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Narpat Karan Vs. the District Judge and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Misc. Writ Petition No. 717 of 1983
Judge
Reported in1984WLN514
AppellantNarpat Karan
RespondentThe District Judge and ors.
DispositionPetition allowed
Cases ReferredNarana Ram v. Munsif
Excerpt:
.....is considered to be in the form of the remedy by way of election petition, then for such a plea rule 5 will come into play. it was pointed out that like the election-petition, the returned candidate should also submit a treasury challan of rs. the question which has emerged for consideration and determination, need to be answered only on the basis of the language employed in rule 6. it is pertinent and significant that rule 6 no where clearly, expressly and specifically makes it obligatory for the returned candidate to take the plea of recrimination in his reply or written statement by complying with the formalities, which are required to be fulfilled for presentation of an election petition under rule 3. it can be presumed that the rule making authority was well aware of the..........is considered to be in the form of the remedy by way of election petition, then for such a plea rule 5 will come into play. unless compliance of rule 5 is made by the returned candidate in respect of plea of recrimination, the plea of recrimination cannot b.(sic) tried and the returned candidate will have no right to give evidence to prove that the person sought to be declared elected, should not be declared so elected. it was pointed out that like the election-petition, the returned candidate should also submit a treasury challan of rs. 250/- by way of security for costs. the election petitioner will have to defend the plea of recrimination and if the returned candidate fails in proving the plea of recrimination without deposit of costs, the election-petitioner would not be able.....
Judgment:

M.C. Jain, J.

1. This writ petition is directed against the findings recorded by the Distract Judge, Balotra, on issues No. 10 and 11 framed in election petition submitted by the non-petitioner No. 2 Tej Singh.

2. The writ-petition Narpat Karan and the non-petitioner Tej Singh had contested the election of Pradhan of the Panchayat Samiti, Balotra and its result was declared on 30-12-1981, in which the writ-petitioner was declared elected. He secured 205 votes, whereas the non-petitioner No. 2 Tej Singh secured 203 votes. An election petition was filed by the non-petitioner No. 2 Tej Singh on 19-1-1982, in which he prayed that he be declared elected as Pradhan of the Panchayat Samiti, Balotra. The writ-petitioner submitted reply to the election petition, in which he also pleaded recrimination alleging corrupt practices against the election-petitioner. Issues No. 10 and 11 were framed by the learned District Judge, which on translation in English, read under:

Issues No. 10: Whether the plea relating to corrupt practices raised by the non-petitioner, cannot be considered in the election petition?

Issue No. 11: Whether the counter claim or plea relating to recrimination of the non-petitioner, is not in accordance with law and he same is not accompanied with challan showing the deposit of money, so the recrimination is liable to be dismissed?

The learned District Judge, after hearing the arguments on both issues, decided them in favour of the election petitioner Tej Singh and against the writ-petitioner Narpat Karan. It was found that the plea relating to corrupt practices raised in the form of recrimination cannot be heard and the recrimination is not accompanied with a treasury receipt Rs. 250/-, so the same is dismissed.

3. In this writ petition, the view taken by the learned District Judge has been challenged.

4. This writ petition, therefore, raises a question as to the interpretation of rule 6 of the Rajasthan Panchayat Samitis' Pradhans and Up-pradhans and Zila Parishads' Pramukhs and Up-Pramukhs (Election Petition) Rules, 1959, (for short 'the Rules'). Rule 6 reads as under:

6. Rights of candidates whose election is question--Every respondent may defend his election on any ground on which it may be open to him legally to do so and give evidence to prove that person in respect of whom a claim is made that such person be declared elected in his place or in priority to him, should not be declared so elected in the same manner as if he had presented a petition against the election of such person.

For appreciating the contention advanced on both the Sides it is necessary to quote rule 5, as well, which reads as under:

5. Form and presentation of petitions:

(1) The petition shall be presented to the Judge within 30 days after the day on which the result of the election is announced and shall specify the ground or grounds on which she election of the respondent is questioned and shall briefly describe the circumstances which may justify the election being questioned on such grounds. Every petition shall be accompanied by a treasury challan of Rupees Two Hundred and Fifty.

(2) The petition may be presented to the Judge by any member of the Panchayat Samiti or Zila Parishad, as the case may be.

(3) The person whose election is questioned, and where the petition claims that any other candidate shall be declared in place of such person, every unsuccessful candidate who has polled more votes than such candidates, shall be made a respondent to the petition.

From the perusal of Rule 5 it would appear that an election petition under the rules, is required to be presented to the Judge within 30 days after the day on which the result of the election is announced and the ground or grounds on which the election is questioned, are required to be specified in the petition and along with the ground or grounds, the circumstances, which may justify the questioning of election on such grounds, are also required to be briefly described. There is a further provision that the election petition shall be accompanied by a treasury challan of Rupees Two Hundred and Fifty. Under Rule 6 a right has been conferred on the candidate, whose election has been questioned to defend his election and he has been further conferred with a right to give evidence to prove that any person in respect of whom a claim is made that such person be declared elected in his place or in priority to him should not be declared so elected. This right has been conferred in the same manner, as if he had presented a petition against the election of such person. The learned District Judge on the basis of the provision contained in Rule 6 has expressed that where the respondent to an election petition, takes a plea of recrimination, then he is required to act like an election petitioner and along with the submission of the reply raising the plea of recrimination, it is obligatory for him to present a treasury challan of Rs. 250/-. He has taken the view that he has to act in the same manner, as if he had presented a petition against the election of the person, who is sought to be declared elected by the election-petitioner. Either the election-petitioner may get himself declared elected or be may get some one else declared elected. In respect of such a person, the plea of recrimination would be considered to be an election petition and the formalities, which an election-petitioner is required to fulfil, are required to be complied with by the respondent, whose election is questioned.

5. Mr. A.L. Chopra, learned Counsel for the petitioner, built up his argument by referring to the relevant provisions contained in the Representation of the People Act, 1951 and the Rajasthan Municipalities Act, 1959. Section 97 of the Representation of the People Act, 1951, reads as under:

97. Recrimination when seat claimed.--(1) hen in an election petition a declaration that any candinate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may 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.

Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has, within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively.

(2) Every notice referred to in Sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified in like manner.

A similar provision is there in the Rajasthan Municipalities Act, 1959, contained in Section 41, Sub-section (6), which is as under;

Section 4(6) When, in an election petition, a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may 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:

Provided that returned candidate or such other party, as aforesaid, shall not be entitled to give such evidence unless he has, within fourteen days from the date of the service of the copy of the petition Under Sub-section (1), given notice to the Judge of his intention to do so and has also given the security and further security referred to in Sub-section (1) and (2) respectively of section 53.

6 Mr. Chopra urged that there is no such similar provision embodied in Rule 6 of the Rules. The rule making authority, that is, the State Government, which has promulgated the Rules, can be said to be well aware of the provisions contained in the Representation of the People Act, 1959 and the Rajasthan Municipalities Act, 1959. The Rajasthan Municipalities Act came into force on 7th day of September, 1959 and the Rules were published on 22-9-1959. If the rule making authority intended to introduce a provision similar to the provision relating to presentation of the election petition and furnishing of security, it would have framed a similar clear rule in this regard and it can rot be said that the rule making authority intended to introduce a similar provision by using expression.--'in the same manner as if he had presented a petition against the election of such person'. Mr. Chopra urged that rule 6 no where makes Rule 5 applicable with regard to plea of recrimination, which may be taken by the returned candidate. Rule 6 simply ex-powers the returned candidate to give evidence to prove that the person, who is sought to be declared elected, should not be declared so elected in the same manner as if the returned candidate had presented a petition against the election of a person, who is sought to be declared elected. What Rule 6 provides is that the returned candidate has a right to give evidence to prove against the person sought to be declared elected as if he himself has presented an election petition.

7. Mr. M.S. Singhvi, learned Counsel for the non petitioner No 2, on the other hand, urged that the rule itself introduces a fiction and the plea of recrimination will be treated as if an election petition has been presented. If election of a person, who is sought to be declared, elected is to be challenged, than that can be done in the same manner as if he had presented a petition against the election of such person, when election is challenged by an election petition. That being so, provision of Rule 5 will be attracted and the plea of recrimination would be required to be accompanied with a treasury challan of Rs. 250/- and the other conditions of Rule 5 relating to the form of the petition, would also be attracted. Mr. Singhvi placed emphasis on the expression 'in the same manner', which expression, according to him, is clearly suggestive of the intention of the rule making authority that the plea of recrimination would be admissible as if the election being challenged by way of an election petition and if by fiction the plea of recrimination is considered to be in the form of the remedy by way of election petition, then for such a plea Rule 5 will come into play. Unless compliance of Rule 5 is made by the returned candidate in respect of plea of recrimination, the plea of recrimination cannot b.(sic) tried and the returned candidate will have no right to give evidence to prove that the person sought to be declared elected, should not be declared so elected. It was pointed out that like the election-petition, the returned candidate should also submit a treasury challan of Rs. 250/- by way of security for costs. The election petitioner will have to defend the plea of recrimination and if the returned candidate fails in proving the plea of recrimination without deposit of costs, the election-petitioner would not be able to recover the costs, Mr. Singhvi urged that it is true that Rule 6 does not contain a proviso similar to the proviso contained in Section 97 of the Representation of the People Act, 1951 or proviso contained in Sub-section (6) of Section 41 of the Rajasthan Municipalities Act, 1959 still the same object has been achieved by the rule making authority by using the expression 'in the same manner as if he had presented a petition against the election of such person'. Mr. Singhvi emphasised that the remedy under the election law is a statutory remedy and not common law remedy and so the provisions of election law has to be strictly complied with. When the provision of Rule 6 has not been complied with, the learned District Judge was right in deciding the issue No. 10 and 11 against the writ petitioner.

8. I have given thoughtful consideration to the respective contentions of the parties and to the problem, with which I am confronted. The question which has emerged for consideration and determination, need to be answered only on the basis of the language employed in Rule 6. It is pertinent and significant that Rule 6 no where clearly, expressly and specifically makes it obligatory for the returned candidate to take the plea of recrimination in his reply or written statement by complying with the formalities, which are required to be fulfilled for presentation of an election petition under Rule 3. It can be presumed that the rule making authority was well aware of the relevant provisions of the Representation of the People Act and of the Rajasthan Municipalities Act. Despite that a clear provision was not embodied or incorporated in Rule 6 that the returned candidate will be required to submit a treasury challan of Rs. 250/- along with the reply or written statement containing plea of recrimination. It cannot be said that by the introduction of the expression in the same manner as if he had presentation a petition against the election of such person', the rule making authority incorporated a similar provision as is contained in the Representation of the people Act or the Rajasthan Municipalities Act. The marginal note on Rule 6 states 'Rights of candidates whose election is questioned'. It would appear from the original note that Rule 6 confers right on the returned candidate Rights of the returned candidate, as provided in Rule 6, are that he may defend his election on any ground on which it may be open to him to do so and he has a further right to give evidence to prove that any person, who is sought to be declared elected in place of the returned candidate, should not be declared so elected. This right to give evidence to prove, can be exercised in the same manner as if the returned candidate has presented the petition. This only shows that the returned candidate can exercise that right as if he has presented on election petition. Rule 6 does not make reference to the applicability of Rule 5 and it does not provide that this right to give evidence so prove the plea of recrimination will only vest in the returned candidate, if he submits a treasury challan of Rs. 250/-. If the rule making authority had intended to require the returned candidate to submit a treasury challan of Rs. 250/-, it would have expressly provided so. In my opinion, it has not made such a provision in Rule 6. The expression 'in the same manner as if he had presented a petition against the election of such person', can hardly he construed to mean that the rule making authority intended to introduce that provision by making use of the aforesaid expression. It is well settled principle of construction that a fiscal or taxing statute or provision has to be strictly construed and if such a provision is of doubtful import or is susceptible of two meanings, then that construction should be placed, which may not be onerous or which may not create any liability for payment of any money, fee or tax. Rule 6, in my opinion, docs not clearly, unambiguously and unequivocally provides that the returned candidate taking the plea of recrimination, is required to submit a treasury challan of Rs. 250/-. In the absence of clear and express provision, the returned candidate is under no obligation and duty to comply with the provision of Rule 5 relating to accompanient of a treasury challan of Rs. 250/-, when a plea of recrimination is taken by him. I have been referred to some cases based on the provision of the Representation of the People Act, 1951, but those cases have no application. Reference has also been made to a decision of this Court in Narana Ram v. Munsif & Judicial Magistrate, Jhunjhunu (1980 RLW 626), but that case is also of no help. That case related to the question as to whether in the absence of provision in the Rajasthan Panchayat and Naya Panchayat (Election) Rules, recrimination is permissible. G.M. Lodha, J., expressed that the returned candidate is entitled to plead in his written statement all those grounds, by which he can show that the defeated candidate should not be declared elected Thus, I am unable to agree with the view taken by learned District Judge and Rule 6 has to be understood and construed in its natural and ordinary sense. It is for the rule making authority to step in and amend the rule, if the intention of it is not clearly brought out in the rule, as it exists.

9. As regards the contention that in case the plea of recrimination fails, it would not be possible for the election-petitioner to recover costs, it may be stated that under sub-rule (21 of Rule 8 it is provided that any order as to costs passed by the Judge shall be executed by him on application made in that behalf in the same manner and by the same procedure as if it were a decree for the payment of money made by himself in a suit. Thus, if any costs are imposed on a returned candidate, the same can be recovered as provided under sub-rule (2) of Rule 8 of the Rules.

10. Therefore, as considered above, I am clearly and firmly of the view that the right conferred on the returned candidate in Rule 6, is not in any way subject to the compliance of formalities, as provided under Rule 5. It is only with regard to proof of plea of recrimination, it is provided under Rule 6 that that can be done in the mariner as may be done by the election petitioner. The requirement of the manner is only with regard to proof and not with regard to compliance of the formalities provided under Rule 5. This is natural, ordinary and literal sense of Rule 6. In this view of the matter the writ petition deserves to be allowed.

11. Accordingly the findings on issues No. 10 and 11 recorded by the learned District Judge, are set aside and it is held that the plea of recrimination taken by the writ-petitioner, can be considered in the election petition and it is not necessary for the writ-petitioner to accompany a treasury challan of Rs. 250/- along with the recrimination.


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