K.S. Palaniswamy, J.
1. The petitioner and the first respondent contested the election to the Tamil Nadu Legislative Assembly from the Melur North Constituency, Madurai district, that took place on 7th March, 1971. The Returning Officer, fourth respondent, declared on 11th March, 1971, that the first respondent had been returned by a margin of 127 votes. The first respondent was said to have obtained 37,337 votes and the petitioner was said to have obtained 37,210 votes. There were 3,381 invalid votes. Before the result was announced, the petitioner asked for recounting of the votes from the eighth round, the total rounds being eleven. The Returning Officer passed an order for recounting of the invalid votes, but did not accede to the request for recounting from the eighth round. But subsequently he did not implement that order for recounting the invalid votes and declared the results. This petition was presented on 23rd April, 1971 under Sections 84 and 100 of the Representation of the People Act, 1951, to declare the election of the first respondent void and to declare the petitioner as having been duly elected after ordering recount. Various allegations have been made in the petition questioning the correctness of the preparation of the electoral rolls. Those contentions would be seen from a perusal of the issues framed in the case. The petitioner has also alleged that the counting was vitiated on account of several irregularities committed at the time of the counting. The petitioner has referred to the visit of one O.P. Raman, Minister to the counting hall at the time when the counting was going on and alleged that on account of the said visit, confusion was created inside the counting hall materially affecting the counting. There is also an allegation of corrupt practice. It is alleged that the first respondent, with the help of able-bodied men, prevented about 200 Harijans from voting by intimidation, threat and violence.
2. The second respondent, Chief Election Commissioner, New Delhi, the third respondent, Chief Electoral Officer, Government of Tamil Nadu, and the fourth respondent, Returning Officer, who is also the Electoral Registration Officer, have filed separate counter-statements denying the petitioner's allegations regarding the preparation of the electoral rolls and further contending that the electoral rolls were prepared in accordance with law, and that the question of validity of the preparation of the electoral rolls cannot be a subject-matter of an enquiry in an election petition under the Representation of the People Act, 1951. The allegation that the counting was not done properly is also denied by the fourth respondent.
3. The first respondent, in his counter-statement, has denied the allegation of corrupt practice and controverted the petitioner's allegations regarding the visit of Sri O.P. Raman. In other respects he has repeated the allegations of the other respondents as regards the preparation of electoral rolls and the finality of the electoral rolls. It is also his contention that the petitioner has not set out necessary materials as required under the Act and that, therefore, there was no ground, for ordering recount, which is one of the prayers of the petitioner.
4. On the contentions of the parties, the, following issues were framed for trial:
(1) Whether the preparation of the electoral roll in respect of Melur-North Assembly Constituency has been vitiated by irregularities and illegalities and is violative of the provisions of the Representation of the People Acts of 1950 and 1951 and the rules framed thereunder?
(2) Whether the provisions of Sections 22 and 23 of the Representation of the People Act, 1950, have been violated in the preparation of the electoral list, and if so, has the election become void on that account?
(3) Whether the revision of the electoral list is illegal, and if so, is the election liable to be set aside on that ground?
(4) Whether the deletions of voters in the official list of 'Deletions' are void and without jurisdiction, for the reasons stated in paragraph 6(c) of the petition or whether the inclusions made in the electoral list are void for the reasons stated in paragraph 6(d) of the petition?
(5) Whether the election has become void on account of the unlawful deletions and additions of unqualified voters?
(6) Whether the names of persons who have not attained the age of 21 years have been included as alleged in paragraph 6(d) of the petition?
(7) Whether there were large-scale deletions of qualified voters from the electoral list?
(8) Whether the amendments made to the Conduct of Election Rules of 1961, in 1971, are void and ultra vires for the reasons stated in paragraph 6(a) of the petition?
(9) Whether it is competent for this Court to exercise jurisdiction under the Representation of the People Act, 1951, to decide the question of the vires of the Conduct of Election Rules, 1961, as amended?
(10) Whether the petitioner's agent asked for a true copy of the entries made in the ballot paper account and whether: the same was refused to be given to him?
(11) Whether the lorries transporting the ballot boxes from polling stations to the counting places, came late unaccompanied by the petitioner's agents?
(12) Whether the votes cast in favour of the petitioner were wrongly declared rejected as invalid?
(13) Whether in the marking of the symbols, Rule 56 (2)(b) of the Conduct of Election Rules, 1961, has been violated?
(14) Whether the petitioner gave a written application for recounting and whether the same was illegally turned down?
(15) Whether the petitioner is entitled to recounting of the votes?
(16) Was there any discrepancy in the total number of votes attached to Booth No. 7 (Velacheripatti) and the total number of votes polled therein?
(17) Whether there was discrepancy in the total number of votes attached to Booth No. 116 (Ettayamangalam) and the total number of Votes polled therein?
(18) Whether the first respondent is guilty of corrupt practice alleged in paragraph 8 of the petition?
(19) Whether the visit of Mr. O.P. Raman to the counting place created confusion in the process of counting, materially affecting the result of the election?
(20) Whether the petition is maintainable without the Electoral Registration Officer being made a party to the petition?
(21) Whether the petition is liable to be dismissed under Section 86 of the Representation of the People Act, 1951, for non-compliance of the provisions of Section 83 of the said Act?
(22) Whether the third respondent entrusted the work of preparing the electoral rolls to the officers of the Tamil Nadu Government and whether on that account the preparation of electoral rolls was vitiated?
(23) Whether the petitioner failed to raise objections regarding the manner of counting? If not, is he precluded from raising such objections?
(24) Is the petitioner entitled to be declared elected in the place of the first respondent?
(25) To what reliefs are the parties entitled?
5. During the pendency of the petition, the petitioner took out Application No. 2 of 1972 by Judge's Summons praying for recount of the votes. The first respondent opposed that application. After recording evidence and hearing the Counsel for the petitioner and the first respondent, I passed an order on 3rd February, 1972 directing recount of the votes from 8th to 11th rounds (both inclusive) and the invalid votes. Necessary directions were given for conducting the recounting. The Assistant Registrar (Elections), High Court, Madras, was appointed as the Presiding Officer in connection with the recounting and he was directed to submit his report. I also pointed out that on receipt of his report, an opportunity would be given to both parties to be heard on that report and necessary orders would be passed on that report. Accordingly, recounting was done from 7th February, 1972 to 9th February, 1972 (both days inclusive) with the help of four Tellers appointed by me and in the presence of the petitioner and the first respondent and their counsel and agents. The Presiding Officer has submitted his report after recount. At the time of recount before the Presiding Officer, all the votes which were treated as invalid by the Returning Officer were scrutinised. The votes counted in favour of the petitioner and the first respondent from 8th to 11th round (both inclusive) were also scrutinised. At the time of the scrutiny it was noticed that some votes which were in fact cast in favour of the first respondent-returned candidate, had been counted in favour of the petitioner. Likewise, some votes which had been cast in favour of the petitioner had been counted in favour of the first respondent. Counsel agreed as to how they should be properly counted. As regards the votes which were treated as invalid by the Returning Office the scrutiny showed that some votes which had been validly marked in favour of either the petitioner or the first respondent were not correctly counted, but wrongly counted in favour of the opponent. It was agreed to be counted properly. In the process of this re-scrutiny, the counsel did not agree on certain number of votes treated as valid for the petitioner, treated as valid for the first respondent and treated as invalid. 146 votes which had been treated by the Returning Officer as the votes of the petitioner were disputed by the first: respondent. 173 votes counted by the Returning Officer in favour of the first respondent were disputed by the petitioner. 226 votes which were treated as invalid by the Returning Officer were claimed either by the petitioner or by the first respondent. Thus, the total number of votes under these categories which the Presiding Officer referred for decision by me was 545 (146 and 173 and 226). Those 545 votes were scrutinised before me and at the time of such scrutiny also, the counsel for the petitioner did not raise any objection with regard to the scrutiny of the votes of the petitioner and also with regard to the claim of the first respondent to some votes which were treated as invalid. After examining each vote and hearing both the counsel. I gave my decision either upholding the claim of the petitioner or the first respondent or treating the Vote as invalid. The re-scrutiny was done on the erroneous-, impression that the returned candidate was entitled to claim for him the votes, which, according to him, were cast in his favour, but which were treated as invalid by the Returning Officer and also the votes, which, according to him, were his votes, but which were counted in favour of the petitioner. By this process, the position that emerged was as follows:
Invalid votes. .. 3,267Votes of the petitioner. .. 37,297 Votes of the first respondent. .. 37,372_________77,936_________As per the original count, according to.Form No. 20 statement, the position was.this:Total invalid votes. .. 3,381Votes declared in favourof the petitioner. .. 37,210Votes declared in favourof the first respondent. .. 37,337_______77,928_________
(An excess of 8 votes was found at the time of recount over the number given in Form 20. This excess does not affect the result in any way).
It would appear from the foregoing figures that if the re-scrutiny, on the basis of which the aforesaid figures were arrived at, is in accordance with the Act, the first respondent can be considered to have 75 votes more than the petitioner (not taking into account the votes counted, in rounds 1 to 7) as against 127 votes which was the figure arrived at by the Returning Officer.
6. But in the course of arguments, the counsel for the petitioner contended that the re-scrutiny of the petitioner's Votes if legally not called for and that the first respondent-declared candidate is not entitled to question the validity of the votes counted in favour of the petitioner and to claim any vote for him and also not entitled to claim any vote declared invalid by the Returning Officer. His submission was that inasmuch as the petitioner has not only asked for a declaration that the election of the first, respondent is void but has also asked for a declaration that he has been duly elected, it was incumbent upon the returned candidate to issue notice of recrimination under Section 97 of the Act and that inasmuch as such action has not been taken by him, he was not entitled to raise any objection with regard to the votes counted in favour of the petitioner and also is not entitled to claim in favour any vote treated as invalid. Mr. Venugopal, counsel for the first respondent, in the course of his arguments wanted time to look up the position and prayed for an adjournment. I accordingly adjourned the case. On the adjourned date, he presented application No. 618 of 1972 enclosing an application under Section 97 of the Act and prayed for condonation of the delay in filing the recrimination petition. By a separate order pronounced today, I have dismissed that application. The position is that there is no notice of recrimination under Section 97. Section 97 of the Act reads as follows:
97. Recrimination when seat claimed: (1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election:
Provided that the returned candidate or such other party as aforesaid, shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.
(2) Every notice referred to in Sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner.
The question is whether, without availing of the provisions of Section 97, the returned candidate is entitled to ask for a re-scrutiny of the Votes counted in favour of the petitioner and object to any of these votes and also claim for himself any vote out of those votes and also out of the votes declared invalid by the Returning Officer.
7. If, by reason of the failure on the part of the first respondent-returned candidate to avail of the provisions of Section 97, he is precluded from adducing evidence with a view to show that the petitioner cannot be declared duly elected, a different situation will arise. In that event, the scrutiny should be restricted only to find out hew many votes validly cast in favour of the petitioner were treated invalid and how many of his valid votes were wrongly counted as the votes of the returned candidate. On this basis the position would be as follows: Votes declared to have been obtained by the petitioner according to the Returning Officer were 37,210. Votes declared to have been obtained by the first respondent by the Returning Officer were 33,337. Before the Presiding Officer it was found that 51 votes cast in favour of the petitioner were wrongly treated as invalid. In the course of scrutiny before me 75 votes validly cast in favour of the petitioner had been wrongly treated as invalid. At the time of scrutiny before the Presiding Officer 9 Votes Validly cast in favour ' >f the petitioner had been wrongly counted as the votes of the first respondent. In he course of scrutiny before me 5 votes validly cast in favour of the petitioner had been wrongly treated as (he votes of the first respondent. Thus, all these four items would have to be added to the votes of the petitioner.
8. In the course of the scrutiny before the Presiding Officer 50 votes which were invalid had been wrongly counted in favour of the first respondent. In the course of the scrutiny before me, it was found that 19 votes which were invalid had been treated as valid votes of the first respondent. I have already pointed out that 9 votes of the petitioner were found before the Presiding Officer to have be'-n wrongly included among the first respondent's votes and 5 votes of the petitioner were found to have been added in the first respondent's account in the course of scrutiny before me. Thus, the votes falling under these four items have to be deducted from the total number of votes declared to have been obtained by the first respondent by the Returning Officer. These four items together come to 83. The number of votes to be added to the petitioner's account is 140. By adding this to the petitioner's votes, his total votes would come to 37,350. 83 votes should be deducted from the votes declared to have been obtained by the first respondent, and after such deduction, the balance that remains to the credit of the first respondent is 37,254. This leaves an excess of 96 votes in favour of the petitioner. The Counsel appearing for both sides conceded the correctness of the foregoing figures.
9. The question is what is the correct Way of allotting the votes as a result of the scrutiny. A similar question arose for consideration before the Supreme Court in Jabar Singh v. Gendalal 1965 Doaabia's Election Cases 3. The principle laid down in that decision is that a returned candidate cannot make any attack against the claim for seat without recrimination. That is the question regarding the Validity of votes counted in favour of the candidate for whom the seat is claimed and the question whether any votes of the returned candidate were improperly rejected cannot be determined without recrimination. The facts of that case may be briefly referred to for a proper understanding of the principle. The election in that case was contested by the parties to that appeal and some others. The Returning Officer found that one candidate by name Jabar Singh had secured 5,671 votes, whereas another candidate by name Gendalal, who was the election petitioner in that case, had secured 5,703 votes. Jabar Singh asked for recounting, and the Returning Officer, after recounting, found that Jabar Singh had secured 5,656 and that Gendalal had secured 5,654 votes. The Returning Officer then declared Jabar Singh to have been duly elected. Oendalal filed an election petition challenging the validity of the election of Jabar Singh on the ground of improper reception of votes in favour of the returned candidate and also on the ground of rejection of votes in regard to himself. He urged before the Election Tribunal either for the restoration of the result in accordance with the calculations initially made before recounting or a re-counting of the votes by the Tribunal and a declaration of the result according to the calculations which the Election Tribunal may make. His prayer was that the election of Jabar Singh, tbe returned candidate, should be declared to be void and that a declaration should be made to the effect that the election petitioner had been duly elected. The Election Tribunal found that 10 ballot papers in favour of the election-petitioner had been improperly rejected and that 4 ballot papers had been improperly accepted in favour of the returned candidate. That led to a difference of the votes. The position of the votes was found to be:
Election petitioner 5,664The returned candidate 5,652
At this stage, the returned candidate urged before the Tribunal that there had been improper rejection of his Votes and improper acceptance of votes of the election petitioner. His case was that if recounting and re-scrutiny was made, it would be found that he had secured a majority of votes. The election-petitioner objected to that course. His contention was that since the returned candidate had not recriminated under Section 97 of the Act it was not open to him to make the plea that recounting and re-scrutiny should be made on the ground that improper votes had been accepted in favour of the election-petitioner and that valid votes had been improperly rejected when they were cast in his (returned candidate's) favour. The election petitioner further urged that in order to justify the claim made by the returned candidate it was necessary that he should have complied with the provisions of Section 97, and the failure on his part, precluded him from raising such a contention. The Tribunal rejected the contention of the election-petitioner and held that in order to consider the relief which the election-petitioner had claimed in his election petition it was necessary to decide whether the election-petitioner had in fact received a majority of the votes under Section 101 of tie Act. In that view, the Tribunal re-examined the ballot papers of the election petitioner as well as the returned candidate and came to the conclusion that 22 ballot papers cast in favour of the election-petitioner had been wrongly accepted. The result was that the election-petitioner had in fact not secured a majority of votes. As a result of this finding, the Tribunal declared that the election of the returned candidate was void; but refused to grant the declaration that the election petitioner had been duly elected.
The aforesaid decision led to the filing of two appeals before the High Court of Madhya Pradesh, one by the election-petitioner and the other by the returned candidate. The High Court, agreeing with the Election Tribunal, dismissed both the appeals. The returned candidate went up in appeal to the Supreme Court. But the election-petitioner filed an application for leave to appeal beyond time and his application for condonation of the delay was dismissed, with the result, the decision of the High Court so far as the election petitioner was concerned had become final. The question considered by the Supreme Court in the appeal filed by the returned candidate was regarding the scope of Section 100 (1)(d)(iii) and Section 97 of the Act. Gajendragadkar, J., as he then was, speaking for the majority of four Judges (Rajagopala Ayyangar, J., dissenting) considered the question as to the effect of a declaration that the election of the returned candidate is void without a further prayer that some other candidate should be declared to have been duly elected. In dealing with such a case, the learned Judge observed:
The enquiry is limited not because the returned candidate has not recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling under Section 100(1)(d)(iii), the scope of the enquiry is limited for the simple reason that what the clause requires to be considered is whether the election of the returned candidate has been materially affected and nothing else. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect and that declaration brings to an end the proceedings in the election petition.
His Lordship also considered the scope of enquiry in a case where the election petition makes two claims, the first being a declaration that the election of the returned candidate is void and the second being a declaration that either the petitioner or some other candidate has been duly elected. In dealing with such cases, what the returned candidate should do is indicated in the following passage:
There are, however, cases in which the election petition makes a double claim: it claims that the election of the returned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that Section 100 as well as Section 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that Section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favour a declaration is claimed by the petition cannot be said to be validly elected, and those would be pleas of attack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97(1) therefore is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in (hat behalf in the manner and within the time specified by Section 97(1) proviso and Section 97(2). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against alternative claim made by the petition. In such a case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with the alternative claim, but in doing so the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.
10. It Was contended in that case that an Election Tribunal cannot give a finding that an alternative candidate has in fact received a majority of the Valid votes unless all the votes cast at the election are scrutinised and counted. Repelling this argument, the learned judge observed:
In our opinion this contention is not well-founded. We have already noticed that as a result of Rule 57, the Election Tribunal will have to assume that every ballot paper which had not been rejected under Rule 56 constitute one Valid vote and it is on that basis that the finding will have to be made under Section 101(a). Section 97(1) undoubtedly gives an opportunity to the returned candidate to dispute the validity of any of the votes cast in favour of the alternative candidate or to plead for the Validity of any vote cast in his favour which had been rejected; but if by his failure to make recrimination within time as required by Section 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 Section 101 (a) on the basis that the other votes counted by the returning officer were Valid vote and that votes in favour of the returned candidate, if any, which were rejected, were invalid. What we have paid about the presumed validity of the votes in dealing with a petition under Section 101(a) is equally true in dealing with the matter under Section 100(1)(d)(iii). We are, therefore, satisfied that even in cases to which Section 97 applied, the enquiry necessary while dealing with the dispute under Section 101 (a) will not be wider if the returned candidate has failed to recriminate.
Finally, the learned Judge observed that where Section 97 is not complied with, it is not open to the Tribunal to order a general recount of the votes preceded by scrutiny about their validity. In the result, the appeal filed by the returned candidate was dismissed. But no relief was granted to the election-petitioner, as his application for Special Leave to appeal was dismissed, since he was unable to make out a sufficient cause for condoning the delay in filing the application. Thus the principle that emerges from this decision is that where, in an election petition, the election-petitioner claims not only that the election of the returned candidate is void but also claims that either he or some other candidate had been duly elected, the returned candidate, without availing of Section 97 for recrimination, cannot question the validity of the votes counted in favour of the candidate for whom the seat is claimed and also cannot contend that any votes cast in his favour were improperly rejected.
11. The foregoing principle applied on all fours to the facts of this case. Mr. Venugopal, appearing for the first respondent-returned candidate, sought to distinguish this decision by contending that whereas in that case, the election petitioner made a specific allegation that 49 votes cast in his favour were improperly rejected and that 32 votes were improperly accepted in favour of the returned candidate, in the instant case the case of the petitioner is not specific but only general and that, therefore, the above principle cannot be applied to the facts of this case. He also contended that the petitioner asked before the Returning Officer recount of all the votes that even in the election petition he did not make a distinction between the votes, counted in his favour and the votes counted in favour of the returned candidate and that inasmuch as a general recount has been asked for, it is not open to the election-petitioner to prevent the returned candidate from questioning the validity of the votes counted in favour of the election-petitioner and also claiming credit for votes secured by him but rejected improperly. I am unable to accept these contentions. Neither in principle nor on authority any of these two grounds is sufficient to hold that the aforesaid decision is not applicable to this case. The question whether the election petitioner has made out a specific case or not to justify recounting does not arise for consideration at this stage. I have already dealt with this aspect before ordering recount. I am unable to see how in principle the aforesaid decision is not applicable, merely because the election-petitioner has not specified the number of votes, which, according to him, should have been counted in his favour, or specified the number of votes which, according to him, should not have been given credit to in favour of the returned candidate, ft is true that the counsel for the election-petitioner did not raise objection either before the presiding officer or before me that the first respondent should not be allowed to question the validity of the voles counted in favour of the election petitioner. It is also true that no objection was taken, with regard to the claim of the returned candidate as regards the votes, which, according to him, had been cast in his favour, but had been either improperly rejected or had been counted in favour of the election petitioner. I am free to confess that as no such objection was taken before me at the time of scrutiny of the votes referred to me by the presiding officer and as my attention was not drawn to want of recrimination under Section 97, scrutiny was done in a general way ignoring the previsions of Section 97. But I do not think that this mistake should be allowed to be taken advantage of by the first respondent-returned candidate and that it should be perpetuated and given effect to. After all, what has been done is only more scrutiny of the votes and the result of the scrutiny has not been announced. Until the announcement of the result of the scrutiny is made, there is nothing to preclude this Court from correcting the mistake and following the correct principle in determining the right of parties. The proviso to Section 97(1) imposes a statutory bar against the returned candidate from giving evidence to question the validity of the election of the candidate in whose favour the declaration is prayed, unless he complies with the statutory requirement of giving notice of recrimination. It is the unequivocal stand of the first respondent that the counting of votes has been done correctly, that is, valid votes cast in his favour wert alone counted for him and the, valid votes cast in favour of the petitioner for the petitioner and the votes which were really invalid alone were treated as invalid. What is now asked for is opposed to this specific case. Evidence in the form of scrutiny of votes has been adduced. So far as the first respondent is concerned, such evidence upon which he relies for the purpose of challenging the claim of the election petitioner to declare him elected is clearly barred by Section 97. That evidence if liable to be ignored. The decision of the Court should be based on legal and admissible evidence. No litigant has the right to insist that relief should be given to him on the basis of inadmissible evidence, recorded inadvertently, owing to the lack of diligence of the opposite party. Absence of objection by the election petitioner cannot render the mandatory provision ineffective.
12. Mr. Venugopal next contended that inasmuch as it is now found, on a scrutiny of the votes of the petitioner himself, that the returned candidate has still a margin of 75 votes, it would be manifestly unjust to give effect to technicalities and deprive the first respondent of the hard won seat. I am unable to accept this argument. The rights of parties in an election dispute are purely creature of statute. It is well established that an election petition can not be equated to an action at law or in equity. If the statute renders any particular requirement mandatory the Courts have no power to waive the noncompliance, vide Ch. Subba Rao v. Member, Election Tribunal 1964 D.E.C. 270 S.C. Section 97 gives a fight to the returned candidate to question the claim of either the election petitioner or some other candidate to be declared duly elected. If he fails to comply with that mandatory requirement, he should only thank himself even though under a misapprehension scrutiny has been done of all the votes including the votes of the petitioner, and though the result of such scrutiny shows that the returned candidate till secured a majority. Much stress was laid by Mr. Venugopal upon the fact that both before the presiding officer and before me also the counsel for the petitioner conceded that same votes, which were validly marked in favour of the returned candidate, but which Were either treated as invalid 01 were counted in favour of the petitioner, were valid votes of the first respondent-returned candidate and that, therefore, in view of this admission it is no longer open to the petitioner's counsel to put forward the objection based upon want of recrimination under Section 97. This argument cannot be accepted. It is true that the objection based upon the absence of recrimination under Section 97 was taken up only in the course of the arguments. The fact that such an objection was not taken up in the course of scrutiny does not entitle the returned candidate to say that he is not required to comply with the mandatory provisions under Section 97. As I have already pointed out, the proceedings in election petitions are statutory and unless the provisions are complied with, no party can claim any right flowing under such provision. He is not entitled to claim to exercise the right without complying with the provisions of law, even though the opponent failed to raise he objection at the time when the claim was made. In my view, the Court itself has no power to waive the non-compliance and much more so in the case of a party. The votes counted in favour of the petitioner should be deemed to be Valid Votes until the contrary is proved by a process permitted under the law. The expression 'valid vote' arose for consideration before the Supreme Court in Kesher Aakshman v. Dr. Deorao : 1SCR902 . With reference to the provisions of Rule 58 of the Conduct of Election Rules, which was then in force, it was held that acceptance of a nomination paper of a candidate under Section 36(8) makes the candidate, whose nomination paper is accepted after scrutiny, a validly nominated candidate at least for the purpose of receiving votes, at the election am. that the position is further reinforced by the provisions of Rule 58, which was then in force and which provided that every ballot paper which is not rejected under Rule 57 should be deemed to be valid and must be counted. Rule 58 as it stands at present has been substituted and it is not necessary to refer to it as it is not relevant. But the relevant provision is now container! in Rule 56(6) which inter alia provides that every ballot paper which is not rejected under that rule shall be counted as one valid vote. The above decision was followed in Jabur Singh v. Gendalal 1965 D.E.C. 3. The position, therefore, is that until the contrary is proved in accordance with law, all the votes which have been counted in favour of the petitioner should toe taken to be valid votes. The returned candidate can successfully challenge the Validity of those votes only if he conforms to the provisions of Section 97. Until he conforms to that provision the votes counted in favour of the petitioner should continue to be treated as valid. The fact that in the course of scrutiny some of them were found to be not valid does not affect the legal position so far as the validity of those votes is concerned. The first respondent cannot advance an argument that notwithstanding his non-compliance of Section 97 some of the Votes counted in favour of the petitioner should be treated to be invalid. As I have already pointed out the result of the re-scrutiny remains to be announced and if, before such announcement, any mistake in the procedure is discovered, there is nothing in law to prevent the Court from rectifying the mistake and giving a correct decision.
13. The scope of Section 97 again arose for consideration before the Supreme Court in Skankar v. Shakaram : 2SCR403 . The matter was considered by five Judges of the Supreme Court and their decision was unanimous. The judgment of the Court was delivered by Bachawat, J., Mr. Venugopal, citing this decision for the first respondent, placed considerable reliance upon it and even went to the extent of submitting that this decision should be taken to have over rule the earlier decision in Jabar Singh V. Gendalal (1965) D.E.C. 3. Before referring to the observations in that case upon which reliance was placed in support of that submission, it is necessary to refer briefly to the facts of that case. There the contest to the election was between four candidates. Two of them got equal votes, whereas the other two got much less. The Returning Officer drew lots as between those two who got equal votes and declared one Savant as duly elected. The other candidate, who get equal votes was one Salunkhe. He filed an election petition claiming that the election of the returned candidate was void and that he having received the majority of the votes should have been duly declared elected. The Election Tribunal, dismissed the election petition. But on appeal, the Bombay High Court declared the election of the returned candidate to be void, but dismissed the claim of the election petitioner to be declared duly elected. The returned candidate appealed to the Supreme Court by Special Leave, but not the election petitioner. The main complaint of the election petitioner was that the presiding officer of a particular polling station improperly prevented 19 voters from inserting their ballot papers into the ballot box, that the Returning Officer rejected these ballot papers and did not take them into account, that by reason of the improper prevention, the 19 votes were not taken into account and that, therefore, the election of the returned candidate was materially affected. On facts, it was established that the Presiding Officer, after holding an enquiry on the objection raised by the polling agent of one candidate, held that the 10 persons who came to exercise their franchise were electors entered in the electoral roll and that the challenge as to their identity was not established. But when those 19 voters wanted to insert the ballot papers into the ballot box the Presiding Officer prevented them from doing so, collected them and put them in a separate cover and sent the cover to the Returning Officer. The Returning Officer held that inasmuch as the ballot papers found in the cover were not ballot papers put into' the ballot box, they could not be taken into account. It was in that view he held that those votes could not be counted. The High Court held that in order to become a valid vote, the ballot paper (recording the vote) must be inserted by the elector into the ballot box and that, there for:, the 19 ballot papers were not valid votes. The Supreme Court affirmed the correctness of this view. But inasmuch as the Presiding Officer improperly pie-vented the 19 voters from inserting their ballot papers into the ballot box, it was held that on account of the improper refusal, the election of the returned candidate was affected and so consequently void. The Supreme Court examinee; the 19 votes and found that 18 of them had been cast in favour of the election petitioner and one in favour of some other candidate. But even though those 18 votes cast in favour of the election petitioner raised his total of the vote? secured by the returned candidate, it was found that, those 18 votes were void votes inasmuch as they were not taken out of the ballot box. In that view, the Supreme Court observed that the High Court was right in not declaring that the election petitioner was duly elected. It appears that in the course of the hearing before the Election Tribunal, the returned candidate raised objections with regard to the identity of the 19 votes, without filing recrimination under Section 97. The Election Tribunal held that the returned candidate was not entitled to raise that objection without filing recrimination. In contesting the correctness of this view before the Supreme Court, the Counsel for the returned candidate contended that there was no improper refusal of the votes cast and that the 19 voters were not entitled to vote at all. In dealing with this aspect,, the Supreme Court observed at pages 1426 and 1427 thus:
He argued that the 19 voters were not identical with the electors referred to in the relevant entries in the electoral roll. In this connection, he rightly pointed out that the Election Tribunal erred in holding that Savant could not raise this objection without filing a recrimination under Section 97 of the Representation of the People Act, 1951....We also think that the enquiry under Section 100(1)(d)(iii), is outside the purview of Section 97. On an enquiry under Section 100(1)(d)(iii) with regard to improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of the voters without filing any recrimination under Section 97.
The observation that 'the enquiry under Section 100 (1)(d)(iii) is outside the purview of Section 97' on which Mr. Venugopal placed very strong reliance, should be understood on the peculiar facts of the case which their Lordships were considering. That observation is immediately followed by the further observation that 'on an enquiry under Section 100(1)(d)(iii) with regard to improper refusal of votes, the respondent to the election petition is entitled to dispute the identity of the voters without filing any recrimination under Section 97'. Before considering the question of improper reception, refusal or rejection of any vote, the first requisite that should be established is that the paper that is asked to be considered is a 'vote'. The word 'vote' is not defined in the Act. An 'elector' is defined in Section 2(1)(e) thus:
'Elector' in relation to a constituency means a person whose name is entered, in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 195.
A 'ballot paper', though not defined, b required to be in such form containing such particulars in such language or languages as the Election Commission may direct - vide Rule 30 of the Conduct of Election Rules, 1961. If an elector exercises his choice by making the marking in the prescribed form upon the ballot paper, such paper in law becomes a vote. The improper reception, refusal or rejection of such a paper alone will be a matter for consideration under Section 100(1)(d)(iii). If a person who is not en elector, markes a mark upon a ballot paper and if that ballot paper comes up for consideration, certainly, the returned candidates respondent in an election petition is entitled to dispute the validity of the ballot paper and to show that the ballot paper does not evidence a vote. Therefore in such a case there is no question of consideration of improper reception, refusal or rejection of any vote falling under Section 100 (1)(d)(iii). It is open to the returned candidate to show, even without a recrimination, that the person who made the marking is not an election. That contention does not fall within the purview of Section 97 of the Act. It is in this context that their Lordships observed that on an enquiry under Section 100(1)(d)(iii) the respondent to the election petition is entitled to dispute the identity of the voter without filing a recrimination under Section 97. Therefore, the foregoing observation, on which Mr. Venugopal placed considerable reliance, should not be divorced from the context in which it has been made and cannot be construed as if that observation lays down the principle that irrespective of all considerations Section 97 is not applicable to a case of enquiry under Section 100(1)(d)(iii). We may assume an extreme case. Suppose a spurious ballot paper is found inside the ballot box with a marking in favour of a candidate. The question is whether the returned candidate, whose election may be challenged, is entitled to slow without filing recrimination that this paper should not be taken into consideration, for, it is not a vote. It would be meaningless to content that even for raising this objection he should, in the first place file recrimination under Section 97. The same principle applied to a case of a valid ballot paper, but used by a person who is not an elector. In such a case also, the returned candidate cannot be required to recriminate under Section 97 before he can show that the person who has purported to make the marking is not an elector and that, therefore, the ballot paper is not a vote. If the argument of Mr. Venugopal were to prevail, then it would make Section 97 otiose and totally ineffective, or make the operation of Section 101 read with Section 97 inconsistent with the operation of Section 100(1)(d)(iii). It may be noted in this connection that the decision of the Supreme Court in Jabar Singh v. Gendalal 1965 D.E.C. 3 which was rendered on 20th December, 1963, is not referred to in Shankar v. Sakharam : 2SCR403 , which was decided on 9th December, 1964. It may also be noted that Gajendragadkar, C.J., was a common member of the Benches in both the cases and it was he who gave the judgment for the majority of four Judges in the earlier case. The decision in the later case, though given by a Bench of five Judges unanimously, does not in any Way affect the correctness of the principle laid down by the earlier Bench in which the decision was given by majority of four against one. The strength of the Bench to which Mr. Venugopal, Counsel for the first respondent made reference is irrelevant in the circumstances because the principle laid down in the later case does not in any way affect the principle laid down in the earlier case. I may also point out in this connection that a Bench of two Judges of the Supreme Court (of whom one was Gajendragadkar, J., himself as he then was), had taken a similar view about the scope of Section 97 in Bhim Sen v. Gopal 1962 D.E.C. 158, which was followed in Jabar Singh v. Gendalal 1965 D.E.C. 3. In that case, the returned candidate complained that he was prevented from showing that void votes had been counted in favour of the election petitioner as it had happened in his own case. The Court held that inasmuch as the returned candidate had not taken out recrimination proceeding, he was rightly denied the request to examine the votes of the election petitioner and that he is to blame himself for the situation.
14. It would follow from the foregoing discussion that the declaration of the election of the first respondent is vitiated in that there was improper reception in his favour of void votes and also of (sic) votes cast in favour of election petitioner and that there was also improper rejection of valid votes cast in favour of the petitioner. I have already pointed out that on a proper scrutiny and calculation of the votes, it would follow that the petitioner has a majority of 96 Votes over the votes secured by the first respondent. That is the position even as per the partial recount. Perhaps the margin may become larger if recount of all the votes declared in favour of the first respondent by the Returning Officer in all the rounds is done, as there is no recrimination.
15. What remains to be considered is some of the issues framed in the case.
Issues Nos. 1 to 7 and 22. - These issues relate to the revision of election rolls. The contention of the petitioner is that there were large scale deletions of names from the previous list and that likewise there were large scale inclusion of names without conforming to the provisions of the Representation of the People Act, 1950. It is also one of the petitioner's allegations that even persons who had not attained the age of1 21 were enrolled as voters. Similar questions arose for consideration before the Supreme Court in more than one case. Their Lordships have repeatedly pointed out that the finality of an electoral roll cannot be challenged in an election petition vide Kubul Singh v. Kundan Singh : 1SCR845 . Wopanso v. N.L. Odvuo : AIR1971SC2123 and P.R. Belagali v. B.D. Jatti : 2SCR611 . Therefore, all these issues are found against the petitioner.
Issue Mo. 8. - This issue has been considered by a Full Bench of this Court in Election Petitions Nos. 8, 9 and 10 of 1971 and it has been found that the amendment to certain rules in the Conduct of Elections Rules is not void.
Issue No. 9. - This issue does not arise in view of the said decision.
Issues Nos. 10, 11, 16 and 17. - There is no evidence in respect of these issues and hence they are found against the petitioner.
Issue No. 12. - For the reasons already pointed out I find that some votes cast in favour of the petitioner were wrongly rejected as invalid.
Issue No. 13. - No argument was advanced on this issue. Hence, this is found against the petitioner.
Issues Nos. 14, 15, 19 and 23. - These issue have already been answered in favour of the petitioner in my order dated 3rd February, 1972 in Application No. 2 of 1972.
Issue No. 18. - The charge of corrupt practice levelled against the returned candidate is that he, with able-bodied men, prevented about 300 Vallian Harijans from voting by intimidation arid, threat of violence. The Counsel for the election petitioner stated that this charge was not pressed. Hence this issue is found against the election petitioner.
Issue No. 20. - This issue relating to the initial non-joinder of the Election Registration Officer no longer arises for consideration as the said Officer has since been impleaded.
Issue No. 21. - The petitioner has complied with the provisions of Section 83, and the petition is not, therefore, liable to be dismissed.
16. Issue No. 24. - For the reasons already pointed out, it follows that the petitioner Is entitled to be declared elected in the place of the first respondent.
Issue No. 25. - In the result there will be a declaration that the election of the first respondent to the Tamil Nadu Legislative Assembly from the Melur North Constituency is Void and there will be a further declaration that the petitioner has been duly elected to that constituency. I hereby order as required under Section 99 that the charge of corrupt practice alleged against: the first respondent has not been proved. The petitioner is entitled to his costs from the first respondent which I fix at Rs. 1,000 towards counsel's fee and other expenses, plus the amount of Rs. 1,500 which the petitioner has deposited in compliance with the order of this Court towards fees for Tellers staff, etc. thus making in all Rs. 2,500. The substance of this decision should be communicated to the Election Commission and the Speaker of the Tamil Nadu Legislative Assembly as required under Section 103 of the Act.