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TMI Blog1979 (5) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... on of Janardan Dattu-appa Bondre to the 104-Chikhli Legislative Assembly Constituency, Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected. 2. Civil Appeal No. 1936 (NCE) of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No. 2387 (NCE) of 1978 by Keshavrao Jaiwantrao Bahekar. The parties will be referred to hereinafter according to their array in the former appeal. 3. General elections to the Legislative Assembly of Maharashtra were held in February, 1978. The appellant Janardan Dattuappa Bondre, was declared elected to the 104-Chikhli Assembly Constituency. He secured 27,785 votes. The fifth respondent, Bharat Rajabhau Bondre was given 27,604 votes and the third respondent, Keshavrao Jaiwantrao Bahe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... progress, it was found that in one envelope from Box No. 2 of candidate No. 4 Shri Bahekar, there were 278 ballot papers noted by the Returning Officer on the envelope but at the time of actual counting it was found that from them 28 ballot papers were of Shri Bahekar, while the remaining were of votes cast, in favour of candidate No. 3 Shri Janardhan Bondre. Similarly, in the envelope of Shri Janardhan Bondre there were 408 ballot papers noted by the Returning Officer but at the time of actual counting of that envelope it was noticed that from out of 408 ballot papers, 158 only were of Shri Janardhan Bondre and the remaining were of Shri Bahekar. It would be therefore clear that there was some mistake committed by the Returning Officer wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irections in the order required the Special Officer, among other things, to physically count the votes recorded in favour of the appellant, Bahekar and other candidates in order to ascertain whether those votes were less than the number of votes declared as having been respectively secured by them. During the recount, the appellant applied to the Special Officer that if any votes cast in his favour were found to have been erroneously counted in the total of other candidates the mistake should be rectified by including them in his total. A similar application was made by Bahekar. The High Court rejected the appellant's application on the ground that he had not filed a notice of recrimination. It seems to us that when the High Court direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him. The accident that they were not placed in his packet but in Bahekar's packet did not render them any the less votes belonging to the appellant. Their inclusion in calculating the appellant's total was a necessary part of the process involved in deciding whether he had been duly elected or whether on the election petition, his election should be declared void. It was a process relevant to the first of the reliefs claimed by the election petitioner, that is to say, that the election of the appellant be declared void. The other relief claimed by the election petitioner was that the fifth respondent be declared duly elected. Now, as was observed in Jabar Singh v. Genda Lal, [1964]6SCR54 , 60 where both reliefs are claimed in an el ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant's 250 votes in his total on the ground that no notice of recrimination under Section 97 of the Act had been given. 10. In P. Malaichami v. M. Ambalam (supra), on which the High Court relied, the facts were different. In that case, the recount, ordered did not involve the mere mechanical process of counting the valid votes cast in favour of the parties. It involved the kind of counting contemplated under Rule 56 of the Conduct of Election Rules, 1961, with all its implications . The validity of the votes was to be under re-examination. And if the returned candidate intended to take the benefit of such a recount against the election petitioner or other candidate, in whose favour the further declaration of being duly elected had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal filed by Bahekar, the contention raised for him is that on a proper and complete recount of the votes cast for the respective candidates it is he who should be declared duly elected. We are not satisfied that the grounds raised have any substance, and we see no force in his appeal. 15. In the result, Civil Appeal No. 1936 (NCE) of 1978 is allowed and Civil Appeal No. 2387 (NCE) of 1978 is dismissed. The order of the High Court declaring the election of the appellant void and declaring the fifth respondent duly elected is set aside. The election petition is dismissed. The appellant is entitled to his costs throughout against the second and the fifth respondents in the election petition as Well as in the appeal filed by him. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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