Judgment

PATHAK, J.:- These two appeals under Section 116A of the Representation of the People Act, 1951 are directed against an order of the High Court of Bombay declaring void the election of Janardan Dattuappa Bondre to the 184-Chikhli Legislative Assembly Constituency, Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected.

2. Civil Appeal No. 1936 (NCE) of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No. 2387 (NCE) of 1978 by Keshavrao Jaiwantrao Bahekar. The parties will be referred to hereinafter according to their array in the former appeal.

3. General elections to the Legislative Assembly of Maharashtra were held in February, 1978. The appellant Janardan Dattuappa Bondre, was declared elected to the 104-chikhli Assembly Constituency. He secured 27,785 votes. The fifth respondent, Bharat Rajabhau Bondre was given 27,604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 29,447 votes. The election of the appellant was questioned by an election petition filed in the High Court of Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary.

4. The High Court did not find substance in most of the grounds raised in the election petition, but having regard to the allegations made in respect of a number of ballot papers if allowed fresh scrutiny and recount of the votes. The task was entrusted to a Special officer of the High Court. After considering his report and the material before it, the High Court made an order dated September 22, 1978 allowing the election petition, declaring the election of the appellant to be void and further declaring the fifth respondent to be duly elected. The decision was rendered on the finding that after taking into account the votes now counted in favour of the different candidates, the fifth respondent was found to have received 191 votes more than the appellant. This result was reached after denying to the appellant the benefit of 250 ballot papers cast in his favour but found included in the packet of Bahekars ballot papers. If these 250 ballot papers are counted in favour of the appellant, it is not disputed that the result of the election must swing in favour of the appellant. The submissions of learned counsel for the parties have, therefore, centred mainly on this aspect of the case.

5. The relevant portion of the report of the Special Officer reads:-

"While the counting was in progress, it was found that in one envelope from Box No. 2 of candidate No. 4 Shri Bahekar, there were 278 ballot papers noted by the Returning Officer on the envelop but at the time of actual counting, it was found that from them 28 ballot papers were of Shri Bahekar, while the remaining were of votes cast, in favour of candidate No. 3 Shri Janardhan Bondre. Similarly, in the envelope of Shri Janardhan Bondre there were 408 ballot papers noted by the Returning Officer but at the time of actual counting of that envelope it was noticed that from out of 408 ballot papers, 158 only were of Shri Janardhan Bondre and the remaining were of Shri Bahekar. It would be therefore clear that there was some mistake committed by the Returning Officer while packing the ballot papers in the two envelopes of Shri Bahekar and Janardan Bondre."

6. 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 and found in the packet of Bahekar because the order of the High Court directing a recount was limited to finding out whether any improper votes had been accepted in favour of the appellant and whether any proper votes of the fifth respondent had been rejected. Relying on P. Malaichami v. M. Ambalam, (1973) 3 SCR 1016 (B), the High Court 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 i