Judgment

SARKARIA, J. :- The principal question that falls to be determined in this appeal on certificate, is: whether in an election petition under the Delhi Municipal Corporation Act, 1957 (for short, the Corporation Act), for getting an election declared void and for a further declaration that the petitioner himself had been duly elected, the returned candidate is entitled to plead and prove that the petitioner was guilty of corrupt practice in the election in question, and was therefore not entitled to be declared as duly elected?

2. The material facts bearing on this question may now be stated:

The elections to the Delhi Municipal Corporation were held on May 2, 1973. Appellant, Banwari Dass, and Sumer Chand, Respondent 1 and others contested the election from Ward No. 51. The appellant secured 3974 valid votes as against 3882 valid votes obtained by Respondent 1. The appellant was declared duly elected.

3. Respondent 1 filed an election petition under S. 15 of the Corporation Act before the Election Tribunal (District Judge) to challenge the election inter alia on the ground of corrupt practices particularised in para 9 of the petition. Apart from getting the election of the returned candidate declared void, election-petitioner prayed that he be declared duly elected to the Municipal Corporation under Section 19 (1) (c) of the Corporation Act.

4. In his written statement, the Returned Candidate raised some preliminary objections (which have not been pressed before us) and traversed the allegations in the election petition. He further pleaded under the caption "Additional Pleas" that since the petitioner was guilty of the corrupt practices, particularised in the written statement, he had become disentitled to be declared elected.

5. The District Judge held that the appellant was not entitled to plead and prove in reply to the election petition that the petitioner was also guilty of corrupt practices. To impugn those orders of the District Judge, the appellant moved the High Court by a writ application under Article 226 of the Constitution. The learned Single Judge who tried the application negatived the contention of the appellant and dismissed the writ application with these observations:

"The petitioner may show that the Respondent No. 1 did not obtain a majority of valid votes. This is the legitimate defence. But he cannot go further and show that even if the Respondent No. 1 has obtained a majority of votes, the Respondent No. 1 is not entitled to be declared to be duly elected candidate because he committed corrupt practices. An election petition to declare the election of a returned candidate void lies only when the election is notified and published under Section 14 of the Act. Since the election of the Respondent No. 1 has not been so published under section 14 of the Act. the petitioner does not have the right to challenge it by proving corrupt practices against Respondent No. 1".

6. Aggrieved, the appellant carried an appeal under Cl. 10 of the Letters Patent to the Division Bench of the High Court. The Bench dismissed the appeal holding that in the absence of a specific provision in the Corporation Act corresponding to S. 97 of the Representation of the People Act, 1951, the Returned Candidate is not entitled to recriminate on the grounds contained in S. 17 of the Corporation Act. It was noticed that if at all there was a conscious omission in the Corporation Act about the Returned Candidate s right to recriminate, the Court was not empowered to supply that omission. The High Court, however, granted the certificate under Art. 133 (1) of the Constitution. Hence this appeal.

7. According to the relevant statutory provisions in Chapter II of the Corporation Act, the Councillors are chosen by direct election on the basis of adult suffrage from various wards into which Delhi has been divided. The normal term of office of a Councillor is four years from the date of publication of the result of his election. The persons entitl