Jagat Singh v. Dharam Pal Singh — 1984 DIGILAW 21 (ALL)

JUDGMENT B.D. Agarwal, J. - This is an appeal under R. 49(1) of the U.P. Kshettra Samities (Election of Pramukhs and Up -Pramukhs and Settlement of Election Disputes) Rules, 1962 (hereinafter referred to as the Rules) framed under the U.P. Kshettra Samities and Zila Parishads Adhiniyam, 1961 (for short, the Act). 2. Election was held to the office of the Pramukh. Kshettra Samiti, Bisrakh (Distr. Ghaziabad) on May, 29, 1983. The appellant and the respondents 1 to 5 were the six contesting candidates. The election was under the system of proportional representation by means of the single transferable vote as required under R. 16. The total number of votes cast was 96 of which 3 were declared invalid. The quota was 47 (93+1+2). The first preference votes secured by the different candidates were : 1. Respondent No. 44 2. Appellant 43 3. Rajvir 5 4. Ratiran 1 5. Dharam Pal Singh S/o Lehri Singh Nil 6.Kani Ram Nil 3. The respondent No. I filed an election petition under R. 35(1) before the District Judge, Ghaziabad which was transferred to the Special Judge (Addl. District Judge) (hereinafter referred to as the Judge) for disposal. Besides taking other pleas the petitioner contended in para 22 of the petition that "in the eventuality of equality of votes of preference as shown in Form VIII the petitioner was entitled to be declared successful in the strength of more first preference votes". In his written statement the appellant - (opposite party No. 1) averred that there was absolutely no irregularity in the matter of counting of votes, that the determination of the result was in entire conformity with the Rules and that the draw of lot was with the consent of the candidates and is also, it is alleged, in keeping with the Rules. The petitioner's counsel thereupon confined the dispute to only one issue which as framed by the Judge on 17-11-83 was : "Whether in the event of equality of votes of preference as shown in form VIII the petitioner was entitled to be declared successful on the strength of having obtained comparatively more first preference votes?". 4. None of the candidates secured first preference votes to the required quota. Dharampal Singh s/o Lehri Singh and Kani Ram were excluded, there being no first preference vote in favour of either of them. 4. None of the candidates secured first preference votes to the required quota. Dharampal Singh s/o Lehri Singh and Kani Ram were excluded, there being no first preference vote in favour of either of them. Ratiram was eliminated next there being only one first preference vote to his credit. Rajvir came to be excluded thereafter. Credit was given to the appellant of three second preference votes of Rajvir and the respondent No. 1 got the benefit of two such votes. In this way, the total number of votes secured by these two continuing candidates came to be equal namely, 43+3=46 in favour of the appellant and 44+2=46 in respondent No. 1's favour. Faced with this the Returning Officer (respondent No. 6) took recourse to the draw of lot and declared the appellant elected on that basis. 5. Learned Judge after hearing the parties recorded the finding on 19-11-83 in the affirmative. The petition was allowed. The election of the appellant was set aside and the respondent No. 1 (the petitioner) was declared elected on the basis that he had secured larger number of first preference votes in comparison to the only other continuing candidate, namely, the appellant and the draw of lot was out of question. On 18-11-83 the opposite party No. 1 (the appellant) had applied for amendment of his written statement which was rejected being in conflict with and material departure from the admissions contained in the written statement. 6. Aggrieved, the opposite party No. I who had been returned as elected by the Returning Officer has preferred this appeal. 7. Sri S.S. Bhatnagar, learned counsel for the appellant, urged that the Rules do not contain specific provision for declaring the result in the situation to which the appellant and the respondent No. I were placed after the exclusion of other candidates and the Returning Officer was justified to proceed with the draw of lot with the consent of the parties. The Judge erred in reversing this decision and in adopting the number of first preference votes as the criterion. The submission further is that the appellant had the right to recriminate against the respondent No. 1 being considered as duly elected even if the appellant could not claim to be elected for himself and the Judge was in error in denying this right to him. 8. The submission further is that the appellant had the right to recriminate against the respondent No. 1 being considered as duly elected even if the appellant could not claim to be elected for himself and the Judge was in error in denying this right to him. 8. For the respondent No. 1 Sri K. N. Tripathi, the learned counsel has refuted these contentions and argued that the Judge made the correct approach to the question of declaration of result by the process of exclusion. This was in conformity with the Rules. The question to draw lot did not arise. In the written statement the stand taken by the appellant categorically was to the effect that the counting of votes had been perfectly regular and no invalid votes were admitted or valid votes discarded in favour of either party. The appellant did not choose to recriminate. 9. It is well established that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and that the Court does not possess common law power. Jagan Nath v. Jaswant Singh, AIR 1954 SC 210 . The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it. N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64 , In Jyoti Basu v. Debi Ghoshal, AIR 1982 SC 983 the Supreme Court laid down that (at P. 986) : "A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right. to dispute an election. Outside of statute, there is no right to elect. no right to be elected and no right to dispute an election. Statutory creations they are, and therefore. subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it. Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied. A Court has no right to resort to them on considerations of alleged policy because policy in such matters. as those relating to the trial of election disputes, is what the statute lays down. In the trial of election disputes. Court is put in a straight jacket.". 10. The position was reiterated in Arun Kumar Bose v. Mohd. Furkan Ansari, AIR 1983 SC 1311 and also in Dr. P. Nalla Thanpy Thera v. B.L. Shankar, Civil Appeal No. 2922 of 1981 decided by the Supreme Court on October 28, 1983, reported in AIR 1984 SC 135 . 11. Section 7 (1) of the Act provides that election of Pramukh of a Kshettra Samiti shall be held by secret ballot and in the manner provided by rules which shall also provide-for resolution of doubts and disputes relating to the election of Pramukhs and Up-Pramukhs. The election is made by the members of the Kshettra Samiti. Rr. 25 to 33 of the Rules framed under the Act relate to Counting. Sub-r -(3) of R. 25 provides for cases where a ballot paper shall be rejected as invalid. It says that a ballot paper shall be rejected as invalid on which : (a) the No. 1 is not marked: or (b) that No. 1 is marked opposite the name of more than one candidate or is so marked as to render it doubtful to which candidate it is intended to apply, or (c) the No. 1 and some other numbers are marked opposite the name of the same candidate: or (d) any mark is made by which the voter may afterwards be identified. After all the valid ballot papers had been arranged in parcels according to their first preference recorded for each candidate, the Returning Officer is required to proceed to determine the result of the voting in accordance with the instructions contained in Sch. II to the Rules (R. 26). After all the valid ballot papers had been arranged in parcels according to their first preference recorded for each candidate, the Returning Officer is required to proceed to determine the result of the voting in accordance with the instructions contained in Sch. II to the Rules (R. 26). Upon the counting being completed and the result of the voting having been determined, the Returning Officer shall declare the result (Vide Rule 28). Chapter IV to these Rules provides for the resolution of disputes regarding election of Pramukhs and Up-Pramukhs. An election petition calling in question the election of a Pramukh, as in the present case, may be presented to the Judge at any time within 30 days from the date of the declaration of the result under R. 28. A petitioner may claim either of the following declarations vide R. 37 : (a) that the election of the returned candidate is void. (b) that the election of the returned candidate is void and that he himself or any other candidate has been duly elected. 12. 'Rule 39 makes provision for recrimination. It says : "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." In accordance with R. 43(2), if the Judge finds that the election of any person was invalid, he shall either declare a casual vacancy to have been created or declare any other candidate to have been duly elected. R. 44 prescribes that if any person who has lodged an election 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 Judge is of the opinion that in, fact the petitioner or such other candidate received a majority of the valid votes, the judge shall after declaring the election of the returned candidate to be valid, declare the petitioner or such other candidate, as the case may be, to have been duly elected. The proviso to this Rule lays down that the petitioner or any other candidate shall riot be declared to be duly elected if it is proved 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. R. 45 (b) provides that if during the trial of an election petition it appears that there is an equality of votes between candidates at the election and that one of them is to be eliminated and further that there is no declaration made by the Returning Officer "under provision of these rules" the judge shall decide between them, in accordance with the provisions of the instruction in Sch. II to these Rules. Schedule II read with R. 26 in so far as relevant specifies : "4(1). If there are only two contesting candidates then (a) if one candidate gets larger number of first preference votes than the other, declare the former as elected, or (b) If both the candidates get equal number of first preference votes, determine the result by drawing of lots. Exclude the candidate on whom the lot falls and declare the other candidate as elected. (2) If there are more than two candidates then (a) if one of them is found to secure first preference votes equal to or more than the quota determined under instruction No. 3, declare him as elected, or (b) if none of them secure first preference votes equal to or more than the quota aforesaid, proceed according to the instructions hereinafter taking into consideration second and subsequent preferences as may be necessary. 5. If at the end of the first or any subsequent count the total number of votes credited to any candidate is equal to, or greater than the quota or there is only one continuing candidate. that candidate is declared elected. 6. If at the end of any court, no candidate can be declared elected. 5. If at the end of the first or any subsequent count the total number of votes credited to any candidate is equal to, or greater than the quota or there is only one continuing candidate. that candidate is declared elected. 6. If at the end of any court, no candidate can be declared elected. (a) exclude the candidate who up to that stage has been credited with the lowest number of votes: (b) examine all the ballot papers in his parcel and sub-parcel, arrange the unexhausted papers in sub-parcels according to the next available preferences recorded thereon for the continuing candidates, count the number of votes in each such sub-parcel and credit it to the candidate for whom such preference is recorded, transfer the sub, parcel to the candidate and make a separate sub-parcel of all the exhausted papers, and (c) see whether any of the continuing candidates has after such transfer and credit, secured the quota. If, when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates, decided by lot which of them shall be excluded. All the sub-parcels of exhausted papers referred to in cl. (b) above shall be set apart as finally dealt with and the votes 1 recorded thereon shall not thereafter be taken into account". 13. For determining the result thus the Returning Officer had to proceed in accordance with the instructions contained in Sch. 11 to the Rules, (R 26). Cl. 4(1) of this Schedule is inapplicable because that relates to a case where there are only two contesting candidates. In the present case the number of contesting candidates was six. Cl. 4(2)(a) is also eliminated since none of the candidates was found to secure first preference votes equal to or more than the quota (47) determined as per Instruction No.3. The Returning Officer had, therefore. to proceed as per Instruction 0(b) after taking into consideration second and subsequent preferences as may be necessary. Cl. 4(2)(a) is also eliminated since none of the candidates was found to secure first preference votes equal to or more than the quota (47) determined as per Instruction No.3. The Returning Officer had, therefore. to proceed as per Instruction 0(b) after taking into consideration second and subsequent preferences as may be necessary. At no stage of the counts did the total number of votes credited to any candidate equal to or was greater than the quota, therefore, no question arose to declare any such candidate elected under Instruction 5. Resort had necessarily to be had to exclusion as envisaged in Instruction 6(a). For that purpose it was essential for the Returning Officer to keep in mind the provision that : "If. when a candidate has to be excluded under clause (a) above, two or more candidates have been credited with the same number of votes and stand lowest on the poll, exclude that candidate who had secured the lowest number of first preference votes, and if that number also was the same in the case of two or more candidates. decide by lot which of them shall be excluded". 14. Considering the above, it will be noticed that at the end of the first count no candidate could be declared elected. Kani Ram and Dharampal s/o Lahri Singh did not secure any vote and, therefore, they stood excluded. Lowest number of vote (1) being credited to Ratiram, he would be excluded first under cl. 6(a). In the next count. Rajvir would be excluded in the same process of reasoning. Out of the five ballot papers cast in favour of Rajvir. three contained second preference for the appellant and two contained second preference for respondent No. 1. As per cl. 6(b). therefore, the appellant would be credited with three such votes and the respondent No. 1 with two, whereby the total in the appellant's case would be 46 (46+3) and in relation to respondent No. 1 also it would be 46 (44+2). One out of these two continuing candidates had to be excluded and since both were credited with the same number of votes and stood lowest on the poll in the sense that none else survived with a lesser number of votes to his credit and the provision under cl. 6 is "exclude that candidate who had secured the lowest number of first preference votes". this became applicable. 6 is "exclude that candidate who had secured the lowest number of first preference votes". this became applicable. Of these two continuing candidates. the appellant secured the lowest number of first preference votes and therefore he would clearly stand eliminated in preference to respondent No. 1. The contingency to decide by draw of lot did not arise for the reason that in view of cl. 6. that could come. in only if the number of first preference votes were also the same. There being a variance in the number of first preference votes secured by the appellant on the one hand and the respondent No. 1 on the other, that becomes, in my view, decisive in the ultimate analysis of the prescribed manner of counting for the purpose of being declared elected or the result being determined. 15. In support of his contention that the Rules do not make provision to arrive at a result in the circumstances of this case. and. that therefore, the draw of lot could be legitimately resorted to with the consent of the continuing candidates, Sri Bhatnagar placed strong reliance upon the observations appearing in Sri Ram Saran Saxena v. Sri Binda Prasad, 1959 All LJ 4. Upon careful consideration. I find that this decision does not assist the appellant. The election therein was to the office of President of a Municipal Board. The petitioner, the respondent besides two others were candidates. These two others withdrew from the contest. The number of members voting under the system of proportional representation by means of the single transferable vote was 20. Each of the contesting candidates obtained equal (10) first preference votes. The Returning Officer took into account the second preference votes of which two had been given in favour of the appellant and one in favour of the respondent and he accordingly declared the appellant duly elected. The relevant statutory provisions under the U.P. Municipalities Act in this behalf are in pari materia with those concerning the present controversy. In reference to Cl. 5 (which is analogous to Cl. 6 quoted above) Hon'ble Mootham C. J. speaking for the Division Bench observed : "This clause, and indeed the entire Schedule seems to presuppose an election at which there are at least three candidates. and there would have been no difficulty in applying this clause in the present case had there been. 5 (which is analogous to Cl. 6 quoted above) Hon'ble Mootham C. J. speaking for the Division Bench observed : "This clause, and indeed the entire Schedule seems to presuppose an election at which there are at least three candidates. and there would have been no difficulty in applying this clause in the present case had there been. in addition to Sri Ram Saran Saxena and Sri Binda Prasad. a third candidate who had secured. say eleven first preferences. In that event it would have been clear that Sri Ram Saran Saxena and Sri Binda Prasad together stood lowest on the poll and that one of them would necessarily have to be excluded by lot and thereafter the second preferences marked on the ballot papers of the excluded candidate would have been taken into consideration. The Schedule unfortunately makes no specific provision for the procedure which should be followed in the event of there being only two candidates who obtain an equal number of first preferences or in the event of the last two candidates securing an equal number of votes after the second preferences marked on the excluded candidates ballot papers have been taken into account. It has not however been suggested to us that there are, in such circumstances. more than two alternatives. Either one of the candidates must be excluded by lot. or the second preferences marked on the ballot papers of both candidates must he taken into account. We are of opinion that the second of the two alternatives must be rejected as being wholly inconsistent with the principle underlying an election by the system of proportional representation by means of the single transferable vote. It is a fundamental feature of that system that the second preference of an elector is not taken into account unless and until the candidate who obtained his first preference has been excluded. The system does not contemplate any' circumstance, in which. the first and second preferences of an elector are taken into account at the same time. Under this system not more than the preference of an elector can be counted in favour of any continuing candidate, and this is recognised in Cl. 5 of the Schedule which makes it clear that it is only the best available preference of an excluded candidate which can he taken into account. Under this system not more than the preference of an elector can be counted in favour of any continuing candidate, and this is recognised in Cl. 5 of the Schedule which makes it clear that it is only the best available preference of an excluded candidate which can he taken into account. In the case before us both candidates are continuing candidates: neither is an excluded candidate and i accordingly no occasion has arisen for the taking into consideration of any second i preference. In our opinion the proper course to be followed in the case such as the present is to exclude one of the two candidates by lot. Although the schedule does not as we have pointed out. make any specific provision for the procedure to be followed in the event of there being only two candidates who obtain an equal number of first preferences. we think it does indicate the principle which is applicable. The Schedule contains instructions for Returning Officers for determining the result of an election, and it is to be presumed that such instructions are intended to cover all contingencies. Now it may happen that at an election at which there are a number of candidates all may be excluded except two who have obtained an equal number of votes. How then is the result of the election to be determined? R. 5(a) provides that. if at the end of any count no candidate can be declared elected. the candidate who at that stage has been credited with the lowest number of votes is to be excluded. and if two candidates having been credited with the same number of votes stand lowest on the poll then one of them is to be excluded by lot. Now where at an election all the candidates except two have been excluded and the two continuing candidates have the same number of votes. both of them can in our opinion, without unduly stretching the language of the clause. be said to stand lowest on the poll just as both can be said to stand highest on the poll and if they can be said to stand lowest on the poll then cl. 5 provides that the result of the election should be determined by lot. is only by construing cl. be said to stand lowest on the poll just as both can be said to stand highest on the poll and if they can be said to stand lowest on the poll then cl. 5 provides that the result of the election should be determined by lot. is only by construing cl. 5 in this manner t it is possible to provide for such a contingency, and we have no doubt that in circumstances this is the course which the Returning Officer should follow. We are further of opinion that exactly the same procedure must be followed where there are only two candidates who obtain an equal number of first preferences. The proper course in such circumstances is for the Returning Officer to decide by lot which of the two candidates is to be excluded. The Returning Officer in the present case was therefore in our opinion, wrong in determining the result of the election by taking into account the second preferences." 16. In that case significantly both the contesting candidates had secured equal number of first preference votes (10). It is on this account that both of them stood lowest on the poll, and, the number of first preference votes being also the same, it was held that in such a case cl. (5) provided that the result of the election should be determined by lot." Where, as in the present case, the number of first preference votes secured by each of the two continuing candidates is not the same, the first part of the paragraph beginning with the words" If when it candidate........" forming part of cl. (6) (quoted above) applies and that candidate has to be excluded who secured the lowest number of first preference votes. In view of this distinguishing feature, therefore, that goes to the root of the matter, the decision in Sri Ram Saran Saxena's case, 1959 All LJ 41 justifying the draw of lot does not avail the appellant. (6) (quoted above) applies and that candidate has to be excluded who secured the lowest number of first preference votes. In view of this distinguishing feature, therefore, that goes to the root of the matter, the decision in Sri Ram Saran Saxena's case, 1959 All LJ 41 justifying the draw of lot does not avail the appellant. In Nanak Chand v. Vachaspati, 1968 All LJ 29 concerning election to the office of the Adhyaksha Zila Parishad governed under similar provisions, D.S. Mathur, J (as he then was) took the same view, namely : "I am thus of opinion that in the election of the Adhyaksha and Up-Adhyaksha the drawing of lot shall not ordinarily determine the result of the election in case two candidates are found to have secured the same number of votes. The rule adopted shall be that out of the two candidates securing the same number of votes, the one who secured greater number of first preference votes is to be declared elected, but if they secured not only the same number of votes but also the same number of first preference votes, the lot shall determine the candidate to be excluded, in other words, the candidate not drawing the lot shall be declared to have been elected. In this view of the law, respondent No. 1, who had secured 33 first preference votes as against 30 by the petitioner. was to be declared duly elected." 17. This, I say with respect. correctly interprets the provisions relevant to the facts hereof. To this, support is received also from the decision of the Supreme Court in University of Poona v. Shankar Narhar Agashe, AIR 1971 SC 1783 relied on by Sri Tripathi, learned counsel for the respondent No. 1. The election therein was to the office of the Vice-Chancellor by the members of the Court of the University under the system of proportional representation by single transferable vote. The provisions relevant were in pari materia with those of the instant case. The facts as narrated in para 6 of the reported judgment were : "The said meeting of the Court of the University was convened under notice dated 22 April, 1970, for 9 May, 1970 for election of the Vice-Chancellor from amongst those three persons. At the election held on 9 May, 1970 the total number of votes tendered was 149. One of the votes was invalid. At the election held on 9 May, 1970 the total number of votes tendered was 149. One of the votes was invalid. The valid votes were 148. The election was in accordance with S. 56 of the Act by the system of proportional representation by means of a single transferable vote by ballot. The result of the ballot papers appeared to be that Dr. Apte secured 58, Principal Kulkarni 37 and Principal Suru 53 first preference votes. Principal Kulkarni was thus eliminated on the first count on the basis of the lowest number of first preference votes. 8 of the voters who had given first preference votes to Principal Kulkarni had not exercised second preference in favour of either of the remaining two candidates Dr. Apte and Principal Suru. The remaining 29 voters gave 12 second preference votes to Dr. Apte and 17 second preference votes to Principal Suru. This resulted in both the continuing candidates Dr. Apte and Principal Suru each securing 70 votes on the second count. Dr. Apte was declared elected because in the first count. namely, the count previous to the one in which both obtained equal number of votes. Dr. Apte had a clear majority of 5 votes and therefore principal Suru was excluded from the election." 18. The High Court held that where only two continuing candidates remained to fill up only one vacancy and both of them had the same number of votes the tie of votes between the two continuing candidates was to be solved by the principle of decision by lot. The Supreme Court repelled this approach. Referring to R. 75 (4) of the Conduct of Election Rules (analogous to cl. 6 of the Schedule) it was held that this itself speaks of two or more than two candidates and does not speak of more than two candidates as the High Court construed it. It is because both of them had the same value that both of them stood lowest on the poll. Therefore, R. 75 (4) resolved the tie by adopting the principle of exclusion of one of the candidates with regard to the number of original votes at the first count. It is because both of them had the same value that both of them stood lowest on the poll. Therefore, R. 75 (4) resolved the tie by adopting the principle of exclusion of one of the candidates with regard to the number of original votes at the first count. Their Lordships observed : "The High Court overlooked the rationale of the principle embodied in R. 75 (4) that in the case of two continuing candidates each having the same value of votes to filling one vacancy the tie between the two would be solved by having regard to their original votes in the first count. There would be no occasion for transfer of excluded candidate's votes in such a contingency. Where two or more candidates continued for one vacancy and each of the candidates would have the same value of votes at the end of a count the tie between the two or more candidates having equality of votes would be solved by excluding the one who had the lowest number of votes on the first count and thereafter the excluded candidate's second choice would be transferred to the continuing candidates until the vacancy would be filled up by the principle of exclusion embodied in Rule 75(1). "It is an established principle in the system of proportional representation by means of a single transferable vote by ballot that where far one vacancy there are three candidates and one of them is excluded at the first count and the two candidates continued and in the second count both of them have equal number of votes then one of the two candidates who had the lower number of votes than the other continuing candidate in the first count shall be excluded." x x x x "Determination by lot in case of equality of votes is neither a principle of universal application nor is it a common law principle. It is only permissible when there is a specific statutory provision to that effect. In the absence of a statutory provision the method of decision by lot is not resorted to when there is other rational method." 19. In the present case clause 6 of the Schedule. as interpreted by me above. It is only permissible when there is a specific statutory provision to that effect. In the absence of a statutory provision the method of decision by lot is not resorted to when there is other rational method." 19. In the present case clause 6 of the Schedule. as interpreted by me above. clearly envisages determination of the result in the ultimate analysis on the basis of strength of first preference votes where there is equality of votes in favour of two continuing candidates on taking second preferences into account. Therefore. recourse to draw of lot was unwarranted: it is contrary to specific provision : the consent of the parties cannot override that statutory provision. 20. Taking up next the other contention of the appellant's learned counsel. it will be recalled that in the election petition the relief claimed by the respondent No. 1 was to the effect that the election of the appellant be set aside being void and further that the petitioner (respondent No. 1) be declared elected in place of the appellant. This was as contemplated under R. 37(b). referred to above, which envisages that the petitioner may claim either that the election of the returned candidate is void or that the election of the returned candidate is void and also that he himself has been duh elected. As provided in R. 39. it was open to the returned candidate, namely. they appellant in the instant case to allege and olive evidence to prove that the election of respondent No. 1 would have been he had been the returned candidate and a petition had been presented calling in question his election. In reference to the provisions contained in the Representation of the People Act. 1951. the Supreme Court stated in Jabar Singh v. Genda Lal, AIR 1964 SC 1200 at p. 1207 that if the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected. then those pleas may have to be tried after declaration has been made under S. 100 and the matter proceeds to be tried under S. 101(a) of that Act. In other words. then those pleas may have to be tried after declaration has been made under S. 100 and the matter proceeds to be tried under S. 101(a) of that Act. In other words. the first part of the enquiry in regard to the validity of the election of the returned candidate must he tried within the narrow limits prescribed by S. 100(1)(d)(iii) and the latter part of the enquiry which is covered 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). In P. Malai Chami v. M. Andi Ambalam, AIR 1973 SC 2077 at p. 2086. it was reiterated that this right the returned candidate had but this right is subject to the provision ;hat he would not he entitled to give evidence to prove that the election of the petitioner in that case. namely. 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 further security referred to in Sections 117 and 118 respectively and further every such notice was to be. accompanied by the statements and particulars required under S. k3 in case of an election petition and had to be signed and verified in the like manner. The procedure laid in the Act and the Rules framed thereunder is, however. much simpler in this behalf. Notice etc. as required under the provisions of the Representation of the People Act. 1951, has been dispensed with for this purpose. R. 39. as stated above, leaves it open to the returned candidate to aver and 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. The distinction has been taken notice of in the case of Dhara Singh v. District Judge, Meerut, AIR 1968 SC 227 at p. 230. It has been observed that the language of this Rule is simple and quite different. The provisions of the Civil Procedure Code except for certain Exceptions. mentioned in R. 40. have been made applicable. The distinction has been taken notice of in the case of Dhara Singh v. District Judge, Meerut, AIR 1968 SC 227 at p. 230. It has been observed that the language of this Rule is simple and quite different. The provisions of the Civil Procedure Code except for certain Exceptions. mentioned in R. 40. have been made applicable. It was said that if the petitioner in this election petition can allege and prove that some votes cast in favour of the returned candidate should be rejected, there is no reason why the returned candidate should not be able to allege and prove that certain votes should have been counted in his favour. The material fact, however, remains. namely. that there has to be requisite averment contained in the reply filed by the returned candidate containing allegation to the effect that the election of the petitioner would have been void if he had been the returned candidate and a petition had been presented calling in question his election. The foundation for recrimination has. in other words. to be laid in the pleadings of the returned candidate. 21. Viewed in the light of the above. it is found that there is no such foundation laid in the instant case. In the election petition the respondent No. 1 averred, inter alia. that of the five first preference votes secured by Rajvir two ballot papers did not 'contain any other preference except the first and therefore they were exhausted. He also said of the remaining three ballot papers two contained second preference in his favour and one only in favour of the appellant. It was thus maintained by the petitioner that the total number of votes cast in his favour came to he 46 adding two to the first preference votes, namely. 44 and in the case of the appellant. the total number of votes came to be 44 only. by the process of the addition of one second preference vote to 43 first preference votes. The significant fact is that in the written statement put in by him on August 12, 1983, the appellant refuted this averment. He asserted that they had secured 46 votes in all each. In paragraph 8 it was narrated that the counting was done in conformity with the rules and the statement in Form VIII was correct in prepared. This was repeated in paragraph 9. He asserted that they had secured 46 votes in all each. In paragraph 8 it was narrated that the counting was done in conformity with the rules and the statement in Form VIII was correct in prepared. This was repeated in paragraph 9. Paragraph 10 stated likewise that the method adopted was correct and in conformity with the rules. Paragraphs 11, 12, 13. 18, 19, and 21 reiterated categorically and without exception that the counting and the determination of the result was in keeping with the rules and nothing irregular crept in. There is no averment that any invalid vote was admitted or taken into consideration for the respondent No. 1 or that any valid vote existing in the appellant's favour was rejected. There is no whisper thus throughout the written statement to suggest recrimination against the respondent No.1 the petitioner. In face of this pleading, counsel for the petitioner stated before the Judge and rightly too that the dispute remained confined to, what was averred in paragraph 22 of the Election Petition, namely, whether upon the equal number of votes being secured by the two continuing candidates, the decisive factor could be the draw of lot or the number of first preference votes secured by each of them. The entire controversy remained centred over this issue. Upon after thought, the appellant moved an application for amendment in the written statement on 18-11-1983. It was averred in that application for the first time that of the 44 first preference votes cast in favour of respondent No. 1, one was invalid due to the name of respondent No. 1 being indicated therein and further that two ballot papers had to be rejected due to the unauthorised help secured in casting the same and therefore the total number of first preference votes in favour of respondent No. 1 should have been 41 instead of 44. It is clear enough, that these averments contained in the application made for amendment were entirely in conflict with any material departed from what was admitted in the written statement. The written statement affirms in specific terms that the number of first preference votes was rightly taken as 44 in relation to the respondent No. 1. The learned Judge rejected this application for amendment and in my view this was rightly done. The written statement affirms in specific terms that the number of first preference votes was rightly taken as 44 in relation to the respondent No. 1. The learned Judge rejected this application for amendment and in my view this was rightly done. 1 he amendment seeks clearly to displace the respondent No. 1 completely from the admissions made by the appellant in the written statement. If such amendment is allowed, the respondent No. 1 would be irretrievably prejudiced by being denied the opportunity of extracting the admissions from the appellant, see M/s. Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co., AIR 1977 SC 680 . The appellant cannot, therefore, make a grievance on that account in this appeal. In the absence of any averment in his pleading to the effect that the election of respondent No. 1 would have been void, if he had been the returned candidate and a petition had been presented calling in question his election. The appellant does not get the benefit of R. 39. 22. In the alternative. Sri Tripathi, learned counsel for respondent No. I alleged also that even if the averment sought to be introduced by the application for amendment to the written statement were taken into account, the position of the appellant in this behalf does not improve. The argument is that in the light of R. 25(3), referred to above, the ballot paper could be rejected as invalid on any of the grounds specified therein but not outside the same. None of those grounds. it is submitted, covers the averment sought to be included in the written statement in the form of amendment. Clauses (a), (b) and (c) of sub-r. (3) are not relevant for this purpose. Cl. (d) provides for rejection of a ballot paper as invalid where any mark is made by which the voter might afterwards be identified. None of these grounds covers rejection on ground of assistance derived from helper in casting the vote. The voter had, according to the averment in the application for amendment, in one case mentioned the name of the respondent No. 1. It is not said that he had made any mark therein, on the basis of which he himself could be identified. The name put in was not that of the voter but of the respondent No. 1. On this basis it has been argued that Cl. It is not said that he had made any mark therein, on the basis of which he himself could be identified. The name put in was not that of the voter but of the respondent No. 1. On this basis it has been argued that Cl. (d) cannot be said to cover that ballot paper as well, assuming that there was such a vote cast. The contention is not devoid of force. but I refrain from recording final opinion on this aspect because in my view the application to amend the written statement put in by the appellant was rightly rejected by the learned Judge. as discussed above. 23. Consideration being had to the above, the appeal is devoid of merit and is, consequently dismissed with costs.