COMMISSIONER OF SALES-TAX, MADHYA PRADESH

M/S. H.M. ESUFALI, H. M. ABDULALI, SIYAGANJ.-

INDORE

April 18, 1973 [K. s. HEGDE AND H. R. KHANNA, JJ.]

Madhya l'radsh SG!ks T~ A.ct a. 19-Reassess~IJt of est:dped turnover whether C{JIJ be nlizde on barfs of 'best Judgl'lti1J(-'Best }lldgrMnf what is-Estimate of turnover in 'best judgmenf assessmnt-lnter

ference by court when justified.

The asseS8ee was a deater in Iron and Steel in Madhya . Pradesh.

The Sales Tax Officer m making the original as!lelllDent for the. period

November I, 1959 to October 20, 1960 accepted the gr018 turnover disclosed by the 'IISsesaee's accounts. Later the Flying Squii(J inspeckd the :business premises of the 9ssessee and found . a bill 6ook for the period September 1, 1960 to September 19, 1960. The bill book shod that the assessee had dected sales of iron and steel during that period ot the value of Rs. 31,171.28 P. Those sales had not been entered in the books of aunt maintained by the essessee. On the basis of the lofurmation provided by the said bill book the Sales Tax Officer initiated proceedings under s. 19( 1) of the Madhya Pradesh General

Sales Tax Act 1958 as elso under the Central Sales Tax

A~ 1956 against the assessee, After. hearing the assessee he made teassessments on best judgment basis and in estimating the asse8See's turnover took consideration the fact that the assessee had dealings outside his accounts of the value of Rs. 31.171.28 P. during a od of 19 days.

After the disposal of appeals filed by the assessee under the Act a refetenoe was made to the High Court. lntr alia the High Court held that the estimate. of taxable turnover under the local Act and the Central

Act made by the assessing authority for the period from November 1, 1959' to October 20, 1960 on the basis of Rs. 31,171.28 P as the eactp ed turnover for a _period of 19 days was illegal and unjustified. According to the High Court the only moved escapement was Rs. 31,171.28 11ie penalty imposed on the assessee in respect of the tumoveJ under the State Act was also set aside by the High Court. In appeal by the Revenue,

HElD: (i) The distinction between a 'best judgment' assesiment and assessment based on accounts submitted by an assessee must be borne in mind.

Sometime there may be innocent or trivial mistakes in the accounts maintained by the assessee. There may be even certain uniBtended or unimportant omissions in those accounts, but yet the accounts may be accepted as genuine and substantialJy corr.ect. In such cases, the assessments are made on the basis of the accounts maintained even thoqh the assessing officer may add back to the account price of items that might have been omitted to be included'- in the accounts. In such •

case, the assessment made is not a 'best-judgment' assessment. It is pr"unarity mae on the basis of the aunts maintained by the UMIIOe.

But when the assessing officer comes . to the conclusion that no reliaDce CBD be placed on the accounts maintained by the asseaaee, he pfoceede

to a8aess the assesaee on the basis of his 'beat-judgment'. lo d~ .0, .he. may take such asaiatanoe as the assessee's accounts mav atrord, he may also rely on other information& gathered by .him u well u on tbe

surrounding circumstances of the case: 'The assessment made on the'

SUPREME COURT REPORTS

[1973] 3 S.C.R.

basis of assessee's accounts and those made on 'best-judiiDcnt' buis arc totally different types of assessments. [1009 G]

In the present case it was proved as well as admitted that the asasee'a dealings outside his accounts durini a period of 19 days were of the nature of Rs. 31, 171. 28. From this circumst11nce it was open to the Salestax Officer to infer that the assesseee had large scale dealiPS~ outside his accounts. It was obvious that he was maintainina f'lbe accounu to evade payment of sales-tax. In such a situation it wu not possible for .the Sates-tax Officer to find out precisely the turnowr euppressed. He could only make an est'imate of the suppressed tunaover on the b11is of the material before him. So long aa the e1timate made by him wa• not arbitrary •nd has nexus with faets discovered, the same could not be queationed. The Hiah Court was wrona in usumini that the assessina authority must have material before it to prove the e"'act turnover suppressed. The basis adopted by the Salc1tax Oftlcer was a relevant one whether it was te most appropriate or not. Hence the Hiah Court was not justified in interfenng with the same. [1010 Dl

CommissifJI'Ier of l11Come.tax, Central and U. P. v.

Laxmi1UII'ain Br.dridas., S I.T.R. 170, Raghubar Mandai Harihar Manda! v. The State of Bihar, 8 S.T.C. 770, Ganga Ram Baimokand v. Commissioner of ln, comt-tax, Punjab, 5, I. T. R. 464 and State of Kerala v.

Ytlukutty, 60 LT.R. 239, applied.

Commissioner of ]11come-tax West Bengd v. Padamchand Ramgopal. 76 I.T.R. 719, distinguished.

(ii) The contention that in a reassessment made under s. 19(l) of the Act the Sales Tax Officer is not competent to make a best judgment assessment was rightly rejected by ther High Court. Reassessment is nothing but a fresh assessment. [1014 Bl

(iii) Since the estimate of tunnover made by the Sales Tax Officer in hi9 -best judgment assessment was legal and justified the penalty imposed by him under the State Act must also be held to be in accordance with Law.

State of Andhra Pradesh v. Bavuri V. Narasimhan, 16 S. T. C. 54, relied on.

CIVIL APPF:LLATE JuRISDICTION : Civil Appeal No. 1068 & 1069 of 1970.

Appeals by special leave from the judgment and order dated December 2, 1968 of the Madhya Pradesh High Court in Misc.

C. Case No. 84 of 1968.

Ram Panjwani and I. N. Shrof}, for the appellant.

R. P. Agarwala, for the respondent.

The Judgment of the Court was delivered by

HEGDE J. These appeals by special leave arise from the decision of the High Court of Madhya Pradesh in a consolidated Rekrence under S. 44 of the Madhya Pradesh General Sales Tax Act,· 1958 (to be hereinafter referred to as the 'State Act'). That

Reference was made by the Board of Revenue, Gwalior, partly at the instance of the assessee and partly at the instance of the

C, S.T, v, H.M. !SUPALl (Htgde, J.) 1007

Commissioner cf Salestax, Madhya Pradesh. Four questions of law were referred to the High Cotirt for its decision. They are :

. " ( 1) Whether on the facts and ciroumstances of the case the revised assessment enhancing the taxable turnover under the State law by Rs. 2,50,000/· and the taxable turnover undtr the Central law by Rs. 1,00,003/-

o~ the basis. of the undisputed escape in the amount of Rs, 31,171.28 by adopting the said amount of escaped

turnover as the measure for determining the quantum of enhancement tor the whole year was illegal, unjusti fled or excessive?

(2) Whether a best .iudgmont aasesSIQent could at all be made under s. 19(1) o'l the Act or .whether revi1ion of the aueasmont should be confined to the

quantum of proved or admitted escaped turnover ?

(3) If the answer tothe previous question is that the revision in assessment should be confined only to the

D quantum of proved or admitted escape in turnover, was the penalty of Rs. 2,009/- imposed on the footing of the revision of the assessment for the whole year legal and justified? and ·

( 4) Whether on the facts and cfrcumstances of the case the imposition Qf the penalty under section 19 ( 1) of the Madhya Pradesh General Sales Tax Act, 19S8 read with 'Section 9 ( 3 ) of the Central Sales Tax Act was pot legal?'

The first three questions were referred to the High Court at the instance of the assessee and the last one was referred at the instance of the Commissioner.

The High Coutt answered the 1st and the 3rd question in favour of the assessee and the second and the fourth question

in favour of the Department. It opined :

" ... Our answer to the first question is that the estimate of taxable turnover under the local Act ood the Central Act made G by the assessing authority for the period from 1st November 1959 to 20th October 1960 on the basis of Rs. 31,171.28 as the escaped turnover for a period of 19 days was illegal and unjustified. The escaped turnover proved in the present case is only Rs. 31,171.28 and the assessee is liable to be assessed under both the Acts only on the taxable turnover comprised in -tb, e, escaped tUrnover of H Rs. 31,171.28. Our answer to the seco'rid question is that there

CBJ:l be a bestjudg:rnent assessment under section 19 ( 1 ) of the local

Act. lb a bestjudgment assessment the quantum of escaped tumover would be that which the assessing authority thinks is proved

SUPRBMB COURT REPORTS

. or is established. In other assessments the quantum of escaped A turnover would be the one which the assessing authority finds proved whether on the admission of the assessee or on the material produced at the enquiry in which the assessee has participated.

The third question is answered by saying that the imposed penalty of Rs. 2,000/- is, in view of our answer to the first question, not legal. Our answer to the fourth question is that a penalty for B escaped assessment under the Central Act can be imposed under Section 19 ( 1 ) of the local Act."

Aggrieved 'by the decision of the High Court, the Commissioner has brought these appeals. The asssee has not appealed against

that portion of the decision which went against him.

The facts of the case necessary for deciding the questions of law arising for decision in these appeals, as could be gathered trom the Statement of the case may now be set out.

The assessee was a registered deaier under the 'State Act' as well as the Central Sales Tax Act (which will hereinafter be referred to as the 'Central Act'). He was a dealer in Iron and Steel. In these appe$, we are concerned with his turnover for the period November 1, 1959 to October 20, 1960. In that year he declared a gross turnover of Rs. 3,97,356/ 18 and taxable

turnover of Rs. 1,10,246/ 63P. The Sales-tax Officer determined his gross turnover at Rs. 3,97,357/- and -taxable turnover at Rs. 1,21,567/ -. Under the 'State Act" he assessed him in tke sum of Rs. 3,743.34P. on November '20, 1961. The assessee had not declared his gross or taxable turnover in respect of the year in question under the 'Central Act'. But the Sales-tax Officer determined his turnover under the 'Central Act' by his order dated Decembler 8, 1962 at Rs. 22,916/ - and levied on him a tax of Rs. 252.04. The assessee did not appeal against these orders.

It appears that on September 19, 1963 the Flying Squad inspected the business premises of the assessee and found a Bill book for the period September 1, 1960 to Setember 19, 1960. The Bill book showed that the assessee had effected sales of iron and steel during that period of the value of Rs. 31,171.28P. Those sales had not been entered in the books of account maintained by the

assessee.

On the basis of the information provided by the bill book seized, the Sales-tax Officer initiated proceedings under s. 19(1) of the 'State Act' on January 15, 1964 by issuing the prescribed notices to the assessee. He also initiated proceedings under that section under the 'Central Act' on March 15; 1964.

The notices in question were served on the assessee on April 17,

1964 and March 19, 1964 respectively. In response to these notices; the assessee submitted an explanation denying that the bill book in question pertained to his dealings. Further, he also disputed the correctness of the estimates made by the Sales-tax Officer of

C.S.T. V, H.M. ESUFALI (Hegde, J.) 1009

his turnovers in the notices issued to him.

After hearing the assessee, the Sales-tax Offier reassessed the assessee under the 'State Act' on April20, 1964 and under the 'Central Act' on April

30, 1964. The reassessments were made on the basis of 'bestjudgment'.

Ia:t estimating the assessee's turnover, the Sales-tax Officer took into considration the fact that the assessee had dealings outside his accounts of the value of Rs. 31,171.28 during a period of 19 days. On the basis afforded by the facts discovered, the Sales-tax Officer estimated the assessee's turnover under the

'State Act' for the assessment period in question at Rs.6,47,357 /- (3,97,357, + 2,50,000).

Similarly he reopened the assessee's assessment under the 'Central Act, and estimated the turnover of the assessee under that Act at Rs. 1,22,916/- (22,916+1,00,000).

He also imposed on the assessee a penalty of Rs. 2,000/- under the 'State Act' and a penalty of Rs. 1,500/- under the 'Central Act' The assessee appealed against the reassessments made on him as well as against the penalties imposed on him.

Those appeals were dismissed by the, Appellate authority. The asseSsee took up the matter in second appeal to the Board of Revenue, Madhya Pradesh, Gwalior. The Board of Revenue set aside the penalty Otf

Rs. 1500/-imposed under the 'Central Act, but in other respects. it rejected the appeal of the assessee.

Thereafter the Board, partly at the instance of the assessee and partly at the instance of the Commissioner,· submitted the four questions set out earlier to the High Court.

Before proceeding to examine the contentions advanced on behalf of the parties, it is necessary to clearify certain aspects. It may be noted that the first assessments were made by the Sales.tax

Officer primarily on the basis of the returns submitted by the assessee. , In the proceedings relating to those assessments, the Sales-tax Officer relied on the books of account of the assessee.

While making reassessments on the basis of the information gatherred from the bill book seized, the Sales-tax Officer rejected the accounts maintained by the assessee as unreliable and assessed the assessee on the basis of his 'best judgment'. The distinction between a 'best judgment' assessment and assessment based on the accounts submitted by an assessee must be borne in mind.

Sometime there may be in<Docent or trivial mistakes in the accounts maintained by the assessee. There may be even certain unintended or unimportant omissions in those accounts; but yet the accounts may be accepted as genuine and substantially correct.

In such cases, the assessments are made on the basis of the accounts maintained even though the assessing officer may add back to the accounts price of items that might have been omitted to be included in the accounts. In such a case, the assessment made is not a 'best-judgment' assessment.

It is primarily made on the basis of the accounts maintained by the assessee. But when the assessing

[1973] 3 S, C.R.

officer comes to the conclusion that no reliance can be placed on thC' accounts maintained biY the assessee, he proceeds to assess the 18801see on the basis of his 'best-judgment', In doing so. he may take such assistance as the assessee's accounts may afford, he may also. rely on other infonnation gathered by him as well as an the surrounding circumstances of the case. The assessments made on

the basis of assessee's accounts and those made on 'best-judgment basis are totally different types of assessments.

Now coming to the facts of this case, it is nece.ssal'y to remember that at the initial stage, the assessee denied that the

bill book seized w'as his bHI book and the entries thelein related to his dealings. He asserted that he had nothing to do with the bill book in question and the entries therein do not relate to his dealings. But at a later stage, he conceded that that 'bill book was his and 1the entries 1heretn related to his dealings. It is now proved as well as admitted that his dealings outstde his accounts during a period of 19 days were of the value of Rs. 31,171.28.

From this circumstance, it was open to the Sales-tax Officer to infer tb, at the assessee had large scale deaHngs oumde his accounts.

The assessee has neither pleaded nor established only jusifiable

reason for not entering in his accounts the dealings noted in the bill book seized. It is obvious that he was maintaining false accounts to evade payment of sales-tax. :&1 such a situation it was not possible for the Sales-tax Officer to find out precisely the turnover suppressed.

He could only make an estimate of the suppressed tum.over on the basis of the material . before him.

So long as the estimate made by him is not arbitrary and has nexus with facts discovered, the name cannot be questioned. In the very nature of things the estimate made may be an over-estimate or an under-estimate.

But that is no ground for interfering with his 'bet judgment'. It is true that the basis adopted by the officer should be relevant to the estimate made. The High Court was wrong in assuming that the assessing authority must have material before it to prove the exact turnover suppressed. If that is true there is no question of best-judgment. The assessee cannot be pennitted to take advantage of his own illegal acts. It was his duty to place all facts truthfully before the assessing authority.

If he fails to do his duty, he cannot be allowed to call upon the assessing authority to prove conclusively what turnover, he had suppressed. That fact must be within his personal knowledge.

Hence the burden of proving that fact is on him. No circumstance has been placed before the assessing athority to show that the as- &essee's deelings during 1-9-1960 to 19-9-1960 outside his accoul!ts were due to some exceptional circumstance or that they were proportionately more than his dealings outside his accm, mts, during the remaining periods.

The assessing authority c;:ould not have been in possession of any correct measure to find out the escaped

C.S.T. V, H.M. ESUPALI (Hegfk, J.)

10 II

turnover during the periods 1-11~1959 to 31-8-1960 and 20..9-1960 to 20-1 0-1960.· The task of the a$sessing authority finding out the

escaped turnover was by no means.easy. In estimating any escaped turnover it is inevitable that there is some guess. work. The assessing authority while making the 'best-judgment' as8essment: no doubt should arrive at its conclusion without any bias and on rational blasis. That authority should not be vindictive or capricious. If the . estimate made b~ the assessing authority is a bona fidt estimate and is based on a rational basis, 'the fact the.t there is no good proof m support of that estimate is immaterial. Prima 'facll, the IIIMI

mg authority is the best judge of tho situation. It is his •best-j\ldgment' and not of any-on~ else's. The High Court could not substitute its 'best-judgment' for that of the assessing authority. In the case of 'best-judgment' assessments, the courts will have to first see whether the accounts maintained by the assessee were rightly rejected as unreliable.

If they come to the conclusioo Chat they were rightly rejected, the next question that arises for consideration is whether the basis adoped in -estimating the turnover has a reasonable nexus with the estimate made. If thebasis adopted is held to be a relevant basis even though the courts may think that it is not the most appropriate basis, the estimate made by the assessing authority can.not be disturbed.

In the present case, there is no dispute that the assessee's accounts were rightly discarded. We do not agree wi'th the High Court that it is the duty of the assessing authority to adduce proof in support of' its estimate. The bis adoptOO by the Sales-tax Officer was a relevant one whether it was the most appropriate or not. Hence the High Court was not justified in interfering with the same.

The Jaw relating to 'best-judgment' assessment is the same both in the case of income-tax assessment as well as in the case of sales-tax assessment. The scope of 'best-judgment' assessment under the Income-tax law came up for consideration before the Judicial Committee as early as 1937 in Commissioner of Incometax, Central and U.P. v. Laxminarain Badridas.(l). Therein Lord Russel of Killowen speaking for the Judicial Committee observed (at P- 180):

'The Officer is to make an assessment to the best of his judgment against a perSon who is in default as

regardS supplying information.

He must not act dishoAestly, or vindictively or capriciously because he must exercise judgment in 'the matter. He must make what he honestly believes to be a fair estimate of the proper

figure of assessmnt, and for this purpose he must; their Lordship think, be able to take into consideration local knowledge and repute in regard to the assessee's circum-

0) 5.1.1 .R.l70.

1012 SUPREME. COURT kEPORTS

(i973) 3 S.C.R.

stances and his own. knowledge of 'previous returns . by and essments of the assessee, and all other matters which he thinks will assist him in arriving at a fair and proper estimate, and though . 'there must necsily be guess--work ill the matter, it must be honest guess-work.

In that sense, too, the assessment must be to some extent arbitrary.'' . . In Raghubar Mandai Harihar Manda! v. The State of Bihar(1) a case arising under the Bihar Sales Tax Act, 1944, the law relating to 'best-judgment' assessment was examined at length by this Court. Therein S. K. Das J. speaking for the Court observed ·(atp.778): ' "No doubt it is true that when the rturns and the books of account are rejected, the assessing officer must make an estimate, and to that extent he must make a guess; but the estimate must be related to some evidence or material and it must be something more than mere suspicion. To use the words of Lord Ruessel of Killowen again, "he must make what he honestly believes to be a fair estimate of the proper figure of assessment'' and for this purpose he must take into consideration such materials as the assessingofficer has before him. including the assessee's circumstances knowledge of previous returns and all other matters which the assessing officer thinks will assist him in arriving at a fair and proper estimate:·

(emphasis supplil!d) Proceeding further the learned judge quoted with approval the

observations of Din Mohamad J. in Ganga Ram Balmokand v.

Commissioner of Income-tax, Punjab (2) :

••rt cannot be denied that there must be some material before the Income-tax Officer on which to base his estimate, but no hard and fast rule can be laid down by the Court to define what sort of material is 'required on which his estimate cnn be founded."

ftcr quoting those obervations, the learned judge proceeded to oh.<; erve:

. "With that obc; crvation we generally agree. If. in th1q case, the Sale'! Tax Authorities had based their c<.rimate on some material fore them, no objection could have been taken."

Armhin~~ the nJie laid down in Raelwbar Manclal f[arihar .'U, mdal'.f Cu'.4'! ( upra). to the f:.tcts of the present case it, i'l seen ---- .. ~

(I'}~'> T C -7111 f:!l S I. T.R. 46-l.

<;;.S.T. V, H.M. ESUFALI (f!egde,· J.) 1013

that the. Sales~ tax Otfi.ce, r had material befre him t~ find out, how much turnover had escaped assessment dunng a penod of 19 days.

On the baSis. of that material he estimated 'the escaped turnover for the entire year. Hence it cannot be said that there was no basis for the estimate made by the Sales-tax Officer. t may be that his estimate was an over-estimate or an under-estJmte but it" cannot be said that 'the estimate was without any basis. .In making that estimate, there was an element of guess-work winch

was inevitable in the circumstances of the case. If the Sales-tax Officer was compelled. to adopt a: rule of thumb which in a sense is an arbitrary rule, assessee was entirely responsible for that situation.

In State of Kerala v. C. Velukutty,(L) this Court speaking through Subba Rao J. (as he then was) observed (at p. 244 of the Report) : • "The limits of the power are implicit in tl1e expression "best of his iudgment". Judgment is a faculty to decide matters with wisdom truly and legally.

Judgment does not depend upon the arbitrary caprice of a judge, but on settled and invariable principles of

justice.

Though there is an clement of gues.;-work in a "best judgment assessment". It shall not be a wild

one, but shall have a reasonable nexus to the available muterial and the circumstances of each case." The question before us is whether there is a r.::as0nable nexus betwee-n the basis adopted by the assessing authority and the estimate of escupcd turnover mude. We have no doubt that there is such a nexus.

On behalf of the assessee, reliance was placed on the decision . of this Court in Commissioner of Income-tax, JV est Bengal v.

Pctdamclrand Ramgopal( 1). Therein, while investigating into the case of l11c assessee, the Income-tax Ollicer found two insignificant 1rustakcs in the asscssees accounts relating to the assessment year 1953-54. No mistakes were fOlmd in the accounts rel.atincr to the assessment years 1954-55 to 1957-58.

Merely because"' therl! were some insignificant mistakes in theaccoums maintained by the

asssce for the assessment year 1953-54, the Income-tax Otncer reJected the acc{)unts of the assessee for all the cotic.:m..:d assessment year> and added to the income returned half the amount of

gros receipts shown by the assessee under the head "interest'' for eac~ _of the years s escaped lr1comc. The Tribunal upheld the _udtttOn but the H1p.h Court came to the conclusion that the add1hons made by the Income-tax Officer were quite arbitrary.

Thi~ Court agreed with that view. We do not think that the said decision lends any support to the assessee's contention.

(I) 60 I, T.R.23<1 fl) 76 I.T.R.7I9.

1 014

(1973] 3 S.C.R.

For the reasons mentioned abve, we are unable to agree with A Jhe High Court that the Saks-tax Officer had arbitrarily assessed 1J1e assessee. .

lt was next contended that in a re-assessment under s. 19 ( l J .of the Act, Sale-tax Officer was not competent to make 'bestjudgment assessment' as no such power was conferred on him under the said section. This contention had been rejected by the B High Coi.Jrt and 'the assessee had not appealed against that part of the judgment. Be that as it may, even though s. 19 does not in specific terms confer on the assessing. authority power to make 'best-judgment assessment' that section specifically says that th~ assessment made under that section is a re-assessment.

Section 18 deals with assessment of tax. Section 18 ( 4) says : c "lf a registered dealer-

(a) X X X X

(b) X X X X

(C) X X X X

(d) has not maintained any account or has not regularly employed any method of acQounting, or if the method employed is such that in the opinion of the Commis!iioncr assessment cannot properly be made on the b<tsis thereof; the Commissioner shall in the prescribed manner assess the dealer to the best of his judgment.'' What is true of the ao; sessment must also be true of rc<.hscssment because reasessment is nothing but a fresh assessment.

When reassessment is made under s. 19, the former assessment i-i completely reopened and jn its place fresh assessment is madl!.

While rcasscs!>ing a dealer, the ~-; sessing authority does not merely

asess him on the escaped turnover c!ut it assesses him on his

total estimated turnover.

While making reassessment under s. 19, it the assesing authority has no power to make best judgment assessment, all that the assessee need do to escape reassessment i~ to refuse to file a return or refuse to produce his account-books.

If the contention taken on khalt of the ussesscc is correct, the assessee can escape hie; liability to be rco:sscssed bv adoptin" an

oblructive attitude. lt is difficult to conceive that such could be the position in bw.

Before maling reascs!>mcnt, the assessing authority hJs H•. undtr rule 33(1) framed under the Act, Ctlll upon the uo; c; css.:~ to priJJuce his books of ; ccount and other documl!nts \\hi("h th~

" ~'c, ing uthority may ruire and any evidcm:o: '' hich the JeJkr may .,.. !"~ to produce in upp:)ft of his objection.

When uch a nviH.:c '" ~>~ ucJ to the dealer, he may appear before the assessing :JLHlHJrtly Pn the date fixell in the notice and prefer his objections

I 015

C.S.T. V, H.M. ESUF".L! (H ' egde, J.)

and poduce such evid~:1cc as he m .

(2) of rule 33 provides that if the a ay thrnk necessary. Sub-rule rhe notice under s. 33 (I ) the asses~~'See appears in response to assessment, if necessary oly after c~m% athority may make ret<i by the dealer and fter examinin~

erng t.he objections rais- . produced by him.

Jt is important to~ uc erdence a~ may be ll the assessing authority is required to isudhat Hl the notr7e which

1 6, the exent of the escaped turnover as ~? te caler In form ing authonty has to be specified The es rmdate bY: the assess- -, 33 ld t h b , proce ure lard down in rue cou no ave een a mere empty f r

assessee's contention is right in order t oesca rma lty. If the h d d -: ' . p-. reassessment all that t e assessee nee o 1s to rgn_ore the notice issued under rule 33 ( 1) and refuse to o-operate wrth the assessing authority in the

rcasessment. proc_eedmgs.

We are unable to accept that tha s the true posrtron rn law. t r.

In our opinion the decision of th~ Andra Pradesh High Court 10 State of A ndhra Pradesh v. Bavun V. Narasimhan,(') relied on by the assessee was not correctly decided.

For the reasons mentioned above, we altow the; c appeals, vacate the answers given by the High Court to Que:; tions Nos.

I and 3 and answer those questions in favour of the Department i.e, that the estimate of taxable turnover under the 'State Act and the 'Central Act' m:tde by the assessing authority for the . period from November l, 1959 to October 20, 1960 on the basis E of Rs. 31,171.28 as tlie escaped turnover for a period of 19 days

was legal and justified and consequently the penalty of Rs. 2,000/- imposed on the assessee was in accordance with law. The asscss:e shall pay the costs of the Department both in this Court and m the High Court.

G.C.

Appeals allowed.

-·--- ----·--

.16 S.T.C.5

... _____ _ ----- --

M/S. H.M. ESUFALI, H. M. ABDULALI, SIYAGANJ, INDORE

K. s. HEGDE

H. R. KHANNA, JJ.

s. 19( 1)

Sales Tax Act 1958

Act and the Central

s. 19(l)

CIVIL APPF:LLATE JuRISDICTION

Ram Panjwani

I. N. Shrof

R. P. Agarwala

HEGDE

High Court of Madhya Pradesh

S. 44

Board of Revenue, Gwalior

s. 19(1)

section 19

Section 9

Central Sales Tax Act

1st November 1959

section 19

Section 19

Central Sales Tax Act

October 20, 1960

September 19, 1963

s. 19(1)

January 15, 1964

March 15; 1964

April 17,

1964

March 19, 1964

Hegde

H.M. ESUPALI

Hegfk

Russel of Killowen

Bihar Sales Tax Act, 1944

S. K. Das

Ruessel

Killowen

Din Mohamad

H.M. ESUFALI

Subba Rao

s. 19

s. 19

Section 18

Section 18

s. 19

s. 19

C.S.T. V

H.M. ESUF"

s. 33

Andra Pradesh High Court


P.MALAICHAMI v.

M. ANDI AMBALAM & ORS.

A.prll 18, .1973 [D. G. PALB!Wl AND A. ALAGIB.!SWAMI, JJ.]

RtpreHntatlon of PIOplt's A.ct, Sec. 91 Rtcrimllratlon pttltlon- NecUllty of-R.espclndtnt challenging 11ectlon of appellant and 111kl"6 d1c/aratlon of el1ctlon hlmstlf-A.ppellant nDl fillng Rtcrlmlnotlon petition u/• 91-In general recount valid votts cast In favour of appt/lanr cannot bf tizken account fur non-compliance of sec. 91-High Court would haVe no jurisdiction.

'Jbe respondent filed an election petition, not only questionipg the election of the appellant but . also claiming the seat for himself, allegin$ infraction of the Oonduct of Electiop Rules. Accordingly, he praye<t for recounting of the votes and for declarations that he was duly elected Bild that the election of the appellant was void. 1be appellant in bis counter affidavit denied all the allegations ;., the petition. However, the appellllllt did J>Ot file any Recrimination application u/s 97 of the Act. 'Ibe respondent filed an interlocutory epplication for directing a scrutiny end recounting of all the votes. 'Ibe evidence waa duly recorded and the learned Judge of the High Court eventually passed an order on various groUJ>ds for recount of the votes.

As a result of the recount, It was finally found that the majority of 127 votes by which tho appellant had been declered elected was reduced to 75 votes.

'Ibe respondent urged before the High Court that in a case where the election petitioner had applied not merely for setting aside the election of the successful candidate but alao for declaril:lg himself (the defeated candidate) as elected, it was the duty of the successful candidate to have filed a Recrimination application u/s 97 of the Act. 'Ibe High Court took the view that in the absence of the Recrimination petition u/ s 97 the appellant was not entitled to question any votes which might have been improperly received on behalf of the respondent.

Consequently, the High Court found that leaving_ out of account votes improperly received on behalf of the respondept and taking into account only the votes which ought to have gone to the respondent which had been improperly rejected, the respondent bad secured 96 votes more than the appellant and declared him elected,

. On e.ppeal to this OJurt th~ appellant made the followinJ,:. submis- SIODS : (1) Sec. 97 has no application to a case where a prayer is fototal count and re-scrutiny; 'ii) Sec. 97 has no application to the present case where the returned candidate let in or did not have ro let i, n any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the n!spondents protest; iii) Since am case has been made out in respect of individual votes 111!<1 no finding given for inspecting individual votes liie petitioner would not be entitled to the benefit of the deision ;,; Jabar Slngh'a C"1e '[(19614) 6 S.C.R. 54] and his .ri$fit is only to a gener_al .recount or none at all; (iv) 'The respondent " estopped from questiorung the result of the recount because of mutual concessions; ( v) The present case is wholly different from the one in Johar Singh v' Genda Lal and the whole question should be reconsidered by a large;

P, MALAICHAMI v. M. AMBALAM (Alagiriswamy, J.) 1017

bench in view of Justice Rajagopala Ayyangar's dissenting judgment; and (vi) The democratic process should be allowed to have full sway and no more technicality should be allowed to come in the way of jusfice being done.

Dismissing the appeal,

HELD : (I) The appellant did 11<>1 comply with the requirements of Sec. 97 of the Act. The appellllllt had not given notice u/s 97 within 14 days of his appearance to give evidence to prove that the election of the respondent would have been void if the respondent had been the returned candidate nor had be given the security and further security referred to in sections 117 and 118 respectively nor was there any stlltement and particulars as required u/, s 83 in case of an election petition. Even when an attempt was made to file a recriminaticp peti tion with a petition to excuse the delay, the other requisites of Seo. 97 were not complied with. [.t032-G-!033BJ

(2) The respondent's prayer for recount was not a request for mere chanical process of countipg but for counting contemplated u/r, 56 with all its implications. The very grounds on the basis of which the re.count was ordered by the learned Judge show that there was a possibility of mistakes having arisen under any one of the grounds set out in R. 56 (2) clauses (a) to (h) and it is to have them taken into account and tested correctly that the respondent wanted recount.

When the respondent wants recount for the purpose of settin• aside the appellant's elecfion, be necessarily has got to have not merely the benefit of votes which would have originally gone to him but which had been wrongly given to the appellant but also all votes which had bee11 cast in his favour but had been rejected wrongly on one or the other grounds meptioned in R. 56(2) clauses (a) to (h). It was necessary for the purpose of respondent's case not merely that vots which were held invalid should be re-scrutinised but also votes which had. been held to have been cast in favour of the appellant.

The improper reception or rejection, therefore, would include not merely cases where -a voter appears before the Presiding Officer at the time of the polli; rzg and his vote is received where it should not have been received and his vote rejected where it should not have been rejected. The !mproper ejection or recept!on contemplated u/s 100 (i) (d)(iii) would include mistakes or wron~ Judgments made by the Returnipg Officer while counting and exerCISipg his powers under R. 56(2) clauses (a) to (h). [10350-HJ

The appellant knew not only that the respondent wanted his el•ction to be set aside but also that he wanted himself declared elected~ He sh.ould have, -therefore, filed a recrimina.tion petition in proper compliance with Sec. 97.

The election petit!o_n is not an action in law or a suit in equity but _ one under the provmons of the statute which has specifically created that right If a relie.f provided under the. sfatute can be obtained only by followmg a certain procedure laid down therein for that purpose that procedre must be followed if the relief is to be obtained. It i; H not a quest!on of mere pledirig., H is a quetion of jurisdiction. The Election Tribunal had no 1unsd1chon to go mto the question whether any wrong votes had been counted 'in favour of the election petitioner who. h, ad .claime~ .the seat for himself. unless the appellant had filed recnmmatlon petition u/s 97.

[1037D) 797Sup.CJi73

(3) It was not necessary to had evidence in respect of any individual vote '3bout the improper reception or improper rejection as the decision on that question had been give:n mostly on concessions by both the parties and in disputed cas-es by the Judge himself scrutinis'ing the votes.

There is no such thing as a general recount and there is no authority in law for suggesti:ng that all that the respondent could have asked for woo either a general recount or none at all. U037FJ

( 4) No question of estoppel arises, where the law provides that no evidence can be given about the improper reception of votes in favour of the defeated candidate who had daimed a seat for himself unless the successful candidate had complied with Sec. 97.

Concession is ak'in to admission and the use of such an admission would be evidence. What

is barred under the proviso to Sec. 97 is the giving of ev'idence by the appellant. The evidence furnished by the valid as well as invalid C votes in favour of both the petitioner aiKI the respondent was not admissible because of the appellant's failure lo comply with the provisions of Sec. 97. [1038B]

( 5) There is no justification for ordering that the case should be heard by a larger bench for re-consideration of the decision in lobar Sing/i's case.

(6) Courts in general arc averse to allow justice to be defeated by a mere technicality. But in deciding an election petition, the High Court is merely a Tribunal decidina the election dispute. Its powors are wholly the creature of the statute under which it is conferred the power to hear the election petition. The election petition Is not an action at law or a suit in equity but is a purely statutory proceeding unkJ>Own to the common law and the CX>urt pooseas no common law power. Though the election of a successful candidate is not to be lightly interfered with one of the essentials of that law is also to fe guard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practice. [ 1029C]

Kamaraja Nadar v. Kunju Thevar, [1959]

S.C.R. 583 at 596, Venkaterwar v.· Narasimha, [1969] I S.C.R .. 679 at 685, Ch. Subbarao Member, Election Tribunal, 1964 D.E.C. 270, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 649 of 1972.

Appeal under S. 116A of the Representation of the People Act, 1951 from the judgment and order dated March 13, 1972 of the Madras High Court in Application No. 648 of 1972, and E.P. No. 2 of 1971.

K. K. Venugopal and A. Subhashini, for the appellant.

T. N. Srinivasa Varadacharya, G. Viswanathan, K. Jayaram and R. Chandrasekhara, for respondent No. 1.

M. C. Chagla and A. V. Rangam, for respondents Nos. 3 and 4.

p, MALAICHAMI v. Ill. AMBALAM (A/agiriswami, I.) 1019

The Judgment of the Court was delivered by

ALAGIRISWAlllI, .1. This appeal arises out of the election held in March 1971 to the Tamil Nadu Legislative Assembly to fill a seat from the Melur (North) constituency in Madurai district in which the appellant was declared elected by a majority of 127 votes receiving 37,337 votes, as against 37,210 received by the respondent 3 ,3 81 votes were held invalid. The respondent filed an election petition on 23-4-1971 not only questioping the election of the appellant but also claiming the seat for himself. He made various allegations in his petition which related to infraction of many of the rules regarding the conduct of election. But we may refer to four important matters, which he had referred to in his petition, the importance of which would become clear in due course. ln paragraph (g) of his petition he has stated :

"The mixing of the papers, with rapid counting, bas resulted in large number of. votes polled in fayour of the petitioner erroneously added and bundled in the votes wllad by the respondent. This has also resulted in wrong oounti1Ig." In paragraph (1 ) he has stated :

''Therefore the petitioner submits that the ballot papers m.ay be directed to be manged according to the 'Serial number and then counted. The petitioner submits that this will reveal the introduction of unauthorised ballot papers, if any, and use of different inks for

mllf~." :Paragraph (n) runs as follows :

"The petitioner states that a number of votes have been declare4 invalid without any justification whatsoever. Many of the votes declared invalid were cast in favour of the petitioner. In the counting, some of the invalid votes were taken in favour of the first respondent. In view of the mixing of the ballot papers counting was done hastily and rapidly without any opportunity to candidate or hi.s agent to supervise the counting. In fact, some of the numbers of counting were wrongly mentio.ned and. went to the respondent instead of counting in the name of the petitioner. If recount has been taken the petitioner would have been declared elected." In paragraph ( s) it is stated : . ''The petitioner also states that at the time al counting, the vQtes ill favour of the petitioner were bundled

in the bundles containing the votes in favour of the respl'ltdent and they were counted for the first respondent. Nunmber of ballot papers :were found outside the counting place." Finally, he prayed to the Court to:

(a) direct recounting of the votes;

(b) declare the petitioner duly elected;

(c) declare the election of the 1st respondent to Melur North Constituency void, and (d) The api.x:llant in his counter affidavit denied all the allegations in the petiuon. The respondent filed an interlocutory application for directing a scrutiny and recounting of all the votes.

To this application no counter affidavit was at all filed by the appellant.

Five witness including the petitioner wer• examined on his side and on the respondent's side also five witnesses including the Returning Officer, the Assistant Returning Officer as well as the successful candidate were exaMined at great lengt!i. The learned

Judge after an elaborate, careful, thorough and meticulou.~ examination, which are almost a model of judicial balance and propriety, passed an order for recount of the votes. We consider it unnecessary to set them out at length.

It may be useful to set out the main grounds on which he ordered recount. These are found in paragraph 22 of his order.

"22. From the foregoing discussion, the following facts emerge :

(i) Over-worked and tried personnel were employed. !or

the counting. There are reasonable grounds to think that the counting was not done properly.

(ii) When the counting was in progress, the petitioner admittedly complained about the hasty counting, and there are reasonable grounds to think that on account of the hurry and haste, in which counting wa~ done, the counting was not likely to be co.rrect or proper.

(iii) The unlawful entry of Mr. O.P. Raman into the counting hall, when the counting was going on, caused dislocation and disturbance to the counting, which was likely to have affected the accuracy in the counting.

(iv) The Assistant Returning Officer could not have checked each of the ballot papers brougl\t to him in the doubtful bundles in the way in which such papel'!I should have been checked by him, having regard to the time within which he claims to have completed the H checking and dOunting, whereas much longer time would be required to check up these bundles in the

P. MALAICHAMI v. M. AMBALAM (Alaglriswami, J.) 1021

proper and prescri1*d way. This le_ads to the reasonable inference that each of the ballot papers contained in the doubtful bundles was not checked.

(v) The order of the Returning Officer directing recounting of the ballot papers treated as invalid lends support to the. contention of the petitioner that the votes were not properly scrutinised.

(vi) The failure of the Returning Officer to implement his order to recount has vitiated the declaration of the result.

(vii) The Returning Officer and the Assistant Returning

Officer totally failed to check up the valid votes and this is clearly a breach of the instructions issued by the Election Commission and also by the State Government. There is no assurance that the votes w:re properly sorted and counted.

There is rel!sonable possibility to hold that the counting was not proper; and

(viii) The test check conducted by me of some of the ballot papers treated as invaild clearly shows that some valid votes secured by the petitioner and some secured by the respondent have een -treated as invalid and rejected.

This clearly shows that the counting was wrong." It would be noticed that the main attack was in respect of the counting and the findings of the learned Judge also related to the llame question.

The appellant had very hotly contested the propriety of the request for recount.

The learned Judge considered the decisions in Rtim Sewak v. H. K. Kidwai( 1 ), Jagjit Singh

v. Kartar Singh("); Jitendra Bahadur v. Krishna Behari("), Swami Rameshwara Nand v. Madho Ram('), Nathu Ram Mirdha v. 11 Gordhaba Soni(') and after a very elaborate consideration of the !11cts as well as the principles involved in those decisons had hel'1

that recount should be ordered.

We are satisfiCli that the High Court has taken into consideration all the material circumstances and has appreciated the evidence from the correct perspective in coming to the conclusion that the circumstances under which the counting was carried out necessitated a recount.

The recount was ordered to be done by four ad vacates acting as tellers, two from each side out of a list of four furnished by each side.

Both the parties and their respective counsel were .permitted to be presen~ alongwith four counting agents for :petitioner as well as the respondent and an Assistant Registrar of the Hi.Rh Court was a1>oointed to oreside over the recount of tho

 (!) A.I:R.: 19&1 SC. 1249

(2) A J.R. 1966 S.C. 7'13 .(3) A.I.ll. l9'0S.C. 276

14) !968 (8}l>.B.C. 163

(5) 19f8 (8) D.B.C. 286.

ballot papers and to be assisted by the members of staff dealing A with election cases.

He was ordered to submit his report within two days after the completion of the recounting. It was ordered that on receipt of that report an opportunity will be given to both parties to be heard on that report and necessary orders will be passed thereon. The Assistant Registrar submi, tted his reports on 19-2-1972, and on 23-2-1972, 24-2-1972, 25-2-1972 and 28-2- 1972, the Judge hirnslf took up for decision the validity or other-- wise of the various votes which were disputed and dictated orders then and there. Even before him some concessions were made io. respect of certain votes by both the parties-and some the Judge decided by himself. The Assistant Registrar hiinself dealt merely with votes which were conceded by one side or the olhet lis having been validly cast in favour of the opposite side.

Before him out of the votes which were held invalid by the Returlilng Officer, ~83 were agreed as rightly held invalid but there was dispute about

804 votes (it thus appears that there was a mistake even in the counting of the invalid votes). From out of the Votes counted in rounds 8 to 11, 11,301 vO~ in favour of the respondent were conceded as valid arui 395 were disputed; 11,951. were conceded as valid in favour of the appellant lllld 567 were disputed.

Thus the total of these disputed voles amounting to over 1700 were decided by the Judge himself in the presep.ce of. the parties and their advocates, some on the basis of concessions, some as decided by the Judge himself, as already mentioned.

It is necessary to mention also that as in the recount from among the votes held invalid by the Returning officer petitioner conceded 65 were valid votes cast for the respondent He also conceded that 11 votes counted by the Returning Officer in his favour were valid votes cast

...

for the respondent. 19 votes held by the Returning Officer aw validly cast ror the petitioner were conceded by him to be invalfd: The total came to 95. Similarly 126 votes cast for the petitioner I! but rejected by the Retuming Officer were found valid and 14. votes counted by the Returning Officer as cast for the respondent were found to havebeen really cast for the petitioner. These faots:

clearly establish large scale mistakes in counting. As a result of all this it was finally found that the appellant had got 37,372 votes and the respondent 37,297 votes. Thus the majority obtained by the appellant was reduced from 127 to 75.

It may be remembered that one of the grounds on which the learned Judge had come to the conclusion that recount should be ordered was that the unlawful entry of a Minister, Mr. 0. F'.

Raman into the counting hall when the counting was goin~ on, had caused dislocation and disturbance to the counting which was B likely to affect the accuracy of the counting. The learned Judge had dscussed this question at length and before us a special Leave :Petition was filed by the Returning Officer questioning the decision

P. MALAICHAMI v. M. AMBALAM (Alagiriswami, J.) 1023

of 1!ie learned Judge in the petition for recount as well as in the main election petition.

We had rejected that petition.

But we should make it clear that the learned Judge has been verv fair in his discussion of this matter. It seems to have been contended before him that Mr. Raman had a right to enter the place where the counting was going on, under Rule 66 of the Conduct of 8 Elections Rules in order to get the certificate. The Minister concerned. was the successful candidate for the Melur (south) Constituency, the counting for which was over at 5 a.m. on 11-3-71in the same building. At 8 a.m. began the counting of the votes for the Melur (North) Constituency, i.e. the election in dispute.

Mr. Raman was not a candidate in that election who was entitled c

under Rule 53 to ble present in the room where the countmg was going on.

We cannot understand the anxiety of the Returning Officer in questioning the orders of the learned Judge in the petition for recount as well as the main election petition.

After all the concerned parties were fighting it out under the ostensible excuse of questioning the decision of the learned Judge regarding his interpretatipn of rules 53 and li6, it has been filed really due to the hypersensitiveness on the part of the Minister.

Indeed the learned Judge has made fairly strong remarks against the Returning Officer in other respects.

He has stated at one place that the Returning Officer had failed in his duty, and at another place that the Returning Officer and the Assistant Returning Officer came forward with a story totally devoid of truth. Nothing is said in the E petition about all this which shows that our inference on this point is correct. The petition on behalf of the Returning Officer was wholly uncalled for.

It would appear that he is not a ft ee agent.

After the counting was over, as already shown the majority in favour of the appella.nt was reduced from 127 to 75. Even so his election would have had to be sustained.

But on behalf of the respondent it was urged before the learned Judge that in a case where an election petitioner had applied not merely for setting aside the election of the successful candidate but also for declaring himself (the defeated candidate) as elected, it was the duty of the successful .candidate to have filed a Recrimination application under s. 97 of the Represi; rtation o~ the People Act.

This arnument was based on the decmon of this Court 10 Jabar Singh v~ Genda Lal(1j.

This Court there referred to the earlir decisions on the subject and by a majority cf 4 to 1 held that m such a case it was the successful candidate's duty to have filed a recrimination. petition under s. 97 which wold be ike couter petition.

It is unnecessary to set out the very mstrucllve discuss10n in that case at length.

It would be enough if the headnote alone is set out

(I) (!964] (6) S.C.R. S4:

SUPREME COURTS RI!PORTS

[1973] 3 S.C.R.

"The appellant was declared elected having defeated the respondent by 2 votes. Thereafter the respondent filed an election petition. The respondent challenged the validity of the appellant's eltion on the ground of improper reception of votes in favour of the appellant and improper rejection votes in regard to himself.

His prayer was that the appellant's election should be declared void and a declaration should be made that the respondent was duly elected.

The appellant urged before the Tribunal that there had been improper rejection of the votes, and improper acceptance of the votes of the respondent, and his case was that if recounting and re-scrutiny 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 nor furnished security under s. 97. of the Act, it was not open to him to make this plea.

The Tribunal rejected the objection of the respondent and accepted the plea of the appellant.

The Tribunal 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 not secured a majority of votes.

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. Both the appellant and the. respondent prefer - red appeals before the High Court against the decision of the Tribunal.

The High Court dismissed both the appeals and the decision o.f Tribunal was confirmed.

Hence the appeal.

Held : ( 1) The scope of the enquiry in a case falling under s. lOO(l)(d)(iii) is to determine whether any votes have been improperly cast in favour of the returned candidate or any votes have been improperly refused or rejected in regard to any other candidate. These are the only two matters which would be relevant in deciding whether the election of the returned candidate has been materially affected or not. At this enquiry the onus is on the petitioner to prove his allegation. Therefore, in the case of a petition where the only claim made is that the election of-the returned candidate is void, the scope of the enquiry is clearly limited by the requirement of s. lOO(l)(d) itself. In facts. 97(1) has no application to .the case falling under s. 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that what

P. MALAICHAMI v. M. AMBALAM (A"lagiriswami, J.) 1025

the clause requires to be considered is whether the election of the returned candidate has been materially afiected and nothing else .

(ii) There are cases in which the election petition makes a double claim; it claims that the election of a returned candidate is void and aisO 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 s. 100 as well ass. 101 would apply, and it is in respect of the additional claim for a declaration that some other candidate has been duly elected that s. 97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and raise pleas in support of his case. The result of s. 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. In this connection the returned candidate is required to comply with the provisions of s. 97(1) ands. 97(2) of the Act. If the returned candidate does not recriminate as required by s. 97, then he cannot make any attack against the alternative claim made by the petitioner. In other words the returned candidate will not be allowed to lead any evidence because he is precluded from i any pleas against the validity of the claim of the alternative candidate.

(iii) The pleas of the returned candidate under s. 97 of the Act, have to be tried after a declaration has been made under s. 100 of the Act. The first part of the enquiry in regard to the validity of the election of the returned candidate must be tiied within the narrow limits prescribed by s. 190 ( 1 )( d )(iii) and the latter part of the enquiry which is governed by s. 101( a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under s. 97 ( 1).

But even in cases to which s. 97 applies, the enquiry necessary while dealing with the dispute under s. 101 (a) will not be wider if the returned candidate bu failed to recriminate and in a case of this type the duty of the Election Tribunal will not be to .count and scrutinise Ill the votes cast at the election. As a result of r. 57, die Election Tribunal wall have to usume that every blllot P.aper which had not been rejected under r. 56, conati tuted one valid vote and it is on that buil the l!ndhli will have to be made under s. 10l(a). Thftore, it is clear

that in holding an enquiry either under s. 100( 1 )( d) (iii) or under s. 101 where s. 97 has not been complied with it is not competent to the Tribunal to order a general recount of the votes preceded by a scrutiny about their validity."

Rajagopala Ayyangar, J. was the solitary Judge who dissented from the majority judgment and we have gone through his judgment with all the care and the respect that it deserves and we do not see that it throws much light on the subject. It seems to ignore s. 97. We may also point out that in Bhim Sen v. Gopali,( 1) which was considered in the above decision it was observed :

"As we have already pointed out, in his first written statement respondent I made a positive averment that no void votes had been allowed to be used by the returning officer and that the returning officer had fully discharged his duties under section 63. It is true that after it was discovered that he had received 37 void votes respondent I attempted to make an alleg2•lon that the appellant may likewise have received similar void votes, but it was too late then, because the time for making such an allegation by way of a recriminatory proceeding had elapsed and respondent I had failed to furnish the security of Rs. 1,000 as required by section 97(2) of the Act. If under these <:ircumstances respondent I was not allowed to pursue his allegation against the appellant, he is to blame himself." It was urged before this Court that in a subsequent decision in Shankar v. Sakharam(') this Court itself had differed from the . earlier dcision. The relevant sentence reads like this :

"We also think that the enquiry under s. 100(1)- ( d) (iii) is outside the purview of s. 97. On an enquiry under s. 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 s. 97".

This argument is clearly based on a misapprehension. The question that arises in this case did not arise there nor was the earlier decision in Jabar Singh's case referred to or distinguished. Indeed it was not necessary because they were dealing only with a case falling under s. 100, i.e. a case where the election of the successful candidate was sought to be set aside and not one also falling under s. 101 where the defeated candidate also wants that he should be declared to have been elected.

(I) 1960 122) E.L.R. 288.

12) [1965] (2) b.C.R. 403.

P. MALAICHAMI v. M. Ai._IBALAM (Alagiriswami, J.)

I 02T

In the present case apparently neither party was aware of the decision in Jabar Singh v. Genda Lal (supra) till after the counting was over. The learned Judge took the view that in the absence of a recrimination petition , under s. 97 the appellant was not entitled to question any votes which might have been improperly received on behalf of tlie respondent. If that had been done the appellant, as indicated earlier, would still have won by a majority of 7 5 votes but as he was not entitled to do so the result of leaving out of account votes improperly received on behalf of the respondent and taking into account only the votes which ought to have gone to the respondent, which had been improperly rejected it was found that the respondent had 96 votes more than the appel lant and he was declared elected.

The decision in J abar Singh v. Genda Lal (supra) has received reconsideration at the hands of this Court with approval again in Ravindra Nath v. Raghbir Singh(l) where it was observed :

"The object of s. 97 is to enable recrimination when a seat is claimed for the petitioner filing the election petition or any other candidate. In his election petition the petitioner may claim a declaration that the election of aH or any of the returned candidates is void on one or more of the grounds specified in sub-s. ( 1) of s. 100 and may additionally claim a further declaration that he himself or any other candidate has been duly elected on the grounds specified in s. 101 (see ss. 81, 84, 98, 100 and 101). It is only when the election petition claims a declaration that any candidate other than the retnrned candidate has been duly elected that s. 97 comes into play. If the respondent desires to contest t1iis claim by leading evidence to prove that the election of the other candidate would have been void if he had been the returned candidate and an election petition had been presented calling in question his election, the respondent must give a formal notice of recrimination and satisfy the other conditions specified in the proviso to s. 97.

The notice of recrimination is thus in substance a counter netition calling in question the claim that the other candidate has been duly elected. In this background, it is not surprising that the legislature provided that notice of recrimination must be accompanied by the statement and particulars required by s. 83 in the case of an election petition and signed and verified in like manner and the recriminator must give the security and the further security for costs required under ss. 117 and 118 in the case of an election petition.

(I) [1968) (I) S.C R. 104.

Looking at the object and scheme of s. 97 it is mani fest that the provisions of ss. 117 and 118 must be applied mutatis mutandis to a proceeding under s. 97.

The recriminator must produce 11 government treasury receipt showing that a deposit of Rs. 2,000 has been made by him either in a Government Treasury or in the Reserve Bank of India in favour of the Election Commissioner as costs of the recrimination. As the notice of zecriminati9n cannot be sent by post, it must be filed

before the Tribunal, and reading s. 117 with consequential adaptations for the purposes of the proviso to s. 97 (I), it will appear that the treasury receipt showing the deposit of the security must be produced before the Tribunal along with the notice of recrimination. It follows that the recriminator must give the security referred to in s. 117 by producing the treasury receipt showing the deposit of the security at the time of the giving of the notice under the proviso to s. 97 ( 1).

If the recriminator fails to give the requisite security under s. 117 at the time of giving the notice of recrimination, he loses the right to lead evidence under s. 97 and the notice of recrimination stands virtually rejected." Mr. K. K. Venugopal, appearing on behalf of the appellant llllade four submissions :

1. Section 97 has no application to a case where a prayer is for total count and rescrutiny.

2. Section 97 has no application to the present case where the returned candidate let in or did not have to let in any evidence on any single vote all of which were produced and tendered in evidence by the election petitioner notwithstanding the respondent's protest.

3. Since no case has been made out in respect of

individual votes and no finding given for inspect ing individual votes the petitioner would not be entitled to the benefit of the decision in Jabar Singh's case and Jiis right is only to a general recount or none at all.

4. The respondent is estopped from questioning the result of the recount bec 0 use of mutual concessions.

Though stated in a different form the sum and s.ubstance <?f 1e

very vigorous attempt on behalf of the appellant 1s to question 1n

P. MALAICHAMI v. M. AMBALAM (Alagiriswami, /.) 1029.

effect the validity of the decision in so far as it is held that s. 97 is applicable to the facts of this case. He even went so far as to suggest that this case is totally different from the one in Jabar Singh v. Genda Lal (supra) and the whole question, if necessary should be reconsidered by a much larger Bench in view of Justice Rajagd'pala Ayyangar's di.ssenting judgment. He finally urged that the democratic process should be allowed to have full sway and no mere technicality should b~ allowed to come in the way of justice being done.

The last appeal is particularly interesting. Courts in general are averse to allow justice to be defeated on a mere technicality~ But in deciding an election petition the High Court is merely a tribunal deciding an election dispute. Its powers are wholly the creature of the Statute under which it is conferred the power to hear election petitions. An election petition, as has been pointed out again and again, is not an a.ction at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power. It is always to be borne in mind that though the election of a successful candidate is not to be lightly interfered with, one of the essentials of that law is also to safeguard the purity of the election process and also to see that the people do not get elected by flagrant breaches of that law or by corrupt practices (see the decisions in Kamaraja .

Nadar v. Kunju Thevar,(1) Venkateswara v. Narasimha( 2 ) and Ch. Subbarao v. Member, Election Tribunal('). We may, therefore, look into the law regarding this matter. Under s. 81 of the Representation of the People Act, 1951 "an election petition calling in question any election may be presented on one or more of the grounds specified in sub-section (I) of section 100 and section 101 to the High Court by any candidate at such election or any elector within forty-five days from, but not earlier than, the date of election of the returned candidate, or if there are more than one returned candidate at the election and the dates of their election are different, the later of those two dates." Section 8 3 reads :

"( 1) An election petition- ( a) shall contain a concise statement of the material facts on which the petitioner relies; (bl

( c) shall be signed by the petitioner and verified in the manner laid down in the Code

(I) [1959] S.C.R. 583 at 596.

(2) [1969] (1) S.C.R. 679 at 685

(3) !964 D.E.C. 270.

of Civil Procedure, 1908 ( 5 of 1908) for A the verification of pleadings. (2) ..

Section 84 reads :

"A petitioner may, in addition to claiming a declaration that the election of all or any of the returned .candidates is void, claim a further declaration that he himself or any other candidate has been duly elected." :section 97 reads :

" ( 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 lais intention to do so and has also given the security and the further security referred to in sectiOlll 117 and 118 respectively.

( 2) Ewry notice referred to in sub-section (1 ) 1lhall be accompanied by the statement and particulars required by section 83 in the case of an dection petition and shall be signed and verified in like manner.~

tion 100 reads: -

" ( 1) Subject to the provisions of sub-section (2) if .the High Court is of opinion- ·

(a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the Government of Union Territories Act, 1963; or

(b) that any co.rrupt practi_ce has been committed by a returned candidate or his election agent or by any other person with the consent of a

rturned candidate or his election agent; or H

( c) that any nomination has been improperly rejected; or

P. MALAICHAMI v. M. AMBALAM (Alagiriswami, I.)

I 031

( d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected- ( i) by the improper acceptance of any nomiation, or

(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or

(iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or

(vi) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.

( 2) If in the opinion of the High Court, a returned candidate has been guilty by an agent, other than his election agent, of any corrupt practice but the High Court is satisfied- ( a) that no such corrupt practice was committed at

the election by the candidate or his election agent, and every such corrupt practice was committed contrary to the orders, and without the consent of the candidate or his election agent; ( c) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election; and ( d) that in all other respects the election was free from any corrupt practice on the part of the candidate or any of his agents, then the High Court may decide that the election of the returned candidate is not void." Section 10 I reads :

"If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been duly elected and the High Court is of opinion- ( a) that in fact the petitioner or such other candidate received a majority of the valid votes; or

(b) that _but for the votes obtained by the returned A candidate by corrupt practices the petitioner or such other candidate would have obtained a majty of the valid votes;

the High Court shall after declaring the election of the returned candidate to be void declare the petitioner or such other candidate, as the case may be, to have B been duly elected." In the present case the grounds for setting aside the election of the petitioner are that the result of the election in so far as the appellant was concerned has been materially affected : (l") ···························· c (11 •• ) ............................

(iii) by improper reception, refusal or rejection of votes which is void, or

(iv) by non-compliance with the provisions of the Constitution or of the Act or of any rules or D orders made under the Act.

The only ground on which the defeated candidate could be declared to be elected is under s. 101 (a) that in fact he had received a majority of valid votes. But it is .in deciding who has got the majority of valid votes that s. 97 comes into play. When in an election petition a declaration that any candidate other than E' 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. This right the appellant had but this ri_ght is subject to the provision that he shall not be F entitled to give evidence to prove that the election of the petitioner in this case i.e. the respondent would have been void if he had been the returned candidate and the petitioner had presented petition calling in question the election unless he had given notice of his intention to give such evidence and also given security and the further security referred to in ss. 117 and 118 respectively, G and every such notice has to accompanied by the statement and particulars required ander s. 83 in case of an election petition and shall be_ signed and verified in the like manner. None of these things was done in this case. The petition by the respondent had been filed on 23-4-1971. The orders for the appearance of the respondent were passed on 12-7-1971. The appellant, who was the respondent in that petition, should have given notice under H s. 97 within 14 days of his appearance i.e. on 26-7-1971 and also C09lplied with the other requirements specified therein. The

P. MALAICIWQ v •. 1f, .AMBALA)f (A/aglrlswaml, J.) 1033 ,. '

iuuea wm-e framed on 27.· 7·1971, tho reco1111t was ordered OD 3·2·1972 and tho judament itself was pronOliDcod on 13·3·1972.

It was on 10·3 1972 that an attempt was made to file a recrimi• nation petition with a petition to excuse the delay. But even then the other requisites of s. 97 like giving 11eeurity or the petition being accompanied statement and particulars required by s. 83

were not complied with. A special leave petition was filed in this Court again applying for permission to receive a recrimination petition. There is, thus, no doubt at all that the appellant did not comply with the requirements of s. 97.

The question still remains whether the requirements of s. 97 have to be satisfied in this case. It is argued by Mr. Venugopal C that the gravamen of the respondent's petition was breach of many of the election rules and that he asked for a total recount,

a request to which the appellant had no objection and that there was, therefore, no rule or need tor filing a r:crimination petition under s. 97. This, we are afraid, is a complete mis reading of the petition. No doublt the petitioner has asked for J a recount of votes. It may legitimatly be pesumed to me<.1n a recount of all the votes. but such a recount is asked for for the purpose of obtaining a declaration that the appellant's election was void and a further declaation that the respondent himself had been elected. This aspect of. the matter should not be lost sight of. Now, when the respond-nt a1ked for a recount, it was not a mee mechanical process that he was asking for. The very E grounils which he urged in suppJrt of his petition (to which we have referred at an earlier stage} as well as the application - for recount and the various grounds on which the learned Judge felt that a recount should be ordeed showed that many mistakes were likely to have arisen in the counting. and as revealed by the instances which the learned Judge himself looked into and decMed.

F It may be useful at his stage to set out Rule 56 of the Conduct <>f Election Rules, 1961 :

"56. Counting. of Votes.-(1) Subject to such j!eneral or special directions, if any. as may be P, iven by Election commission in this behalf, the ballot papers taken-out of all boxes used in a constituency shall De mixed together and then arranged in convenient bundles and scrutinised.

(2) The returning oftker shall rej~ a ballot paper- ( a) if it bears any mark or writing by whic>J the

elector can be identified, or H

(b) if, to indicate the votes, it bears no mark at all or bears mark made otherwise than with the instrument supplied for the purpose, or ll-l,79'1SupCI '73

(c)

(d)

(e)

(f)

(g)

if vo1es are given 0.11 it in favour of more than one candidate, or if the mark indicating the vote thereon is placed in such manner as to make it doubtful to which candidate the vote has been given, or if it is a spurious ballot paper, or

if it is so damaged or mutilated that its identity as a genuine ballot paper cannot be established, or if it bears a serial number, or is of a design, different lrom the serial number, or , as the case may be, design, of the ballot papers authorised for use at the pa'1icular polling station, or

(h) if it does not bear both the mark and the signature which it should have borne under the provhions of sub-rule (I) of rule 38; Provided that where the returning officer is satisfied that any such defect as is mentioned in clause ( g) or clause (h) has been caused by any mistake or failure on the part of a presiding officer or polling officer, the ballot paper shall not be rejected merely op. the ground ot such defect : Provided further that a ballot paper shall not be rejected merely on the ground that the mark indicating the vote is indistinct or made more than once, if the intention that the vote shall be for a particular candidate clearly appears from the way the paper is marked.

(3) Before rejecting any ballot paper under subrule (2), the returning officer shall allow each counting agent present a reasonable ouportunity to inspect the ballot paper but shall not allow him to handle it or any other ballot paper.

( 4) The returning officer shall endorse on every ballot paper which he rejects the word "Rejected" and the grounds of rejection in abbreviated lorni either in his own hand or by means of a rubber stamp and shall initial such endorsement.

( 5) All ballot papers rejected under this rule shall be bundled !Dgether.

( 6) Every ballot paµe1 which is not rejected under this rule shall be counted as one valid vote :

I!:

I'. MALAICHAMI v. M. AMBALAM (Alagiris1vami, J.)

I 035

Provided that no cover containing tendered ballot papers shall be opend and ;; o such paper shall be counted. en After the countmg cf all ballot pape:s contained in all the ballot boxes used in a constituency has been c0mpleted, the returning officr shall make the entries in ii rcsu!rsheet in Form 20 and announce the particulars.

i:.xplanation.-For the purpose of this rule, the expression "cnstituency" shall, in relation to an election from a parliamentary constituency, mean the assembly constituency comprised therein."

So, when counting goes on the returning officer may have rejected a ballot paper on any one of the grounds mentioned in sub-rule ( 2) of that rule. He might have made a mistake or his decision may be wrong on any one Otf the points. That is what explains

the large number of concessions made by either side when the recount was made before the Asdstant Registrar of the High Court as well as before the learned Judge.

So, it is not proper to interpret the respondent's prayer for recount as a reque&t for a mere mechanical process of counting. It was counting contemplated under Rule 56 with all its implications that he was asking for. The very grounds on the basis of which the recount was ordered by the learned Judge show that there was a possibility of mistakes having arisen under anyone of_ the grounds set out in Rule 56(2) clauses (a) to (h) and it is to have them taken into account and decided correctly that the respondent wanted a recount.

Now, when he wants a recount for the purpose of setting aside the appellant's election he necessarily has got to have not merely the benefits of votes which would have originally gone to him but which had been wrongly giveri to the appellant but also all votes which had been cast in his favour (the respondent) \iut had been rejected wrongly on one or other of the grounds mentioned in Rule 56(2) clauses (a) to (h). So, it was necessary for the purpose of the respondent's case not merely that votes which were held invalid should be re-scrutinised but also votes which had been held to have been cast in favour of the appellant. The iinproper reception or rejection, therefore, would include not merely cases where a voter appears before the presiding officer at the time of polling and his vote is received where it should not have been received and his vote rejected where it should not have been rejected.

The improper rejection or reception contemplated under s. 100 ( 1 )( d )(iii) would include mistakes or wrong judgments made by the returning officer while counting and exercising his powers under Rule 56(2) clauses (a) to (h). The fact, therefore, that the respondent asked for recounting of all the votes does not mean that he wanted also that votes which had

been wrongly held to have been cast in his favour but should have gone to the appellant as also votes which had been rejected, but which should have gone to the appellant should be taken into account.

The respondent was interested ii! •no such thing.

He made no such prayer. It was only the appellant that was interested and bound to do it if he wanted to defeat the respondent's claim that he should be declared elected and s. 97 is iljtended for just such a purpose.

It was asked what was the purpo; e and where was the need for the appellant to have filed a recrimination under s. 97 and what be could have filed when the respondent had asked for a total recount. What we have stated above furnishes the necessary answer.

The appellant knew not only that the respondent wanted his election to be set aside but also that he wanted himself (the respondent) to be declared elected, He should have, therefore, stated whatever material was nece>sary to show that the respondent, if he bad been the successful candidate and the petition had been presented calling in question his electi<>n, his election would have been void, in other words comply with sei:tion 83.

He could have !tated therein setting out that while he bad 1110 objection to a recount to be ordered (we have already shown that he strongly opposed the recount) there were many votes which would have rightly gone to him (the appellant) which have wrongly been givt:n to the respondent, that there were many votes which should have rightly gone to him but which have been improperly rejected. He should also have complied with the other requirements of section 97. If he had done that that could have bieen taken into consideration. There was no difficulty at all about his doing all this. His contention that he had no objection to the recount 11!\d there' was no rule or any need for him to file a recrimination is wholly beside the point. He had in his counter to the main election petition repudiated every one of the allegations in the election petition. It was at that stage that he should have filed the petition under section 97 (of course, within 14 days of bis appearance). It was not at the stage when the petitioner filed bis application for recount that the opporunity or need for a petition under s. 97 arose.

It was then urged that when all the material was before the court it was unnecessary for him to have done so. As we have already pointed out this is not an action at law or a suit in equity but one under the provisions of the statute which bas specifically created that right. If the appellant wanted an opportunity to question the respondent's claim that be should be declared elected he should have followed the procedure laid down in s. 97. Ir. this connection it is interesting to note that in the decision in Jabar Singh v. Genda Lal (supra) the successful candidate in bis own petition had pleaded that many votes cast in favour of himself had been wrongly rejected, iri regard to which details were given,

P. MALAICHAMI v. M. AMBALAM (A/agiriswami, J.) 1037

and that similarly 11Cveral votes were wrongly accepted in favou1 of the election petitioner 81ld in regard to which also details were given, and it ended with the prayer that if a proper scrutiny and

recount were made of the valid votes received by each, it would be found that he-the returned candidate-had in fact, obtained a larger number of votes than the election petitioner and for this reason he submitted that the election petition ought to be dismissed.

In spite of this it was held that he had to fail because he had not filed a recrimination petition under s. 97. So it is not enough to say that what ought to be looked into is the substance and not the form. If a relief provided under a statute could be obtained only by following a certain procedure laid therein for that pwpose, that procedure must be followed if he is to obtain that relief.

What we have j, ointed out just now shows that it is not a ques lion of mere pleading, it is a question of jurisdiction. The Election Tribunal had no jurisdiction to go into the question whether any wrong votes had been counted in favour of the election-petitioner, who had claimed the seat for himself unless the successful candidate l1ad filed a petition under s. 97. The law reports are full of cases where parties have failed because of their failure strictly to conform to the letter of the law in regard to the procedure laid down under th~ Act and the rules.

Point 3 raised by the appellant has no sutance because it was not necessary to lead evidence in respect of any individual vote about improper reception or improper rejection.

The decision about improper reception or improper rejection has been given in this case mostly on concessions by both the parties and in a few cases by the Judge himseli scrutinising and deciding about all disputed cases. Indeed, there was llO need for any evidence except

a proper scrutiny of the votes and a correct decision based on such scrutiny as to the cMidldate for whom it was cist .or. whether it was invalid. We may at the risk •of repetition point out that the pfQcess of reco1Jllting included decision regarding the question of in\proper reception or improper rejection and there is no such thing as a general recount and there is no authority in law for G suggesting that all that the respondent could have asked for was

ei!her a general recount or none at all. Indeed there is no provision in the Act for a petition to be filed alleging "Let all v'.:tes be recounted and whoever gets more votes be declared elected."

Nor do we think that any question of estoppel arises. Estoppel may arise in respect Of each individual vote conceded by one party or the other as valid and Riven in favour of the other iu the sense that having conceded that a disputed vote .should have gone to H

one or other ol the parties the party who made that conce.sion cannot RO 1-ck on it. But where the law pi:ovides that no evidence

can be given about the improper reception of votes in favour of A the defoated candidate who bad claimed a seat for himself unle& the successful candidate had complied with s.97, no question of eslop11el CJrises.

Co11cession is akin to admission an'i the use of such an admission would be evidence. What is barred under the proviso to s.97 is the giving of evidence by the appellant. Appellant can give evidence either by relying on the respondent's admissions B or leading independent evidence. In either case it would be giving evidence. And since giving al. evidence is barred, the concessioas .:nnnot be used as evidence in favour of the app::llant. This is what the learned Judge has very clearly pointed out in. his order. We have earlier quoted from the decision in Bhim Sen v. Gopali

(supra) where the provisions of s. 97 had not been complied with. c Even though as a matter of fact the valid as well as the invalid votes in favour of both the petitioner as well as the tespondent

might have been counted, the evidence furnished by such votes, was not a admissible must because of failure to comply with the provisions of section 97.

Finally, we must deal with the appeal made to us that the D justice should be done irrespll.(:tive of technicalities. 1ustice got to be done according to law. A Tribunal with limited jurisdiction cannot go beyond the procedure laid down by the statute for its functioning. If it does so it would be actiJ!.g without jllris diction.

We are, therefore, satisfied that the learned 1udge was right I: in holding that though a general recount had been ordered and an account taken of the valid votes given for both the candidates, it was not possible to take into account any vote in favour of the appellant because al. bis failure to comply with section 97. Nor arc we satisfied that we would be justified in ordering that this case should bie reconsidered by a larger Bench.

F This appeal is, therefore, dismissed.

The appellant will pay the first respondent's costs. Special Leave petition 1347 /72 preferred against Application No. 648/72 in Election Petition o_s. No. 2/1971 is dismissed.

S.B.W.

Appeal dlsnt/sf, P.

P.MALAICHAMI

M. ANDI AMBALAM & ORS

Sec. 91

sec. 91

s 97

s 97

s 97

Sec. 97

Sec. 97

Jabar Slngh'a

Rajagopala Ayyangar

Sec. 97

s 97

sections 117 and 118

s 83

s 100

Sec. 97

s 97

Sec. 97

Sec. 97

Sec. 97

lobar Sing

S. 116A

Representation of the People Act, 1951

K. K. Venugopal

A. Subhashini

T. N. Srinivasa Varadacharya

G. Viswanathan

K. Jayaram

R. Chandrasekhara

M. C. Chagla

A. V. Rangam

ALAGIRISWAlllI

Madurai district

O.P. Raman

28-2- 1972

Raman

s. 97

s. 97

s. 97

s. 100(1)(d)(iii)

s. 100

s. 97

Section 97

s. 97

s. 97(1)

s. 97

s. 97

s. 100

s. 190

s. 101( a)

s. 97

s. 97

s. 101

s. 10

s. 100( 1 )( d)

s. 101

s. 97

s. 97

section 63

section 97(2)

s. 100(1)

s. 97

s. 100

s. 97

Jabar Singh

s. 100

s. 101

s. 97

s. 97

s. 100

s. 101

ss. 81, 84, 98, 100 and 101

s. 97

s. 97

s. 83

ss. 117 and 118

s. 97

ss. 117 and 118

s. 97

Reserve Bank of India

s. 117

s. 97

s. 117

s. 97

s. 117

s. 97

K. K. Venugopal

Section 97

Section 97

s. 97

Rajagd'pala Ayyangar

Kamaraja

s. 81

Representation of the People Act, 1951

section 100

section 101

Section 8

Section 84

section 97

section 83

Section 10

s. 101

s. 97

ss. 117 and 118

s. 83

s. 97

27.· 7·1971,

s. 97

s. 83

s. 97

s. 97

Venugopal C

s. 97

Election Rules, 1961

s. 100

s. 97

s. 97

section 97

section 97

s. 97

s. 97

s. 97

s. 97

s. 97

section 97

section 97