Md.Alauddin
Khan Vs. Karam Thamarjit Singh [2010] INSC 517 (22 July 2010)
Judgment
"REPORTABLE"
IN THE
SUPREME COURT OF INDIA (CIVIL APPELLATE JURISDICTION) CIVIL APPEAL No. 5851 OF
2010 (Arising out of SLP (C) No.13565 of 2008) Md. Alauddin Khan ... Appellant
Versus Karam Thamarjit Singh ... Respondent
V. S.
SIRPURKAR, J.
1.
I have had the benefit of the opinion expressed by my brother.
Since the
facts in this appeal have been meticulously put in that judgment, I need not
restate them. It is held in that judgment that the order passed by the Learned
Single Judge deleting paragraphs 22 to 31 from the written statement of the
elected candidate in pursuance of the application filed by the election
petitioner under Order VI Rule 16, Code of Civil Procedure is correct. With
deepest respect to my brother, I find myself unable to agree with the view taken,
as also the ultimate order passed in pursuance of that view. In my opinion, the
Learned Designated Election Judge was not right in striking out those
paragraphs and the application made by the election petitioner under Order VI
Rule 16, CPC was liable to be dismissed.
2.
The election petitioner was a losing candidate and he had lost his
election by merely two votes. In the election petition, the following prayers
were made:
"....................
(iii) to
order a re-count of the votes after excluding the void votes if required;
(iv) to
declare the election of the Respondent No.1 as void;
(v) to
pass other and further orders as may be deemed fit by the Hon'ble Court in the
facts and circumstances of the case."
3.
During pendency of the case, an application came to be made by the
winning candidate herein seeking a direction to the election petitioner to
clarify the exact relief sought for in prayer Nos.(iv) and (v) as probably,
because the prayer in clause (v) was too general and the appellant herein probably
wanted to know as to what were the ramifications of that direction and, more
particularly, whether it included a prayer for a direction in favour of the
election petitioner in case, if, as a result of the recount, it was found that
he had secured more votes than the elected candidate.
4.
A clear cut order came to be passed to the effect that the
election petitioner had not made any prayer to declare himself or any other
candidate as an elected candidate, which declaration can be given under Section
101 of the Representation of the People Act, 1950. The Learned Judge,
therefore, held that, under clause (v), the Court could 3 grant only such
reliefs or pass such reliefs which were ancillary to the election petition and
no specific declaration could be made in favour of the election petitioner or
any other candidate and resultantly, the elected candidate could not raise a
defence that the election petitioner had secured votes which were void and
hence, the appellant had secured more votes and was rightly elected.
5.
By way of defence, the appellant herein, who was an elected
candidate, has enumerated from paragraphs 22 to 31 that even the defeated
candidate had not secured the votes which have been shown to have been cast in
his favour as, even in his case, number of dead voters had cast votes; besides,
numbers of votes were illegally counted in his favour. He, therefore, raised a
question that, if at all recount had to be ordered, the votes of all the
candidates who contested the election should be counted.
6.
In paragraph 21, it was suggested in the following words that:
"as
provided and regulated by the procedure of CPC, the present answering
respondent has hereby sought for raising counter claim as to the
maintainability of the total number of votes obtained by the election
petitioner".
7.
In paragraph 22, details have been given regarding four polling
stations, namely 6/1, 6/2, 6/3 and 6/4 suggesting the number of persons voted,
who were, in fact, dead or who could not have otherwise cast their vote and
also gave names of the persons who had impersonated the dead persons and had
cast their votes. In these paragraphs, more 4 particularly, paragraph 28 says
that, in the alternative, if the High Court has to direct the recounting, the
High Court should also direct recounting of the void votes of polling station
Nos. 6/1, 6/2, 6/3 and 6/4 and cancel them. In short, the contention was that
if there is going to be a recount, the said recount should be of all the
candidates including the election petitioner.
8.
Here was the case where the recount was prayed for, not of the
votes of a returned candidate, but of all the candidates. The prayer was
extremely general in nature suggesting the order of the recount of the votes
after excluding the void votes, if required. Therefore, at least, insofar as
the prayer clause is concerned, there is nothing to suggest that the recount
was restricted to the votes of the returned candidate.
9.
In order to buttress his case and, more particularly, to raise a
valid defence to the election petition, the elected candidates alleged that
number of dead persons had cast the votes in other polling stations. All that
he had claimed was scrutiny of the votes polled so that there could be a proper
decision on the issue as to who had polled the maximum votes. It could not have
been said and indeed it was not said by the elected candidate as to in whose
favour these votes had gone and it was impossible for him to contend that the
votes polled by some impersonators would have gone only in favour of the
election petitioner or some other candidate. Some of those could have been cast
in his own favour. Therefore, it was clear by these paragraphs that the plea 5
was to make a recount of all the votes cast of all the contesting candidates and
for that purpose, permit him to prove that, even in some other polling
stations, some impersonators of the dead persons were allowed to vote. It was
not as if the elected candidate had made any claim in terms of recrimination
either against the election petitioner or any of the other candidates
contesting that election and in fact, there were three more candidates
contesting elections.
10.
In my opinion, therefore, the plea raised in these ten paragraphs
(from 22 to 31) was not in the nature of recrimination, but, thereby the
election candidate was setting up a valid defence and was suggesting that it
was a case of the election petitioner that in particular number of polling
stations, some impersonators had voted in the name of dead persons. Such things
had happened in other constituencies also and, therefore, the votes cast in the
name of dead persons in all the polling stations, more particularly, the named
polling stations should also be deleted or held to be void votes. [This,
according to me, could not be viewed as a recriminatory plea which was barred
under Section 97 of the Act.]
11.
True it is that the words `counter claim' have been used in
paragraph 21, but then the question would be as to whether by way of that
so-called counter claim, the elected candidate wanted any other candidate's
proposed election to be upset. It was not a question of this sort as no
declaration was ever prayed by the election petitioner.
6
Therefore, this counter claim, in my opinion, was only to raise a valid defence
to save his own election and it was in the nature of raising or introducing
pleadings permitting him to show that it is not only in respect of the
particular polling stations named in the election petitions that some votes
cast in the name of dead persons were required to be declared as void, but such
votes, cast in other polling stations also were required to be declared void in
order to know as to who had, in fact, polled the majority of votes.
12.
In my opinion, there was nothing wrong in raising this plea, more
particularly, because rule of democracy, which depends upon the valid
elections, can be called to be the 'basic structure of the Constitution of
India'. Democratic Government is what we have assured to ourselves by the
Constitution. There is creation of an Election Commission to control the
election process in the country and it goes without saying that obtaining of
majority valid votes is the soul of valid election.
13.
In this behalf, when a question was put to the Learned Counsel
appearing for the respondent herein Shri P. S. Narasimhan, he very candidly
agreed that, in fact, only those votes will be declared void which have been
cast in the name of dead persons, only in the named polling stations in the
election petition, in the process of recount and the elected candidate will not
be allowed to suggest that such votes have been cast in other polling stations
also which, if proved, would have the effect of affecting the votes of the
election petitioner or other candidates 7 who had lost. Shri Narasimhan further
suggested as a sequel to his argument that, in the process of recount, if
ordered in pursuance of the pleadings in the election petition, only the votes
cast in favour of the elected candidate alone shall be counted, whereas, even
if it is proved that, in some other polling stations also votes were cast in
the name of dead persons, those votes cannot be invalidated, even if it is
found that those votes had been cast in favour of the election petitioner or
other defeated candidates. In short, according to the Learned Senior Counsel,
it is only the votes of the elected candidates which will be counted and
counting of votes in respect of all the other candidates will be of no
consequence. According to me, if this procedure is adopted in the recount, it
will be direct annihilation of the principle of majority of votes for declaring
the elected candidate.
14.
I have already shown above that such a recount is not prayed for.
The
recount prayed for is a general recount but if the recount is to be made in
such a peculiar fashion, then, it may be that even when the elected candidate
has actually secured majority of votes, his election would have to be set
aside. In fact, there will be no way to know as to who has actually secured
majority of votes, if in a recount, the votes cast only in favour of the
returned candidate are counted while ignoring his plea that there are some void
votes cast in favour of the other candidates. In my opinion, this cannot be the
import of Sections 100(1) (d) (iii), 84 and 97 of the Act.
Section
100(1)(d)(iii) runs as under :- 8 100. Grounds for declaring election to be
void:
(1)
Subject to the provisions of sub-Section (2) if the High Court is of opinion-
(a) Not relevant (b) Not relevant (c) Not relevant (d) that the result of the
election, in so far as it concerns a returned candidate, has been materially
affected- (i) Not relevant (ii) Not relevant (iii) by the improper reception,
refusal or rejection of any vote or the reception of any vote which is void, or
(iv) Not relevant (2) Not relevant then the High Court may decide that the
election of the returned candidate is not void.
Section
84 is as under:
"84.
Relief that may be claimed by the petitioner.-A petitioner may, in addition to
claiming a declaration that the election of all or any of the returned
candidates is void, claim a further declaration that he himself or any other
candidate has been duly elected."
Section
97 is in the following terms:
"97.
Recrimination when seat claimed.- 9 (1) 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 2[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.
(2) Every
notice referred to in sub-section (1) shall be accompanied by the statement and
particulars required by section 83 in the case of an election petition and
shall be signed and verified in like manner."
15.
In the present case, Sections 84 and 97 are not relevant because
there is no such declaration prayed for by the election petitioner for
declaring himself or any other candidate as duly elected candidate. We shall,
therefore, keep those two Sections a little aside and concentrate on Section
100(1)(d)(iii) of the Act. It is only on the basis of this Section and, more
particularly, the law laid down by this Court earlier that the concerned
paragraphs in the Written Statement have been ordered to be deleted holding
that the returned candidate cannot urge even by way of a valid defence that the
other candidates have also been benefited by some void votes having been cast
in their favour. It was held by the High Court that such plea cannot be raised
by an elected candidate 10 where there is no prayer made under Section 84 and
resultantly, if there is a recount of votes, it will be only of the votes
secured by the elected candidate. For this purpose, heavy reliance was placed
on the decision was a case where, in addition to the prayer of election of the
returned candidate to be declared void, another prayer was also made under
Section 84 of the Act. However, the returned candidate had failed to file any
recrimination under Section 97 of the Act. It was on this backdrop that the
case proceeded. It was found that the course taken by the Tribunal and
confirmed by the High Court in regard to examining validity of the votes cast
in favour of the election petitioner was not correct and that, on bare reading
of Section 100(1)(d)(iii) of the Act, it was possible only to examine validity
of the votes cast in favour of the returned candidate alone.
(cited
supra) was that appellant Jabar Singh was declared elected having defeated the
respondent Genda Lal by 2 votes. The election petition filed by respondent
Genda Lal before the Election Tribunal ordered a recount and found that Genda
Lal had secured 5664 votes as compared to Jabar Singh, who had secured 5652
votes. This was the position after recount which was ordered by the Tribunal.
However, at that stage, Jabar Singh raised an objection that there should be
recounting and re-scrutiny on the ground that improper votes had been 11
accepted in favour of Genda Lal and valid votes had been improperly rejected
when they were cast in favour of appellant Jabar Singh.
16.
Respondent Genda Lal, of course, objected to this course on the
ground that Jabar Singh had neither recriminated nor had complied with the
provisions under Section 97(1). The Tribunal, however, rejected the contention
raised by respondent Genda Lal and held that, in order to consider the relief
which respondent Genda Lal had claimed in his election petition, it was
necessary to decide whether Genda Lal had, in fact, received majority of votes
under Section 101 of the Act and so the Tribunal went on to re-examine the
ballot papers of the respondent, as also appellant Jabar Singh and came to the
conclusion that 22 ballot papers having votes cast in favour of the respondent
had been wrongly accepted. Thus, it came to the conclusion that respondent had
not secured majority of the votes. The Tribunal, however, held the election of
Jabar Singh to be void and also refused to grant declaration to the respondent
Genda Lal that he was duly elected. Two appeals came to be filed before the
High Court against the decision of the Election Tribunal; one by Jabar Singh
and second by Genda Lal. Relying on the Mahajan [AIR 1959 M.P. 58] as well as
the decision of this Court in the the appeals were dismissed by the High Court.
Jabar Singh filed an appeal before this Court, while Genda Lal's appeal was
dismissed on the ground of delay. The matter was referred to the Five Judges'
Bench 12 on account of the earlier judgment by this Court in the case of Bhim
contended that, in fact, 22 votes received in favour of Genda Lal could not
have been so received by him and they could not have been accepted as valid
votes in his favour. This Court, therefore, went into the true import of
Section 100(1) read with Section 101 of the Act. The Court noted the following
contentions raised by appellant Jabar Singh:- "Mr. Kapoor contends that in
dealing with the cases falling under Section 100(1)(d)(iii), Section 97 can
have no application and so, the enquiry contemplated in regard to cases falling
under that class is not restricted by the prohibition prescribed by Section
97(1). He suggests that when the Tribunal decides whether or not the election
of the returned candidate has been materially affected by the improper
reception, refusal, rejection of any vote, or the reception of any vote which is
void, it has to examine the validity of all votes which have been counted in
declaring the returned candidate to be elected, and so, no limitation can be
imposed upon the right of the appellant to require the Tribunal to consider his
contention that some votes which were rejected though cast in his favour had
been improperly rejected and some votes which were accepted in favour of the
respondent had been improperly accepted.
Basing
himself on this position, Mr.Kapoor further contends that when Section 101
requires that the Tribunal has to come to the conclusion that in fact that
petitioner or such other candidate received a majority of the valid votes, that
can be done only when a recount is made after eliminating invalid votes, and
so, no limitations can be placed upon the scope of the enquiry contemplated by
Section 101(a).
Since
Section 100(1)(d)(iii) is outside the purview of Section 97, it would make no
difference to the scope of the enquiry even if the appellant has not
recriminated as required by Section 97(1)."
17.
This argument was resisted and the Court had dealt with the
argument in para 9 of the judgment as under :- "On the other hand, Mr.Garg
who has addressed to us a 13 very able argument on behalf of the respondent,
urged that the approach adopted by the appellant in dealing with the problem
posed for our decision in the present appeal is inappropriate. He contends that
in construing Sections 97, 100 and 101, we must bear in mind one important fact
that the returned candidate whose election is challenged can face the challenge
under Section 100 only by making pleas which can be described as pleas
affording him a shield of defence, whereas if the election petition besides
challenging the validity of the returned candidate claims that some other
person has been duly elected, the returned candidate is given opportunity to
recriminate and by way of recrimination he can adopt pleas which can be
described as weapons of attack against the validity of the election of the
other person. His argument is that though Section 100(1)(d)(iii) is outside
Section 97, it does not mean that in dealing with a claim made by an election
petition challenging the validity of his election, a returned candidate can
both defend the validity of his election and assail the validity of the votes
cast in favour of the petitioner or some other person. It is in the light of
these two rival contentions that we must now proceed to decide what the true
legal position in the matter is."
18.
Following were the observations made in the majority judgment in
para 10:- "It would be convenient if we take a simple case of an election
petition where the petitioner makes only one claim and that is that the
election of the returned candidate is void. This claim can be made under Section
100. Section 100(1)(a), (b) and (c) refer to three distinct grounds on which
the election of the returned candidate can be challenged. We are not concerned
with any of these grounds. In dealing with the challenge to the validity of the
election of the returned candidate under Section 100(1)(d), it would be noticed
that what the election petition has to prove is not only the existence of one
or the other of the grounds specified in clauses (i) to (iv) of Section
100(1)(d), but it has also to establish that as a result of the existence of
the said ground, the result of the election in so far as it concerns a returned
candidate has been materially affected. It is thus obvious that what the
Tribunal has to find is whether or not the election in so far as it concerns the
returned candidate has been materially affected, and 14 that means that the
only point which the Tribunal has to decide is: has the election of the
returned candidate been materially affected? And no other enquiry is legitimate
or permissible in such a case. This requirement of Section 100(1)(d)
necessarily imports limitations on the scope of the enquiry. Confining
ourselves to clause (iii) of Section 100(1)(d), what the Tribunal has to
consider is whether there has been an improper reception of votes in favour of
the returned candidate. It may also enquire whether there has been a refusal or
rejection of any vote in regard to any other candidate or whether there has
been a reception of any vote which is void and this can only be the reception
of a void vote in favour of the returned candidate. In other words, the scope
of the enquiry in a case falling under Section 100(1)(d)(iii) is to determine
whether any votes have been improperly cast in favour of the returned
candidate, or any votes have been improperly refused or rejected in regard to
any other candidate. These are the only two matters which would be relevant in
deciding whether the election of the returned candidate has been materially
affected or not. At this enquiry, the onus is on the petitioner to show that by
reason of the infirmities specified in Section 100(1)(d)(iii), the result of
the returned candidate's election has been materially affected, and that,
incidentally, helps to determine the scope of the enquiry.
Therefore,
it seems to us that in the case of a petition where the only claim made is that
the election of the returned candidate is void, the scope of the enquiry is
clearly limited by the requirement of Section 100(1)(d) itself.
The
enquiry is limited not because the returned candidate has not recriminated
under Section 97(1); in fact, Section 97(1) has no application to the case
falling under Section 100(1)(d)(iii); the scope of the enquiry is limited for
the simple reason that what the clause requires to be considered is whether the
election of the returned candidate has been materially affected and nothing
else.....
the
Tribunal has to make a declaration to that effect, and that declaration brings
to an end the proceedings in the election petition." (emphasis supplied)
This judgment was given by Hon'ble Gajendragadkar, J.
However,
Hon'ble Ayyangar, J., in his minority judgment, did not agree with the
interpretation put forward by Hon'ble Gajendragadkar, J. on the 15 correct
import of Section 100(1)(d)(iii). Hon'ble Ayyangar, J. had very painstakingly
pointed out that the interpretation put forward in the majority judgment was
not correct. In Para 30 of the judgment, after quoting the Section, the learned
Judge formulated the question of law in the following words:- "what is the
import of the words by the improper reception, refusal or rejection of any vote
or the reception of any vote which is void? The learned Judge left out of the
consideration the last clause i.e. "the reception of any vote which is
void" and considered only the earlier clause. The learned Judge further
held that the jurisdiction of the Election Tribunal to declare the election
void arises only if it is of the opinion that result of the election has been
materially affected by the defects or improprieties set out in clause (i) to
(iv), so that even if there are such improprieties or illegalities and yet if
the result of the election is not materially affected, the returned candidate
would retain his seat.
The
learned Judge then pointed out that, the Tribunal, in considering whether the
result of an election had been materially affected, was confined to the
consideration of any impropriety alleged as regards reception of the votes of
the returned candidate as well as the improprieties alleged by the petitioner in
refusal or rejection of votes stated to have been cast in favour of that
petitioner and denials of these charges by the returned candidate. It was
further observed that the contention raised was that, in dealing with an
objection under Section 16 100(i)(d), the Tribunal had jurisdiction to proceed
only on the allegations made in the petition and that, even where a case had
been established for a scrutiny and recount was ordered, it would be so
confined and that its jurisdiction would not extend to the cases of complaints
by the returned candidate. The learned Judge specifically refused to accept
this argument. In para 32, the learned Judge then gave a specific example in
the following words:- "32 ....... Let us suppose that A has been declared
elected as having secured, say 200 votes as against B who has secured 190. If B
in his election petition says that A's votes have been wrongly counted as 200,
whereas, in fact, if they were recounted they would only be 180 and the
Tribunal on a recount finds the allegation in the petition made out and that
the returned candidate had obtained only 180 votes the acceptance of Mr. Garg's
argument would mean that the election of A would have to be set aside
notwithstanding that there has been a similar mistake in the counting of B's
votes and if these were properly counted they might not amount to more than
170. Mr. Garg submitted that though if B claimed the seat there would have to
be a recount of the votes of both the candidates and this also, only in the
event of a recrimination being filed under Section 97, still if no seat was
claimed the election of the returned candidate would be set aside and that the
latter had no means whereby he could maintain his election notwithstanding that
as a fact he had obtained a majority of lawful votes."
19.
In para 33, the learned Judge observed:- "33. ........ I do
not see any force in the contention that the returned candidate is confined
merely to disproving what is alleged to dislodge him from his seat and is
forbidden from proving that votes which under the law had to be counted in his
favour, have been wrongly omitted to be so counted. The words in clause (iii)
do not impose any such restriction, for 17 they speak of the "improper
reception or refusal of any vote", and as the inquiry under Section
100(1)(d) is for ascertaining whether the result of the election has been
materially affected which in the context of clause (iii) obviously means
"the returned candidate has been proved not to have obtained, in fact, a
majority of valid votes", there appears to me no scope for the argument
pressed before us by Mr.Garg."
The
learned Judge gave another example, while considering Rule 59 under the Act, in
the following words:- "Let us for instance assume that the voting
procedure adopted in an election was that prescribed in rule 59 i.e. by placing
the ballot papers in the ballot boxes set apart for the different contesting
candidates. The returning officer counts the valid votes cast in the several
boxes and declares A elected as having secured 200 votes as against B whose
votes are counted as 198. If B files a petition and alleges that the counting
was irregular, that the totals of the ballot papers in the result sheet are not
properly computed, and that as a matter of fact A's papers if counted, would be
196, Mr. Garg's submission is that though the discrepancy disclosed in the
totals is considerable, A cannot prove that there has been a miscounting of B's
votes also, and that though if properly counted his total is only 190, still
A's election should be set aside. It is said that the position would be
different and the anomaly would be overcome in cases where the election
petitioner, besides claiming a declaration that the election of the returned
candidate is void, also seeks a further declaration that he should be declared
duly elected and the returned candidate files a recrimination against such a
prayer."
20.
The learned Judge proceeded to hold:- "Therefore we would
have the anomalous situation wherein the election of the returned candidate is
declared void by reason of his not obtaining the majority of valid votes so far
as the decision under Section 100(1)(d) is concerned and then after the matter
set out in the claim to the seat and the recrimination is inquired into and
decided the election tribunal holds that the returned candidate had a majority
of lawful votes but that this affected only the right of the 18 defeated
candidate to claim the seat. In my judgment the provisions of Section 100 read
with Section 101 do not contemplate this position of a candidate's election
being set aside because he did not get a majority of lawful votes but in the
same proceedings and as part of the same inquiry, he being held to have
obtained a majority of lawful votes.
A
construction of Section 100(1)(d) which would lead to this result must, in my
opinion, be rejected as unsound."
In para
35 also, the learned Judge had shown, again taking an example of multi-cornered
contest, that the interpretation put forward by the majority judgment was
incorrect. The learned Judge observed:- "35. ....... I cannot accept the
position that either Section 100(1)(d)(iii) or Section 101(a) contemplate this
result which is at once so unjust and anomalous and appears to me to contradict
the basic principles underlying election law viz., (1) that apart from
disqualification, corrupt practices etc., the election of a candidate who
obtains the majority of valid votes shall not be set aside, and (2) no
candidates shall be declared duly elected who has not obtained the majority of
valid votes."
21.
In para 36, the learned Judge had shown the findings where
majority proceeded on the misconception of the procedure involved in a
scrutiny. In that para, the learned Judge had considered Rule 57(3) also. The
learned Judge ultimately observed in para 37:- "37. ......... I do not
consider that it is possible to contend that it is beyond the power of the
returned candidate to establish this fact which he might do in any manner he
likes. He might do this by establishing that though a few votes were wrongly
counted as in his favour, still a larger number of his own votes were counted
in favour of the petitioner or that votes which ought to have been counted as
cast for him, have been improperly counted as cast in favour of defeated
candidates other than the petitioner.
19
Without such a scrutiny it would manifestly not be possible to determine
whether the election of the returned candidate has been materially affected or
not. Nor do I see anything in the language of clause (iii) which precludes the
returned candidate from establishing this......."
In para
38, the language of Section 101 was also considered on the backdrop of Section
100(i)(d)(iii) alongwith Rule 57(1) and 57(3) and ultimately, the learned Judge
held that the construction put forward by the majority judgment was not
correct.
22.
Therefore, the view that has been taken by me is in consonance
with the view taken by the minority judgment, which according to the law of
precedents is not possible. However, the judgment in the case of Krishnamurthy
& Ors. [1987 (2) SCC 58], where the identical controversy was involved. In
that case, the learned Judges considered 61] and recommended that this question
should be referred to a larger Bench for reconsidering the views expressed in
the decision in the case 20 Prasad Chaudhary (cited supra), the Division Bench
had taken a view which was not strictly in accordance with the principles laid
down in the Court had refused to grant benefit of 250 votes to the returned
candidate while recounting in view of the absence of recriminating notice under
Section 97 of the Act. In that case, this Court had 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 candidate's 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 validity of the votes. However, unfortunately, it is
reported at the Bar that the matter never came to be considered by the larger
Bench, though a specific reference was made, probably on the ground that the
period of election was over by the time the matter came up before this Court
again.
23.
Now, the law is settled that a Two Judge Bench cannot make a
direct reference to Seven Judge Bench and can only make a reference to Three
Judge Bench. Therefore, I am not in a position to recommend a reference to a
larger Bench to reconsider the decision in the case of peculiar history of this
controversy and further, in view of importance of the question and its direct
impact on the principle of majority of valid votes for winning an election, it
would be worthwhile if the position is 21 reconsidered.
24.
It must be noted that, the present matter, with which we are
dealing, more or less depends upon incorrect acceptance of votes but not the
void votes. According to the election petitioner, the elected candidate has
received some votes which were cast by some impersonators of the dead voters.
In reality, therefore, the question before the present Election Tribunal is
whether the election petitioner proves that some dead voters were impersonated
and in their name, votes were cast. Again, it will have to be proved by the
election petitioner that those impersonated had voted in favour of the elected
candidate because that will be the only way to prove that the void votes have
affected the result in favour of elected candidate materially. The question of
void votes was not considered in Jabar Singh's case.
Even, in
the minority judgment, Hon'ble Ayyanger, J. restricted himself to the earlier
part of clause 100 (1) (d) (iii) and left the clause of "the reception of
any vote which is void". The import of words "the reception of any
vote which is void" would, in my opinion, cover each and every void vote
received by each and every candidate because void vote cannot be counted:
whether it is cast in favour of an elected candidate or any other candidate
contesting the elections. Once the real import of clause "the reception of
any vote which is void" is realized, it becomes clear that, in recount of
the votes which are void votes, those would have to be excluded and for that
purpose, the returned candidate can raise a plea by way of defence that the
void votes were cast either in 22 favour of elected candidate or any other
defeated candidate. He can at least raise a plea that such void votes were
actually cast and he would certainly be justified in raising a plea that the
void votes were cast not only in the polling Stations named in the election
petition, but in some other polling Stations also. Therefore, if recount was to
be ordered, the recount cannot be restricted only to the named polling Stations
in the election petition, but it would have to be a general recount where the
void votes would have to be avoided. Therefore, there would have to be an
opportunity to the elected candidate to prove that there were void votes in
other polling Stations also and for that purpose, there should be recount of
all the votes of all the Polling Stations. It is only thereafter that the true
position as regards majority of votes could be obtained. In this view also, I
cannot agree with my learned brother Sharma J, as also the Judgment of the High
Court holding that it is only the votes cast in the named polling Stations
which are liable to be counted and not those which have been named in the
questioned paragraphs which have been ordered to be deleted from the Written
Statement of the elected candidate.
25.
There is one more reason why I felt compelled to differ with my
learned brother and recommend reconsideration of this question.
26.
The plain language, according to me, does not suggest that where
the declaration is not prayed for by the election petitioner, the elected
candidate cannot raise any plea in his written statement that, in 23 fact, he
has secured the majority of votes. In my opinion, the plea raised herein is not
a recriminatory plea within the meaning of Section 97 of the Representation of
the People Act, 1950. What is raised is a mere plain defence that, even if
there was going to be a recount, then it should be a recount of all the votes
and not of the votes cast only in his favour and for that purpose, he would be
allowed to prove that it is not only in the particular polling stations that
the votes were cast in the name of dead persons, but they were also cast in
other polling stations.
All that
the elected candidate is doing here is trying to show that it is he who is
actually the elected candidate having secured the majority of valid votes.
27.
At the time when Jabar Singh's case (cited supra) was decided, the
amended provisions of Order VIII, Rule 6A of the Code of Civil Procedure
providing for counter claim was not available on the Statute.
That
provision came only by way of amendment later on. Though, the concept of
counter claim was not unknown, even in the absence of a specific provision
therefor, introduction of a specific provision for raising the counter claim
would, in my opinion, be a relevant factor for considering as to whether a
candidate, in the absence of any recrimination, could insist upon counting of
the votes cast in favour of the other losing candidates. The provisions of
Order VIII, Rule 6A have not been considered in the later decisions. In my opinion,
raising of a counter claim by way of a valid defence would still be permissible
considering the broad language of that provision. Shri Singh, very 24 earnestly
argued that an election petition has to be tried in accordance with Civil
Procedure Code and, therefore, the amended provisions providing for laying of a
counter claim has to be read in favour of the elected candidate for raising a
plea that it is he, who has secured the maximum votes. The recount order
should, therefore, be not limited to counting of his votes alone, but it should
be a general recount in respect of the votes secured by all the contesting
candidates. Shri Singh, therefore, urged that, by introducing the paragraphs,
which have been ordered to be struck off from the written statement of the
appellant, the appellant, who was an elected candidate, had raised a valid
defence by way of a counter claim. The argument is undoubtedly a novel one and
has not been so far considered by this Court. At this juncture, I must point
out again, at the cost of repetition that, in ordering counting of the votes of
the elected candidate alone, the whole election process would stand prejudiced,
inasmuch as, then, even if some invalid votes are cast in favour of the other
candidates or void votes are cast in the election, those votes would not be
counted and in that case, there could be no correct reflection in respect of
the votes secured by each candidate.
28.
This is apart from the fact that a very unfair advantage can be
secured by an election petitioner in favour of the losing candidate by
deliberately not claiming any declaration either in favour of the election
petitioner or in favour of any other losing candidate so that the elected
candidate would be rendered completely helpless in showing that he alone is a
candidate having secured majority of votes. As I have 25 already expressed,
securing a majority of votes is the very essence of the democratic elections
and the democracy being a part of the basic structure of our Constitution, the
question involved herein gains all the more importance. I may point out here
that the theory of basic structure of the Constitution also was not available
when Jabar Singh's case (cited supra) was decided. In my opinion, the
interpretation put forth in Jabar Singh's case, in a majority decision would,
therefore, require reconsideration, more particularly, in view of the minority
decisions therein which is more in accord with the principles of securing
majority votes in a democratic elections. The very roots of the democracy would
be shaken if the majority view expressed in Jabar Singh's case, which was
already recommended to be reconsidered, is valid. For these reasons, I am not
in a position to agree with my learned brother, nor can I agree with the
judgment of the High Court (Election Tribunal).
In short,
my conclusions are as follows:- (1) Jabar Singh's case (cited supra), which was
referred to the Seven Judge Bench needs reconsideration, since the question
involved therein goes to the very root of the democratic election process.
(2) The
interpretation put forward to the provision of Section 100(1)(d)(iii) read with
section 97 of the Representation of the People Act would be very unfair for an
elected candidate, particularly where the election petition seeks for 26 recount
of votes. In such a petition where the question involved is of recount, it will
be extremely unfair to count only the votes of returned candidate and ignore
all his objections regarding the votes improperly accepted in case of the other
candidates or the other candidates having secured void votes. Such unfairness
cannot be permitted at least to maintain the purity of election process.
(3) The
observations in Jabar Singh's case particularly in para 10 thereof, could
amount to obiter dicta, particularly, in view of the factual position in Jabar
Singh's case. It is to be remembered that the observations in para 10 were
taken only by way of an example. This position is all the more obtained because
in that case though the declaration was claimed, there was no recrimination
filed and, therefore, the observations in Jabar Singh's Case would become a
binding law only in case where though a declaration is claimed in favour of
other candidate than the elected one, yet the elected candidate has not claimed
any recrimination. In short, the observations made in para 10 thereof may not
become a binding law in case where no declaration is sought for at all and,
therefore, no recrimination is claimed by the elected candidate.
(4) When
a recount is ordered at the instance of a election 27 petitioner, it cannot be
a partial recount. It has to be a general recount where the void votes can be
located and ignored to arrive at a conclusion that this will also apply to the
votes improperly accepted of the other candidates than the elected candidates.
It is only then that a correct position could be arrived at as to which
candidate has, in fact, secured majority of votes. It has to be remembered that
securing of majority of votes is the basis of democratic election.
(5) In the
wake of amended provision of Order VIII, Rule 6 of the Code of Civil Procedure
introducing counter claim, the defendant in this case - the elected candidate,
could still raise his defence by way of a counter claim. The language of
Section 97 of the Representation of the People Act, 1950, which is in the
nature of positive language, does not bar raising of any such defence.
29.
In view of the difference of opinion, the papers be kept before
the Hon'ble, the Chief Justice of India for referring the matter to an
appropriate bench.
................................J.
[V. S. Sirpurkar] New Delhi;
July 22, 2010.
28
REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL
APPEAL NO. 5851 OF 2010 [Arising out of SLP (C) No. 13565 of 2008] Md. Alauddin
Khan .... Appellant Versus Karam Thamarjit Singh ....
Respondent
Dr.
Mukundakam Sharma, J.
1. Leave
granted.
2. The
present appeal is directed against the order dated 11.02.2008 passed by the
Designated Election Judge of the Gauhati High Court in M. C. (Election
Petition) No. 1 of 2008 in Election Petition No. 2 of 2007, whereby the learned
Election Judge allowed the miscellaneous application filed by the election
petitioner, respondent herein, with an order that the statements, in the nature
of recrimination and counter claim, made in the written statement of the
returned candidate, appellant herein, more particularly, in paragraph nos.
22-31 would stand struck off from 29 the defence of the appellant.
3. Being
aggrieved by the aforesaid order, the appellant filed the present Special Leave
Petition on which notice was initially issued and on service the respondent
entered appearance. The learned senior counsel appearing for the parties have
been heard at length.
4. The
appellant and the respondent and few other candidates had contested the
election of the 9th Manipur Legislative Assembly from 6-Keirao Assembly
Constituency. The said election was held on 14.02.2007 and 16.02.2007 (re-poll
in polling station No. 615) and the election result was declared on 27.02.2007,
wherein the appellant emerged as the winner after defeating the respondent-
election petitioner by a margin of only two votes. The aforesaid election of
the appellant-returned candidate was challenged by the respondent by filing an
election petition basically under Section 100(1)(d) (iii) and (iv) of the
Representation of the People Act, 1951 [for short "the Act"], with a
prayer that the election of the appellant be declared void.
5. In
order to appreciate the contention of the counsel appearing for the parties,
the relevant portion of the prayer made in the election petition viz., paras
iii to v, is extracted hereinbelow: - "................
30 iii)
to order a re-count of the votes after excluding the void votes if required;
iv) to
declare the election of the Respondent No. 1 as void;
v) to
pass other and further orders as may be deemed fit by the Hon'ble Court in the
facts and circumstances of the case."
So far as
the reliefs prayed in paragraphs i) & ii) are concerned, they relate to
seeking for a direction and for calling certain records. As the same are not
directly connected with the contentions raised herein, they have not been
extracted.
6.
Immediately after appearance in the election petition, the appellant filed a
miscellaneous application before the Gauhati High Court which was registered as
MC (EP) No. 6 of 2007 whereby the appellant challenged the maintainability of
the election petition on technical grounds. The said miscellaneous application
was however dismissed on 31.10.2007. After taking a few adjournments, the
appellant filed the written statement on 04.01.2008, in which, apart from
contesting the allegations made in the election petition, the appellant-returned
candidate made several statements in the nature of counter claim/recrimination
in paragraph nos. 22-31.
7. The
respondent thereafter filed an application under Order VI Rule 16 of the Code
of Civil Procedure [for short `the Code'] praying for striking off the
aforesaid paragraphs allegedly made by way of counter claim/recrimination. The
said application came up for 31 consideration before the learned Election
Judge, who after an elaborate discussion on the merits of the said application
allowed the same by holding that the statements in the nature of recrimination
and counter claim made in the written statement by the appellant, more
particularly, in paragraphs nos. 22-31 would stand struck off from the defence
pleaded. Being aggrieved by the aforesaid order this appeal was filed.
8. The
main contention of the counsel appearing for the appellant is that under Order
VIII Rule 6A of the Code the appellant has a right and a prerogative to raise
certain defences by way of counter claim and the said right can be exercised
even in a case where there is no additional claim in terms of Section 84 of the
Act; and despite the fact that a recrimination petition as such may not be
maintainable in terms of Section 97 of the Act. It was further submitted that
since in the present case the election petitioner has intentionally avoided to
make additional claim as provided under Section 84 of the Act, the
appellant-returned candidate had no other option except to fall back upon Order
VIII, Rule 6-A of the Code.
9. The
short question that falls for consideration in the present appeal is: when
there is no provision and right vested in the returned candidate to file a
recrimination petition due to absence of a prayer by the election petitioner in
the election petition seeking for his declaration (or any other candidate) as a
returned candidate, can the returned candidate in his written statement 32 take
up pleas which are in fact counter claims with the aid of Order VIII, Rule 6A
of the Code? 10.In order to answer the aforesaid issues, it would be necessary
to peruse some of the relevant provisions of the Act and some of the decisions
of this Court referred to and relied upon by the counsel appearing for the
parties and also the contents of the paragraph nos. 22-31 of the written statement
filed by the appellant. However, before proceeding with the same, it would be
appropriate to refer to an order passed by the Election Judge on 29.08.2007, on
the application filed by the appellant under Section 101 of the Act read with
Section 151 of the Code, seeking a direction to the election petitioner to
clarify the exact relief sought for in the prayer nos. (iv) to (v) (already
extracted hereinabove). The said application came up for hearing and after
conclusion of the hearing, an order was passed on 29.08.2007 to the following
effect: - "Under Section 82 of the Representation of People Act, 1951, all
the candidates to the election are required to be impleaded as a party in the
Election Petition if the petitioner makes any prayer to declare himself or any
other candidate as duly elected representative. In the present case, the
election petitioner has not impleaded the remaining candidates. Hence, it is
implied that the petitioner has not made any prayer to declare himself or any
other candidate as elected representative, which declaration can be given u/s
101 of the Representation of People Act, 1951.
In my
considered opinion, under clause (v) of the prayer, this Court can only grant
the relief to the petitioner or pass appropriate orders, which are ancillary to
the Election Petition and no specific declaration can be granted that either
the election petitioner or any other candidate shall be construed as elected
candidate."
33 It is,
therefore, established from the aforesaid order passed by the Election Judge by
way of a clarification that in the election petition what survives for
consideration is the prayer as to whether or not to declare the election of the
appellant-returned candidate as void.
Therefore,
there is no dispute with regard to the fact that in the said election petition
no additional prayer was made by the election petitioner seeking for a
declaration that he or any other candidate be declared as the elected
candidate.
11.The
relevant statutory provisions, which may now be referred to, read as follows:
"Section
84: Relief that may be claimed by the petitioner:- A petitioner may, in
addition to claiming a declaration that the election of all or any of the
returned candidates is void, claim a further declaration that he himself or any
other candidate has been duly elected.
Section
87: Procedure before the High Court - (1) Subject to the provisions of this Act
and of any rules made thereunder every election petition shall be tried by the
High Court as nearly as may be, in accordance with the procedure applicable
under the code of Civil Procedure, 1908 for the trial of suits.
Provided
that the High Court shall have the discretion to refuse, for reasons to be
recorded in writing to examine any witness or witnesses if it is of the opinion
that the evidence of such witness or witnesses is not material for the decision
of the petition or that the party tendering such witness or witnesses is doing
so on frivolous grounds or with a view to delay the proceedings.
(2) The
provisions of the Indian
Evidence Act, 1872, 34 shall, subject to the
provisions of this Act, be deemed to apply in all respects to the trial of an
election petition.
Section
97: Recrimination when seat claimed - (1) 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.
(2) Every
notice referred by in sub-section (1) shall be accompanied by the statement and
particulars required by section 83 in the case of an election petition and
shall be signed and verified in like manner.
Section
100 - Grounds for declaring election to be void - S.100 (1) (d) (iii): - By the
improper reception, refusal or rejection of any vote or the reception of any
vote which is void; or ................."
12.The
provisions of Order VIII Rule 6A of the Code, which was repeatedly referred to
during the course of the arguments, may also be extracted here: - "Order
VIII - Written Statement, Set-off and Counter- Claim Rules 6A - Counter-claim
by defendant - 35 (1) A defendant in a suit may, in addition to his right of
pleading a set-off under rule 6, set up, by way of counter-claim against the
claim of the plaintiff, any right or claim in respect of a cause of action
according to the defendant against the plaintiff either before or after the
filing of the suit but before the defendant against the plaintiff either before
or after the filing of the suit but before the defendant has delivered his
defence or before the time limited for delivering his defence has expired,
whether such counter-claim is in the nature of a claim for damages or not;
Provided
that such counter-claim shall not exceed the pecuniary limits of the
jurisdiction of the Court.
(2) Such
counter-claim shall have the same effect as a cross-suit so as to enable the
Court to pronounce a final judgment in the same suit, both on the original
claim and on the counter-claim.
(3) The
plaintiff shall be at liberty to file a written statement in answer to the
counter-claim of the defendant within such period as may be fixed by the Court.
(4) The
counter-claim shall be treated as a plaint and governed by the rules applicable
to plaints."
13.
Reference was also made to the decisions of this Court in Jabar Singh v. Genda
Lal [AIR 1964 SC 1200]; T.A. Ahammed Kabeer v. A.A. Azees and Others [(2003) 5
SCC 650]; Virendra Kumar Saklecha v. Jagjiwan & Others [(1972) 1 SCC 826];
Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav and Others [(1975) 2 SCC 447].
Reference was also made to Order VI Rule 16 of the Code and relying on the same
counsel appearing for the appellant submitted that interference by the High
Court at the behest and request of the respondent was unjustified and uncalled
for as none of the conditions laid down in Rule 16 was attracted in the present
case.
36 This
argument may be dealt with at the outset.
14. Order
VI Rule 16 of the Code has been incorporated therein with the idea of
empowering the Courts to strike out or amend any matter in any pleading,
including the statement in the written statement, at any stage of the
proceedings when the same is found to be unnecessary, scandalous, frivolous and
vexatious; or which may tend to prejudice, embarrass or delay the fair trial of
the suit;
or which
is otherwise an abuse of the process of the Court.
15.Order
VIII Rule 6A empowers the defendant in a suit to raise by way of counter-claim
against the claim of the plaintiff, any right or claim in respect of a cause of
action accruing to the defendant against the plaintiff and that such a
counter-claim would have the same effect as a cross-suit so as to enable the
Court to pronounce the final judgment in the same suit, both on the original
claim and on the counter-claim. It is also provided therein in sub-rule (4) of
Rule 6A that the counter-claim shall be treated as a plaint and governed by the
rules applicable to plaints. So far as in the present case the statements made
by the appellant-returned candidate in the written statement, particularly in
paragraph nos. 22-31 are concerned, it would indicate that those statements are
by way of counter-claim against the claim of the election petitioner and relate
to the right or claim in respect of the same cause of action.
16.Section
97 of the Act which deals with an election petition provides 37 that when an
election petition is filed claiming a declaration that any candidate other than
the returned candidate has been duly elected, in that event, the returned
candidate or any other party would be entitled to give evidence to prove that
the election of such candidate would have been void had he been the returned
candidate. Therefore, paragraphs nos. 22-31 of the written statement relate to
matters in respect of which evidence should have to be laid to prove that if
those allegations are established then the election of such candidate would be
void.
17.An
election petition is required to be considered and decided in accordance with
the procedure laid down in the Representation of People Act, 1951 which
constitutes a complete and self-contained code. This view was endorsed by this
Court in the case of Jyoti Basu v. Debi Ghosal [AIR 1982 SC 983 : (1982) 1 SCC
691] in the following words:- "8. ..............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. 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 strait-jacket. Thus the entire
election process commencing from the issuance of the notification calling upon
a constituency to elect a member or members right up to the final resolution of
the 38 dispute, if any, concerning the election is regulated by the
Representation of the People Act, 1951, different stages of the process being
dealt with by different provisions of the Act.....................So the
Representation of the People Act has been held to be a complete and
self-contained code within which must be found any rights claimed in relation
to an election or an election dispute..............."
18.Now
since there is a specific provision in the Act as to how a recrimination
petition is to be dealt with, the same is required to be decided in the manner
as provided therein. In the present case since there was no prayer in the
election petition to declare the election petitioner or any other candidate as
elected candidate, necessarily therefore, the provisions of Section 97 of the
Act could not be said to be applicable or attracted. In fact, statements which
are intended and could be made in light of Section 97 of the Act are
counter-claims, which are so stated in the Five-Judge Bench decision of this
Court in Jabar Singh (supra). When the specific provision which provides for
raising a counter-claim is excluded and not attracted in terms of the
provisions of Section 97 of the Act, it cannot be said that such counter-claim
could be raised in terms of the provisions of Order VIII Rule 6A. The decision
in the case of Jyoti Basu (supra) is clearly applicable as the provision of
common law is held to be not applicable when specific special law would apply.
The legality and validity of the provisions contained either in Section 97 or
in Section 87 of the Act has not been challenged. Therefore, in line with the
provisions in Section 97 of the Act, the counter-claims could not be allowed to
be 39 raised by following the procedure under Order VIII Rule 6A. The learned
Senior counsel for the appellant also did not contend that the provision of
filing recrimination petition under Section 97 is in the nature of filing a
counter-claim under the provision in the Code. The same could not have also
been done in view of the ratio of the decision in Jabar Singh (supra).
19.The
Representation of People Act, 1951 is a self contained code and the enacted
provisions therein have substituted the general provisions under the common
law. Under the Act, a specific provision has been incorporated in the form of
Section 97 providing for considering recrimination petition/counter-claim under
certain circumstances, and therefore, the same being a provision under a
special Act, would prevail over the provisions of Order VIII Rule 6A of the
Code which is a general law. The said legal principle is based on the latin
maxim generalia specialibus non derogant which means general words do not
derogate from special. It is also to be kept in mind that when the legislation
inserted the provision of Order VIII Rule 6A into the Code, it never intended
to bring a corresponding change in Section 97 of the Act, despite being fully
conscious of the change. In view of this mandate, permitting the returned
candidate to file a counter claim in terms of Order VIII Rule 6A, when the same
cannot be done under Section 97 of the Act would tantamount to completely
obliterating the effect of Section 97 of the Act. If Section 97 of the Act
expressly allows a recrimination 40 petition when an election petition is filed
seeking a declaration that the election petitioner or any other candidate is
the returned candidate, then there is an implied bar on filing a recrimination
petition in the absence of such a declaration. As the principle of statutory
construction, Expressio Unius Est Exclusio Alterius states, the express
inclusion of one thing is the exclusion of all others. In this case, the
specific inclusion of a condition for filing a recriminatory petition under
Section 97 of the Act, namely that a declaration that the election petitioner
or any other candidate is the returned candidate should be filed, excludes its
filing in all other cases. Simply put, Section 97 of the Act bars filing of a
counter-claim by way of a recrimination petition when an election petition is
filed without seeking for a declaration that the election petitioner or any
other candidate is the returned candidate. In such a case, the application of
Order VIII Rule 6A would not be permissible, as permitting the same would
amount to allowing indirectly, what is prohibited by law to be done directly.
It is settled law that whatever is prohibited by law to be done directly cannot
be allowed to be done indirectly. The decision of the Court in Jagir Singh v.
Ranbir Singh & Anr. [(1979) 1 SCC 560], maybe referred to, where it was held
thus:
"5...........................We
do not think that it is permissible to do so. What may not be done directly
cannot be allowed to be done indirectly; that would be an evasion of the
statute. It is a "well-known principle of law that the provisions of an
Act of Parliament 41 shall not be evaded by shift or contrivance"
(per
Abbot, C.J. in Fox v. Bishop of Chester).
"To
carry out effectually the object of a Statute, it must be construed as to
defeat all attempts to do, or avoid doing, in an indirect or circuitous manner
that which it has prohibited or enjoined."(Maxwell, 11th Edn., p.109)
................................."
20.Section
87 of the Representation of People Act, 1951 opens with the expression
"subject to the provisions of this Act and any other rules made
thereunder". This definitely means that Section 87 is subject to the
provisions of Section 97 of the Act. Section 87 also specifically provides that
the procedure under the Code would be applicable "as nearly as may
be" meaning thereby that only those provisions for which there is no
corresponding provision in the Act could be made applicable. The distinction
between sub-section (1) and sub-section (2) of Section 87 of the Act brings out
the contradistinction between the two provisions inasmuch as sub- section (2)
makes the entire Evidence Act applicable subject to the provisions of the Act
but in extenso whereas sub-section (1) makes the Code of Civil Procedure
applicable subject to the provisions of the Act and as nearly as possible.
Therefore, the provisions of the Code are not wholly applicable to the trial of
the election petitions.
Accordingly,
if there is no scope for filing a recrimination petition under Section 97 of
the Act, this limitation cannot be sought to be removed or overcome by taking
resort to another provision of the Code which will be explicitly and impliedly
inconsistent with the 42 provisions of Section 97 of the Act. A similar view
was taken by the Constitution Bench of this Court in the case of Jabar Singh v.
Genda Lal
[AIR 1964 SC 1200 : (1964) 6 SCR 54]. In para 11 this Court has held as
follows:-
11. There
are, however, cases in which the election petition makes a double claim; it
claims that the election of the returned candidate is void, and also asks for a
declaration that the petitioner himself or some other person has been duly
elected. It is in regard to such a composite case that Section 100 as well as
Section 101 would apply, and it is in respect of the additional claim for a
declaration that some other candidate has been duly elected that Section 97
comes into play.
Section
97(1) thus allows the returned candidate to recriminate and raise pleas in
support of his case that the other person in whose favour a declaration is
claimed by the petition cannot be said to be validly elected, and these would
be pleas of attack and it would be open to the returned candidate to take these
pleas, because when he recriminates, he really becomes a counter-petitioner
challenging the validity of the election of the alternative candidate.....................If
the returned candidate does not recriminate as required by Section 97, then he
cannot make any attack against the alternative claim made by the petition. In
such a case an enquiry would be held under Section 100 so far as the validity
of the returned candidate's election is concerned, and if as a result of the
said enquiry declaration is made that the election of the returned candidate is
void, then the Tribunal will proceed to deal with the alternative claim, but in
doing so, the returned candidate will not be allowed to lead any evidence
because he is precluded from raising any pleas against the validity of the
claim of the alternative candidate."
43
21.Reliance was, however, placed by the counsel appearing for the appellant on
the decision of this Court in the case of Dr. Rajendra Kumari Bajpai v. Ram
Adhar Yadav and Others [(1975) 2 SCC 447]. The said decision does not in any
manner advance the case of the appellant because of the fact that it has
already been held hereinbefore that the provision of Order VIII Rule 6A cannot
be substituted in place of provision of Section 97 and that Section 97 excludes
the applicability of the provisions of Order VIII Rule 6A of the Code.
Attention was also drawn to the decision of this Court in the case of N. Gopal
Reddy v. Bonala Krishnamurthy and Others [(1987) 2 SCC 58], which is
distinguishable inasmuch as in the said case the issue was whether the returned
candidate can refer to and rely upon the evidence already on record, in the light
of the fact that he is not entitled to lead evidence as he had failed to file
the recrimination petition in a case where there was an additional prayer for
declaring the election petitioner as the elected candidate.
The said
decision was taken notice by this Court in the case of T.A. Ahammed Kabeer v.
A.A. Azees and Others [(2003) 5 SCC 650] and after referring to all the
existing decisions of this Court on the issue in question, the Division Bench
summed up the legal position as follows:- "33. We have already stated that
the rigorous rule propounded by the Constitution Bench in Jabar Singh case has
met with criticism in some of the subsequent decisions of this Court though by
Benches of lesser coram and an attempt at seeking 44 reconsideration of the majority
opinion in Jabar Singh case has so far proved to be abortive. The view of the
law taken by the Constitution Bench in Jabar Singh case is binding on us.
Analysing the majority opinion in Jabar Singh case and the view taken in
several decisions of this Court, referred to hereinabove, we sum up the law as
under:
....................................
(2) A
recrimination by the returned candidate or any other party can be filed under
Section 97(1) in a case where in an election petition an additional declaration
is claimed that any candidate other than the returned candidate has been duly
elected.
(3) For
the purpose of enabling an enquiry that any votes have been improperly cast in
favour of any candidate other than the returned candidate or any votes have
been improperly refused or rejected in regard to the returned candidate the
Election Court shall acquire jurisdiction to do so only on two conditions being
satisfied: (i) the election petition seeks a declaration that any candidate
other than the returned candidate has been duly elected over and above the
declaration that the election of the returned candidate is void; and (ii) a
recrimination petition under Section 97(1) is filed.
(4) A
recrimination petition must satisfy the same requirements as that of an
election petition in the matter of pleadings, signing and verification as an
election petition is required to fulfil within the meaning of Section 83 of the
Act and must be accompanied by the security or the further security referred to
in Sections 117 and 118 of the Act.
............................."
45 22.In
view of the fact that there is a pronouncement of the Constitution Bench of
this Court in Jabar Singh (supra) and also the decision of this Court in T.A.
Ahammed Kabeer (supra) which on an interpretation of Section 97 of the Act, has
carved out a settled position of law, a different view cannot be taken. So long
the Legislature does not change the law to obliterate the discrepancy, if any,
the Court cannot do so on its own. It would not be appropriate for the Court to
go beyond the legislative intent as derived from the existing provisions and
lay down its views on a particular matter although such a view could be a
possible view. The judiciary does not have any power to legislate and that is
to be strictly adhered to.
The
Constitution-bench decision of this Court in the celebrated case of Bachan
Singh v. State of Punjab (1982) 3 SCC 24 may be cited here to bring out the
position clearly:
"77.
Now it is true that there are cases where the court lays down principles and
standards for guidance in the exercise of the discretion conferred upon it by a
statute, but that is done by the court only in those cases where the principles
or standards are gatherable from the provisions of the statute. Where a statute
confers discretion upon a court, the statute may lay down the broad standards
or principles which should guide the court in the exercise of such discretion
or such standards or principles may be discovered from the object and purpose
of the statute, its underlying policy and the scheme of its provisions and
sometimes, even from the surrounding circumstances. When the court lays down
standards or principles which should guide it in the exercise of its
discretion, the court does not evolve any new standards or principles of its
own but merely discovers them from the statute. The standards or principles
laid down by the court in such a case are not 46 standards or principles
created or evolved by the court but they are standards or principles enunciated
by the legislature in the statute and are merely discovered by the court as a
matter of statutory interpretation. It is not legitimate for the court to
create or evolve any standards or principles which are not found in the
statute, because enunciation of such standards or principles is a legislative
function which belongs to the legislative and not to the judicial department.
(emphasis
supplied) 23.It is no doubt true that a two-Judges Bench of this Court in the
case of N. Gopal Reddy (supra) opined that the law laid down in Jabar Singh
(supra) requires reconsideration but the reference made could not be finally
decided as the petition became infructuous on expiry of the term of five years
and the parties having lost interest in view of that eventuality. Therefore,
the field continues to be governed by the position of law as laid down in the
Jabar Singh (supra). Since then there has been no change in the law regarding
the issue at hand.
24.It was
at one stage argued by the counsel appearing for the appellant that the concept
of counter-claim was for the first time inserted in the Code of Civil Procedure
in the year 1976 and therefore when Jabar Singh (supra) was decided, the
concept of counter-claim was not there and what was available was only a
concept of written statement and set-off. It is to be pointed out that though
it is true that there was no specific provision for raising a counter-claim by
the defendant in the written statement prior to 47 the amendment of the Code in
1976 but claims by way of counter claims were in fact raised and considered by
all the Courts including the Supreme Court of India which would be apparent
from a bare reference of the decision in the case of Jabar Singh (supra). It is
needless to point out that Section 97 of the Act bestows a right upon the
returned candidate to raise a defence when an additional claim under Section 84
of the Act is made by the election petitioner. Recrimination, as envisaged
under Section 97 of the Act, is nothing else but a counter-claim and this
concept was incorporated in the Act, which as noted earlier is a special Act,
even prior to 1976 when the provision of counter claim now contained in Order
VIII Rule 6A was inserted in the Code.
Therefore,
the aforesaid change brought in the Code, which is a general common law, would
not have any consequential effect so far as the present case is concerned. It
is thus apt to note that the concept of counter-claim was not foreign or
totally absent during the period prior to 1976.
25.In
view of the aforesaid position and also in view of the fact that there is a
specific provision in the Act to raise counter-claim with certain pre-conditions
and on certain specific conditions the provisions of Order VIII Rule 6A of the
Code cannot be invoked in view of the bar and prohibition enforced by Section
97 of the Act.
26.The
present petition is an election petition. In view of the mandate of Section
86(7), an Election Petition is required to be considered 48 and finally decided
within a period of six months. Two and a half years have already passed and the
matter is still pending in the Gauhati High Court and that too at a preliminary
stage. The instant situation is one which warrants urgent consideration by the
High Court.
27.In
view of the foregoing discussion, there is no merit in this appeal, and the
same is hereby dismissed, leaving the parties to bear their own costs.
.....................................
[Dr. Mukundakam Sharma]
New Delhi,
July 22, 2010.
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