K. N. SINGH, J.

1. N. Gopal Reddy, the appellant was declared elected member of the Andhra Pradesh Legislative Assembly from Gadwal Assembly Constituency, having obtained 38, 291 votes. Bonala Krishnamurthy, respondent 1 filed an election petition under Section 100 of the Representation of the People Act, 1951 challenging the validity of the appellants election claiming relief for setting aside of the election of the returned candidate and also for declaring D. K. Samarasimha Reddy respondent 6 as duly elected. One of the grievances raised by the election petitioner was that even though the Returning Officer had issued orders on an application made by the election agent of respondent 6 for re-count and scrutiny of ballot papers of all the candidates but later on, he illegally modified his order and directed for the re-count of ballot papers, only without opening the bundles of the ballot papers for counting the same. The election petitioner alleged that if a general re-count and scrutiny of the ballot papers had been done as directed by the Returning Officer respondent 6 would have been found to have polled majority of valid votes. On the pleading of the parties a number of issues were framed but before the High Court the parties confined their case to re-count of ballot papers.

2. The High Court by its order dated April 23, 1986 directed re-count and scrutiny of all the ballot papers polled by all the candidates at all the polling stations including the rejected ballot papers and postal ballot papers. While giving directions for the re-count and scrutiny of the ballot papers learned Single Judge of the High Court issued the following directions.

I, therefore, consider it just and necessary to direct re-count of all the ballot papers polled by all the candidates at all the polling stations as also the rejected ballot papers and the postal ballot papers after rescrutiny of each of the ballot papers. At the end of the re-count now ordered, even if any extra votes are found polled in favour of the first respondent, the same shall not be added to him as laid down by their Lordships of the Supreme Court in the four decisions referred to supraIn pursuance to the directions of the High Court, scrutiny and re-count of all the ballot papers was done and thereafter the appellant was declared to have polled 38, 204 votes while respondent 6 was held to have polled 38, 260 votes.

3. In view of the result of the re-count and scrutiny of ballot papers the High Court by its order dated September 30, 1986 set aside the appellants election and declared respondent 6 as duly elected.

4. Shri Shanti Bhushan, learned counsel for the appellant urged that since a general re-count and scrutiny of all the ballot papers of all the candidates including the valid and invalid votes had been done, the High Court should have given benefit of the additional votes which the appellant had secured during the re-count and scrutiny of the ballot papers and it should have rejected the votes recorded on invalid ballot papers in favour of respondent 6. Had that been done, the appellant would have been found to have polled majority of valid votes and his election could not have been set aside and respondent 6 could not be declared duty elected. He further urged that if invalid votes counted in favour of respondent 6 had been excluded, the appellant would have still continued to have polled majority of votes.

5. Dr. Y. S. Chitale, learned counsel for respondent 6 urged that since the appellant had failed to file a recriminatory petition under Section 97 of the Act, the High Court was justified in refusing to give benefit of additional votes found in appellants favour and the High Court was justified in refusing to reject the invalid ballot papers counted in favour of respondent 6. He urged that in the absence of a recriminatory petition it is not open to the returned candidate to claim additional votes during the counting or to raise objection against the validity or invalidity of ballot papers counted in favour of the unsuccessful candidate. Dr. Chitale placed reliance on the decision of this Court in Jabar Singh V. Genda Lal ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1299) where a Constitution Bench held that if the returned candidate does not file a recriminatory petition as required by Section 97 of the Act, he cannot take objection to the claim made for the declaration of an unsuccessful candidate. In other words the Constitution Bench held that in the absence of recriminatory notice under Section 97 rejected votes of the returned candidate could not be scrutinised by the court and he could not have the benefit of valid votes wrongly rejected by the Returning Officer. In that case the court held that in absence of recriminatory petition the High Court had no jurisdiction to reconsider the rejected votes qua the returned candidate. Rajagopala Ayyangar, J. dissented with the majority view, and he opined that in the absence of recriminatory petition the returned candidate is not powerless to establish to the satisfaction of the tribunal or the court that notwithstanding the improper reception or rejection of the particular votes alleged by the petitioner his election was not materially affected and for that purpose the returned candidate could establish that though a few votes were wrongly counted in his favour, still a large number of his own votes were counted in favour of other candidates or that the ballot papers which contained valid votes for him, have been improperly counted in favour of defeated candidate other than the election petitioner. The learned Judge spelt out this view even in the absence of a recriminatory notice under Section 97 of the Act, on an analysis of Section 101 of the Act.

6. In P. Malaichami v. M. Andi Ambalam ((1973) 3 SCR 1016 [LQ/SC/1973/139] : (1973) 2 SCC 170 [LQ/SC/1973/139] ) the election petitioner alleged breach of many of the election rules and claimed relief of total re-count, the returned candidate raised no objection to the re-count. After re-count the result of the returned candidate was set aside and the respondent to the election petition was declared duly elected having received majority of valid votes. The returned candidate raised a plea before this Court that if the votes which had been wrongly counted in favour of the respondent had been excluded the result of the election could not be set aside. An attempt was made before this Court to distinguish the case of Jabar Singh ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ) on the ground that in a case where there was a total re-count of all the ballot papers of all the candidates Section 97 had no application as the returned candidate in that event was not leading any evidence. A Division Bench of this Court repealed the contention holding that in the absence of a recriminatory petition under Section 97 the contention of the returned candidate could not be accepted and there was no justification for reconsidering the view of the court in Jabar Singh case ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ) by a larger bench.

7. In Arun Kumar Bose v. Mohd. Furkan Ansari ((1984) 1 SCC 91 [LQ/SC/1983/269] ) this Court again refused to count the rejected ballot papers of the returned candidate on the plea of non-filing of recriminatory petition, in view of the law laid down in Jabar Singh case ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ).

8. But in Janardan Dattuappa Bondre v. Govind Shiv Prasad Chaudhary ((1979) 3 SCR 897 [LQ/SC/1979/267] : (1979) 4 SCC 516 [LQ/SC/1979/267] ) the High Court had refused to grant the benefit of 250 votes to the returned candidate while re-counting, in view of the absence of recriminatory notice under Section 97. A Division Bench of this Court held that the claim of the returned candidate that he should be granted benefit of 250 votes cast in his favour although placed in another candidates package was justified and his claim could not be rejected in the absence of recriminatory notice under Section 97 as the claim of the returned candidate did not involve reconsideration of the validity of the votes. This view of the Division Bench is not strictly in accordance with the principles laid down in Jabar Singh case ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ) it is evident that the bench was convinced that the view taken by the High Court was unjust and unreasonable; therefore, it granted benefit of 250 votes to the returned candidate even in the absence of recriminatory petition.

9. In Bhag Mal v. Ch. Parbhu Ram ((1985) 1 SCR 1099 [LQ/SC/1984/297] : (1985) 1 SCC 516) the High Court on re-count of ballot papers of the returned candidate and the election petitioner who was an unsuccessful candidate set aside the election of the returned candidate and declared the election petitioner as duly elected candidate. The High Court refused to grant benefit of 8 more votes to the returned candidate which had been wrongly rejected by the Returning Officer on the ground that the returned candidate had not filed recriminatory petition under Section 97 of the Act. If the benefit of 8 votes which had been wrongly rejected by the Returning Officer had been given to the returned candidate his election could not be set aside. In appeal the returned candidate before this Court urged that the High Court committed error in setting aside his election and declaring the respondent as duly elected by ignoring the will of the electors. The majority rejected the plea of the returned candidate, in view of Jabar Singh case ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ) and it dismissed the appeal and upheld the order of the High Court. Sabyasachi Mukharji, J. in his dissenting judgment observed as under : (SCC pp. 86-87, para 30).

The purpose of the Act is to safeguard that one who obtains majority of valid votes by proper and due process of law alone should represent the constituency and will of the people. All the legal provisions and the procedures of the enactment should be so construed as to ensure that purpose. It would really be a mockery to the procedure of law if a situation where it is demonstrated duly in the court that a person who obtained four votes less than the other next candidate should be declared elected in preference to the others and allowed to represent the constituency. It is not an appeal to any abstract justice nor an appeal to equity but is to emphasize that procedure should be so construed that these rules of procedure such as Section 97 ... subserve the wishes of the voters.

10. Having considered the matter at some length we are of the opinion that when a general re-count and scrutiny of all the ballot papers is directed by the High Court, it would be unjust and unreasonable and contrary to the will of the electors, to deny benefit of valid votes cast in favour of the returned candidate or to ignore invalid votes counted by the Returning Officer as having valid votes in favour of the unsuccessful candidate and to set aside the election of the returned candidate. The purpose and object of the election law is to ensure that only that person should represent the constituency who is chosen by the majority of the electors. This is the essence of democratic process. The provisions of the Act and the Rules framed thereunder also ensure that will of the majority must prevail. Counting invalid votes in favour of the unsuccessful candidates and refusing to grant benefit of valid votes to the returned candidate would amount to interference with the electos will. We are therefore in agreement with the view expressed by Sabyasachi Mukharji, J.

11. Section 97(1) reads as under

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.

Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.

12. A plain reading of the aforesaid section indicates that a notice of recrimination is to be given to the High Court by the returned candidate within a stipulated time if he desires to adduce evidence to prove that the election of the candidate in whose favour a declaration may have been asked would be void. The proviso to Section 97(1) further indicates that the returned candidate is not entitled to give such evidence unless he gives notice within 14 days from the date of the commencement of the trial to the High Court. It is relevant to note that Section 97 does not require notice of recrimination to be given to the election petitioner; instead it is to be given to the High Court. Absence of recriminatory notice does not prejudicially affect the candidate in whose favour relief of declaration may have been claimed. Moreover when the returned candidate points out the validity of ballot papers already on record, he is not tendering any evidence before the court as contemplated by Section 97 of the Act; instead he is referring to the material which is already on record. If the High Court takes cognizance of such a material on record without a notice under Section 97 we do not think that the High Court would commit a jurisdictional error.

13. In the instant case there is no dispute that during the re-count and scrutiny of the ballot papers, the appellant was found to have polled additional 47 valid votes but the High Court refused to give benefit of those votes to him. Similarly it was found that out of 74 votes counted in favour of respondent 6 were invalid and liable to be rejected yet the High Court refused to reject those ballot papers; instead it counted those votes in favour of respondent 6 and in pursuance thereof respondent 6 was found to have polled majority of votes. This apparently is unjust, unreasonable and contrary to the electors will and desire. This result has ensued in view of the principles laid down in Jabar Singh case ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ).

14. We have expressed our view in brief without going into further details as in our opinion the majority view in Jabar Singh case ((1964) 6 SCR 54 [LQ/SC/1963/310] : AIR 1964 SC 1200 [LQ/SC/1963/310] ) requires reconsideration. Let the papers of the appeal be laid before the Chief Justice for referring the matter to a larger bench, preferably a bench of seven judges as it requires consideration of the decision of a Constitution Bench of five judges.