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Supreme Court of India
THE HONOURABLE MR. JUSTICE DR. MUKUNDAKAM SHARMA & THE HONOURABLE MR. JUSTICE V. S. SIRPURKAR
Md. Alauddin Khan
Versus
Karam Thamarjit Singh
Civil Appeal No. 5851 OF 2010 (Arising out of SLP (C) No. 13565 of 2008)
Decided on : 22-07-2010
(a) Representation of the People Act, 1950 – Section 97 – Recriminatory plea – Suggestion that votes cast in name of dead persons in all constituencies, particularly the named polling stations should be deleted or held to be void votes – Not recriminatory plea under section 97. (Para 10, 11)
(b) Representation of the People Act, 1950 – Sections 100(1) (d) (iii), 84 and 97 – Recount of votes – Deletion of votes cast in name of dead persons – Respondent suggesting recount of votes of only returned candidate – Will not give true picture of who obtained the majority votes – Reasonable to delete all such votes. (Para 14)
(c) Representation of the People Act, 1950 – Sections 84 and 97 – Election petitioner not praying for declaring himself or any other candidate as elected – Sections 84 and 97 not applicable. (Para 15)
AIR 1964 SC 1200; AIR 1959 M.P. 58; 22 Election Law Reports 288 SC; (1987) 2 SCC 58; (1973) 2 SCC 170; (1984) 1 SCC 91; (1979) 4 SCC 516; (1985) 1 SCC 61 – Referred
(d) Representation of the People Act, 1950 – Section 100 (1) (d) (iii) – Expression "the reception of any vote which is void" – Void votes have to be excluded – True position as regards majority of votes could be obtained only after recount of all votes in all polling booths by avoiding void votes – Counting of votes avoiding void votes only in named polling booths – Not proper. (Para 24)
(e) Representation of the People Act, 1950 – Section 97 r/w Order VIII, Rule 6A, Code of Civil Procedure, 1908 – Recriminatory plea – Cannot be raised in absence of prayer for any declaration – Instantly, appellant’s plea is mere plain defence that, the recount should be of all the votes and not of the votes cast only in his favour – His further plea being that for that purpose, he should 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 – Not a recriminatory plea – A valid defence. (Para 25, 26, 27)
AIR 1964 SC 1200 – Referred
Per Dr. MUKUNDAKAM SHARMA, J.
(f) Representation of the People Act, 1950 – Section 97 r/w Order VIII Rule 6A, Code of Civil Procedure, 1908 – Appellant raising a counter claim – Election petitioner not raising any claim for declaration – Recrimination/counter claim not permissible – When recrimination/counter claim is not permitted under section 97, it cannot be permitted under Order VIII Rule 6A (Para 16, 18)
AIR 1964 SC 1200 : (1964) 6 SCR 54; AIR 1982 SC 983 : (1982) 1 SCC 691 – Relied upon
(2003) 5 SCC 650; (1972) 1 SCC 826; (1975) 2 SCC 447 – Referred
(g) Representation of the People Act, 1950 – Section 97 and Order VI, rule 6A – Section 97, a provision under a special Act – Shall prevail over Order VI, rule 6A, provision of general law. (Para 19
(1979) 1 SCC 560 – Relied upon
(h) Representation of the People Act, 1950 – Section 87 – Applicability of CPC – Only those provisions of CPC for which there is no corresponding provision in the Act could be made applicable. (Para 20, 25)
AIR 1964 SC 1200 : (1964) 6 SCR 54; (2003) 5 SCC 650 – Relied upon
(1975) 2 SCC 447 – Distinguished
(1987) 2 SCC 58; (1982) 3 SCC 24 – Referred
Facts of the case:
The election petitioner was a losing candidate and he had lost his election by merely two votes. He filed election petition praying for the following:
(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 the facts and circumstances of the case."
The winning candidate filed an application seeking a direction to the election petitioner to clarify the exact relief sought for in prayer Nos.(iv) and (v).
It was held that, under clause (v), the Court could grant only such reliefs or pass such reliefs which were ancillary to the election petition and no specific declaration could be made in favour of the election petitioner or any other candidate and resultantly, the elected candidate could not raise a defence that the election petitioner had secured votes which were void and hence, the appellant had secured more votes and was rightly elected.
Per Dr. MUKUNDAKAM SHARMA, J.
The short question that falls for consideration in the present appeal is: when there is no provision and right vested in the returned candidate to file a recrimination petition due to absence of a prayer by the election petitioner in the election petition seeking for his declaration (or any other candidate) as a returned candidate, can the returned candidate in his written statement take up pleas which are in fact counter claims with the aid of Order VIII, Rule 6A of the Code?
Finding of the Court:
The Hon’ble judges differed in their opinion.
Result:
Matter referred to larger Bench.
Judgment :
V. S. SIRPURKAR, J.
1. I have had the benefit of the opinion expressed by my brother. Since the facts in this appeal have been meticulously put in that judgment, I need not restate them. It is held in that judgment that the order passed by the Learned Single Judge deleting paragraphs 22 to 31 from the written statement of the elected candidate in pursuance of the application filed by the election petitioner under Order VI Rule 16, Code of Civil Procedure is correct. With deepest respect to my brother, I find myself unable to agree with the view taken, as also the ultimate order passed in pursuance of that view. 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 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, which declaration can be given under Section 101 of the Representation of the People Act, 1950. The Learned Judge, therefore, held that, under clause (v), the Court could grant only such reliefs or pass such reliefs which were ancillary to the election petition and no specific declaration could be made in favour of the election petitioner or any other candidate and resultantly, the elected candidate could not raise a defence that the election petitioner had secured votes which were void and hence, the appellant had secured more votes and was rightly elected.
5. By way of defence, the appellant herein, who was an elected candidate, has enumerated from paragraphs 22 to 31 that even the defeated candidate had not secured the votes which have been shown to have been cast in his favour as, even in his case, number of dead voters had cast votes; besides, numbers of votes were illegally counted in his favour. He, therefore, raised a question that, if at all recount had to be ordered, the votes of all the candidates who contested the election should be counted.
6. In paragraph 21, it was suggested in the following words that:
"as provided and regulated by the procedure of CPC, the present answering respondent has hereby sought for raising counter claim as to the maintainability of the total number of votes obtained by the election petitioner".
7. In paragraph 22, details have been given regarding four polling stations, namely 6/1, 6/2, 6/3 and 6/4 suggesting the number of persons voted, who were, in fact, dead or who could not have otherwise cast their vote and also gave names of the persons who had impersonated the dead persons and had cast their votes. In these paragraphs, more particularly, paragraph 28 says that, in the alternative, if the High Court has to direct the recounting, the High Court should also direct recounting of the void votes of polling station Nos. 6/1, 6/2, 6/3 and 6/4 and cancel them. In short, the content
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