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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 ..... Since the petitioner could not in law, claim 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." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pon some observations in the Supreme Court decisions indicating the 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idates whose names were included in the list of contesting candidates 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 elec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme Court formulated the question requiring determination as follows: "Would it then be open 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act in the year 1966. According to him, the observations relied upon cannot have any importance under the present law. I find 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 ele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 13. The counsel for the respondent No. 1 however submitted in answer that Section 81 of the Act also provides the grounds on which an election petition can be 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 mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 82 of the Act whose language has been very much relied upon by Mr. Bobde. Section 84 of the Act reads as follows:--- "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." 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 candi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition." Originally Section 82 of the Act was worded as follows:-- "A petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated." The language of the section, while using the expression "all the candidates who were duly nominated at the election" contemplated the possibility 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 return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions by using the words "other than the petitioner" after "contesting candidates". I find it difficult to disregard the plain and clear implications following from the language of Section 82 of the Act either by reference to the composite nature of the provision or on consideration arising out of Section 81, having given the elector a right to present an election petition. 3. I may also observe that a voter calling in question the election of the returned candidate and claiming no additional relief is seeking 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 contesti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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