Kesheo Prasad vs A.D. Mani

P.V. Dixit, C.J.—This is an appeal u/s 116-A of the Representation of the People Act, 1951, from a decision of the Election Tribunal, Bhopal, declaring the election of the Appellant to the Council of States void and the Respondent No. 1, Shri Mani, as having been duly elected. The decision was given on a petition filed by the said Respondent challenging the Appellant''s election.

On 24th March 1960 an election was held to fill five vacancies in the Council of States. The Appellant and the Respondents contested the election. The election was according to the system of ''proportional representation'' by means of single transferable vote Out of 270 ballot papers received by the Returning Officer, five were declared to be invalid. The quota which a candidate had to secure for getting elected was, as ascertained under Rule 122 of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956, hereinafter referred to as the Rules), 4417 points. At the end of the counting of votes the Returning Officer declared the Appellant, Shri Verma and the Respondents Nos. 2 to 5 elected. The Returning Officer found that 3944 points secured by the Respondent No I were less than those obtained by the Appellant who was the last candidate to be desisted.

The Respondent Shri Mani challenged the election of the Appellant on various grounds. They were (a) that the Returning Officer wrongly rejected a ballot paper on which the only mark was against the name of the said Respondent; (b) that he did not count the third preference vote recorded in some of the ballot papers when he was bound to do so, as the candidates against whose names the first and second preference votes were recorded had been excluded; (c) that the transfer of a surplus vote was not in accordance with the Rules; (d) that there were errors in counting and scrutiny of ballot papers which had materially affected the result of the election; and (e) that if the ballot papers had been properly evaluated he would have been declared elected instead of the Appellant Shri Verma. The election petition was thus based on the ground of miscount of the ballot papers. The Respondent Shri Mani was granted leave on 23rd July 1960 to amend the petition for incorporating particulars of the errors said to have been committed in the counting. The particulars are given in paragraph 4(b) of the petition The Appellant denied the Respondent No. 1''s allegations about mistakes in counting He submitted that the counting was properly done as required by the Rules; that the time of the counting neither the said Respondent nor his agents made any grievance of mistakes in counting; and that, therefore, the election could not be challenged by an election petition on the ground of miscounting. The Appellant also entered a ''recrimination'' contending that the election of the Respondent No. I would have been void if he had been elected for the reasons that he was not eligible for being elected to the Council of States as his name was not properly enrolled in the electoral roll for any Assembly or Parliamentary constituency in the State of Madhya Pradesh; that as the owner and publisher of a newspaper entitled ''Hitavada'' published from Nagpur and Bhopal he had entered into a subsisting contract with the Government of India for publication of advertisements in the piper and was thus disqualified u/s 7(d) of the Act; and that he was also holding an office of profit. The Appellant also pleaded that the allegations made in the election petition were vague and not specific; that the security deposit made by the Respondent No. 1 was not in accordance with Section 117; and that there was a contravention of Section 38. (2) in the publication of the list of contesting candidates.

All these contentions of the Appellant were rejected by the Tribunal. In the course of the scrutiny of ballot papers before the Tribunal it was revealed that the solitary ballot paper in which the first preference was recorded in favour of the Respondent Shri Agnibhoj, the second and third preferences had been given to the Respondent No. 6, Shri Niranjan Verma and the Respondent No. 1, Shri Mani, respectively, The Tribunal found, on the evidence of the Returning Officer, Shri Raghunathsingh that he had omitted to evaluate the third preference recorded in favour, of the Respondent No. 1 in this ballot paper, and that if the third preference had been taken into consideration and properly evaluated. Shri Mani would have got 4044 points as against 4038 secured by the Appellant. The Tribunal, therefore, unseated the Appellant and gave the seat to the Respondent Shri Mani. The Tribunal observed at the end of paragraph 44 of the judgment under appeal.

In other respects the counting of votes was not in any way challenged nor was method of calculation.

In the memorandum of appeal, the Appellant has attacked the decision of the Election Tribunal on various grounds. But before us, Shri Dharmadhikari, learned Counsel for the Appellant, pressed only four points, namely, (a) first that the Respondent No. 1 or his agents not having raised any objection to the exclusion or counting of any ballot paper at the time of counting could not now challenge the validity of the election of the Appellant on the ground of miscount of the ballot papers and claim a recount, that in fact there was no error in counting; that the ballot papers had been tampered with after the counting and the ''third preference'' taken into account by the Tribunal was marked after the counting (b) secondly, that the deposit made by the Respondent No. 1 was not in accordance with Section 117 of the Act; (c) thirdly, that the said Respondent was not properly enrolled in the electoral, polls for any Assembly or Parliamentary constituency in the State and was therefore, not eligible for being chosen to the Council of States; and (d) fourthly, the publication of the list of contesting, candidates was not in conformity with Section 38 of the Act and the Rules.

On the question of the Respondent No. 1''s right to challenge the election on the ground of miscount, learned Counsel for the Appellant contended that Rule 128 made an express provision for recount during the counting of the votes; that if the Respondent No. 1 thought that the Returning Officer had committed an error in counting he or his agents could have asked the Returning Officer to examine and recount the papers of all or any candidate, but that they did not do so; and that after the return was made by the Returning Officer on the completion of the counting of votes no application for a recount could be entertained. Learned Counsel relied on Champa Devi v. Jamuna Prasad 15 ELR 443. The contention is Untenable and cannot be accepted. The matter of the grounds on which a petition may be presented calling an election in question is governed by Sections 81, 100 and 101. Section 81(1) enacts that an election petition calling in question any election may be presented on one or more of the grounds specified in Section 100(1) and Section 101 to the Election Commission. These sections lay down a number of grounds on which an election may be set aside. By Section 100(1)(d) (iii) and (iv), it is provided that if the result of the election, in so far as it concerns a returned candidate, has been materially affected (a) by the improper reception, refusal or rejection of any vote or if there is reception of any vote which is void of (b) by any non-compliance with the provisions of the Constitution or of the Act or of any rules or orders made there under, the Tribunal shall declare the election of the returned candidate to be void. Thus an election, petition can be founded on the ground of improper reception, refusal or rejection of any vote or the reception of any vote which is void, or on the ground of non-compliance of the provisions of the Constitution or of the Act or rules there under. Now, it is true that if a ballot paper is not invalid and is not rejected, but a mistake has been committed in ascertaining the value of the preferences recorded therein, then it is difficult to say that there has been improper reception or rejection of any vote. The word ''improper'' occurring in Section 100(1)(d)(iii) has reference to the grounds on which a ballot paper can be declared to be invalid. These grounds are stated in Rule 116 and Rule 120(4). A mistake in counting or in the evaluation of preferences would properly fall under the fourth clause of Section 100(1)(d). The counting in the present case had to be done in accordance with rules 115 to 130. Any mistake in counting would be due to non-compliance with the rules. Therefore, an election petition on the ground of miscount of ballot papers can always be entertained u/s 100(1)(d)(iv). The provision in the rules about recount cannot control Sections 81, 100 and 101 or override them. These provisions nowhere say that where in the rules there is a provision for recount or scrutiny of the ballot papers at the time of the counting and the same has not been availed of by a candidate during the counting, then the candidate would be debarred from questioning the election on the ground of miscount of ballot papers. The decision in Champa Devi v. Jamuna Prasad (supra) is not in point. The observation in that case that under Rule 64 (6) no application for a recount can be considered after the result sheet has been completed and signed refers to the right of a candidate to claim a recount during the process of counting. The question whether an election petition can be based on the ground of miscount u/s 100 did not arise for consideration in that case. The observations at page 455 in Champa Devi''s case however indicate that the learned Judges were inclined to take the view that the loss of any ballot papers on account of any mistake in counting would fall within the mischief of Section 100(1)(d)(iii).

It was then submitted that the election petition of the Respondent could have been thrown out as it was vague and did not contain any particulars of the mistakes said to have been committed in counting; that he should not have been allowed to amend his petition and, further, even after the amendment he never alleged specifically that the third preference recorded in the solitary ballot paper in which Shri Agnibhoj secured the first preference had not been valued at all; that the Respondent had not alleged or established a prima facie case for a recount; and that under no provision there could be a roving enquiry for fishing out material to support the said Respondent''s case. To support his contention learned Counsel referred us to Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal Biyani and Others, , Basaviah v. Bachiah 17 ELR 293 and to paragraphs 559 and 560 in Halsbury''s Laws of England (Vol. 14-Third edition).

All these objections are of unsubstantial character. u/s 83(1)(a) an election petition must contain a concise statement of the material facts on which the Petitioner relies Clause (b) of Section 83(1) says that an election petition shall set forth fully particulars of any corrupt practice that the Petitioner alleges. The particulars that are required u/s 83 are of any corrupt practice and not of other grounds on which an election is sought to be set aside. This is clear from the Supreme Court''s decisions in Harish Chandra Bajpai Vs. Triloki Singh, . In that case it was pointed but that the particulars are required only when there is an allegation of corrupt or illegal practices and a concise statement of the material facts required u/s 83(1) would include facts relating to the holding of the election, the result thereof, the grounds on which it is sought to be set aside, the right of the Petitioner to present the petition, and the like. There is thus no basis for the suggestion that the Respondent No. 1 was required to give particulars of errors in counting. Now, "material facts" would mean that what is necessary for the purpose of formulating a complete cause of action of a and the failure to plead which would render the pleading to be struck under the rules of pleading The purpose of the particulars is only to fill in the picture of the Plaintiff''s cause of action with information sufficiently detailed to put the Defendant on guard as to the case he has to meet and to enable him to prepare for trial. Here, the Respondent No. 1 gave all the facts which were necessary for the purpose of showing that he had a cause for challenging the validity of the Appellant''s election, the grounds on which it was sought to be set aside, and his right to present the petition. He also stated in paragraph 4(b) of the original petition that the Returning Officer had not followed the directions fur counting of votes as laid down in the rules and that he did not count the third preference votes recorded in some of the ballot papers which were liable to be calculated at the value of one-hundred in bis favour inasmuch as the candidates against whose names the first and second preferences had been recorded were excluded candidates being lowest in the poll. By the amendment which the said Respondent was allowed to make in the petition he gave further instances of the mistakes in evaluating the ballot papers. The Tribunal had the power to direct amendment of the petition under O-6, R-17 Code of CPC (sec Harish Chandra v. Triloki Singh (supra). In Clauses (iv), (v) and (vi) of paragraph 4(b) of the petition, the Petitioner endeavoured to show how there was a mistake in calculating the value of the preferences in the ballot paper in which Shri Agnibhoj had secured the first preference vote, Shri Niranjan Verma the second and he himself had obtained the third. It cannot, therefore, be said that the Respondent No. 1 had not given with sufficient fulness and clarification the material facts, and even the particulars, and an enquiry that the Tribunal held on his petition became a roving inquisition. The petition thus prima facie made out a cause to suspect the original counting. The Respondent was not required to give an indication in the petition itself of the proof that the count at the election was wrong. Indeed from the very nature of the case, such a proof could not be given before the recount took place. The contentention, therefore, that the petition should have been supported by particulars of evidence of miscounting is untenable. This view finds support in the decision of the Madras High Court in M. Lakshumanayya and Others Vs. S. Rajam Ayyar and Others, , where it has been observed that where a miscount is alleged by the Petitioner, usually nothing more can be alleged than cause to suspect the original count; that from the very nature of the case, proof that the count at the election was wrong cannot be given before the recount takes place; and that an overstrict insistence than an application should be supported by evidence of miscounting is, therefore, unwarrantable. To the same effect are the observations in Seshaiah v. Koti Reddi 3 E.L.R. 39 at p. 40. In the Punjab North case Hammond''s Election Cases 569. the Petitioner claimed a scrutiny and recount of votes and prayed that he be declared duly elected. The Respondent''s objection that no particulars of the objected votes had been given was overruled by the Court holding that the rules only required particulars to be given of an alleged corrupt practice and were silent as regards the form of the petition and the procedure to be adopted when a scrutiny was demanded that a Petitioner could not be expected to give further and better particulars of the objected Votes until he had had sufficient opportunity to inspect the votes; and that it was sufficient to allege in the petition that he would be found on scrutiny to have secured a majority of votes. The statement of law contained in paragraph 559 in Halsbury''s Laws of England (Vol. 14-III Edn, at p. 310) that a recount cannot be granted as of right but on evidence of good grounds for believing that there has been a mistake on the part of the Returning Officer is not of much assistance to the Appellant- That statement is based on the authority of Stepney Division, Tower Hamlets, Case (1886) 4 OM& H 34 at pp. 50, 51. In that case, Denman J. in delivering the judgment said-

We decided against the contention that the Respondent was entitled to a recount as a matter of right, but offered to hear any evidence tending to show that there had been a mistake on the part of the Returning Officer. We heard witnesses on both sides upon the point and were satisfied, I may say mainly upon the evidence of one of the witnesses called by the Petitioner, that there were strong grounds for thinking that the return could not be strictly relied upon. We therefore determined upon directing a recount............

This statement does not support the argument that an election petition must contain particulars of the proof of mistakes in counting on the part of the Returniug Officer. It only shows that the Petitioner has to make out good grounds for believing that there has been a mistake on the part of the Returning Officer and that this can be shown by the evidence of witnesses tending to show that there was a mistake on the part of the Returning Officer, and further if upon such evidence the Court comes to the conclusion that there are strong grounds for thinking that the return made by the Returning Officer could not be relied on, then a recount can be directed. This was exactly the procedure which was followed in the present case.

Before the Tribunal, Shri Raghunathsingh, the Returning Officer, gave evidence about the valuation of the preferences. His evidence was based mostly on the transfer-sheets prepared by him. In connection with the question of the valuation of the preference record in some ballot papers he was asked to state the number of preferences marked on the ballot papers which had been transferred by elimination of Sarvashri Agnibhoj, Gurudeo Saran and Niranjan Shankarlal. His answer was:

There were no further preferences on the original paper of Shri Agnibhoj transferred to Shri Niranjan Verma. The original paper of Shri Gurudeo Saran which was transferred to Shri Niranjan Verma at the value of 100 did not contain any further preferences. One transferred paper of Shri Niranjan Verma was transferred to Shri Mani at the value of 6. If it contained any more preferences, cannot be said as Shri Mani was eliminated after this. There were no further preferences recorded on the papers transferred to Shri Niranjan Verma after his elimination.

He then made the statement that he could not say from memory whether there were next preferences on the ballot paper of Shri Agnibhoj whose original vote had gone at its full value to Shri Verma. He added-

I can, however, say from the transfer-sheet that there are no next preferences on this paper.

The witness admitted that from the transfer sheet he could not say anything ev?n about the contents of the ballot papers. The transfer sheets, on the basis of which he deposed, were according to the witnesses his rough notes which had not been signed. He said -

The transfer-sheets are not signed''. They are my rough notes. They are not required, to be maintained under the Election Mannual. I believe that the transfer-sheets are quite correct. If the ballot papers show otherwise, I will be open to correction.

The witness was then asked to open the bundle containing the ballot papers and take out the ballot paper fin which the first preference vote had been recorded in favour of Shri Agnibhoj and the second one in favour of Shri Verma. On seeing that ballot paper, his statement was that it contained a third preference in favour of Shri Mani which he had omitted to value. According to Shri Raghunathsingh on a correct valuation of this third preference in favour of Shri Mani the total points secured by Shri Mani would be 4044. The Returning Officer also said that the third preference, marked in favour of Shri Mani in the ballot paper in question was legible and that when he declared it to be exhausted there was no objection on behalf of any counting agents of Shri Mani or a candidate and that he would have noticed the third preference had it been at the time of counting. He was then asked specifically the question as to whether he intended to say that the figure "3" was put on the ballot paper after the counting. To this question his answer was-

No. It appears that it escaped my notice. The figure of ''3'' is so clear that normally it would not have been escaped my notice. I mean to say that I had seen this ballot papar carefully. I did not deliberately omit to take the third preference into consideration. I can say definitely that there was no possibility of this figure ''3'' not being there in the ballot paper at the time of counting.

The Tribunal accepted the statement of Shri Raghunathsingh about the miscount of this third preference and as the "counting of votes or the method of calculation" was not challenged in any other way before it, the Tribunal found that on the correct valuation of the votes Shri Mani had obtained 4044 points.

In connection with the evidence of the Returning Officer, the inspection of the solitary ballot paper in which Shri Agnibhoj had secured the first preference, and the contents of it, learned Counsel for the Appellant pressed on us the argument that the inspection of the ballot paper should not have been given; that when the Returning Officer had stated clearly that at the time of the counting when he declared the aforesaid ballot paper to be exhausted no objection was taken by the agents of Shri Mani and that he would have noticed the third preference if it bad been recorded in the ballot paper, the Tribunal was not justified in putting a question to the witness whether he intended to say that the figure ''3'' was inserted in the ballot paper after the counting; that if the Tribunal had allowed the Appellant''s counsel to question the witness he would have given a different answer; that the Tribunal had ignored the evidence of the Appellant and Chandra Dhar, the agent of Shri Gurudeo, that at the time of counting there was no third preference recorded in the said ballot paper; and that there was a strong probability of the third preference having been recorded in that ballot paper after the counting. Learned Counsel proceeded to say that this probability was also supported by the circumstances that proper arrangement for sealing of the ballot papers after the completion of counting had not been taken; and that the ballot papers were taken away from the custody of the Returning Officer by an order of the Tribunal contrary to Rule 138 and the Returning Officer was asked to take out for inspection only the ballot paper in question. Relying on AIR 1931 333 (Oudh) , learned Counsel argued that in a case such as this it was not possible to establish fraud by positive and tangible proof and an inference could only be drawn by circumstantial evidence; and that the circumstances adverted to sufficiently indicated that the third preference in the ballot paper referred to above must have been inserted fraudulently sometime after the completion of the counting.

We are unable to accede to. the contention that the Tribunal committed an error in ordering the production of the ballot papers before it and in allowing the Returning Officer to inspect the ballot paper in which Shri Agnibhoj secured the only first preference vote. Rule 138, while providing that the election papers shall not be opened and their contents shall not be inspected by or produced before any person or authority while they are in the custody of the Returning Officer, expressly says that they can be opened and their contents can be inspected under the order of a competent Court or Tribunal. The rule does not require that the physical custody of the ballot papers should always be with the Returning Officer. The Tribunal had, therefore, the power to order the production of the ballot papers and their inspection if it thought it necessary for the decision of the election petition. The power has not been given to the Tribunal just for its satisfaction but for practical purpose of adjudicating upon a question such as the validity or invalidity of a ballot paper or the determination of its value as in the present case. The provisions in rules 130 and 138 about the sealing up of ballot papers alter counting and their custody are undoubtedly for securing the secrecy or ballot which is the very essence of a proper election under the democratic set-up. But this does not mean that a ballot paper can never be inspected when its validity or evalution has been questioned in an election petition. Where the Court is satisfied on the evidence before it that the production or inspection of the ballot papers is required for the purpose of an election petition, their inspection can be ordered. A positive proof of a miscount in ballet papers cannot clearly be given before it is inspected. Now, here, the evidence which the Returning Officer gave about the transfer and valuation of preferences was on the basis of certain order sheets which were only rough notes prepared by the Officer. The Returning Officer himself admitted the possibility of error when he said- "I believe that the transfer sheets are quite correct. If the ballot papers show otherwise, I will be open to correction." He was thus not confident about the correctness of the transfer of preferences and their valuation has shown in the transfer-sheets. On this statement of the witness the Tribunal was, in our opinion, justified in permitting the inspection of the ballot papers.

The Returning Officer''s evidence clearly showed that the third preference marked in favour of Shri Mani in the ballot paper in which Shri Agnibhoj had received the only first preference vote he got, escaped his notice and he omitted to give due credit for that preference to Shri Mani. The witness had no doubt stated earlier on the basis of transfer-sheets that in this ballot paper no preference had been recorded in favour of Shri Mani and that he would have noticed it if it had been recorded. But after the inspection of the ballot paper in question he had to admit that he had committed an error and the third preference recorded therein in favour of Shri Mini escaped his attention. The objection of the learned Counsel for the Appellant that the Tribunal should not have questioned the Returning Officer when he had stated even after inspecting the ballot paper that he would have noticed the third preference if it had been there at the time of the counting, is untenable. The question whether the third preference recorded in the ballot paper was in existence at the time of the counting or was interpolated subsequently was an all important and serious question on which the petition turned. It had to be decided specifically by positive statements of the Returning Officer on the point and not by inferences drawn from the general statements made by the witness in answer to questions which did not focus his attention on the alleged addition of the third preference. When, therefore, the Returning Officer made a general statement that he would have noticed the third preference at the time of counting if it had been recorded in the ballot paper, and when the transfer sheet showed that this third preference had not been evaluated, and. further, when the Returning Officer was not certain of the correctness of the transfer sheets maintained by him and the ballot paper itself contained a third preference in favour of Shri Mani, the Tribunal would have failed in its duty if it had not questioned the witness and asked him to state categorically whether he intended to say that the third preference vote had been added subsequent to the counting. It is difficult to conceive what other answer the Returning Officer would have given if a question seeking this clarification would have been put by the Appellant''s counsel himself-The Returning Officer categorically said that the figure ''3'' was not put on the ballot paper after counting; that it had escaped his notice; and that he had not seen the ballot paper in question carefully. Surely the witness could not have been asked the question whether from his answer that he would have noticed the third preference at the time of counting if it had been there, he drew the inference that the figure ''3'' on the ballot paper was added subsequently. Even if such a question had been put, his answer would have been no different than the one he gave in reply to the Tribunal''s question. As a subsidiary argument, learned Counsel for the Appellant also said that while replying to the Court-question the witness had actually said "I can say definitely that there was possibility of this figure ''3'' not being there in the ballot paper at the time of counting and that the witness had actually struck out the word "no" between the words "There was" and "possibility" which had been typed in the deposition sheet, but that the Tribunal added the word "no". The suggestion, which has no basis, does not merit any consideration Consistent with his earlier statement that the figure ''3'' was not added subsequently, that it escaped his notice at the time of counting, and that he had not seer the ballot paper carefully, any statement of the witness that "there was possibility of the figure ''3'' not being there in the ballot paper at the time of counting" would have been meaningless. The striking out of the word ''no'' from the typed deposition can be explained as a lapse on the part of the witness while hurriedly reading the deposition. Again, there is nothing to show that even when the word ''no'' was restored by the Tribunal the witness objected to the correction saying that he had made a contrary statement.

The effect of the clear statements of the Returning Officer that there was no possibility of the figure ''3'' having been inserted in the ballot paper in question subsequent to the counting, that it had escaped his notice, and that he had not seen the ballot paper carefully is in no way displaced by the vague recollections of the Appellant or of Chandra Dhar who deposed about the non-existence of figure ''3'' in the ballot paper at the time of counting The statements made by these two witnesses in cross-examination amply show that their recollection as to what recorded preferences they had seen in various ballot papers cannot be relied upon.

Learned Counsel laid considerable stress on the circumstances that the Returning Officer parted with the custody of the ballot papers in obedience to the tribunal''s order and for some time the ballot papers were in the custody of the Tribunal, and that they were not property sealed in the presence of the candidates or their counting agents, as lending support to the possibility of the ballot papers being tampered with we do not think that these circumstances in any way detract from the value of the evidence of the Returning Officer that there was no possibility of the figure ''3'' having been added in the ballot paper after the counting Learned Counsel saw some significant in the Returning Officer being asked to inspect only one ballot paper. It was said that this also indicated that the figure ''3'' had been inserted subsequently in the ballot paper and the Respondent No. 1 knew about it. We do not see anything suspicious in the Returning Officer being asked to take out from the sealed packet of ballot papers the ballot paper in question and inspect it, when the Respondent had specifically alleged on Clauses (iv), (v) and (vi) of paragraph 4 (b) of the petition that no credit had been given to him for the third preference recorded in the ballot paper in which Shri Agnibhoj had secured the first preference and Shri Niranjan Verma the second preference. The possibility of the Respondent No. 1 having come to know from the person casting the vote himself or herself that a certain preference has been recorded in his favour cannot be ruled out. That being so, it is futile to contend that the knowledge of the Respondent No. 1 that the third preference had been recorded in his favour in the ballot paper in question was in itselt indicative of the fact that the preference had been added subsequent to the counting. The Appellant has utterly failed to prove the charge of tampering with the ballot papers. No doubt it is difficult to prove such a charge or other type of fraud by means of direct evidence. But as pointed out by the Privy Council in Satish Chandra v. Satish Kantha AIR 1923 PC 73, it has to be proved by established facts or interences leginmatery drawn from those facts taken together as a whole; suspicions, surmises and conjectures are not permissible substitutes for those tacts or inferences. The suggestion made by the Appellant as regards tampering with the ballot papers cannot legitimately be drawn from the evidence that was led before the Tribunal and the circumstances about the custody of the ballot papers and their sealing relied on by the learned Counsel for the Appellant. In our view, the Tribunal was right in giving effect to the statement of the returning Officer and in holding that the Returning Officer had omitted to notice the third preference recorded in favour of Shri Mani in the ballot paper and to evaluate it.

Turning now to the contention that the security deposit made by the Respondent No. 1 did not comply with the provisions of Section 117, we find that the security deposit was made by the Respondent No. 1 through his counsel Shri Mandlekar in the Government Treasury at Nagpur on 16 April 1960. The Challan by which the deposit was made, so far as is material here, is in these terms-

By whom brought

On what account

Amount

A.D. Mani, Bhopal, Journalist, Petitioner through counsel Shri B.R. Mandlekar, Supreme Court Advocate, Nagpur

Security for the cost of election petition u/s 117 of the Representation of the People Act, 1951. P. D. and advances not bearing interest Civil Deposit deposit on a/c of election petition.

Rs. 1000/- (One Thousand Rupees only)

At the back of the Challan the Treasury Officer signed an endorsement asking the Reserve Bank of India, Nagpur, to receive the amount of Rs. 1000/-, It also bears the seal of the Reserve Bank of India to indicate that the amount was received by the Bank on 6th April 1960. Section 117 of the Act says -

The Petitioner shall enclose with the petition a Government Treasury Receipt showing that a deposit of one thousand rupees has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commission as security for the costs of the petition.

The Appellant''s objection is that the amount was not deposited by the Respondent No 1 himself but by his counsel who had no authority to do so and the deposit was not made in favour of the Election Commission for the costs of the petition". The objection is devoid of any substance and is really concluded by the decisions of the Supreme Court in Komraja Nadar v. Kunju Thevar 14 ELR 270 and Chandrika Prasad Tripathi Vs. Siv Prasad Chanpuria and Others, . Section 117 first contained the words "in favour of the Secretary to the Election Commission". The words "the Secretary to" were omitted by Act No. 58 of 1958. While dealing with the question whether the expression "in favour of the Secretary to the Election Commission'', were directory or mandatory in their character, the Supreme Court said in the case of Kamraj Nadar {supra) that Section 117 should not be strictly or technically construed and that wherever it is shown that there has been a substential compliance with its requirements the Tribunal should not dismiss the election petition u/s 90(3) on technical grounds. In that case it was observed that-

What is of the essence of the provision contained in Section 117 is that the Petitioner should furnish security for the costs of the petition, and should enclose along with the petition a Government treasury receipt showing that a deposit of one thousand rupees has been made by him either in a Government treasury or in the Reserve Bank of India, is at the disposal of the Election Commission to be utilised by it in the manner authorised by law and is under its control and payable on a proper application being made in that behalf to the Election Commission or to any person duly authorised by it to receive the same, be he the Secretary to the Election Commission or any one else.

If therefore, it can be shown by evidence led before the Election Tribunal that the Government treasury receipt or the chalan which was obtained by the Petitioner and enclosed by him along with his petition presented to the Election Commission was such that the Election Com mission could on a necessary application in that behalf be in a position to realise the said sum of rupees one thousand for payment of the costs to the successful party, it would be sufficient compliance with the requirements of Section 117.

The decision in Chandrika Prasad Tripathi Vs. Siv Prasad Chanpuria and Others, , is to the same effect Applying the principle laid down in these cases, there can be no doubt that there was substantial compliance with the terms of Section 117. That Challan reproduced above clearly shows that the deposit was made by the Respondent No. 1 through Shri Mandlekar. It was a deposit of security for the costs of election petition u/s 117 and was paid in the Treasury under the head Civil Deposit a/c Election Petition". Section 117 does not require that the person filing the petition should himself personally make the deposit. An amount to be deposited in a bank or a treasury to the credit of some person or authority can be paid in by the person making the deposit himself or for the matter of that by any person directed by him to pay in the amount. All that is necessary is to indicate clearly that the deposit is from the person filing the election petition. It is true that in the Challan the words "in favour of the Election Commission" were not inserted. But the entry in the Challan that the security was for the costs of the election petition u/s 117 of the Representation of the People Act, 1951, is plain enough to show that the deposit was in favour of the Election Commission. Then there is also the evidence of the Treasury Officer, Nagpur, Shri D.S. Patil, that he received the amount and signed the Challan as Treasury Officer asking the Reserve Bank to receive the amount of Rs. 1000; that it was paid in towards security for the costs u/s 117; and that the amount was available to the Election Commission, Delhi, at all times and was still available to the Commission. Thus there is no doubt that the full amount of the deposit was at the disposal, and under the control, of the Election Commission. In Kamraj Nadar''s case (supra) also the Treasury receipt filed with the election petition did not expressly show that the deposit had been made in favour of the Secretary to the Election Commission. But the evidence of the Head Accountant of the Treasury in which the money was deposited showed that the amount was kept in the revenue deposit and it was at the disposal of the Election Commission. It was, therefore, held that there was sufficient compliance with the provisions of Section 117. In the other case, namely, Chandrika Prasad Tripathi Vs. Siv Prasad Chanpuria and Others, , the receipt of the security deposit was much more defective that the receipt in the present case. It only mentioned that the security deposit was for election petition of Bargi Assembly Constituency No. 97, district Jabalpur with the condition "Refundable by order of the Election Commission of India, New Delhi." The objection that the security had not been deposited in the name of the Secretary to the Election Commission as required by Section 117 and that the deposit was with the condition that it was refundable by the order of the Election Commission of India was held to be purely technical. Here, the deposit made was unconditional and with specific reference as its being one u/s 117 for the costs of the election petition of the Respondent No. 1. Learned Counsel for the Appellant said that there was no evidence of any Officer of the Reserve Bank of India to show that the deposit was at the disposal of the Election Commission and that the amount having been ultimately credited in the Reserve Bank, the Treasury Officer was not in a position to say whether the Reserve Bank had credited it towards the account of the Election Commission or whether the amount was at the disposal of the Election Commission. We do not agree. The Treasury Officer deposed that on the Challan there was a seal of the Reserve Bank of India having received the amount of Rs. 1000/-. The amount having been received by the Bank, a reasonable presumption could be made that it would be credited in the Bank according to the entries contained in the challan. In our opinion, the treasury challan of the deposit of the security amount for the costs of the election petition u/s 117 with the signature of the Treasury Officer and the seal of the Reserve Bank of India is a receipt within the meaning of Section 117 showing that the deposit had been made in the Reserve Bank of India in favour of the Election Commission. Learned Counsel referred us to H. Abdul Wahid Abdul Ghani Vs. Dr. Balkrishna Vishunath Keskar and Others, , where it has been laid down that u/s 117 of the Act an inference arises that the rules governing the treasuries have to be looked into by the authorities who have to decide the validity of the deposit. It was urged on the strength of of this decision that as the deposit made in the present case was not in accordance with the relevant treasury rules it was not a valid one. As we read the decision of the Allahabad High Court we do not think that it lays down the proposition that unless a deposit is in strict conformity with the treasury rules it cannot be regarded as a valid deposit u/s 117. In that case it was contended on behalf of the person whose election was challenged by an election petition that evidence in order to establish the fact that the money deposited by the Petitioner in that case was at the disposal of the Election Commission was necessary, and that the entry of the head of account in the treasury receipt was by itself not sufficient to show that the deposit was in favour of the Secretary to the Election Commission. The argument was sought to be built upon the observation of the Supreme Court in Kamraj Nadar''s case (supra) about the evidence which could be led before the Tribunal to show that the Election Commission could on an application in that behalf be in a position to realise the amount of deposit and that the amount was at its disposal and under its control. All that the learned Judges of the Allahabad High Court decided was that even without such evidence the inference of the deposit having been made in favour of the Secretary to the Election Commission could be arrived at if the head of account prescribed by the Central Government for the deposit of security for the costs of the election petition was correctly shown in the treasury receipt. The learned Judges could not and did not lay down the proposition contended for by the learned Counsel for the Appellant contrary to the decisions of the Supreme Court referred to earlier. In our judgment, the deposit made. by the Respondent No. 1 was in compliance with Section 117 of the Act.

The next contention advanced on behalf of the Appellant that requires consideration is as to the inclusion of the name of the Respondent No. 1, Shri Mani, in the electoral roll of the Bhopal Assembly constituency. The argument of the learned Counsel for the Appellant was that the said Respondent''s name was illegally entered in the electoral roll and, therefore, his nomination paper was improperly accepted. It was said that Shri Mani was not "ordinarily resident" in Bhopal: that the order passed with regard to his enrolment in the Bhopal constituency was not by the competent authority and after due compliance with the procedure laid down in Sections 21 to 23 of the Representation of the People Act, 1950 and rules 25 and 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956; and that consequently Shri Mani''s enrolment in the Bhopal constituency was without jurisdiction. Learned Counsel proceeded to say that u/s 17 of the Representation of the People Act, 1950, no person was entitled to be registered in the electoral roll for more than one constituency; that on the date of nomination Shri Mani was actually registered in the electoral roll of Bhopal constituency as well as of the Nagpur Legislative Assembly; and that thus he was not qualified to be chosen to the Rajya Sabha and his nomination paper should have been rejected. According to the learned Counsel, the acceptance of the nomination of Shri Mani was improper and could be challenged in the election petition u/s 100(1)(d)(i) of the Representation of the People Act, 1951.

In our opinion, it is not open to the Appellant to question in these proceedings the validity of the acceptance of Shri Mani''s nomination on the grounds urged by him. u/s 100(1)(d)(i), the Tribunal can declare the election of a returned candidate to be void if it is of opinion that the result of the election, in so far as it concerns a returned candidate, has been materially affected by improper acceptance of any nomination. The earlier clause, namely, Clause (c), relates to the power of the Tribunal to declare the election to be void if it is of opinion that any nomination paper has been improperly rejected. As laid down by the Supreme Court in N.T. Veluswami Thevar Vs. G. Raja Nainar and Others, the word ''improper'' which occurs in both Section 100(1)(c) and Section 100(1)(d)(i) bear the same meaning and they provide a remedy to persons who are aggrieved by an order improperly rejecting or improperly accepting any nomination paper, that the improper rejection or acceptance must have reference to Section 36(2), and that the rejection of a nomination paper of a candidate who is qualified to be chosen as a candidate for election and does not suffer from any of the disqualifications mentioned in Section 36(2) would be improper within Section 100(1)(c) and that, likewise, acceptance of a nomination paper of a candidate who is not qualified or who is disqualified will be equally improper u/s 100(1)(d)(i). Thus an election cannot be declared to be void on the ground of improper acceptance of any nomination unless the ground rendering the nomination invalid is one falling u/s 36(2) Before the Tribunal, the enquiry u/s 100(1)(d)(i) can embrace only those matters as to qualification or disqualification mentioned in Section 36(2) of the Act of 1951. The grounds on which the learned Counsel for the Appellant has founded his objection as to improper acceptance of the Respondent No. 1 Shri Mani''s nomination are clearly not those falling u/s 36(2) and which could be raised before the Returning Officer for the rejection of the nomination. It would not have been within the competence of the Returning Officer to entertain any such objection for the reject of the nomination paper of the responnent No. 1. Again under Sub-section (7) of Section 36 of the Representation of the People Act, 1951, a certified copy of an entry in the electoral roll is conclusive evidence of the fact that the person referred to in that entry is an ''elector'' for that constituency unless it is proved that he is subject to any disqualification mentioned in Section 16 of the Representation of the People Act. 1950. Section 16 of the Act of 1950 prescribes the disqualifications for registration in an electoral roll under three heads, namely (a) that the person is not a citizen of India; (b) that he is of unsound mind and stands so declared by a competent court; or (c) that he is for the time being disqualified from voting under the provisions of any law relating to corrupt and illegal practices and other offences in connection with elections. The objections raised by the Appellant to the validity of the Respondent No. 1''s nomination are clearly not based on any of these disqualilications. The position, therefore, is that the Returning Officer could not have embarked upon an enquiry into the question of the status of Shri Mani as an elector when his name was entered in the electoral roll of the Bhopal constituency, and when it was not alleged that he was subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950. The Returning Officer had no other altermate but to accept the nomination paper of Shri Mani when it could not be rejected u/s 36(2) and when Section 62(1) of the Act of 1951 prescribes that every person who is for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency. If the Returning Officer had no power u/s 36(2) of the Act of 1951 to reject the nomination paper of the Respondent No. 1 on the ground put forward by the learned Counsel for the Appellant, it follows that the Tribunal also had no power to hold u/s 100(1)(d)(i) an enquiry into these objections and hold on the basis of any one of them that the nomination paper of of Shri Mani had been improperly accepted.

The Appellant''s objections to the acceptance of the Respondent No. 1''s nomination paper do not also come within Section 100(1)(d)(iv) of the Act. The alleged illegality in the inclusion of the Respondent''s name in the electoral roll of Bhopal constituency is founded on non-compliance with the provisions of Sections 21 to 23 of the Representation of the People Act, 1950, and rules 25 and 26 of the Representation of the People (Preparation of Electoral Rolls) Rules, 1956, and was said to be in violation of Section 17 of the Act of 1950. But under subclause (iv) of Clause (d) of Section 100(1) the non-compliance must be with the provisions of the Constitution or of the Representation of the People Act. 1951, or of any rules or order made under that Act. Non-compliance with the provisions of the Act of 1950 or of the rules thereunder does not fall within the scope and ambit of Sub-clause (iv). Section 100 was amended in 1956. The section, as it stood prior to the amendment gave to the Tribunal the power to declare the election of a returned candidate to be void if there was any non-compliance with the Constitution or with the Representation of the People Act, 1951, or with the rules made thereunder or with any other Act or the rules relating to elections. By the amendment made by Act No. 27 of 1956 the scope of Section 100 was narrowed down and now Sub-clause (iv) of Clause (d) of Section 100(1) is confined only to non-compliance with the provisions of the Constitution or of the Representation of the People Act, 1951 or of any rules or orders under that Act. Thus Sub-clause (iv) is of no avail to the Appellant.

In this view of the matter, it is not necessary to examine in detail the merits of the Appellant''s objections as regards the inclusion of the Respondent No. 1''s name in the electoral roll of Bhopal constituency. It would suffice to say that the actual order directing the inclusion of the said Respondent''s name in Bhopal constituency''s electoral roll was made by the Collector, Shore, who was the Electoral Registration Officer. The fact that Shri Mani went to Delhi from Nagpur to attend some meeting does not necessarily mean that he was not ordinarily resident in the Bhopal constituency. Section 20(1) of of the Act of 1950 does not give a positive definition of ''ordinarily resident''. It only say that a person shall not be deemed to be ordinarily resident in a constituency on the ground only that he owns, or is in possession of, a dwelling house therein. It is possible for a person to be ordinarily resident in two constituencies. This possibility is contemplated by Section 17 of the Act of 1950 itself when it says that no person shall be entitled to be registered in the electoral roll for more than one constituency. The Respondent No. 1''s name was deleted from the Nagpur constituency on 2nd February 1960, and on the date of the nomination he was registered only in one constituency, namely, Bhopal constituency. The question, therefore, whether a person whose name has been entered in the elctoral roll for more than one constituency can be validly nominated from any constituency does note arise for consideration. We may further add, without expressing any concluded opinion, that Section 17 of the Act of 1950 only says that no person shall be entitled to be registered in the electoral roll for more than one constituency. This provision cannot be read as imposing a bar on a person prohibiting him from voting or standing for election from any constituency if his name has been erroneously entered in the electoral roll for more than one constituency. There is ho provision in the Acts of 1950 and 1951 dealing with the contingency of a person being registered through mistake in the electoral roll for more than one constituency. On the other hand, Section 62(1) of the Act of 1951 provides that every person who is for the time being entered in the electoral roll of any constituency all be entitled to vote in that constituency. It is difficult to read Section 17 of the Act of 1950 as controlling the meaning of Section 62 of the Act of 1951 so as to give the latter provision the sense that if a person is registered in the electoral roll for more than one constituency he shall not be entitled to vote in any constituency.

The last contention advanced on behalf of the Appellant that the publication of the list of candidates was not in confermity with Section 38 c. the Act 1951 is of un-substantial character. Section 38 requires that immediately after the expiry of the period within which the candidates may withdraw, the Returning Officer shall prepare and publish in the prescribed form and manner a list of contesting candidates containing the particulars mentioned in Sub-section (2) of Section 38. The licit must give the names in alphabetical order and the addresses of the contesting candidates as given in the nomination papers. Rule 11 of the Representation of the People (Conduct of Elections & Election Petitionist Rules, 1956, deals with the preparation and and publication of the list of contesting candidates. Sub-rules (4)&(5) of this Rule run as follows-

(4) The Returning Officer shall immediately after its preparation cause a copy of the list of contesting candidates to be affixed in some conspicuous place in his office and shall also supply a copy thereof to each of the contesting candidates or his election agent.

(5) If a poll becomes necessary under Sub-clause (1) of Section 53, the Returning Officer shall publish the list of contesting candidates in the Official Gazette.

The Tribunal has found that the list of candidates was published in accordance with Section 38 & Rule 11 and that it contained all the necessary particulars; and that the list was sent by the Returning Officer on JO March 1960 for publication in the Madhya, Pradesh Government Gazette and also to the Election Commission of India on the same day for being published in the Government of India Gazette. The list was published in the local Gazette on 11th March 1960 and in the Government of India Gazette on 23rd March 1960.

Before us, the Appellant''s only objection on this score was that the list was published in the Government of India Gazette only a day before the date of election and this publication did not give sufficient notice to the members of the Legislative Assembly. We do not think that the entire election can be invalidated on this ground. The object of Section 38 and Rule 11 is no doubt to give information to the electors about the contesting candidates and to the candidates themselves. For this purpose what is essential under Rule 11 is that Returning Officer should immediately after the preparation of the list cause a copy of it to be affixed in some conspicuous place in his office and to supply a copy thereof to each of the contesting candidate or his election agent. This was done in the present case, and it is not the contention of the Appellant that Sub-rule 4 of Rule 11 was not complied with. The list was also published in the Government of India Gazette albeit a day before the election. It is no doubt desirable that the publication in the Gazatte should be some days in advance of the date of election. Sub-rule (5) does not, however, prescribe any fixed time which must elapse between the publication in the Gazette of the list of contesting candidates and the holding of the election. That being so, the publication in the Gazette just a day before the election cannot be regarded as any non-compliance of the Representation of the People Act, 1951, or of any rules made there-under, invalidating the entire election u/s 100(1)(d)(iv) of the Act.

Before dealing with the question whether the Tribunal declared the Respondent No. 1 as duly elected on the miscount found by it without a fresh recount being taken, it would be convenient to dispose of the argument of Respondent No. 7 Shri Agnibhoj that Shri Mani was not a duly nominated candidate and he, that is Shri Agnibhoj, and the Respondent No. 2, Shri Bhanu Pratap Singh, were the only two persons who had been duly nominated as they alone had deposited Rs. 250/- as required by Section 34 of the Act. The Tribunal rightly held that the written statement of Shri Agnibhoj containing this objection was a recrimination petition which could not be entertained, for his failure to comply with the requirements of the proviso to Section 97(1) of the Act. The Respondent No. 7 cannot, therefore, be heard here on his objection resting on Section 34.

On the question whether the Respondent No. 1 was declared to be duly elected as a result of a fresh recount by the Tribunal, learned Counsel was not inclined to address any argument though he took in the memorandum of appeal a specific ground that no fresh result could be declared by reference only to a single ballot paper without there being a fresh recount. Learned Counsel could not bring himself round to urge in the alternative anything on the question of recount if an election petition on the ground of miscount is maintainable and if a mistake on the part of the Returning Officer in counting is found by the Tribunal. However, if we understood him rightly, he seemed disposed to suggest that on the Tribunal finding that there has been a mistake in counting on the part of the Returning Officer, it must set aside the entire election and direct the Returning Officer to hold a recount and declare the result according to the rules, and that the Tribunal itself has no power to do the recounting and declare a particular candidate as duly elected. We are unable to accept this suggestion. If, as we think, election petition is maintainable on the ground of miscount and the Tribunal has the power to find out where there has been a mistake on the part of the Returning Officer in counting, then it stands to reason and logic to hold that the Tribunal has the power to do the recounting itself and declare the result of the election. For this purpose the Tribunal may take the assistance of the Returning Officer and may direct him to do the recounting before it. But where in an election petition founded on a ground of miscount the applicant prays that he be declared as duly elected on fresh recount, the adjudication whether the Petitioner has or has not been duly elected must be of the Tribunal and not of the Returning Officer. There is nothing in the Representation of the People Act, 1951, or in the rules to show that in such a case the recounting and the fresh declaration of the result must be by the Returning Officer. Indeed, it would be altogether anomalous to hold that the Tribunal has the power to detect a mistake in counting but it has not the power to do the recounting and adjudge the result of the correct counting. So to hold would lead to the strange result of there being successive election petitions on the ground of miscount if each time the Returning Officer commits a mistake in counting, and of there being no final adjudication by the Tribunal on the validity of the elections. We do not think such a result is contemplated either by Section 100 of the Representation of the People Act, 1951, or the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1956. In this connection, a reference may be made to the English practice of ''recounting'' which has been stated in Halsbury''s Laws of England (paragraph-560 vol. 14, edi. 3rd at page 310) thus:

If the application is granted the usual practice is to order the re-count to be taken before the trial by an officer appointed for the purpose; the order directing it. furthermore, generally directs that it shall be taken at the Royal Courts of Justice. The Respondent''s ballot papers are counted by the Petitioner and are then handed to the Respondent to be checked by him and those for the Petitioner are similarly dealt with by the Respondent. If any are disputed, the opinion of the officer is sometimes asked and given, and if any paper remains disputed by either party, the officer reserves it for the decision of the election Court, setting it out in his report thereto. After the counted ballot papers have been thus disposed of, the rejected ballot papers are dealt with in like manner.

It has been noted in foot-note (d) (p. 310-vol. 14, third edn.) that in Stepney Division, Tower Hamlets'' Case (1886), 4 O''M. & H. 34, at p. 51, Denman J. himself counted the ballot papers, the parties desiring that he might do so in order to save time and expense and that in Renfrew (County) Case (1874) 2 OM&H. 213, the re-count took place in open Court.

Here, it is not correct to say that no recounting was done by the Tribunal. It is true that after finding that the Returning Officer committed a mistake in recounting the Tribunal did not in so many words direct a recount. But it is evident from the discussion in paragraphs 40 to 44 of the judgment under appeal that all the ballot papers were examined before the Tribunal and the only mistake that was discovered in the counting done by the Returning Officer was as regards his omission to give credit to the Respondent No. 1 for the "third preference vote" referred to earlier in this judgment. The Tribunal has expressly observed in paragraph 44 of the judgment that in other respects the counting of votes was not in any way challenged nor was method of calculation." This would show that the parties were agreed that there was only one mistake in the counting done by the Returning Officer, namely, the omission to evaluate the third preference recorded in Respondent No. 1''s favour in one ballot paper and if that was taken into account the Respondent No. 1 would secure more points than the Appellant. We have also examined the ballot papers and satisfied ourselves that in the counting done by the Returning Officer there was no error other than that found by the Tribunal. The Tribunal was thus right in declaring the Respondent No. 1 as duly elected.

For the foregoing reasons, our conclusion is that the decision of the Election Tribunal is right, and that this appeal must be and is dismissed with costs of the Respondent No. 1, Shri Mani. Counsel''s fee is fixed at Rs. 350/-.