Judgment

GAJENDRAGADKAR, J. (on behalf of Sarkar, Wanchoo, Das Gupta, JJ. and himself):

The question of law which this appeal has raised for our decision is in relation to the nature and scope of the enquiry contemplated by Ss. 97, 100 and 101 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). The appellant Jabar Singh and the respondent Gandra Lal, besides five others, had contested the election to the Madhya Pradesh Assembly on behalf of the Morena Constituency No. 5. This election took place on February 21, 1962. In due course, the scrutiny of recorded votes took place and counting followed on February 27, 1962. As a results of the counting, the appellant was shown to have secured 5671 votes, whereas the respondent 5703 votes. It is not necessary to refer to the votes secured by the other candidates. After the result of the counting was thus ascertained, the appellant applied for recounting of the votes and thereupon, recounting followed as a result of which the appellant was declared elected having defeated the respondent by 2 votes. The recounting showed that the appellant secured 5656 votes and the respondent 5654. Thereafter, the respondent filed an election petition from which the present appeal arises. By his petition the respondent challenged the validity of the appellant s election on the ground of improper reception of votes in favour of the appellant and improper rejection of votes in regard to himself. The respondent urged before the Tribunal either for the restoration of the results in accordance with the calculations initially made before recounting, or a re-scrutiny of the votes by the Tribunal and declaration of the result according to the calculations which the Tribunal may make. His prayer was that the appellant s election should be declared to be void and a declaration should be made that the respondent was duly elected.

2. The Election Tribunal found that 10 ballot papers in favour of the respondent had been improperly rejected and 4 had been improperly accepted in favour of the appellant. That led to a difference of 12 votes and the position of the votes was found to be the respondent 5664 and the appellant 5652 votes.

3. At this stage, the appellant urged before the Tribunal that there had been improper rejection of his votes and improper acceptance of the votes of the respondent, and his case was that if recounting and rescrutiny was made, it would be found that he had secured a majority of votes. The respondent objected to this course, his case was that since the appellant had not recriminated under S. 97 of the Act, it was not open to him to make the plea that a recounting and rescrutiny should be made on the ground that improper votes had been accepted in favour of the respondent and valid votes had been improperly rejected when they were cast in favour of the appellant. The respondent s contention was that in order to justify the claim made by the appellant it was necessary that he should have complied with the provisions of the proviso to S. 97(1) of the Act and should have furnished security as required by it. The failure of the appellant in that behalf precluded him from raising such a contention.

4. The Tribunal rejected the respondent s contention and held that in order to consider the relief which the respondent had claimed in his election petition it was necessary for it to decide whether the respondent had in fact received a majority of votes under S. 101 of the Act, and so, he re-examined the ballot papers of the respondent as well as the appellant and came to the conclusion that 22 ballot papers cast in favour of the respondent had been wrongly accepted. The result was that the respondent had, in fact, not secured a majority of votes. As a consequence of these findings, the Tribunal declared that the election of the appellant was void and refused to grant a declaration to the respondent that he had been duly elected.

5. This decision led to two cross-a