D.L. Mehta, J.
1. S.B. Civil Writ Petition No. 532 of 1983 was filed by the petitioner challenging the orders Ex. 8 dated December 22, 1983 and Ex. 12 dated January 29, 1983. By Order (Ex. 8) dated December 22, 1983, the learned Munsif rejected the application submitted by the respondent for summoning the documents. Thereafter, on January 10, 1983, learned counsel for the petitioner moved an application (Ex. 10) for the amendment of the written statement. It was prayed therein that if the recounting of the votes received by the respondent is allowed, then all the votes received by the petitioner may also be recounted. This application was rejected vide order Ex.12 dated January 29, 1983.
2. Being aggrieved, the petitioner filed S.B. Civil Writ Petition No. 532 of 1983 before this Court on February 19, 1983. The writ petition Was listed for admission before this Court on April 6, 1983. On that date, Mr. D.P. Joshi, learned counsel for the petitioner and Mr. P.L. Choudhary, learned counsel for respondent No. 1 submitted that all the votes should be recounted. In the light of the prayer made by the learned counsel for the parties, it was directed that all the votes polled should be recounted and necessary orders be passed accordingly. With this direction, the writ petition was disposed of.
3. Subsequently, on April 12, 1983 the petitioner has submitted this review petition.
4. I have heard Mr. M.M. Singhvi, learned counsel for the petitioner and Mr. P.L. Choudhary, learned counsel for respondent No. 1.
5. It was contended by the learned counsel for the petitioner that the concession made by the learned Counsel for the petitioner appears to have been wrongly made and thus, there is an error apparent on the face of the record because on the basis of the agreement of the learned counsel for the parties or concession made by the learned counsel, for the petitioner, no order could be passed for directing a recount, because that can only be done when the requisite conditions laid down in the Supreme Court Cases are satisfied and a finding in that regard is recorded. It was submitted by the learned counsel that the controversy in the writ petition was limited to the questions as to whether the prayer of the petitioner for summoning the documents should have been allowed or not and whether he should be allowed to amend the written statement or not? Learned counsel further submits that under the above circumstances, it is quite evident that there was no occasion for considering the question whether the votes should be recounted or not and that the concession made by the learned counsel for the petitioner was under misappr-ehension. Learned counsel has invited my attention to para 3 of the reply (written statement Ex. 2) and has submitted that in the statement, the petitioner has denied all the allegations contained in the election petition Learned counsel submits that the election petitioner (respondent No. 1) had not asked the relief for recounting and as such, he is disentitled for asking the recounting of the votes. It was also submitted that the learned Munsif should have decided whether the election-petitioner (respondent No. 1) has made a case of recounting of votes as alleged in the election petition or not? It was further submitted that in the aforesaid circumstances, there was no occasion to go into the question as to whether a case for recounting of votes have been made out or not? Learned counsel for the petitioner has invited my attention to Damodar Prasad v. The Civil Judge, Sambhar 1968 RLW 72 wherein it was laid down as follows:
In the same case however it was laid down that the Tribunal would be justified in granting an order for inspection only if two conditions are fulfilled; namely (1) that the petition for setting aside an election contains an adequate statement of the material facts on which the petitioner relies in support his case; and (2) the tribunal is prima facie satisfied that in order to decide the dispute and to do complete justice between the parties inspection of the ballot papers is necessary. It was pointed that an order for inspection of ballot papers cannot be granted to support vague pleas made in the petition not supported by material facts or to fish out evidence to support such pleas.
In N. Narayan v. S. Semmalai : 1SCR571 , after considering the various authorities, their Lordships of the Supreme Court have held:
The Court would be justified in ordering a recount of the ballot papers only where:
(i) the election petition contains an adequate statement of all the material facts on which the allegations of irregularity or illegality in counting are founded:
(ii) On the basis of evidence adduced such allegations are prima facie established, affording a good ground for believing that there has been a mistake in counting; and
(iii) The Court trying the petition is prima facie satisfied that the making of such an order is imperatively necessary to decide the dispute and to do complete and effectual justice between the parties.
6. A learned single Judge of this Court in Jagjivan Singh v. Sitaram 1952 RLW 497 observed as follows:
I am, therefore, of opinion that it is the duty of the executing court to satisfy itself Under Section 26 that one or the other of the conditions mentioned in Section 13 is satisfied before it executes the decree passed before the Act came into force.
In Supdt. of Taxes v. Onkarmal Nathmal Trust 1976 SCC 766, their Lordships of the Supreme Court in para 27 of the report ruled as follows:
A distinction arises between the provisions which confer jurisdiction and provisions which regulate procedure. Jurisdiction can neither be waived nor created by consent. A procedural provision may be waived by conduct or agreement. In the case of Kammins Ballrooms Co. (Supra), it was said that waiver arises in a situation where a person is entitled to alternative lights inconsistent with one another. If he has knowledge of the facts which give rise in law to these alternative rights and acts in a manner which is inconsistent only with his having chosen to rely on one of them, the law holds him to his choice even though he was unaware that this would be legal consequence of what he did. He is sometimes said to have 'waived' the alternative right, as for instance a right to forfeit a leas or to rescind a contract of sale for wrongful repudiation of breach of condition. This is also sometimes described as 'election' rather than 'waiver'. Another type of waiver debars a person from raising a particular defence to a claim against him. It arises when he either agrees with the claimant not to raise that particular defence or so conducts himself as to be estopped from raising it.
In Kamal Narain v. Dwarka Pd. AIR 1966 SC 466, their Lordships of the Supreme Court have observed as under:
The High Court in an elaborate order has considered whether the provisions of R. 94-A were mandatory or directory but it did not address itself to the question whether the first affidavit was proper or not. This was, perhaps, due to the fact that the appellant seems to have conceded before the Tribunal that the first affidavit was not proper. This concession was sought to be withdrawn in this appeal by the appellant and on looking into the record we were satisfied that the concession was wrongly made and should be allowed to be withdrawn. We accordingly heard arguments on the question whether the original affidavit did not satisfy the Conduct of Election Rules and the Representation of the People Act. We are satisfied that the first affidavit was proper and the second affidavit was not necessary.
Learned Counsel for the petitioner has invited my attention to the case of Mangturam v. Palaram 1982 WLN (UC) 330. In that case, the petitioner has challenged the validity of the order dated August 7, 1982 of the Munsif, Nohar on the ground that the Munsif has committed an error in permitting inspection of the ballot papers containing votes cast in favour of the petitioner in as much as in the election petition had not been pleaded that any of the votes in favour of the petitioner was invalid and had been improperly accepted and that in the absence of any such pleading the Munsif was not justified in permitting inspection of the ballot papers containing votes cast in favour of the petitioner. Mr. M.M. Singhvi, learned counsel for the petitioner has invited my attention to para 6 of the judgment and has submitted that this is a case in which both the parties has consented that there should be a recounting and after passing of the order, the recounting started. The process of inspection of the ballot papers containing votes in favour of the petitioner had not been complet d and 25 ballot papers which were considered doubtful were kept separately for the purpose of considering the validity of the same and the matter was adjourned to August 6, 1982. On August 6, 1982, an application was submitted by Mangturam wherein an objection was raised with regard to the inspection of the ballot papers containing votes in his favour on the ground that by order dated July 26, 1982, the Munsif had only directed for the inspection of the rejected ballot papers and no order has been passed for the inspection of the ballot papers containing in favour of the petitioner and the Court was not entitled to inspect the ballot papers containing votes in favour of the petitioner. The aforesaid application submitted by the petitioner Mangturam on August 6, 1982 was rejected by the Munsif by his order dated August 6, 1982 on the view that on July 31, 1982, an oral prayer has been made by learned counsel for respondent No. 1 for inspection of the ballot papers casted in favour of the petitioner and no objection was raised on behalf of the petitioner to the aforesaid request for inspection of the votes. Mr. M.M. Singhvi learned counsel for the petitioner has invited my attention to para 6 of the report in Mangturam's case 1982 WLN (UC) 330, which is as follows:
6. The first objection that has been raised by Shri Singhvi was that the petitioner, having not raised any objection before the Munsif at the time of the inspection of the ballot papers on July 31, 1982 is precluded from agitating the question as to the correctness of the order permitting inspection of the ballot papers in this writ petition Under Article 226 of the Constitution. In support this submission Shri Singhvi has placed reliance on the decisions of this Court in Amarsingh v. The Munsif Magistrate, Jodhpur 1967 RLW 224 and Rameshwar v. Munsif and Judicial Magistrate Nokha 1981 WLN (UC) 130. Shri Bishnoi on the other hand has submitted that the present case stands on a different footing in as much as in the present case the petitioner had raised an objection against the inspection of the ballot papers was continuing and, therefore, it cannot be said that the petitioner did not raise any objection at the time of inspection of the ballot papers and for that reason he is precluded from raising any objection in the proceedings Under Artice 226 of the Constitution.
7. Mr. M M. Singhvi, learned counsel for the petitioner has submitted that with the consent of both the parties, the order was passed and thereafter, this Court even after opening of the ballot papers and recounting of the votes has set aside the order of recounting. He has submitted that the concession granted cannot take away the legal right of the petitioner and the order passed by this Court on the basis of the concession granted by the 1 d.i counsel for the parties is without jurisdiction and that the three conditions lad down in N. Narayanan's case : 1SCR571 have to be fulfilled and unless the conditions are fulfilled, the direction cannot; he given. Mr. M.M. Singhvi, learned counsel for the petitioner was confronted by this Court that in para 6 of the Mangturam's case 1982 WLN (UC) 330, the words used are 'having not raised any objection before the Munsif at the time of the inspection of the ballot papers...' It was pointed out by the Court that not raising the objection and giving the consent will not stand on the same footing. Mr. Singhvi, learned counsel for the petitioner requested the Court to call for the original file of D.B. Civil Special Appeal No. 731 of 982 (Pala Ram v. Mangtu Ram). The prayer was allowed and the original file was called for. I have perused the original file of Mangtu Ram's case 1982 WLN (UC) 330 and also Palaram's case (supra).
8. Ex. 9, the copy of the order dated July 26, 1982 passed by the learned Munsif in Mangturam's case was also perused and the material part of this order is follows:
ge lgh :Ik es igqpus ds fy, [kkfjt fd, x;s eri=ks dh iqu% tkap djuk U;k;fgr es le>rs gS A vr% eS ;g mfpr le>rk gWw fd lgh fu.kZ; ij igqapus ds fy, eri=ks dh oS/kkfudrk dk voyksdu fd;k tkos vkSj mlh ds vk/kkj ij U;k;ksfpr dk;Zokgh dh tkos A
Thus, the order dated July 26, 1982 cannot be said to be an order passed with the consent of any of the parties but it has been passed after hearing the parties, and only a limited order for recounting of the rejected votes has been made by the learned Munsif The second order under consideration in the case of Mangturam's case 1982 WLN (UC) 330 was the order (Ex. 11) dated July 31, 1982. I have perused the order (Ex. 11) and found that there is no reference the concession was given by the learned counsel for Mangturam for recounting the votes. On the contrary, a perusal of order (Ex. 9) shows that a limited order that the rejected notes should only be recounted was passed. Without passing any order for recounting the votes of Mangturam, the votes of Mangturam were recounted.'' Thereafter, on August 6, 1982, an application (Ex. 12) was moved on behalf of Mangturam and it was submitted that the order dated July 26, 1982 was limited one and was only in respect to the rejected votes and no order was passed to recount the votes received by Mangturam. The jurisdiction of the Court to recount the votes without passing any order was challenged The learned Munsif after hearing tie parties rejected the application dated August 6, 1982 and passed the order (Ex. 13) dated August 6, 1982. Even in this application, there is no reference that any concession was made by the learned counsel for the petitioner on July 31, 1982. From the perusal of the judgment passed by this Court in Mangturam's case 1982 WLN (UC) 330. I find that there is a reference that on the view that on 31st July, 1982 as oral prayer had been made by the learned counsel for respondent No. 1 for inspection of the votes cast in favour of the petitioner and no objection was raised on behalf of the petitioner to the aforesaid request for the inspection of his votes. Thus, it is clear that on . July 31, 1982, learned counsel for Mangturam has not consented or has not given any concession whatsoever for recounting of the votes before the Court, and as such, Mangturam's case1982 WLN (UC) 330 cannot be said to be a case based on the concession made by the counsel for the parties. Mr. P.L. Choudhary, learned counsel for respondent No. I has invited my attention to A T. Sharma v. A.P. Sharma : 1979CriLJ908 , It will be useful to quote para 3 of the report:
It is true as observed by this Court in Shivdeo Singh v. State of Punjab AIR 1963 SC 1909 there is nothing in Article 226 of the Constitution to preclude a High Court from exercising the power of review which inheres in every court of plenary jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors committed by it But there are definitive limits to the exercise of the power of review. The power of review may be exercised on the discovery of new and important matter or evidence which, after the exercise of the due diligence was not within the knowledge of the person seeking the review or could not be produced by him at the time when the order was made; it may be exercised where some mistake or error apparent on the face of the record is found; it may also be exercised on any analogous ground. But, it may not be exercised on the ground that the decision was erroneous on merits That would be the province of a Court of appeal. A power of review is not to be confused with Appellate Court to correct all manner of errors committed by the Subordinate Court.
Mr. Choudhary learned counsel for respondent No. I has also referred before me the case of Ramkaran v. Shrikishan wherein it was observed as follows:
Now, it cannot be disputed that a Court is not competent either in review or under its inherent powers to set aside a compromise decree or a decision based on the ground that the consent of the parties or any one of them was obtained by fraud. It is well known that a consent decree being only the contract between the parties with a command of the Court super-added to it, a suit lies to set it aside on any of the grounds on which the contract can be set aside, such as fraud, misrepresentation, mistake etc.
In the election petition (Ex. 1), the election-petitioner (respondent No. 1 has submitted that 21 invalid votes have been counted in favour of the present petitioner. It has also been submitted in para 3 of the election petition that out of 85 rejected votes, 35 votes were Valid and they were in favour of the election petitioner. In para 4 of the election petition also, an objection has been raised about 15 votes which were counted in favour of the present petitioner. Thus, the ground of attack in paras 2, 3 and 4 of the election petition was that valid votes have been rejected and invalid votes have been accepted in favour of the present petitioner. The present petitioner has also denied the allegations made in the election petition and according to him, the counting was proper. From the perusal of the Ex. 10 also, it is clear that in the alternative, the petitioner has prayed that all the votes should be recounted and he Wanted to amend his reply by adding the grounds mentioned in paras 2 and 3 thereof. Learned counsel for the petitioner has submitted that in the amendment application, the prayer for recounting of the votes have been made in the alternative and it cannot be passed for the passing of the order. Ex. 12 is an order by which the Court has decided the amendment application.
9. I have given the considered thought in the matter. It is an admitted position of law that a distinction arises between the provisions which confer jurisdiction and provisions which regulate procedure Jurisdiction can neither be waived nor created by consent, A procedural provision may be waived by conduct or agreement. Waiver arises in a situation where a person is entitled to alternative rights inconsistent with one another. If he has knowledge of the facts which give rise in law to these alternative rights and acts in a manner which is inconsistent only with his hiving chosen to rely on one of them, the law holds him to his choice even though he was unaware that what would be legal consequence of what He did. It is an admitted posion that the Court is having the jurisdiction to pass an order for recounting. It is a matter of evidence where the recounting should be ordered in the facts and circumstances of the case. In the present case, the petitioner has alternatively prayed that if the rejected votes are recounted then all the votes should be recounted Thus, the petitioner had the choice between two and he has exercised the choice by preferring the alternative legal right. The petitioner had the opportunity to file the appeal against the judgment of this Court which he has not availed.
10. It is also well settled that a person should not be allowed to blow hot and cold at a time. The doctrine of estoppel applies against the petitioner with full force. Their Lordships of the Supreme Court in M.P. Sugar Mills v. State of U.P. (9) have held that waiver means abandonment of a right and it may be either express or implied from conduct, but its basic requirement is that it must be an intentional act with knowledge. In the instant case, the petitioner had the knowledge and intention both. The principles laid down in N. Narayanan's case : 1SCR571 are the guide-lines on which the Court should pass the order but it does not take away the right of the parties to plaed before the Court that looking to the facts and circumstances of the case, all the votes should be recounted. When there is a dispute, the guide-lines will have to be followed by the Court and if there is no dispute between the parties and the parties pray that all the votes should be recounted, the guide-lines will not take away the right of the parties.
11. For the reasons mentioned above, the review petition is not maintainable. I do not find any illegality committed by the Court in passing the order on the request of the parties.
12. At the risk of repetition, it may be maintained that the petitioner has not filed any appeal against the order passed in the writ petition. In A.T. Sharma's case : 1979CriLJ908 , it was held that the erroneous mistake on merit cannot be corrected by exercising the power of review. Looking to the conduct of the parties and the submissions made by the learned counsel for the parties at the time when the writ petition was heard, I feel that it would not be in the interest of justice to review the order dated June 1, 1983 passed in the writ petition.
13. The result is that the review petition is dismissed. The parties shall bear their own costs.