Recrimination in composite election petitions requires strict section 97 compliance before challenging a rival claim to be duly elected.
In a composite election petition seeking both avoidance of the returned candidate's election and a declaration that another candidate was duly elected, the returned candidate may contest the rival claim only by strictly complying with the recrimination procedure under section 97 of the Representation of the People Act, 1951. The statutory scheme requires the prescribed notice, particulars and security within time; absent compliance, votes in the returned candidate's favour cannot be relied on to defeat the alternative claim. A recount ordered for irregularities does not bypass this bar, and concessions made during recount cannot confer jurisdiction or override the statutory requirement.
Issues: (i) whether, in a composite election petition claiming both avoidance of the returned candidate's election and a declaration that the defeated candidate was duly elected, the returned candidate was required to comply with the recrimination procedure under section 97 of the Representation of the People Act, 1951 before challenging votes in support of the defeated candidate; (ii) whether a general recount and concessions made during recount could be relied upon to sustain the defeated candidate's claim without compliance with section 97.
Issue (i): whether, in a composite election petition claiming both avoidance of the returned candidate's election and a declaration that the defeated candidate was duly elected, the returned candidate was required to comply with the recrimination procedure under section 97 of the Representation of the People Act, 1951 before challenging votes in support of the defeated candidate.
Analysis: The statutory scheme distinguishes between a petition confined to setting aside the returned candidate's election and a petition that also seeks a further declaration that another candidate has been duly elected. In the latter class, section 97 permits the returned candidate to lead evidence against the rival claim, but only if the prescribed notice, statement of particulars, security and further security are furnished within the statutory time. The decision also treats the enquiry under sections 100 and 101 as separate in scope, with the alternative claim for being duly elected attracting the recrimination requirement. The failure to invoke that procedure deprives the returned candidate of the right to attack the defeated candidate's claim to election.
Conclusion: Compliance with section 97 was mandatory, and the appellant's failure to comply barred him from disputing the respondent's claim to be declared elected.
Issue (ii): whether a general recount and concessions made during recount could be relied upon to sustain the defeated candidate's claim without compliance with section 97.
Analysis: The recount was ordered because the counting process was found to be vitiated by serious irregularities and possible errors under the counting rules. However, the Court held that a recount in a composite petition is not a mere mechanical exercise: it necessarily implicates the question whether votes were improperly received or rejected on both sides. Since the appellant had not complied with section 97, the Election Tribunal lacked jurisdiction to take into account votes in his favour in support of the claim that the respondent had not secured a majority of valid votes. Concessions made during recount could not override the statutory bar, and the plea of estoppel could not confer jurisdiction where the statute withheld it.
Conclusion: The recount could not be used to assist the appellant, and the respondent's declaration of election was sustained.
Final Conclusion: The appeal failed because the statutory procedure for recrimination was not followed in a composite election petition, and the resulting recount could not be used to displace the respondent's claim to have secured the majority of valid votes.
Ratio Decidendi: In a composite election petition seeking both avoidance of the returned candidate's election and a declaration that another candidate is duly elected, the returned candidate can contest the rival claim only by strictly complying with the recrimination requirements of section 97, and a tribunal cannot, absent such compliance, treat votes in his favour as evidence to support that rival claim.
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