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TMI Blog1968 (11) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... such a relief, the respondent No. 1 did not acquire any right to file the recrimination petition and as such, the recrimination petition is not maintainable in law. The respondent No. 2 further submits that the question is purely of law and does not need any additional evidence and goes to the root of the Jurisdiction of the Court to decide the recrimination petition. He prayed for raising and trying a preliminary issue to be framed as follows:--- Is the recrimination petition maintainable? 2. It may be stated at the outset that the present stand of the respondent No. 2 is inconsistent with his stand originally taken in the case. In his written statement filed in reply to the election petition, the respondent No. 2 entirely supported the petitioner's case. In para 15 of his written statement the respondent No. 2 stated as follows:-- This respondent, therefore, submits that the petition of the petitioner be allowed and the election of respondent No. 1 be declared void and it may be declared that this respondent has been duly elected to the House of the People from the Jhunjhunu Parliamentary Constituency. At that stage the respondent No. 2 not only supported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right of a voter petitioner, to claim additional relief. Secondly, he contended that on a proper construction of the language of Sections 81, 82, 84, 97 and 101 of the Act a voter petitioner should be held entitled to claim the additional relief that any candidate other than the returned candidate should be declared elected. 7. It is necessary in the first instance to notice the Supreme Court decisions containing observations with regard to the right of a voter petitioner to claim additional relief with a view to ascertain whether they lay down any binding law. Now, referring to the law relating to the binding effect of the opinions expressed by the Supreme Court, it must be stated that on considerations of judicial uniformity and judicial discipline the High Courts must accept as binding not only the ratio decidendi in the decisions of the Supreme Court but also the obiter dicta. At the same time, it will not be proper to give any unduly wide connotation to the expression obiter dicta so as to include any and every expression of opinion even though it may be casual and unconnected with the point arising in the case. In determining the binding nature of the expression of opi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andidates prepared and published by the returning officer in the manner prescribed under Section 38, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed. Such contesting candidates.......... There is no doubt that these observations assume the competence of an elector to claim an additional declaration that the petitioner himself or any other candidate be declared duly elected. A critical examination of the decision, however, shows that the main question for determination posed in the Supreme Court was What is the exact connotation of the expression 'contesting candidate' in Section 82 and whether a candidate whose name was included in the list of contesting candidates published by the returning officer under Section 38 but who retired from the contest under Section 55A(2) is included in that expression. After the general observations, Bhagwati, J. who spoke for the Court, discussed in detail the process of election as also the provisions of Part VI relating to the disputes regarding elections. In this connection, after stating where the petitioner claims suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the petitioner to abandon that part of the relief which claimed such further declaration so as to deprive the returned candidate or any other party to the petition of the right of recrimination which has thus accrued to him; or in other words, has the Election Tribunal the power to allow the petitioner to withdraw or abandon a part of his claim as aforesaid, thus rendering the exercise of the said right of recrimination nugatory? This question was answered in the negative on consideration of Sections 108 to 112 and Sections 90, 92 and 97 of the Act and Order 23, Rule 1, Civil P. C. Of course, the purpose of recrimination and the nature of election contest was also referred to. During the process of reasoning Bhagwati, J. who spoke for the Court, emphasised the publication of the petition in the official gazette and consequent notice to the constituency as also the interest of the constituency in the following terms:-- The whole constituency is thus alive to the fact that the result of the election duly declared is questioned on various grounds permitted by law with the likely result that the election of all or any of the returned candidates may be declared void and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... some force in this submission also and, in my opinion, under the law as it stands today this is an additional factor against treating the observations as having the force of a binding expression of opinion of the Supreme Court. The passage extracted from (1876) LR 1 CP 410 shows that the conclusion was reached on a consideration of some sections. The provisions of the English law are not before me and having not been placed by either side, and I am unable to attach much importance to this passage based upon the provisions of the English Statute Law, and the counsel for the respondent No. 1 cannot derive any assistance from this passage. 11. For all these reasons, I feel inclined to hold that the precise and the pointed controversy raised before me does not stand concluded by the decisions of the Supreme Court and it is necessary to adjudicate upon the controversy on first principles on an examination of the relevant statutory provisions, 12. At the outset it will be useful and convenient to refer to section 81 which provides as to who can present an election petition. Under this section undoubtedly an elector has been given a right to present an election petition. The contro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e presented and there is a reference to Sections 100 and 101 in Section 81 of the Act. The reference to both the sections indicates that the legislature contemplated both the declarations in Section 81. At this stage, I may refer to an argument advanced by Mr. Pai in this connection. It was submitted by him that Section 100 only contemplates the grounds on which an election petition should be based. Section 101 does not really refer to grounds but to the findings to be arrived at by the High Court. He emphasised the expression the High Court is of opinion preceding Clauses (a) and (b) stated to be grounds of the election petition. I have not been very much impressed by this argument. I may immediately point out that Section 100 which admittedly refers to the grounds of the election petition contains the same expression the High Court is of opinion . Section 101 also purports to contain the grounds for which a candidate other than the returned candidate may be declared. It must, however, be borne in mind that Sections 100 and 101 of the Act overlap to some extent. In the first instance, the relief for additional declaration referred to in Section 101 can be available only on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. According to Mr. Bobde, the expression he himself or any other candidate must refer to contesting candidates. Reliance was placed by him in this connection upon Har Swarup v. Brij Bhushan Saran, AIR 1967 SC 836 where the expression any other candidate in Section 82(a) of the Act was held to mean any other contesting candidate . Co-relating the pronoun he himself to the noun the petitioner for which they have been used, he submits that the petitioner in Section 84 is intended to be one of the contesting candidates. It was further submitted that any other candidate following the pronoun he himself apparently have been used to distinguish candidates other than the petitioner from the petitioner represented by he and that the petitioner and the other candidates represent the contesting candidates other than the returned one and the additional prayer is for declaring the return of one of this class of candidates. 16. As against this, the submission of the learned counsel for the respondent No. 1 is that Section 84 of the Act contains co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssibility of a petitioner being either a voter petitioner or a candidate petitioner and consequently, provided for the exclusion of the petitioner from the list of respondents in case he was a candidate duly nominated by adding the words other than himself if he was so nominated . Referring to the present section, the counsel for the Respondent No. 2 pointed out that the legislature did not think it proper to add similar words, such as, if he was a contesting candidate after the words candidates other than the petitioner . The omission, according to him cannot be easily brushed aside. According to him, the expression all the contesting candidates other than the petitioner form a class of all contesting candidates other than the returned candidate and the legislature thought it necessary to exclude the petitioner from the array of respondents by using the words other than the petitioner . In connection with the claim for additional declaration, the legislature assumed the petitioner to be one of the contesting candidates and provided for his exclusion from the list of respondents. Mr. Bobde also interpreted he himself or any other candidate in the same manner as was done ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a general declaration in which the constituency as a whole may be directly interested. The additional declaration that either the petitioner or some other person has been duly elected, is not of such a general character. It is personal in the sense that the petitioner joins a direct controversy with the returned candidate and wants Ms election to be set aside and further desires a declaration as to the return of himself or some other contesting candidate. The constituency as a whole is not much directly interested in such controversy. Besides, in such controversy the interests of the contesting candidates are directly involved and if none of the contesting candidates, including the person who thinks that he should have been declared, comes forward to claim a declaration which in a sense is of a personal character, it will be proper to allow the matter to be closed rather than to permit an elector to raise any such controversy. Instead of safe-guarding the purity of election, such a course is likely to encourage benami election petition at the instance of the defeated candidates likely to affect the purity of the judicial proceedings. 4. It may also be stated that under the Rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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