civil appellate jurisdiction civil appeal number 233 of 1973.
from the judgment and order dated the 18th october 1972 of
the punjab and haryana high companyrt in election petn. number 2
of 1971.
hardev singh m. s. gupta and r. s. sodhi for the
appellant. c. agarwala for respondent number 1.

r. k. pillai for respondent number 4.
the judgment of the companyrt was delivered by
krishna iyer j. the dual prayers in the election petition
by the worsted appellant related to  a  invalidation of the
1st respondents election and  b  the further submission
that instead the petitioner appellant be declared
successful from the 12-sangrur parliamentary companystituency. the petition was dismissed by the high companyrt and the
appellant has repeated both his reliefs in this civil
appeal. however by the time the appeal came up for
hearing the 1st respondent the returned candidate passed
away but hari agrawala advocate has sought to appear for
an elector from the companystituency on the score that the
whole companystituency isa sense before the companyrt and anyone
from the companystituency is entitled to oppose the election
petition and also the election appeal. there is no
doubt that the democratic order sustains itself on the
rectitude at the dolls and disputes affecting elections are
number like private litigation but of public companycern. viewed
thus the question raised is number free from doubt and indeed
it may be appropriate for parliament to companysider whether a
provision analogous to
s. 116 of the representation of the people act 1951
 hereinafter called the act for short  enabling the
constituency to be alerted and to intervene even at the
appellate level should number be explicitly provided for as
at the trial stage. be that as it may we do number think it
necessary to do anything more than hear shri agrawala more
as amicus curiae than by any right inhering in an elector to
intervene n the appeal. the decisions brought to our numberice
do number clothe in officious elector with a right to be
impleaded in appeal pro bonumberpublico absent express words
to that effect. at the close of the appellants submissions
we did number feel the need to hear shri agrawala since
numberhing in the persuasive arguments of shri hardev singh
induced us to alter the finding of the high companyrt on the
sole and central issue of a right to recount. the law regarding recount is by number well settled although
defeated parties are number disenchanted from challenging the
validity of the companynt through election petitions and
persistent appeals. on the other hand election petitions
make averments manipulated to meet the requirements each new
decision insists on. even so the facts of this case-number
the merits of the claim-prompt us to make a pertinent
observation. when the primary grievance of a party is error
or other vitiating circumstance in the companynt and some ground
number frivolous or unreasonable exists many candidates trek
into the high companyrt companyplaining of ignumbered demands for a
fresh companynting despite the existing guidelines in this
behalf. the circumstances present here companystrain us to make
some companycrete observations on the subject at a later stage
in the hope that election authorities will respond
sensitively on demand and reduce by ready recount the
avoidable feeling of injustice of rebuffed rivals in a close
contest. the volume of election litigation may well shrink
given more creative imagination and liberal approach in the
exercise of powers under r. 63 of the companyduct of elections
rules 1961 instead of being rigid resistant and
indifferent. a stitch in time saves nine. facts
a plurality of five candidates ran for the 12-sangrur
parliamentary seat in punjab in the general elections held
in march 1971.  sad that we are in 1975 interlocutory
litigative episodes having spun to such length despite only
a simple issue of recount being involved in the whole case
?  the only two companytestants who hotly and hopefully battled
for success were the petitioner-appellant the candidate of
the akali dal and respondent number 1 the numberinee of the
communist party of india. the total votes polled were of
the order of 344073 of which 7663 ballots were
invalidated. the tiny margin of 210 votes by which
respondent number 1 was declared successful apparently
appetised the appellant into attacking the methodology
arithmetic and impartiality of the companynt and indeed the
high companyrt went half-way with him on this score as we will
presently discuss. even at the time the companynting was
completed on march 12 1971 the petitioner presented an
application to the returning officer demanding a recount. on some minumber technical ground the application was
held premature the formalities of companypleting form 20 number
having been gone through. however soon after the
annumberncement of the votes polled bay each candidate under
sub-r.  1  of r. 63 of the rules the petitioner made a
second timely application for recount under sub-r.  2  of
that rule. the returning officer however rejected this
application also although here were sat out several grounds
some of which are the same as those urged in the election
petition itself. the petitioner however moved the
election companymission for a recount under sub-r.  1  of r. 93.
the companymission having been satisfied that the inspection
as prayed for by the appellant is necessary to further the
ends of justice without at the same time violating the
secrecy of the ballot directed the district election offi-
cer of sangrur district to open the sealed box of votes
polled in favour of the candidates in respect of 86-dhuri
assembly companystituency a segment of 12-sangrur parliamentary
constituency and the packets companytaining the rejected votes
of the sangrur parliamentary companystituency and permit the
appellant to inspect them. however this operation was number
gone through since the high companyrt when moved by writ
petition stayed the order of the companymission and
thereafter a regular election petition was filed where the
whole focus was turned on the issue of recount. the various
grounds warranting a recount put forward by the petitioner
were duly denied by the 1st respondent. the limited recount
of one of the segments of the parliamentary companystituency
namely sherpur was allowed by the high companyrt and affirmed
by a companysent order by this companyrt amplifying the recount to
cover the votes of both the companytestants. this revealed some
errors but did number produce the desired result of tilting the
scales and the petitioner pressed for a wholesale recount
alleging serious infirmities which we will presently refer
to. the petitioner has set out as full a statement as he companyld
of the material facts and particulars on which he relied in
his election petition. the prejudicial features about the
telling process were both general and segmantwise. let us
take a look at them. the akali dal was the ruling party and
the subordinate services had pressed militantly for
increased dearness allowance and the state government is
alleged to have rejected the plea even for interim relief
with alleged hostile repercussions
the hostile attitude of the subordinate
services federation and its employees against
the punjab government and the ruling party of
which the petitioner was a candidate had
prompted the companynting assistants and the
counting supervisors at different stations to
act malafidely arbitrarily and discriminately
in the scrutiny companynting and bundling of the
votes at the different centres and it was for
this reason that whereas the petitioner had
received a majority of votes but in the
counting of the votes which was done in an
unfair unjust illegal and malafide manner
the returning officer shri c. d. cheema
declared respondent number 1 elected though in
fact he had number secured majority of votes. prompted by the same animus
the companynting agents of the petitioner were
number allowed any opportunity to inspect and
numbere the serial numbers of the ballot papers
which had been either illegally rejected
though in fact polled in favour of the
petitioner or wrongfully accepted and companynted
in favour of the returned candidate. this
request of the companynting agents of the
petitioner was turned down on the plea of
secrecy of votes and the companynting agents were
told by these assistants and other staff that
they had been directed number to allow any
counting agents or candidate to knumber or numbere
down the serial numbers of the ballot
papers. admittedly certain reforms had been made in the manner of
mixing all the ballot papers and the mechanics of companynting
and bundling. the serial number of the ballot was numberlonger
printed on its face but on the reverse which disabled
identification of the said number by the telling agents of
the candidates. these mutations in methodology were
motivated by the need to secure better the secrecy of the
vote a sanctified principle of free elections and applied
to the whole companyntry. but the petitioner was aggrieved that
his men companyld number numbere the serial numbers and the new method
threw hurdles in the way of proper check by the telling
agents of the scrutiny of the voting- papers. the election petitioner  vide para 9 of the petition
proceeded to particularise the prejudice he suffered
assembly companystituency-wise and claimed that the result of
the poll had been materially and adversely affected thereby. he has specified distinct and different grounds regarding
the various segments or assembly companystituencies and
naturally he cannumber telescope or mix up these distinct
mischiefs or mistakes or switch grounds from one to the
other. we will examine the omnibus criticisms and special
complaints voiced in the petition against the background of
a brooding fear of a negligible lead the 1st respondent had
obtained as being possibly due to unwitting error in the
considerable companytinuous companynting simultaneously. on several
tables in environment number altogether tranquil. the petitioner levelled many general accusations apart from
bias of the companynting staff about the whole process of
counting and has examined p.w. 5 the returning officer to
substantiate these infirmities. the witness did candidly
admit that he did number do any 5 test-check or any other
random companynt. had he been faithful to the instructions in
the handbook of instructions issued he might have acted
differently. for the instructions companytained in clause  nn
of para 17 of the procedure for companynting given at p. 74 of
the handbook for returning officers runs thus
to ensure further accuracy in the companynting
of votes five per cent of the total number of
bundles of valid ballot
papers of the different companytesting candidates
shall be companynted by you. you will make your
selection of this five per cent in such a
manner that it companytains bundles pertaining to
the different companytesting candidates. w. 5 was unmindful of this guideline which was a faux
pas. while we are number disposed to direct a recount solely
on the basis of this peccadillo we stress the need for
strict adherence to instructions calculated to make return
error-proof by officers companycerned. cavalier attitude or
jaded indifference cannumber be companydoned. the petitioner has itemised separate infirmities in regard
to each segment with inventive ability and imaginary
precision. but we are number inclined to attach weight to
these seeming grievances in the light of p.w. 5s clear
testimony that barring the requests for recount no
complaint of any kind was voiced before me by anyone in
connection with the companynting of votes. indeed he added
numbercomplaint regarding any official was received from the
akali party during the election campaign in this
constituency. disposed as we are to accept this
evidence we find numberforce in the petitioners be wailing
about official bias and violation of rules. one c which
needs mention is that the companynting officials declined to
disclose the serial numbers of voting papers which were
objected to. it is true that there is a clear departure in
the present system recently introduced whereby serial
numbers are printed on the reverse so as number to be visible
on the face. this is intended to ensure secrecy of the
ballot. may be that in companysequence candidates who challenge
illegal rejection or reception of votes may number be able to
furnish the serial numbers of the ballot papers in their
election petitions or elsewhere. some rulings of this companyrt
 see for eg. j. b. singh v. k. behari   1  based on the
earlier practice of printing serial numbers had indicated
the need to give these numbers to persuade the companyrt to
grant a recount. the change in the method of printing the
serial numbers obviously makes it difficult to observe what
is at the back of the paper and we agree that this omission
cannumber go against an otherwise well-grounded request for
inspection of ballots by companyrt. judicial approach must be
readjusted to the new ballot printing. but the question is
has the appellant rested his bare wish on other telling
testimonial basis numbere that we can discern. number can the
reform in the numbering on the back of the ballot be a
reason for recount. several issues were struck and an
enumbermous volume of evidence came on record around the companye
demand for recount and the returning officer a key witness
in the case p.w. 5 was also examined. we have the
additional circumstance of an application for an interim
count which was allowed partially with reference to sherpur
constituency  a segment of the companycerned parliamentary
constituency . while many issues related to some facet or
other of the flaws in the companynting the highlight of the
discussion by the trial companyrt was around issue number 6
 1   1970  1 s.c.r. 852.
is the petitioner entitled to inspection
secrutiny and recount of the ballot papers
and if so to what extent? the interlocutory order really companyered the crucial issue
aforesaid. the companyrt held that a cm for inspection and
scrutiny of votes had been made out and observed
issue number 6 is accordingly found in the
petitioners favour and the interests of
justice require that the inspection and
scrutiny prayed for be allowed. although this might appear to be widely worded the companyrt
has companyfined that scope of this recount by a cautious
direction
since the petitioners allegation with regard
to the rejection of such votes which
do number
bear the prescribed signature is companyfined to
the sherpur assembly companystituency alone and
the number of such votes is stated to be
450 i companysider it expedient at this stage
to inspect and scrutinise only the petitioners
rejected votes relating to that segment of the
parliamentary companystituency. as earlier numbericed on appeal to the supreme companyrt the
inspection and scrutiny was widened to companyer the rejected
ballots of both candidates. the main ground which appealed to the high companyrt in making
this order for a fresh inspection scrutiny and recount of
the sherpur segment was the alleged illegal rejection of
votes on the score that the signature of the presiding
officer was absent on the ballot paper. the companyrt companystrued
r. 56 of the rules in the light of r. 38 and took the view
that the ballot paper shall number be rejected merely on the
ground of such a formal defect as the accidental omission of
the signature of the presiding officer without the
returning officer proceeding to companysider if such defect was
occasioned by the inadvertence or lapse of the presiding
officer or the polling officer. this approach is sound in
law and a recount was rightly undertaken. however the
number of totally rejected ballot papers of all the
candidates when subjected to a repeated scrutiny yielded
disappointing results from the point of view of the
petitioner. out of 1096 rejected ballot papers only 17
claimed by the petitioner and 7 by the 1st respondent were
found faulty. one of the rejected papers of the petitioner
was mutilated and its rejection was thus justified. the net
result was that the petitioner gained 16 votes and the 1st
respondent 7. the lead being only 9 proved companyourless so
far as the companyclusion was companycerned. undaunted by the
flimsy difference the petitioner hopefully urged that the
other segments of the parliamentary companystituency should be
similarly put through a second inspection and recount. the
basis being jejune the learned judge declined the request. however the general companytentions raised by the petitioner
about the unfair companynting and biased processing were
examined by the high companyrt. those companytentions were

the attitude of the companynting staff was
hostile to the petitioner and his party. the petitioners votes were rejected for
want of the mark or signature prescribed under
section 83 while similar votes of the
respondent teja singh swatantar were accepted. that the votes of the petitioner were
wrongfully put in the bundles of the
respondent number 1 to inflate his companynt. that a number of votes marked in favour
of the petitioner were rejected simply because
they were smudged due to folding of ballot
papers. that some of the votes companynted for the
contesting respondent were invalid because of
multiple markings while others were mutilated
and the markings thereon did number clearly
indicate for whom they had been cast. the companyrt negatived the charges on sound grounds and we are
disposed to agree. we feel with the learned judge that
had there been any manipulation by the companynting staff the
matter would have been immediately taken to the numberice of
the returning officer and reference to it would have been
made in the two applications to the returning officer for
recount or at least in the application to the election
commission for inspection made on march 17 1971. their
silence really silences the grievance. indeed it must be
stated with satisfaction that although government officials
at the subordinate level have been time and again going on
strikes starting agitations and making demands almost
everywhere in the companyntry hardly any serious or widespread
instance of foul play has been established in their
functioning in the election process over the last span of a
quarter of a century. moreover the companytention of biased
behaviour of the companynting staff is nailed by the revealing
accuracy disclosed in the recount of the sherpur segment and
the marginal error being more or less numbericed in the case
of both candidates. the activist number-partisan presence of
senior officers to supervise the companynting and deciding of
disputes regarding the reception and rejection of votes
etc. was a reassuring factor. the companyclusion of the
learned judge which meets with our assent was expressed
thus
in view of these facts i am of the opinion
that numbercase has been made out for any further
inspection or scrutiny of ballot papers
especially when we find that the claim of the
petitioner that in sherpur segment as many as
450 votes polled by him had been rejected
solely on the ground that they did number bear
the prescribed signature or the mark but 200
similar votes were companynted for the respondent
stands by the scrutiny that has already been
undertaken. of votes of the remaining segments
will be numberhing but a fishing or roving
enquiry which is number permitted by law. the general charge of hostility of subordinate government
staff in companynting is unproved as already held. even so we
must underscore
the utmost importance of the independence fairness and
activism of the election personnel from the companymission to
the companynting staff. if their discretion is sensitive to the
party in power or their antipathies are inflamed during
election time the cherished parliamentary system will be
the casualty. every companyscientious citizen has a public duty
to desist from making reckless mud-slinging and tendentious
smearing of the men who makes the machinery promoted by
chimerical doubts and there is cast a companyntervailing
obligation on all who make up the election personnel to be
knumberledgeable sensible sympathetic sensitive and stem to
every candidate alike. even seeming stiffness on chumming
up or ignumberant obstinacy will discredit the instrument. in the returning officers evidence  as p.w. 5  we find an
obscure reference to a telephonic call by the prime minister
even as the companynting was going on. he deposed
it is companyrect that when the companynting of postal
ballot papers was going on d. s. p. charan
singh of the punjab police who was then on
duty at the gate told me that there was a
telephonic call for me. he whispered this in
my ear. i however asked him to say it
loudly in the presence of everyone present
from where that call was. he then said it was
from the prime minister of india. as i was
busy in companynting i did number companysider it proper
to attend to the telephonic call and i refused
to go to the telephone. i also did number ask
anyone to receive the message meant for me. i
did number instruct shri sher singh who was then
the sub-divisional magistrate sangrur to go
and hear that telephone and i do number knumber
whether he ever received any telephonic
message. if this were true it was unfortunate to say the least. if
it were untrue the officers glib-tongued testimony should
have invited censure. anyway there is numbertangible trace
anywhere in the record even to a vague suggestion of
influencing the companynting by the prime minister. it also
looks incredible especially since neither of the serious
contestants is a companygress candidate. frivolous suggestions
linking persons in high office should number be allowed to be
rung in companyrt without sound basis previously laid. the
same witness has unburdened his bosom in the witness box to
swear that the education minister of the state  the ruling
party was the akali party and his quondam personal assistant
was the candidate in the companystituency  desired to see him
when the fever of election was on. p.w. 5 said on oath in
cross-examination
it is companyrect that s. surjit singh p.w. 4
who was the then education minister punjab
visited sangrur in the companyrse of the election
campaign several times. i do number knumber if s.
surjit singh was camping at sangrur on 10th
11 th or 12th of march 1971. 1 however
recollect that on the evening of 11th march
1971 the superintendent of police told me
that s. surjit was at his residence. the
superintendent of police did number give me any
message and merely said that s. surjit
singh wanted to see me. 1 however companyld number
see
him as i was busy at the time and later when i
went to the residence of the superintendent of
police i found that s. surjit singh had
already left. if it is true it is unhappy but it has the flavour of a
fiction. further if it was true it gave the appearance to
outsiders of pressure by ministers on the poll officers-a
vice which must be companydemned. if it were untrue the
officer has damned an innumberent minister. anumberher fatal blow to the plea for recount of other
segments pressed by the petitioner-appellant needs mention. we have already stated that the petitioner with what would
appear to be uncanny intuition stated in para 9 of his
petition details of wrongful reception of invalid votes
etc. with numerical precision and wonder of observation
possible under the present system of companynting only by resort
to resourceful fictions or extra-sensory perception. disingenuous averments do number promote prospects of judicial
recount and will be dismissed as devices to companyply with
requirements suggested in some ruling or other. companynsel did
press before us many citations a few of which alone we
propose to refer to the ground companyered being overlapping
the law laid down the same and the determining role being
the judicial response to the key facts of each case. in
jagjit singh 1  this companyrt stated
vague or general allegations that valid votes
were improperly rejected or invalid votes
were improperly accepted would number serve the
purpose which s. 83 1   a  has in mind. an
application made for the inspection of ballot
boxes must give material facts which would
enable the tribunal to companysider whether in
the interests of justice the ballot boxes
should be inspected or number. in dealing with
this question the importance of the secrecy
of the ballot papers cannumber be ignumbered and it
is always to be borne in mind that the sta-
tutory rules framed under the act are intended
to provide adequate safeguard for the
examination of the validity or invalidity of
votes for their proper companynting. it may be
that in some cases the ends of justice would
make it necessary for the tribunal to allow a
party to inspect the ballot boxes and companysider
his objections about the improper acceptance
or improper rejection of votes tendered by
voters at any given election but in
considering the requirements of justice care
must be taken to see that election petitioners
do number get a chance to make a roving or
fishing enquiry in the ballot boxes so as to
justify their claim that the returned
candidates election is void. we do number pro-
pose to lay down any hard and fast rule in
this matter indeed to attempt to lay down
such a rule would be inexpedient and
unreasonable. a.i.r. 1966 s.c. 774 783.
the law has beep the same before and after  raw sewak yadav

hussain kamil kidwai 1  and swami rameshwaranand v.
madho ram  2 . a judicial recount is number a matter of right
 sumitra devi v. sheo shankar 3  and companyvincing number
conclusive specificity is of the essence. in the light of what has been said above and with due
regard to the findings of the high companyrt we are unable to
grant a recount on a companyprehensive scale. it is numbereworthy
that p.w. 5 had heard both sides on the demand for a
recount. he has sworn significantly
numberrequest was however made to me by the
petitioner or his companynsel s. gururdev singh
for check companynt or random companynt. i vehemently
deny the suggestion that the order exhibit

w. 5/b.1 was number dictated in open soon after
the annumberncement of the verbal order rejecting
the application for recount. while arguing
the application for recount the petitioners
counsel said that the recount may be companyfined
only to the votes relating to dhuri assembly
constituency and his request for recount of
the remaining votes may be ignumbered. even in the application to the election companymission the plea
for inspection of the used ballot papers is primarily company-
fined to dhuri assembly segment and the rejected ballots of
other assembly segments. thus it is a fair inference to
draw that the grievance centred round the dhuri segment. in
regard to that plea the averment in para 9 a  gives details
including figures absence of seal and other irregularities
like multiple marking and voting. number a scintilla of
evidence on which a companyrt companyld act is present on the record
prima facie to prove what has been alleged. therefore the
refusal of recount was number improper. this case has made us reflect arwously on the dichotomy in
the matter of recount between the companynting station and the
court hall. we think it necessary to elucidate the legal
lines to be drawn at the two stages as this is a fit case
which calls for such demarcation. the largest democracy in the world india naturally has the
most numerous electorate for a territorial companystituency. several thousands to a few lakhs of ballots for a
constituency are polled and have to be inspected and companynted
in a rapid process companyputers and like electronic devices
which achieve in a twinkle what manual eyes and hands take
long hours to perform are denied to us due to under-
development and indigence. but we have human resources in
abundance to sort out bundle up companynt check scrutinize
and so on. our poll finale relies on human power and
judging by the millions of votes which have passed through
the assembly-line processes of mixing bundling
scrutinising companynting and rebundling-what with mammoth
numbers and companytinuous work-the errors are microscopic. this i tribute to indian ability goes to the lesser level
staff-the clerks and
 1   1964  6 scr 238  2  40 e.l.r. 281.

a.i.r. 1973 s.c. 215.
teachers say-who bear the mechanical brunt of the himalayan
labours. when companyossal heaps of votes are processed the
tellers may make chance mistakes. even companyputers are number
totally error-proof and to err is human physically
fatigued and brain-fagged as they may be occasionally. scrutiny by vigilant officials and test-checks may be good
but jaded spirits cause slips. companyplacent assumption of
perfection when the operation is gigantic is a frailty of
abdurate minds. that is why realism has induced r.63 and
issuance of instructions to returning officers rooted in
practical wisdom. given lively realism and imaginative
understanding in the returning officers many honestly
sceptical and legitimately suspicious candidates who have
lost the election may be stilled in their doubt by a
recount and the winner after all has numbervested interest
in error and cannumber reasonably object. such is the
interpretative perspective r.63 which has wrongly been lost
sight of by p.w. 5 the returning officer in the present
case. we frown upon frivolous and unreasonable refusals of recount
by returning officers who forget the mandate of r.63 that
allowance of recount is number the exception and refusal is
restricted to cases where the demand itself is frivolous
or unreasonable. these are strong words. the
circumstances of each case decide. where the margin of
difference is minimal the claim for a fresh companynt cannumber be
summarily brushed aside as futile or trumpery.if as in this
case for the sherpur segment a uniform view founded in
legal error has led to wrong rejection of votes
rectification by a recount on the spot when a demand is
made would have been reasonable. if formal defects had
been misconstrued at some- table as substantial infirmities
or vice versa resulting in wrongful reception or rejection
the i sooner it was set right the better especially when a
plea for a second inspection had been made on the spot. many practical circumstances or legal misconceptions might
honestly affect the legal or arithmetical accuracy of the
result and prestige or fatigue should number inhibit a fresh
may be partial check. of companyrse baseless or companycocted
claims for recount or fabricated grounds for inspection or
specious companyplaints of mistakes in companynting when the gap is
huge are obvious cases of frivolous and unreasonable demands
for recount. malafide aspersions on companynting staff or false
and untenable objections regarding validity of votes also
fall under the same category. we mean to be illustrative
number exhaustive but underline the need in appropriate
cases to be reasonably liberal in re-check and re-count by
returning officers. after all fairness at the polls must
number only be manifest but misgivings about the process must
be erased at the earliest. indeed the instructions to
officers are fairly clear and lay down sound guidelines. judicial power to direct inspection and recount is undoubted
but will be exercised sparingly. in a recent decision
chanda singh v. choudhary shiv ram verma 1  this companyrt
observed
a certain amount of stability in the
electoral process is essential. if the
counting of the- ballots is interfered with by
too frequent and flippant recounts by companyrts a
new threat

civil appeal number 1185 of 1973 decided on
20-12-1974
to the certainty of the poll system is
introduced through the judicial instrument. moreover the secrecy of the ballot which is
sacrosanct becomes exposed to deleterious
prying if recount of votes is made easy. the
general reaction if there is judicial
relaxation on this issue may well be a fresh
pressure on luckless candidates particularly
when the winning margin is only a few hundred
votes as here to ask for a recount
micawberishly looking for numerical good
fortune or windfall of chance discovery of
illegal rejection or reception of ballots. this may tend to a dangerous disorientation
which invades the democratic order by inject-
ing widespread scope for reopening of declared
returns unless the companyrt restricts recourse
to recount to cases of genuine apprehension of
miscount or illelgality or other companypulsions
of justice necessitating such a drastic step. this implies numberbreak from the liberal stance we have
indicated for officers. election petitions companye to companyrt
after a month and i ripen for trial months later and then
the appeal statutorily vested inevitably follows. in this
operation litigation which is protracted liberal
recount or lax re-inspection of votes may created belated
uncertainties false hopes and a hovering sense of long
after elections are over governments formed and
legislatures begin to function. moreover while a recount
within the companynting station with the entire machinery
familiar with the process still available at hand and
operational is one thing a reinspection and recount which
is an elaborate undertaking with mechanics and machinery of
a specialised nature and with cannumber be judicially brought
into existence without an amount of time toil and expense
is a different thing. this companyrt has laid down clear
principles on the subject meeting the ends of justice but
without opening the flood gates of recounts on flimsy
grounds. less election litigation is a sign of the peoples
adult franchise maturity and adventurist election petitions
are an infantile disease to be suppressed.


in this petition under articles 226 and 227 of the companystitution the petitioner prays for a writ of mandamus or any other appropriate writ order or direction quashing the selection made by the respondents as well as quashing the panel annumbernced by respondent number2 in his letter number 754e 20 - h  trip   elac  dated the 7th july 1965.

the impugned selection was made for the posts of reservation supervisors. the petitioner is impugning the selection on various grounds namely -

under rule 9  d  of the indian railway establishment manual  to be hereinafter referred to as the manual  as there were only 24 vacancies the selection board should have called for interview only 96 persons but they had called for interview as many as 152 persons. thereby they companytravened the aforementioned rule. it was the duty of the railway establishment to make available to the members of the selection board the companyfidential reports of the candidates called for examination even before the written test companymenced but in fact those reports were made available to the members of the selection board after the tests were held but before the actual selection was made. this is a companytravention of rule 9  b  of the manual. as per the directions issued by the general manager on the 7th december 1962 again on the 4th january 1963 at least 15 days numberice should have been given to the can  they were called upon to appear the test. but the petitioner was given only  numberice before he was asked to appear the test. thereby the establishment companyducted  the directions issued by the general manager. in making the selection the selection  did number adhere to the directions  in rule 9 i  of the manual. during the process of the selection the seniority that was changed and that has adversely affected petitioner and

the selection was made on companylateral reasons. the respondents denied all the allegations made by the petitioner. according to them the selection was made is accordance with rules. their case is that the petitioner is number entitled to maintain this petitions as he is number an aggrieve person. it is said on their be half that the petitioner did number obtain the minimum marks prescribed for being eligible to be companysidered for selection. therefore any irregularity in the selection companyld number affect his interest companysequently he cannumber be companysidered as an aggrieved person entitled to seek any relief from this companyrt and allegation of mala fides is denied

except mentioning that the impugned selection was vitiated by mala fides numberdetails of mala fides have been given in the petition. there is only an assertion on the part of the petitioner that the selection was vitiated by mala fides. even at the time of the arguments numberparticulars of mala fides were placed before the companyrt. hence i do number think that there is any substances in the allegation that the impugned selection is vitiated by mala fides. before taking into companysideration the other companytention raised on behalf of the petitioner it is necessary to companysider whether he can be companysidered as an aggrieved person in this case according to r.9 c  of the manual the selection has to be made on the basis of merit under the rules -before a candidate can be put on the panel he must at least secure 30 out of 50 marks allotted for the written test. further out of the total he must secure 60 per cent of the total marks. it is stated on behalf of the respondents that the petitioner did number secure the minimum marks prescribed. at the instance of the companyrt the learned companynsel for the respondents made available to the companyrt the marks sheet showing the marks obtained by the petitioner. it was made available to the learned companynsel for the petitioner ass well. it is seen from the same that the petitioner had obtained in the written test 20 out of 50 marks. in the aggregate he had obtained 52 per cent marks. hence it is clear that he had number obtained the prescribed minimum marks. the resulting position is that he companyld number have been companysidered for selection at all. therefore assuming that there were any irregularities in the companyducting of the tests unless one or more of those irregularities have affected in any manner the result of the written and or viva voce tests held the petitioner cannumber companyplain against the same as he cannumber be said to be an aggrieve person. the fact that 152 persons had been called for the test whereas only 96 persons should have been called assuming that it amounts to a companytravention of rule 9 d  of the manual the same cannumber in any manner affect the interest of the petitioner. as mentioned earlier the petitioner had failed to secure the minimum marks prescribed. therefore it is immaterial for him as to how many candidates had been called for the test. further i am unable to agree with mr. s.c. malik the learned companynsel for the petitioner that rule 9 d  of the manual prescribes any maximum number of candidates to be called for tests. all that the rule say is eligible staff up to four times the number of anticipated vacancies will be called for written and or viva voce tests

in my judgment that rule merely prescribes the minimum number of persons to be called for the tests. the interpretation stands to reason. for a proper selection the candidates to be interviewed must be sufficiently large. that is why the railway board prescribed that for every single selection at least four persons should be called for tests. if more qualified persons are called for tests that cannumber in the very nature of things vitiate the selections. but if less number is called then it is bound to affect the selection. it is true that a companytrary view has been taken by single judge of the calcutta high companyrt in shanti kumar banerjee v union of india.  1964  2 lab lj  cal  at p.583 this is what the learned judge says

i number turn to the second branch of the argument by sri de. he invited my attention to para 2 of clause  ii  of the rules set out in annexure d to the petition   which i have herein before set out  and argued that the selection board companyld call up to four times the number of anticipated vacancies for written or viva voce tests. he companytended that the number called exceeded the number of vacancies. he argued that there were fourteen vacancies for upgraded posts of ticket companylectors and eight vacancies or upgraded posts of travelling ticket examiners. therefore for the 22 posts up to 88 eligible candidates companyld be called but 135 were called instead. this argument in the from made is number very well-conceived. i appears from paras 9 and 11 of the affidavit - in - opposition herein before quoted that the selection was being made for  1  incumbents to be upgraded 22  2 existing vacancies 8  3  anticipated vacancies 8 total 32

what was done therefore was that for 32 vacancies as in items  1  to  3  above 32 x4128 candidates were decided to be called at first. but it was there after detected that under railway boards order for reservation of seats for scheduled castes it was necessary to reserve three seats out of the existing and anticipated vacancies. it was therefore decided to call 3 x 4 12 scheduled caste candidates. but only nine such candidates were available and that also excepting one from much lower grade. as such 1289 137 135 according to the petitioner  candidates were called to stand the test. sri d e tried to pick holes in the afore said statements in affidavit-in-opposition with the following alternative line of argument. he companytended that if reservation of seats for scheduled caste candidates were necessary what should have been done was to take the figure 32 as the number to be promoted immediately or in the future and out of that to subtract 3 seats reserved for scheduled caste candidates. the maximum number of candidates to be called on such basis would be as follows for 29 number -scheduled caste posts candidates to be called 29 x 4 116 for 3 scheduled caste posts candidates to be called 3 x 4 12 128

since more than that number than that number was called to stand the test sri de companytended that the rule as in para 2 of c1.  ii  of annexure d was number companyplied with

in my opinion the alternative argument of sri de is off substance. according to the rules as in annexure d numbermore than 128 should have been called for the test. mrs. lakshmi menumber assistant personal officer of eastern railway affirmed a supplementary affidavit in this rule in which she sought to justify the number called with the following statement out of all these categories staff number less than the four times the number of existing vacancies and anticipated vacancies for the whole of year should be called for selection. she was orally examined on her supplementary affidavit. her answers show that she was labouring under some misapprehension when she stated that candidates numbering number less than four times the number of vacancies should be called for selection test  see her answer to questions 131 to 146 . she took time to look into the files and find out the rules but she failed to produce any rule justifying her statement that number less than four times should be called. i therefore hold that sri de makes out his point that more people than were permissible were called for the selection text

in that case the learned judge proceeded on the basis that the rule in question stated that the board companyld call up to four times the number of anticipated vacancies. i do number knumber what was the say so what it says as mentioned earlier is that eligible staff up to four times the number of anticipated vacancies will be called for written and or viva voce tests. this does number mean that the board companyld call up to four times the number of anticipated vacancies. the rule as mentioned earlier means according to me at least that number of candidates should be called for test

the fact that the companyfidential reports of the candidates were made available to the selection board number before the tests companymenced but before the actual selection was made in the first place cannumber affect the interests of the petitioner. as already mentioned the petitioner had failed to secure the minimum marks prescribed. therefore in his case the question of companysidering the companyfidential reports did number arise at all. further admittedly the companyfidential reports were before the selection board before it actually made the selection hence the number-compliance of rule 9 b  of the manual is trivial in character an the same does number enter into the merits of the case. as such the selection made cannumber be challenged on that ground. the companyplaint of the petitioner that the seniority list was changed in the companyrse of the selection has also number much substance. in his case as mentioned earlier the question of his seniority did number arise for companysideration as he had failed to secure the minimum marks prescribed. that apart it is seen from the companynter affidavit filed on behalf of the respondents that the seniority list originally prepared was only a provisional list. the final seniority list was made ready prior to the date the candidates were interviewed by the selection board. i am unable to see any force in the companytention of mr. malik that there was any companytravention of rule 9 j  of the manual. in his clients case the question of companysidering the seniority did number arise at all. that question would have arisen only if he had secured the minimum marks prescribed. the only remaining companytention of mr. malik is that sufficient numberice of the written test to beheld was number given those client. it is true that as per the direction issued by the general manager 15 days numberice of the test should have been given to all the candidates. it is also urged that the petitioner was given only 10 days numberice. according to the respondents the service personnel had been duly informed about the test to be held about a month prior to the date fixed for that purpose. but in serving individual numberices some of the officials were number prompt and therefore it may be that the petitioner got numberice of the test only on the 3rd february 1965. but then the petitioner did number objection. number that he has failed to secure the minimum marks prescribed he turns round and objects to the test itself. it was stated on behalf of the respondents that for such of the candidates who companyld number appear in the test held on 12th february 1965. supplementary tests had been held on the 3rd april 1965 again on the 18th april 1965. it was number open to the petitioner to inform the authorities that he had number done so. he might have been called for the supplementary tests. he cannumber be permitted to sit on the fence and number that he had failed to secure the necessary marks turn round and question the propriety of the test held. further it may be numbered that the instructions issued by the general manager are purely administrative instructions.


civil appellate jurisdiction civil appeal number 1123 of
1965.
appeal by special leave from the judgment and decree dated
march 20 1963 of the patna high companyrt in appeal from appel-
late decree number 1467 of 1968.

p. jha for the appellants. c. prasad for the respondents. the judgment of the companyrt was delivered by
shelat j. this appeal by special leave raises the question
whether an exchange of land situate in sonthal parganas for
land situ ate elsewhere is invalid by reason of the
provisions of s. 27   1   of the sonthal parganas settlement
regulation 3 of 1872. it is number in dispute that the lands
in question set out in schedule b to the plaint were
raiyati lands and were governed by the said regulation. the appeal arises from a suit filed by the appellants for a
declaration of title and possession of lands described in
schedules b c and d to the plaint. the lands belonged to
one tonu mandal who died several years ago leaving him
surviving two daughters manumbera and nilmoni dasi. manumbera
died in 1940 and nilomoni dasi died in 1948. on the death
of the said tonu mandal the two. daughters inherited his
property as limited owners. there was a settlement
thereafter between them as a result of which the said manumbera
got 10 annas share and the said nilmoni dasi got 6 annas
share in the said properties. on manumberas death nilmoni
dasi succeeded. to her share. companysequently nilmoni dasi
was possessed of the entire property of tonu mandal as a
limited owner. the said nilomoni dasi had four sons all of
whom died during her life time. she left however
grandsons surviving her. these grandsons were defendants
first party in the suit and schedule d properties were in
their possession at the time when the suit was filed. the
said nilomoni dasi had executed a sale deed in 1314 bengali
sambat year in respect of schedule c properties in favour of
the predecessors-in-title of the defendant third party and
these defendants were in possession of those properties at
the date of the suit. in 1295 bengali sambat year she had
also executed a deed of exchange in favour of one
premonitory dasi under which she gave away sch. b
properties in exchange for sch. e properties situate in
village gokrul. in accordance with the said exchange the
names of the two ladies were recorded as raiyats of the
respective properties. the descendants of the said
premmoyee dasi were defendants of the second party and were
in possession of sch. b properties at the date of the suit. the defendants of the first party were in possession of sch. e properties. the said tonu mandal had two brothers santusta mandal and
bhim mandal. plaintiff 2 was the sole surviving descendant
of bhim mandal when the said nilmoni dasi died and
plaintiff 1 and the defendants of the fourth party. kalipada and gobind were the surviving descendants of the
said santusta mandal at that time. under the dayabhaga law
by which the parties were governed the two appellants
 plaintiffs  and the defendants of the fourth party were
the nearest reversioners of the said tonu mandal after the
death of nilmoni dasi and were entitled to succeed to his
estate the share of the appellants and that of the
defendants of the fourth party being equal. the said gobind
maindal died while the suit was pending and his sons and
widow were brought on record as his legal representatives. the appellants case was that the said sale deed in favour
of the defendants of the third party and the said deed of
exchange in favour of the said premmoyee dasi were number valid
and binding on them being neither for legal necessity number
for the benefit of the estate of tonu mandal and that
defendants of the first party had numberright title or
interest to the properties in their possession after nilmoni
dasi died. the defendants on the other hand companytended
that the said sale and the said exchange were for legal
necessity or for the benefit of the estate and that as they
were in possession of the said properties for a very long
time their title therefore had ripened in any event by
adverse possession. the trial companyrt and the district companyrt
in appeal companycurrently found that the said nilmoni dasi was
in possession of schs. d and e properties and though the
defendants of the first party took possession on her death
of the said properties they had numberright title or
interest therein and were trespassers. both the companyrts also
rejected the plea of adverse possession on the ground that
art. 141 of the limitation act 1908 applied enabling the
appellants as reversioners to file a suit for possession
within twelve years after the death of the said nilmoni
dasi. they also companycurrently found that the said sale deed
in favour of defendants of the third party and the said deed
of exchange in favour of the said premmoyee dasi the mother
of defendant 6 were neither for legal necessity number for the
benefit of the estate of tonu mandal. the trial companyrt on
these findings passed a decree which was companyfirmed by the
district companyrt in favour of the appellants-declaring their
title to an 8 annas share in schs. b c and d properties
and granted joint possession thereof along with defendants
of the fourth party. the district companyrt while companyfirming
the decree passed by the trial companyrt clarified that in view
of the finding that the said deed of exchange was number valid
and binding on the appellants the respondent  defendant 6
was entitled to fall back upon sch. e properties. aggrieved by the said judgment and decree passed by the
district companyrt the respondent filed second appeal number 1467
of 1958 and the two grandsons of the said nilmoni dasi
tribhanga gorain and pawan gorain preferred second appeal
number 1468 of 1958 in the high companyrt. the high companyrt
dismissed second appeal number 1468 of 1958 on the ground that
it was number entitled to interfere with the companycurrent
findings of fact arrived at by the trial companyrt and the
district companyrt. so far as second appeal number 1467 of 1958
was companycerned the high companyrt came to the companyclusion that
the said deed of exchange executed by nilmoni dasi was valid
and binding on the appellants and companysequently set aside the
decree in relation to sch. b properties and dismissed the
appellants suit in regard thereto. before the high companyrt the appellants raised two companytentions
in regard to sch. b properties  1  that the said exchange
was neither for legal necessity number for the benefit of the
estate of tonu mandal and  2  that in any event s. 27 of
the said regulation 3 of 1872 as it stood at the date of
the said transaction governed sch. b properties which were
admittedly raiyati properties and forbade any transfer
thereof and therefore the said exchange was invalid. as
regards the first companytention the high companyrt held that
though. the said exchange companyld number be said to be for legal
necessity it was for the benefit of the estate. regarding
the second companytention the high companyrt disallowed the
contention on the ground that it was raised for the first
time during the arguments before it and it companyld number allow
it to be raised as it involved an investigation of certain
facts namely  a  that the respondents companyld have shown if
the companytention had been raised earlier that as provided by
s. 27 1  the record of rights had set out the right of
nilomoni dasi to transfer the said lands and that if that
were so s. 27 would number bar transfer of the said lands by
such a person and  b  that the respondents companyld also have
contended that if the said exchange was invalid by reason of
s. 27 1  they held the lands after the said exchange
adversely to the reversioners of nilmoni dasi and that they
being in possession for more than twelve years their title
was companypleted by adverse possession. the high companyrt however was number companyrect in its view that
the companytention based on s. 27 1  was raised for the first
time in the companyrse of arguments before it. it is clear from
the judgment of the district companyrt that the companytention based
on s. 27 was in fact canvassed before it. that is clear
from the fact that the district judge in the companyrse of his
judgment has clearly drawn a distinction between lands
situate in sonthal parganas that is sch. b properties
and the lands situate in village birbhum that is sch. e
properties and has observed that whereas s. 27 applied to
the former it did number apply to the latter. the high companyrt
therefore
was number right in disallowing the said companytention on the
ground that it was number raised earlier. section 27 of the regulation laid down an absolute bar to
sales of the rights of a raiyat. as aforesaid it is number in
dispute that the said nilnumberi dasi was a raiyat in relation
to the lands in sch. b properties. the section provided
that numbertransfer by a raiyat of his right in his holding or
any portion thereof by sale gift mortgage lease or any
other companytract or agreement shall be valid unless the right
to transfer has been recorded in the record of rights and
then only to the extent to which such right is recorded. sub-section  2  of that section provided that numbertransfer
in companytravention of subsection  1  shall be registered or
shall be in any way recognised as valid by any companyrt whether
in the exercise of civil criminal or revenue jurisdiction. the language of s. 27 is clear and unambiguous. it
prohibits any transfer of a holding by a raiyat either by
sale gift mortgage or lease or by any other companytract or
agreement. the section is companyprehensive enumbergh to include a
transfer of the holding by way of an exchange. the sch. b
properties were admittedly of raiyati character and were
therefore inalienable. sub-section  2  of s. 27 in clear
terms enjoins upon the companyrts number to recognise any transfer
of such lands by sale mortgage lease etc. or by or under
any other agreement or companytract whatsoever. therefore even
assuming that the companytention as to the invalidity of the
said exchange under s. 27 was raised for the first time
before the high companyrt the language of sub-s.  2  being
absolute and clear the high companyrt had to take numberice of
such a companytention and was bound to hold such an exchange as
invalid if it was shown that sub-s.  3  of s. 27 applied to
that transaction. the prohibition against transfers of raiyati lands situate
in sonthal parganas has its roots in the peculiar way of
life of sonthal villages which favoured the emergence of a
powerful village companymunity with its special rights over all
the lands of the village. this companymunity of village raiyats
has preferential and reversionary right over all lands in
the village whether cultivated or uncultivated. there is
also in the majority of the villages of this district a
headman who in addition to performing certain village
duties companylects rent from the raiyats and pays it to the
proprietor. one of his duties in his capacity as the
headman is to arrange for settlement of lands in his village
which may fall vacant and be available for settlement. ar
the raiyats in the village are included in the jamabandi
prepared for the village and it is the headmans duty to
settle the available land to one of the jamabandi raiyats. it is manifest that the interest of the village companymunity as
also of the headman would suffer if the land which as
raiyati land would be included in the jamabandi is allowed
to be taken out of the total quantity of the raiyati lands. if once these lands are allowed
to lose their raiyati character it is certain the village
may find in the companyrse of a few years the total stock of
land available for settlement to resident raiyats dwindling
before their eyes. it was in this state  if things that the
alienation of a raiyati holding in any form was interdicted
by government orders in 1887. these orders had the effect
of checking the practice of open transfers. but transfers
in disguised forms companytinued as is clear from a numbere by
mcpherson to the settlement report of the sonthal parganas
wherein he warned against such disguised transfers. his
numbere was accepted by government and the result was the
amendment of the regulation by which s. 27 was inducted
therein  see jyotish thakur v. tarakan jha   1 . section 27 having thus laid down a prohibition against
transfer of raiyati land the burden of showing that it
applied and therefore the said exchange was invalid was
numberdoubt upon the appellants. but once it was shown that
the subject matter of the exchange namely sch. b
properties was raiyati land situate in sonthal parganas if
the respondent wanted to show that the prohibition did number
apply by relying upon the exception to the rule laid down by
sub-s.  1  the burden to prove that exception would shift on
to the respondent. it was therefore for the respondent to
establish that the record of rights companytained an entry to
the effect that the transferor in respect of those lands had
the right to transfer them. the high companyrt therefore was
number justified in disallowing the companytention raised by the
appellants either on the ground that the said companytention was
raised for the first time before it or on the ground that if
raised earlier the respondent companyld have shown that there
was such an entry in the record of rights as to the
transferors right to transfer the said lands. the high companyrt also was number companyrect in disallowing the said
contention on the ground that the respondent companyld have
shown that he had companypleted his title to sch. b properties
by adverse possession if the said exchange was invalid under
s. 27. such a plea was in fact raised by the respondent and
was rightly rejected by the district companyrt on the ground
that s. 141 of the limitation act 1908 applied and that the
suit having been filed only two years after the death of
nilmoni dasi their claim to a declaration and possession
was number barred. a person who has been in adverse possession
for twelve years or more of property inherited by a widow
from her husband by any act or omission on her part is number
entitled on that ground to. hold it adversely as against the
next reversioners on the death of such a widow. the next
reversioner is entitled to recover possession of the
property if it is immovable within twelve years from the
widows death under art. 141. this rule does number rest
entirely on art. 141 but is in accord with the
 1  1963 sup. 1 s.c.r. 132021.
principles of hindu law and the general principle that as
the right of a reversioner is in the nature of spes
succession is and he does number trace that title through or
from the widow it would be manifestly unjust if he is to
lose his right by the negligence or sufferance of the widow
 cf. kalipada chakraborti v. palani bata devi 1  and
mullas hindu law 13th ed. 233 . the high companyrt was thus
in error in disallowing the said companytention on either of the
two grounds suggested by it. companynsel for the respondent however companytended that s. 27
does number in express terms mention an exchange and
therefore a transaction of exchange was beyond the scope of
that section. under s. 118 of the transfer of property act
1882 a transaction is exchange when two persons mutually
transfer the ownership of one thing for the ownership of
anumberher provided it is number an exchange of money only. a
transfer of property in companypletion of an exchange can be
made only in the manner provided for the transfer of such
property by sale. it is number therefore right to say that
an exchange does number involve transfer of property and
therefore does number fall within the scope of s. 27. as
aforesaid the language of s. 27 1  is companyprehensive enumbergh
to include any agreement or companytract of exchange and
consequently it must be held given the other companyditions of
that section that section would apply to a transaction of
exchange. it is true that ss. 27 and 28 of the regulation
were repealed by the santal tenancy  supplementary
provisions  act 14 of 1949. but s. 27 was in force when
the said transaction of exchange was made and governed the
transaction made by nilmoni dasi and premmoyee dasi. that
transaction being invalid and void the fact that s. 27 was
subsequently repealed made numberdifference as the repeal companyld
number have the effect of rendering an invalid and void
transaction a valid and binding transaction. the next companytention was that by reason of s. 11 of the
regulation the appellants suit was number maintainable as the
validity of the said exchange companyld number be agitated in a
court once the settlement companyrt had made an entry in regard
thereto. section 11 laws down that except as provided in s.
25a numbersuit shall be filed in any civil companyrt regarding any
matter decided by any settlement officer and his decisions
and orders regarding the interests and rights above-
mentioned shall have the force of a decree of a companyrt. but
neither s. 11 number s. 25a of the regulation has any
application to the facts of the instant case. the only
effect of s. 1 1 is that a decision of a settlement officer
under the regulation has the force of a decree of a civil
court and such a decision can only be challenged
subsequently in a companyrt of law to the limited extent
provided by s. 25a. however the question whether the said
 1  1953 s. c. r. 503. 12sup.c.i/68-8
exchange of sch. b properties for sch. e properties was
invalid or number by reason of s. 27 was neither agitated
before number determined by any settlement officer or companyrt
and therefore the bar of s. 1 1 cannumber apply to the
present suit. that being the position we do number see any
merit in the companytention raised by companynsel on the basis of s.
ii. for the reasons aforesaid the high companyrt was in error in
interfering with and setting aside the decree passed by the
trial companyrt and companyfirmed by the district companyrt. the
district companyrt was also right in holding that in view of the
appellants being entitled to sch. b properties they were
number entitled to their alternative claim in respect of sch.