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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 ..... 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, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eed 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 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 adopt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 where there is no prayer made under Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, 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 not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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) 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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 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 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 servi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dant 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 dispute, if any, concerning the election is regulated by the Representation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ode 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 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) t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Jaba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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