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TMI Blog2010 (7) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... iew. 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was to make a recount of all the votes cast of all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocess 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 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 defeate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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 reported decision in the case of Inayatullah Khan Vs. Diwanchand Mahajan [AIR 1959 M.P. 58] as well as the decision of this Court in the case of Bhim Sen Vs. Gopali [22 Election Law Reports 288 SC], both 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 on account of the earlier judgment by this Court in the case of Bhim Sen Vs. Gopali [cited supra]. Before this Court, appellant Jabar Singh contended that, in fact, 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 cand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 formulate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '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 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) obviousl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 Jabar Singh Vs. Genda Lal (cited supra). However, in view of the 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 reconsidered. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lling 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 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 purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 majorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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. JUDGMENT 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 tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments, 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 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 exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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." 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turned 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, relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 recr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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