Azmat Khan v. Khillan Singh & Others

Judgment

CIVIL APPELLATE JURISDICTION. 1983. Civil. Appeal No. 236 of · Froin tht Judgment and Order dated the J Ith January, 1983 of the Punjab and Haryana High Co,urt.in Election Petition No.2 of f982. 4 M; C. Bhandare and Prem Malhotra for the Appellant. Hardev Singh and R. S. Sodhi for the Respondent. . The Order of the Court was ,delivered by FAZAL ALI, J. This election appeal arises out of the election. held in 1980 from the constituency No. 5() called Hathin to th~ . SUPREME 'COURT REPORTS [1984) .1 s.c.ll. Legisiative Assembly of the State of Haryana •. At the counting held by the Returning Officer, the Appellant secured 12,828 votes whereas respondent No. I Khillan Singh got 12,655 votes and one Ramjii'!"I got 12,2 l3 votes. 'Accordingly the .appellant was declared as elected. · Aggrieved by the result of the election, Khillan Singh and Ramjilal filed election petitions in the High Court.

In the course of the election petition, the appellant filed a recrimination petition in which one of the grounds related to tho errors committed in the co \In ting of votes ofrespbndent No .. I. All the parties agreed that the court should Order a recount and that . the parties wpu!d be bo'und by the result of the recount. · The recount was accordingly held as a result of which Kbillan Singh respondent No. I got 12,751 i.e. tl).e highest number of valid votes and the appellant got 12,698 votes. In view· of the higher votes secured by Khillan Singh respondent No. I ·at the «ecount ordered by the High Court, bis petition was allowed, the election of the appellant wa.s set aside and Khillan Singh was declared as elected. This appeal' is filed against the. decision of the ' High Court. In support ofthe appeal,. Mr. Bhandare with the, usual inge- . nuity pressed only one point before. us. .He submitted on the basis pf the Judgment ofthis .Court in labor Singh v. Genda Lal(') that even if the result had gone in favour of respondent No. I he could· not have been declared elected.

We have gone. through this authority and we find that the facts of the present case are clearly distinguishable. In the decision referred to above the returned candidate did ·not recriminate as provided.under section 97 of the Representation of the People Act, 1951. and this was the important ground on which the Court said that it could not make any attack against the alternative claim made by the petitioner. In the instant case, the appellant bad . admittedly recriminated and in the recrimination petition one 'of the . grounds taken related t.o the . errors committed at the time of . the counting· of .votes of the Ist respondent by. the Returnil)g Officer. The."appellant bad also ag~ed to the re.counting of the votes sec!lred by all the parties. In these circumstances, this case does not appear to be of any assistance to the appellant.

The decision :of the High . •· Court is.in accordance with the result of the recount ordered by it. ·• For the foregoing reasons, the appeal is dismissed but in the circumstances of the case there will be no order as to costs.· H.S.K . ApJeal dfamissed. · . (1) ; (196416 S.C,R. 54.