Recrimination petition requirement limits reliance on rejected votes, while scrutiny may still assess material effect on election result.

In a composite election petition under the Representation of the People Act, 1951, a returned candidate who does not file a recrimination petition under Section 97(1) cannot insist that rejected ballots allegedly in his favour be counted to support a counter-claim for election. The statutory scheme bars him from challenging the election petitioner's claim without following the prescribed procedure. The Court also noted that scrutiny of rejected ballots cast for the election petitioner may still be undertaken under Section 100(1)(d)(iii) to test whether improper rejection materially affected the result. The valid recount of the election petitioner's rejected votes was therefore legally significant despite the absence of recrimination by the returned candidate.

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Issues: (i) Whether, in the absence of a recrimination petition under Section 97(1) of the Representation of the People Act, 1951, the returned candidate could insist that rejected ballot papers allegedly cast in his favour be counted while deciding the election petition. (ii) Whether the High Court was justified in ordering recount and scrutiny only of the rejected ballot papers relating to the election petitioner and in holding that the election of the returned candidate was materially affected by the improper rejection of valid votes cast in favour of the election petitioner.

Issue (i): Whether, in the absence of a recrimination petition under Section 97(1) of the Representation of the People Act, 1951, the returned candidate could insist that rejected ballot papers allegedly cast in his favour be counted while deciding the election petition.

Analysis: A composite election petition claiming both that the returned candidate's election is void and that the election petitioner is duly elected attracts the scheme of Sections 97, 100 and 101 of the Representation of the People Act, 1951. Where the returned candidate does not file a recrimination petition in the manner and within the time prescribed by Section 97(1), he cannot lead evidence or raise a counter-claim to support his own claim to be declared elected. The counting of allegedly rejected votes in his favour is not a mere isolated mechanical exercise when it is invoked to defeat the alternative claim for declaration of election. The authorities were held to bar the returned candidate from challenging the election petitioner's claim without complying with the statutory procedure.

Conclusion: The returned candidate was not entitled to have the rejected votes allegedly cast in his favour counted in the absence of a recrimination petition.

Issue (ii): Whether the High Court was justified in ordering recount and scrutiny only of the rejected ballot papers relating to the election petitioner and in holding that the election of the returned candidate was materially affected by the improper rejection of valid votes cast in favour of the election petitioner.

Analysis: The High Court found that the rejected ballot papers relating to the election petitioner had been improperly excluded and that the result of the election, so far as the returned candidate was concerned, had been materially affected within the meaning of Section 100(1)(d)(iii). The Court accepted that the earlier recount order in so far as it extended to the returned candidate went beyond jurisdiction because no recrimination petition had been filed, but that error did not prevent the High Court from acting on the valid recount of the election petitioner's rejected votes. The statutory scheme under Rule 63 and Section 100 permits scrutiny of votes for determining whether improper rejection materially affected the result against the returned candidate.

Conclusion: The High Court was justified in recounting the rejected ballot papers relating to the election petitioner and in declaring the election of the returned candidate void.

Final Conclusion: The appeal failed because the statutory requirements governing recrimination and election scrutiny were not satisfied in favour of the returned candidate, while the improper rejection of votes cast for the election petitioner supported the declaration that the election petitioner was duly elected.

Ratio Decidendi: In a composite election petition, a returned candidate who has not filed a recrimination petition under Section 97(1) cannot claim the benefit of rejected votes in his favour to defeat the election petitioner's claim for declaration, but the court may still examine whether improper rejection of votes cast for the election petitioner materially affected the result under Section 100(1)(d)(iii).

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