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Banarsi Dass Garg Vs. Sumer Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 289 of 1972
Judge
Reported in10(1974)DLT73
ActsDelhi Municipal Corporation Act, 1957 - Sections 15; Delhi Municipal Corporation (Election of Councillors) Rules, 1962 - Rule 80; Representation of People Act, 1951 - Sections 17
AppellantBanarsi Dass Garg
RespondentSumer Chand and ors.
Advocates: K.L. Sharma,; D.D. Chawla and; C.L. Choudhry, Advs
Cases ReferredIn Shankar Babaji Savant v. Sakharam Vithoba Salunkhe and
Excerpt:
.....rules, 1962 - compliance of provisions of section 15 and rule 80 for entertaining petition under rule - election petition contains statement of facts setting grounds for dismissal of election under section 15 - rule 80 requires additional particulars which substantiates grounds - rule 80 additional to section 15 not part of it - non-observance of rule 80 does not attract rule 81. - - (6) shri sharma confined his challenge before us to the findings of the learned single judge on questions 1, 3 and 4 only and contended that in answer to the first and the third question the learned single judge should have held that rule 80 was an integral part of section 15(4) and when the petitioner challenged the election on the ground of corrupt practice, his failure to set forth in the petition..........was entitled to claim, in addition to a declaration that the election of all or any of the returned candidates was void, a further declaration that he himself had been duly elected and that according to sub-section (2) of section 19, the court, after declaring the election of the returned candidate to be void, had also the jurisdiction to declare the petitioner to be duly elected and such a declaration under section 21 would be final, so that the combined reading of these provisions showed that the court trying the election petition had also the jurisdiction to finally declare the petitioner to be duly elected. this, the learned counsel argued, the district judge could not do until the opposite party was allowed to raise pleas in defense that the petitioner was himself guilty of.....
Judgment:

S.N. Shankar, J.

(1) This appeal under clause 10 of the Letters Patent is directed against the order of Deshpande, J. dated November 27, 1972, dismissing the writ petition field by Banarsi Dass Garg, appellant herein, assailing the orders dated September 18, 1971 and October 29, 1971, passed by the District Judge, Delhi in election petition No. 6 of 1971 by which objections of the appellant as to maintainability of the petition were dismissed.

(2) Elections to the Delhi Municipal Corporation were held on May 2, 1971. From Ward No. 51, Sumer Chand respondent No. 1 in this appeal and Banarsi Dass Garg, appellant herein, contested the election along with the other respondents to this appeal. The appellant secured 3974 valid votes as against 3882 valid votes secured by respondent No. 1. The appellant was declared duly elected. Respondent No. 1 challenged this election by election petition No. 6 of 1971 before the District Judge under section 15 of the Delhi Municipal Corporation Act, 1957 (hereafter called 'the Corporation Act'), amongst others, on the ground that the appellant was guilty of corrupt practices which were mentioned in para 9 (a) (b) (c) and (d) of the petition. Respondent No. 1 also prayed that after declaring the election of the appellant to be void, respondent No. 1 be declared to be duly elected under Section 19(1)(c) of the Corporation Act. The appellant in reply contended that particulars of these corrupt practices envisaged by rule 80 of the Delhi Municipal Corporation (Election of Councillors) Rules, 1962 (hereafter called 'the Rules') framed under the Act were not stated in the petition and that the verification of the petition and its annexures was also not in accordance with sub-rule (2) of rule 80 of the Rules. The petition, for these reasons, it was contended, deserved to be dismissed under rule 81. Alternatively, the appellant further pleaded that if his election was declared to be void, he was entitled to show that respondent No. 1 was also guilty of corrupt practices and he could not be granted the declaration that he was duly elected as prayed for by him in the petition.

(3) The learned District Judge, by his order dated September 18, 1971, held that there was no non-compliance with the mandatory provisions of section 15(4), but respondent No. 1 should furnish additional particulars of the corrupt practices urged by him in para 9(b)(c) and (d). He also held that the appellant was not entitled to urge and prove in reply that the respondent was guilty of corrupt practices. In compliance with the order requiring additional particulars, respondent No. 1 filed some further particulars but on objection they were found to be still incomplete. By order dated October 29, 1971, the learned District Judge directed the respondent to furnish still further particulars. Aggrieved from these two orders the appellant filed the writ petition which has given rise to this appeal. The following points were canvassed before the learned single Judge in support of the prayer that the orders be quashed:-

1.That the election petition of respondent No. 1 did not set forth the ground or grounds on which the election was called in question with sufficient particulars as required by section 15(4)(b) 2. That the annexures to the election petition of respondent No. 1 were not verified in the same manner as a pleading is verified as required by rule 80(2) 3. That the election petition of respondent No. 1 was liable to be dismissed under rule 81 for non-compliance with section 15(4)(b) and rule 80? 4. That the petitioner (appellant herein) was entitled to show that respondent No. 1 was guilty of corrupt practices and that he should not be declared to be the duly elected candidate ?

(4) The learned single Judge held that the election petition did set forth grounds with sufficient particulars as required by section 15(4)(b) and that the verification of the annexures read with the verification of the election petition constituted sufficient compliance with the provisions of sub-rule (2) of Rule 80 and the petition, thereforee, was not liable to be dismissed under rule 81. He also held that the appellant had no right to prove corrupt practices against respondent No. 1.

(5) Shri K. L. Sharma argued the case on behalf of the appellant and Shri D. D. Chawla appeared for respondent No. 1. Shri S. N. Marwah was also allowed to intervene as it was stated that another matter filed through him involving the same points was pending decision in the High Court and the decision in this appeal was likely to affect that case.

(6) Shri Sharma confined his challenge before us to the findings of the learned single Judge on questions 1, 3 and 4 only and contended that in answer to the first and the third question the learned single Judge should have held that rule 80 was an integral part of section 15(4) and when the petitioner challenged the election on the ground of corrupt practice, his failure to set forth in the petition particulars of corrupt practice envisaged in rule 80 constituted non-compliance with section 15(4) and called for dismissal of the petition under rule 81. Under question No. 4, he maintained that the answer should have been that the appellant was entitled to show and prove corrupt practice against respondent No. 1. In other words, he maintained, the appellant was entitled to recriminate.

(7) Provisions relevant for the decision of the contention relating to questions 1 and 3 are sections 15(4) and 31(k) of the Corporation Act and rules 80 and 81 of the Rules. Section 15 provides for election petitions for settlement of disputes regarding elections. Subsection (4) of this section deals with contents of such a petition. It reads as under :-

'(1)........................ (2) ........................ (3) ........................ (4) An election petition- (a) shall contain a concise statement of the material facts on which the petitioner relies ; (b) shall with sufficient particulars, set forth the ground or grounds on which the election is called in question; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure. 1908, for the verification of pleadings.'

(8) Section 31 confers powers on the Central Government to make rules to provide for or regulate all or any of the matters specified in clauses (a) to (k) of the section for the purpose of holding elections of councillors and aldermen under the Act. Clauses (a) to (j) authorise the Central Government to make rules in respect of matters specified therein. Clause (k) is in the nature of a residuary clause conferring further powers in the following terms :-

31.'(k) any other matter relating to elections or election disputes in respect of which the Central Government deems it necessary to make rules under this section or in respect of which this Act makes no provision or makes insufficient provision and provision is, in the opinion of the Central Government, necessary.'

(9) In exercise of powers conferred by this section the Central Government has made the Rules in question. Rules 80 and 81 read as under:

80.'(1) Where the petitioner alleges any corrupt practice, an election petition shall, in addition to complying with the provision of section 15 also set forth full particulars of that corrupt practice including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each corrupt practice and shall also be accompanied by an affidavit in the prescribed form in support of such corrupt practice and the particulars thereof. (2) ........................'

81.'If the provisions of section 15 or rule 89 are not complied with, the court shall dismiss the petition: Provided that the petition shall not be dismissed without giving the petitioner an opportunity of being heard.'

(10) Respondent No. 1, as stated earlier, challenged the election of the appellant on the ground of corrupt practices which, he alleged in paragraph 9, cla.uscs (a) to (d) of the petition. In clause (a) he alleged that on April 23, 1971, Ram Rattan Sharma, Secretary, Bhartiya Jana Sangh Mandal, with the consent of the appellant took out a poster entitled 'MORI Gate Ki Janta Faisla KARE'. The details with regard to the publication of this poster were given in the clause. The date on which this poster was pasted and distributed and the person who distributed them was also mentioned in it. In clause (b), it was alleged that the appellant took out an election bulletin Annexure P 2, printed at Lahore Press, Delhi and get it widely published. In clause (c) the allegation was that the appellant got published an article in 'YAG DARSHAN' Annexure P. 3, bearing the date 23rd April, 1971, and had it widely distributed throughout the ward. In clause (d) it was alleged that the appellant had printed and published from his own press a leaflet Annexure P 4 in the name of Baldev Raj Chhabra and got it widely distributed. The appellant in reply raised no objection as to sufficiency of the particulars in clause (a) but in reply to clauses (b), (c) and (d), maintained that the allegations were vague. In answer to clause (b), it was urged that the names of persons through whom the respondent got the bulletin published were not mentioned. In reply to clause (c) it was contended that 'allegations relating to the alleged article's publication and distribution are incomplete as regards the time or occasion when it so happened'. Regarding clause (d) the objection was that 'the names of the persons who actually published the alleged leaflet and in what capacity the alleged distributors were connected with respondent No. 1 have not been set out. Also, the time and place of such distribution are not given'. It was not disputed before us, and Shri Sharma frankly conceded, that the allegations made in clauses (a) to (d) fully complied with the requirements of section 15(4) and to that extent the finding of the learned single Judge was correct but he argued that as they were deficient in so far as rule 80 was concerned and because rule 80 was an adjunct to or a part of section 15(4), the non-compliance of rule 80 also should have been held by the District Judge and the learned single Judge to be non-compliance with section 15 to attract the penalty of dismissal of the petition under rule 81.

(11) We see no warrant for this contention of the learned counsel. Corrupt practice is one of the grounds under section 17 on which an election can be declared to be void. Section 15(4) requires that the election petition shall contain a concise statement of material facts on which the petitioner relies and that it shall set forth with sufficient particulars the ground or grounds on which the election is called in question. If this is done, section 15 is fully complied with. Rule 80 then requires additional particulars to be set forth. This is because the mere setting forth of the ground of corrupt practice with sufficient particulars and a concise statement of material facts of this plea, in a given case, may not be, as in the present case, sufficient turn a fair trial of the issue raised. To avoid embarrassment at trial in such a case, the Central Government, thereforee, by framing rule 80, prescribed that the party pleading corrupt practice shall also set forth the additional particulars mentioned in the rule. This, the Central Government did because it considered that the Legislature in Section 15(4) made no provision or insufficient provision from the point of view of trial in so far as the ground of corrupt practice was concerned. The additional particulars prescribed by rule 80 are thus particulars in addition to and apart from the particulars required by section 15. This is also clear by the words 'in addition to complying with the provisions of section 15' occurring in the rule. For purposes of rule 81, thereforee, rule 80 cannot be considered to be a part of section 15(4) and non-observance of this rule will not attract rule 81 to entail the penalty of dismissal.

(12) This conclusion is also supported by the significant omission of the mention of rule 80 in rule 81 which follows immediately after rule 80 and is in a mandatory form. The rule provides that non-compliance of not only section 15 but also rule 89 will attract the penalty of dismissal but it does not mention rule 80. If the intention of the Central Government was that non-compliance of rule 80 was also to have the same result it would have been so stated in rule 81.

(13) We are in agreement with the learned single Judge that while section 15(4) contemplates the statement of material facts necessary to formulate a complete cause of action, the purpose of rule 80 is to obtain particulars to present a full picture of the cause of action with such further information in detail as to make the opposite party understand the case he will have to meet. (See Samant N. Bala krishna etc. v. George Fernandez. and others etc. : [1969]3SCR603 ).

(14) For these reasons, in our view rule 80 is not an adjunct to or part of section 15(4) as contended by Shri Sharma and the failure to mention particulars envisaged in rule 80 in the election petition will not entail the penalty of dismissal under rule 81.

(15) Shri Sharma placed relience in re: The Delhi Laws Act, 1912, the Ajmer-Merwara (Extension of Laws) Act, 1947 and the Part C States (Laws) Act, 1950 (1951 S.C.Pv. 747), Sahadat Khan v. Mohammad Hossain : AIR1954Cal347 and Khetsidas Girdharilal v, Pratammull Rameswar and others A.I.R. 1946 Cal 197 and argued that power to frame rules having been delegated to the Central Government by section 31, it was a case of delegated legislation so that the Rule framed by the Central Government in exercise of these powers were to be deemed and read as a part of the Act. The argument cannot be sustained lor purposes of applicability of rule 81 because of clause (k) of section 31. This clause gives not only rule making power to the Central Government to carry out, as it were, the purpose of the Act, but also the power to make rules in respect of matters for which the Act made no provision or made insufficient provision. There is no challenge to the delegation of powers in these wide terms by the Legislature to the Central Government. If the Central Government could make rules in respect of matters for which the Corporation Act made no provision or insufficient provision, the conclusion is inescapable that provision like rule 80 (though statutory) is not part of the Corporation Act, but is in addition to it for purposes of rule 81. The cited cases, thereforee, do not assist the learned counsel.

(16) Shri Sharma then contended that the introduction of additional particulars by amendment of the original petition will have the effect of changing the nature of the petition and its character. This cannot be so. By amendment for purposes of furnishing additional particulars under rule 80, it will not be open to the petitioner to substitute one corrupt practice for another. If, for example, the charge is for hiring or procuring of any vehicles for free carriage of voters the particulars of the vehicles employed may be amplified. But, if the charge is that an agent did something, it cannot be amplified by giving particulars of acts on the part of the candidate or vice versa. The additional particulars would be confined to the corrupt practice already pleaded. It will not be open to the petitioner, while furnishing particulars, to change the corrupt practice pleaded into another corrupt practice. Amendment for compliance with rule 80 will, thereforee, neither change the nature of the petition nor its character.

(17) In support of the second contention (Question No. 4) that the appellant was entitled to show and prove corrupt practice against respondent No. 1, Shri Sharma placed reliance on clause (b) of subsection (1) of section 16 and sub-section (2) of Section 19 read with Section 21 of the Corporation Act. The argument was that under section 16(1)(b), the petitioner was entitled to claim, in addition to a declaration that the election of all or any of the returned candidates was void, a further declaration that he himself had been duly elected and that according to sub-section (2) of Section 19, the court, after declaring the election of the returned candidate to be void, had also the jurisdiction to declare the petitioner to be duly elected and such a declaration under Section 21 would be final, so that the combined reading of these provisions showed that the court trying the election petition had also the jurisdiction to finally declare the petitioner to be duly elected. This, the learned counsel argued, the District Judge could not do until the opposite party was allowed to raise pleas in defense that the petitioner was himself guilty of corrupt practice and the District Judge was satisfied that this was not so. The learned counsel contended that this clearly indicated that the right to recriminate was implicit in the Corporation Act. In support of the submission, he placed reliance on Dhara Singh v. District Judge Meerut and another : [1968]1SCR243 .

(18) Recrimination has a special significance in election law The election of the returned candidate can be challenged only by filing an election petition as may be provided or prescribed by the law under which the election is held. Such a right is conferred by section 15 of the Corporation Act in respect of the election of a Councillor or an Alderman. The grounds on which the election can be challenged are contained in section 17 and these are the only grounds on which the election of the returned candidate can be declared to be void. In such an election petition, the election petitioner may claim not only that the election of the returned candidate be declared to be void but also a further declaration that the election petitioner or any other candidate has been duly elected and this is provided by section 16. An election petition whereby the further declaration as aforesaid is also prayed for may be called for the sake of convenience a composite petition. Section 19 empowers the District Judge who is trying the election petition to dismiss it or to declare the election of the returned candidate to be void or, in a composite application, to further declare that the election petitioner or any other candidate has been duly elected. Sub-section (2) of section 19 provides that such further declaration may be given if the District Judge is of the opinion that in fact the election petitioner or such other candidate received a majority of the valid votes or that but for the votes obtained by the returned candidate, the election petitioner or such other candidate would have obtained a majority of the valid votes.

(19) The Representation of the People Act, 1951, contains comparative provisions. The following table will indicate these provisions :-

Corporation Act. Representation of the People Act, 1951. Section 15(1) Section 18 Section 16(1) Section 84 Section 17(1) Section 100 Section 19(1) Section 98 Section 19(2) Section 100

(20) There is a significant omission in the Corporation Act in that it does not contain a provision similar to section 97 of the Representation of the People Act, 1951. It would be seen that the Corporation Act was enacted in 1957 when the Legislature was conscious that the right to recriminate was explicitly conferred on the respondent in the earlier enactment of Representation of the People Act, 1951 in terms of Section 97, still it made no corresponding provision in the Corporation Act. This omission indicates that in their wisdom the Legislature did not intend to confer the right to recriminate in the case of a Municipal election. Even if this be in the nature of a lacuna, the rule of law is well settled that in the garb of interpretation the Court will not be entitled to provide a casus omissus however just and desirable it may appear to be. (See Roshan Lal Goswami v. Gobind Raj and others . This section 97 provides for recrimination when the seat is claimed by an election petitioner as provided by section 84. Section 97 provides that in a composite petition the returned candidate or any other party may give evidence to prove that the election of the candidate in whose favor the further declaration is claimed would have been void if he had been the returned candidate and a petition had been presented calling in question his election. But such recrimination can be claimed only if notice and security are given as provided. thereforee, in a composite petition, the returned candidate is given the right to recriminate to give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling in question his election. But for the provision in section 97 of the Representation of the People Act, 1951, recrimination will not be permissible because an election contest is not an action at law or a suit in equity but a purely statutory proceeding unknown to common law and the Court possesses no common law power. (See Jagan Nath v. Jaswant Singh and others : [1954]1SCR892 and Samant N. Balakrishna etc. v. George Fernandez and others : [1969]3SCR603 ).

(21) In the absence of a provision like section 97 of the Representation of the People Act, 1951, in the Corporation Act, it must follow that a returned candidate cannot, in a composite election petition under the Corporation Act, recriminate by taking the grounds provided by section 17 for declaring elections to be void.

(22) The scheme of the Corporation Act is that an election petition under section 15 can be filed only after the results of the elections under section 14 are published, If the name of the petitioner is not so published there cannot be a petition under the Act to challenge his election. In answer to the claim of the petitioner that he or any other candidate be declared duly elected, it is open to the contesting respondent to take such pleas in defense as may be open to him to show that the petitioner cannot be so declared but by way of defense he cannot set up a counter election petition to challenge the further declaration on the grounds contained in section 17. The defenses which are open to the returned candidate may be any one or more of the disqualifications for membership of the Corporation as are enumerated in section 9 of the Corporation Act because section 9 provides that a person shall be disqualified not only for being chosen as a Councillor or an Alderman but also for being a Councillor or an Alderman. The returned candidate may also be able to controvert, as and by way of defense, the facts which an election petitioner has to prove under sub-section (2) of section 19 of the Corporation Act, namely, '(a) that in fact the petitioner or such other candidate received a majority of the valid votes, or (b) that but for the votes obtained by the returned candidate the petitioner or such other candidate would have obtained a majority of the valid votes'. But in the absence of a statutory provision, the returned candidate will not be entitled to recriminate on the grounds contained in section 17. In Jabar Singh v. Genda Lal : [1964]6SCR54 , the Supreme Court held :-

'IF the returned candidate does not recriminate as required by S. 97, then he cannot make any attack against the alternative claim made by the petitioner. In such a case an enquiry would be held under S. 100 so far as the validity of the returned candidate's election is concerned, and if as a 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 any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate.'

(23) In Shankar Babaji Savant v. Sakharam Vithoba Salunkhe and others : [1965]2SCR403 , it was held that an enquiry under section 100(1)(d)(iii) of the Representation of the People Act, 1951 with regard to the improper reception, refusal or rejection of any vote or the reception of any vote which is void was outside the purview of section 97 of this Act and that the respondent to the election petition was entitled to dispute the identity of the voters without filing any recrimination under section 97.

(24) Dhara Singh's case : [1968]1SCR243 , cited by the learned counsel is really against the appellant. That was a case under U.P. Kashettra SamIT is (Election of Pramukhs and Up-Pramukhs and Settlement of Election Disputes) Rules, 1962. Rule 37(b) of these Rules entitled a petitioner to file a composite petition and to claim the further relief of declaration that he or any other candidate be declared to be duly elected. Rule 39 then conferred an unconditional right to recriminate in that event but there was no rule which prescribed the grounds on which an election of the returned candidate could be declared void. Rule 40 further provided that except so far as provided by the Act or in the Rules the procedure provided in Civil Procedure Code, 1908 in so far as it could be made applicable, had to be followed in hearing the election petition. It was in these circumstances that it was held that rule 37(b) was wide, and, as no rule prescribed the grounds on which the election of the returned candidate was to be declared void, if the petitioner in the election petition could allege and prove that some votes cast in favor of the returned candidate should be rejected there was no reason why the returned candidate should not be able to allege and prove that certain votes should have been counted in his favor. This case is no authority for the proposition that a right to recriminate could be read by implication and exercised by way of defense in the absence of a specific provision conferring this right on the respondent.

(25) Shri S. N. Marwah wanted to canvass the findings of the learned single Judge on question No. 2 also, namely, that there was no valid verification as required by rule 80(2) because the learned counsel said that this point was also involved in the pending case on the basis of which he had intervened. As Shri Sharma, in the facts of this case, did not assail the findings of the learned single Judge on this aspect and as the case of Shri Marwah was not before us for decision, we did not permit him to address arguments on this point.

(26) In view of the above discussion this appeal fails and is dismissed with costs. Counsel's fee Rs. 200.00.


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