Judgement

SINGH, J. :- N. Gopal Reddy, the appellant was declared elected member of the Andhra Pradesh Legislative Assembly from Gadwal Assembly Constituency, having obtained 38291 votes. Bonala Krishnamurty, respondent 1 filed an Election Petition under S. 100, Representation of the People Act, 1951, challenging the validity of the appellants election claiming relief for setting aside of the election of the returned candidate and also for declaring D. K. Samarasimha Reddy respondent 6 as duly elected. One of the grievances raised by the election petitioner was that even though the Returning Officer had issued orders on an application made by the election agent of respondent 6 for recount and scrutiny of ballot papers of all the candidates but later on, he illegally modified his order and directed for the recount of ballot papers only without opening the bundles of the ballot papers of counting the same. The election petitioner alleged that if a general recount and scrutiny of the ballot papers had been done as directed by the Returning Officer respondent 6 would have been found to have polled majority of valid votes. On the pleading of the parties a number of issues were framed but before the High Court the parties confined their case to recount of ballot papers.

2. The High Court by its order dt. April 23, 1986 directed recount and scrutiny of all the ballot papers polled by all the candidates at all the polling stations including the rejected ballot papers and postal ballot papers. While giving directions for the recount and scrutiny of the ballot papers learned single Judge of the High Court issued the following directions :

"I, therefore, consider it just and necessary to direct recount of all the ballot papers polled by all the candidates at all the polling stations as also the rejected ballot papers and the postal ballot papers after rescrutiny of each of the ballot papers. At the end of the recount now ordered, even if any extra votes are found polled in favour of the first respondent, the same shall not be added to him as laid down by their Lordships of the Supreme Court in the four decisions referred to supra."(Emphasis supplied)

In pursuance to the directions of the High Court, scrutiny and recount of all the ballot papers was done and thereafter the appellant was declared to have polled 38204 votes while respondent 6 was held to have polled 38260 votes.

3. In view of the result of the recount and scrutiny of the ballot papers the High Court by its order dt. September, 30, 1986 set aside the appellants. election and declared respondent 6 as duly elected.

4. Shri Shanti Bhushan, learned counsel for the appellant urged that since a general recount and scrutiny of all the ballot papers of all the candidates including the valid and invalid votes had been done, the High Court should have given benefit of the additional votes which the appellant had secured during the recount and scrutiny of the ballot papers and it should have rejected the votes recorded on invalid ballot papers in favour of respondent 6. Had that been done, the appellant would have been found to have polled majority of valid votes and his election could not have been set aside and respondent 6 could not be declared duly elected. He further urged that if invalid votes counted in favour of respondent 6 had been excluded, the appellant would have still continued to have polled majority of votes.

5. Dr. Y. S. Chitale, learned counsel for respondent 6 urged that since the appellant had failed to file a recriminatory petition under S. 97 of the Act, the High Court was justified in refusing to give benefit of additional votes found in appellants favour and the High Court was justified in refusing to reject the invalid ballot papers counted in favour of respondent 6. He urged that in the absence of a recriminatory petition it is not open to the returned candidate to claim additional votes during the counting or to raise objection against the validity or invalidity of