly received in favour of respondent due to appellant's non-compliance with Section 97 (Para 1037D). D) Election Law - Evidence - Statutory Bar and Estoppel - Representation of the People Act, 1951, Section 97 proviso - Concessions akin to admissions cannot override statutory bar; what is barred is giving of evidence by returned candidate regarding improper reception of votes in favour of defeated candidate. Held that no estoppel arises and evidence of valid as well as invalid votes in favour of both parties was not admissible due to failure to comply with Section 97 (Para 1038B). E) Election Law - General Recount - No Concept of General Recount - Representation of the People Act, 1951, Section 97; Conduct of Election Rules, 1961, Rule 56 - There is no such thing as general recount; it was not necessary to lead evidence on individual vote because decision on improper reception/rejection was based on concessions by parties and judge's scrutiny. Held that appellant's argument that only general recount or none at all is permissible was rejected (Para 1037F). F) Election Law - Precedent - Reconsideration of Jabar Singh v. Genda Lal - Representation of the People Act, 1951, Section 97 - No justification for ordering larger bench to reconsider decision in Jabar Singh v. Genda Lal (1964) 6 S.C.R. 54. Held that request for reconsideration was dismissed. G) Election Law - Nature of Election Petition - Statutory Proceeding - Representation of the People Act, 1951 - Election petition is not an action at law or a suit in equity but a statutory proceeding; High Court as Tribunal has powers wholly creature of statute; purity of election process must be safeguarded. Held that courts should not allow justice to be defeated by mere technicality but statutory requirements must be followed (Para 1029C).
Issue of Consideration
Whether the High Court had jurisdiction to consider votes improperly received in favour of the election petitioner who claimed the seat for himself when the returned candidate did not file a recrimination petition under Section 97 of the Representation of the People Act, 1951; whether Section 97 applies to a prayer for total count and re-scrutiny; whether the decision in Jabar Singh v. Genda Lal requires reconsideration.
Final Decision
Appeal dismissed; Supreme Court affirmed High Court's order declaring respondent elected. Held that appellant's failure to file recrimination petition under Section 97 barred consideration of votes improperly received in favour of respondent; after recount respondent secured 96 votes more than appellant.
Law Points
- Section 97 of Representation of the People Act
- 1951 requires a returned candidate to file a recrimination petition with notice within 14 days
- security
- and particulars if he seeks to prove that the election petitioner would have been void if he had been the returned candidate
- absence of such recrimination petition deprives the Election Tribunal of jurisdiction to consider votes improperly received in favour of the election petitioner
- improper reception or rejection under Section 100(1)(d)(iii) includes mistakes by the Returning Officer during counting under Rule 56(2) of the Conduct of Election Rules
- 1961
- there is no general recount
- election petition is a statutory proceeding and the High Court's powers are creatures of the statute
- concessions or admissions cannot override statutory bar under proviso to Section 97.
