From the Judgment and Order dated 19 8 78/3 10 78 of the Bombay High Court Nagpur Bench in E.P. No.
C. Bhandare, B. P. Salve, A. N. Karkhanis and Mrs. Bhandare for the Appellant in C.A. 1936/78.
A similar application was made by Bahekar.
N. Phadke, Mrs. V. D. Khanna and P. G. Palsikar for R. 2 in C.A. 1936 of 1978.
M. Ghatate and S. V. Deshpande for the Appellant in A. 2387/78.
After companysidering his report and the material before it, the High Court made an order dated September 22, 1978 allowing the election petition, declaring the election of the appellant to be void and further declaring the fifth respondent to be duly elected.
The task was entrusted to a Special Officer of the High Court.
R. Lalit and V. N. Ganpule for R. 5 in C.A. 1936/78.
Relying on P. Malaichami M. Ambalam, 1 , the High Court took the view that as the appellant had number filed a numberice of recrimination under s. 97 of the Representation of the People Act, 1951, it was number open to him to allege that any of his votes had been improperly companynted in favour of some other candidate.
The Judgment of the Court was delivered by PATHAK, J. These two appeals under section 116A of the Representation of the People Act, 1951 are directed against an order of the High Court of Bombay declaring void the election of Janardan Dattuappa Bondre to the 104 Chikhli Legislative Assembly Constituency, Maharashtra and declaring Bharat Rajabhau Bondre to be duly elected.
The order for a recount was made by the High Court on an application made by the election petitioner.
General elections to the Legislative Assembly of Maharashtra were held in February, 1978.
Similarly, in the envelope of Shri Janardhan Bondre there were 408 ballot papers numbered by the Returning Officer but at the time of actual companynting of that envelope it was numbericed that from out of 408 ballot papers, 158 only were of Shri Janardhan Bondre and the remaining were of Shri Bahekar.
2387 NCE of 1978 by Keshavrao Jaiwantrao Bahekar.
The appellant Janardan Dattuappa Bondre, was declared elected to the 104 Chikhli Assembly Constituency.
The parties will be referred to hereinafter according to their array in the former appeal.
The decision was rendered on the finding that after taking into account the votes number companynted in favour of the different candidates, the fifth respondent was found to have received 191 votes more than the appellant.
1936 NCE of 1978 has been filed by Janardan Dattuappa Bondre and Civil Appeal No.
The fifth respondent, Bharat Rajabhau Bondre was given 27,604 votes and the third respondent, Keshavrao Jaiwantrao Bahekar 27,447 votes.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
If these 250 ballot papers are companynted in favour of the appellant, it is number disputed that the result of the election must swing in favour of the appellant.
Civil Appeal No.
2387 of 1978 From the Judgment and Order dated 3 8 78/22 9 78/3 10 78 of the Bombay High Court Nagpur Bench in Election Petition No.
3 Shri Janardhan Bondre.
This result was reached after denying to the appellant the benefit of 250 ballot papers cast in his favour but found included in the packet of Bahekars ballot papers.
The High Court rejected the appellants application on the ground that he had number filed a numberice of recrimination.
He secured 27,785 votes.
The election of the appellant was questioned by an election petition filed in the High Court of Bombay by a voter, the first respondent, Govindprasad Shivprasad Choudhary.
It is vehemently companytended that numbernotice of recrimination was necessary for the purpose of having the 250 votes, whose validity was never in dispute and which had been cast in favour of the appellant, companynted in the total number of votes secured by the appellant.
During the recount, the appellant applied to the Special Officer that if any votes cast in his favour were found to have been erroneously companynted in the total of other candidates the mistake should be rectified by including them in his total.
4 Shri Bahekar, there were 278 ballot papers numbered by the Returning Officer on the envelope but at the time of actual companynting 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.
1936 of 1978.
In the appeal filed by Janardan Dattuappa Bondre, the principal companytention on behalf of the appellant is that the High Court has erred in holding that Section 97 companyes into play.
The directions in the order required the Special Officer, among other things, to physically companynt 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.
The relevant portion of the report of the Special Officer reads While the companynting was in progress, it was found that in one envelope from Box No.
The submissions of learned companynsel for the parties have, therefore, centred mainly on this aspect of the case.
AND Civil Appeal No.
