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Hukam Singh Vs. Suraj Bhan Roshan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberElection Petn. (Recrimination) No. 4 of 1972
Judge
Reported inAIR1973Delhi234
ActsPeople Act, 1951 - Sections 97(2)
AppellantHukam Singh
RespondentSuraj Bhan Roshan Lal and ors.
Appellant Advocate M.K. Ramamurthi and; C.N. Murthy, Advs
Respondent Advocate R.P. Bansal and ; B.R. Sabharwal, Advs.
Cases ReferredJabar Singh v. Genda Lal
Excerpt:
.....polling as whole - recrimination petition lacks statement of material facts and particulars - returned candidate not allowed to lead evidence by way of recrimination - held, petition cannot be treated as recrimination petition under section 97. - section 13: [altamas kabir & cyriac joseph,jj] custody of child - welfare of child vis--vis comity of courts - the minor girl child of 3 1/2 years was brought to india by her mother. the minor girl was a citizen of u.k. being born in u.k. her parents had set up their matrimonial home in u.k. and had acquired status of permanent residents of u.k. the child with her mother was supposed to return to u.k. but the mother cancelled her tickets and remained behind in india. the husband thereupon started procededings before the high court of..........were to hold that. there has been an improper reception or rejection of votes or reception of void votes, that there have been violations of statutory provisions by the returning officer, the counting staff or other officers of that officers or that other illegalities or irregularities have been committed as alleged in the election petition no.1 of 1972, then. and in that event; the election of the first respondent would be void if he had been the returned candidate and petition had been presented calling in question the first respondent's election as the said illegalities irregularities errors and violation of statutory provisions would completely vitiate the polling as also the counting and further would equally affect the declaration of the results made on the basis thereof'.4......
Judgment:
ORDER

1. In the election held in March, 1972 to Delhi Metropolitan Council. Hukam Singh was declared duly elected from the Najafgarh Metropolitan Constituency, No. 2, Suraj Bhan. his closest rival, filed an election petition, being election petition No. 1 of 1972, in this Court challenging his election. Hukan Singh thereafter gave notice to this Court of this intention to give evidence to prove that the election of Suraj Bhan would have been void if the had been the returned candidate. Along with the said notice. Hukam Singh filed treasury receipt showing his having deposited the required security and a statement said to be under Section 97(2) of the Representation of People Act. 1951, herein called 'the Act'. Suraj Bhan, the election petitioner, has raised objections, inter alia, that the recrimination petition is liable to be dismissed for want of disclosure of a cause of action. Particulars under Section 83 of the Act. Which are required to be furnished, are said to be missing. As such it has been prayed that 'Recrimination Petition' be dismissed. the question, thereforee, arises; Whether the petition date May 10, 1972, filed by Hukam Singh is a petition, which complies with the requirements of Section 97 of the Act.

2. Under Section 97 of the Act, hen in his election petition, Suraj Bhan sought a declaration that he has been duly elected, the returned candidate (Hukam Singh) has been given an option to give evidence to prove that the election of Suraj Bhan would have been void if he had been the returned candidate and a petition had been presented calling in question his election, provided Hukam Singh within fourteen days from the commencement of the trial, gives a notice of his intention to give such evidence along with the statement and particulars required by Section 83 of the Act. The statement and particulars, which he is required to file. in other words. have to be sort of an election petition itself, which has to be judged by the same standards by which an election petition by the unsuccessful candidate is judged. Humak Singh, in this case. Has within 14 days given such a notice dated May 10, 1972 of his intention to give such evidence. It is also mentioned in the said notice that the 'statement and particulars prescribed under Section 83 or the Act duly signed and verified by Hukam Singh' are enclosed. In the first two paragraphs of the said statement and particulars. referred to herein as 'the recrimination petition'. Hukam Singh has stated that Suraj Bhan has filed the election petition No. 1 of 1972 challenging his election. inter alias on the grounds that there was improper reception. refusal or rejection of votes, reception of votes which were void and non-compliance with the provisions of the Constitution and the Representation of the People Act. 1951 and the rules framed and orders made there under form time to time. Claim of Suraj Bhan has also been mentioned to the effect that he received a majority of valid votes for which reason he has claimed the reliefs stated in the election petition. Paras 3 and 4 of the recrimination petition refer to the written statements which have been filed to the said election petition. Paragraph 5 has been divided into four parts. In the first part. reference has been made to paragraphs 13 to 16 of the election petition. which according to may order dated November 13, 1972, have not to be taken into consideration for framing issues in the case. The second part then deals with the allegations made in paragraph 18. I have already ordered the deletion of this paragraph except clause (c) thereof. In part 3, reference has been made to the allegations in the election petition that number of persons whose names are said to have been particularised in annexure 'A' to the election petition did not come for casting the votes. but some other persons impersonated for them and cast the votes. Reference is made to the allegation in the election petition to the effect that reception of these 145 votes was void. In part 4, reference is made to the allegations in the election petition that in so far a Hukam Sigh. The recriminating petitioner, was concerned, his election was said to have 'been materially affected by the violation of the provisions' of the Act and the rules and orders framed there under.

3. In paragraph 6, the recriminating petitioner denies the facts, contentions and submission set out in the election petition. In paragraph 7, reference has been made to judgment of the Supreme Court in Jabar Singh v. Genda Lal, : [1964]6SCR54 of the recrimination petition reads as follows;

'Without prejudice to the contentions and submissions of the petitioner in his written statement filed in the case, election petition No. 1 of 1972. the petitioner submits that in the event of this Hon'ble Court were to hold that. There has been an improper reception or rejection of votes or reception of void votes, that there have been violations of statutory provisions by the Returning Officer, the Counting Staff or other officers of that officers or that other illegalities or irregularities have been committed as alleged in the election petition No.1 of 1972, then. and in that event; the election of the first respondent would be void if he had been the returned candidate and petition had been presented calling in question the first respondent's election as the said illegalities irregularities errors and violation of statutory provisions would completely vitiate the polling as also the counting and further would equally affect the declaration of the results made on the basis thereof'.

4. Rest of the paragraphs are formal and need no comment. In : [1964]6SCR54 particularly referred to in paragraph 7 of the recrimination petition, the Supreme Court observed in para 11 as follows:

'Section 97(1) thus allows the returned candidate to recriminate and raise pleas in support of his case that the other person in whose favor a declaration is claimed by the petition cannot be said to be validly elected and these would be pleas of attack and it would be open to the returned candidate take these place because when the recriminates he really becomes a counter-petitioner challenging the validity of the alternative candidate. The result of section 97(1) thereforee. is that in dealing with a composite election petition. the Tribunal enquires into not only the case made out by the petitioner. but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97(1). It is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by section 97(1) proviso and Section 97(1). If the returned candidate does not recriminate as required by Section 97, then he cannot make any attack against the alternative claim made by the petition. In such as case an enquiry would be held under Section 100 so far as the validity of the returned candidate's election is concerned. and if as result of the said enquiry declaration is made that the election of the returned candidate is void then the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned candidate will not be allowed to lead nay evidence because he is preclude from raising nay pleas against the validity of the claim of the alternative candidate.'

The statement of recrimination referred to in sub-section (2) of Section 97 is, thus. as has been observed even by the Supreme Court tin effect an election petition. This is on the supposition that the unsuccessful candidate who claims a declaration that he has been duly elected. is the successful candidate. While the recriminating candidate is the election petitioner. The recrimination petition is thereforee, to conform to the provision s regarding the contents of an election petition. sub-section (2) of Section 97 specifically requires that particulars referred to in Section 83, which are required to be given in the case of an election petition. Have to be included in the recrimination petition. As the claim in the recrimination petition is that the election of the candidate claiming to have been duly elected would be void. The grounds for declaring the election void prescribed in Section 100 of the Act have to be invoked.

5. Paragraph 8 (reproduced above) is the only paragraph in the recrimination petition. Which can be said to contain the grounds on which Human Singh relies for his relief. But this paragraph does not give nay grounds on which the election of Suraj Bhan in case he is declared to be elected, could be said to be void. The paragraph simply says that if this Court holds that there has been improper reception or rejection of votes or reception of void votes or violations or reception of void votes or violations of statutory provisions or commission of other illegalities, or irregularities as alleged in the election petition No.1 of 1972. then, and in that event. The election of Suraj Bhan would be void. if he had been the returned candidate as the said 'illegalities, irregularities errors and violations of statutory provisions would completely vitiate the polling as also the counting and further would equally affect the declaration of the results made on the basis thereof.' The recriminating petitioner. thus. appears to be attacking the polling and counting in general. In fact. he does not attack the polling in favor of Suraj Bhan at all. He does not say that the alleged illegalities or irregularities have been committed in favor of Suraj Bhan; or that the reception of void votes was in favor of Suraj Bhan. No particulars or facts to support any of the grounds mentioned in Section 100 of the Act are relied upon by him. He simply banks upon the possibility of the polling in general being held by this Court to be vitiated on account of the allegations of illegalities or irregularities mentioned in the election petition. As is clear in the passage from the judgment of the Supreme Court extracted above. the recrimination petition is meant to be a statement of peas of attack against the candidate who is claiming a declaration in his favor. To illustrate. the petitioner could have stated facts showing the commission of any corrupt practice by Suraj Bhan or showing that certain votes cast in his favor are invalid and should not have been counted in his favor. But. there is no such attack in the recrimination petition. No allegation is made nor any facts stated.

6. Mr. Ramamurthy contended that according to the Supreme Court the trail of the recrimination petition is to be held only after the election of Suraj Bhan (Hukam Singh ?) has been declared void. He. thereforee. contended that the recriminating petitioner would file the details of the grounds on which he seeks the election of Suraj Bhan. if he were declared to be elected to be void only at that time. He relied upon a passage in paragraph 13 of the judgment of the Supreme Court in Jabar Singh's case. : [1964]6SCR54 which reads as follows :--

' If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favor of the alternative candidate or his votes wrongly rejected. the those pleas may have to be tried after a declaration has been made under Section 100 and the matter proceeds to be tried under Section 101(a). In other words. the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by Section 100(1)(d)(iii) and the latter part of the enquiry which is governed by Section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under Section 97(1).'

7. I am afraid. the observations of the Supreme Court referred to above. do not help Mr. Ramamurthy at all. On the other hand the opening and the concluding words of this quotation show that this observation is applicable to a case. 'if the returned candidate has recriminated and has raised pleas in regard to the votes cast in favor of the alternative candidate or his votes wrongly rejected.' It is then that he can lead evidence 'in support of the pleas, which he may have taken by way of recrimination.' In the present case. Hukam Singh has neither raised pleas in regard to the votes cast in favor of Suraj Bhan nor in regard to the votes cast in his own favor. which may be said to have wrongly rejected, nor has he relied on any corrupt practice. which Suraj or his election agents may be said to have committed. In fact, no pleas has been raised in regard to any of the grounds for declaring the election of Suraj Bhan, void. If he were declared to be elected. Nor material facts nor any particulars as are required by Section 83 of the Act have been given in this regard. His petition cannot be said to be recrimination petition under Section 97 of the Act and cannot be treated as such. Merely relying on the possibility of the court holding some illegalities or irregularities alleged in the election petition. as having been committed. would not be enough, even if they may tend to vitiate the polling as a whole. For. it is necessary for the claimant to establish that the result of the election in so far as it concerns the returned candidate (or who would be deemed to be a returned candidate). has been materially affected by such illegality or irregularity. Facts and particulars must be stated to show that it has been so materially affected. In the circumstances . the recrimination petition of Hukam Singh lacks a statement of material facts and particulars on which he can be said to rely; and as such cannot be treated as a recrimination petition under Section 97 of the Act.

8. In the result, no separate issues arise in the said election petition (recrimination) No. 4 of 1972 and Hukam Singh. the returned candidate cannot be allowed to lead any evidence by way of recrimination. The said petition stands dismissed. There shall be no order as to costs.

9. Petition dismissed.


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