BANW ARI DASS v. SUMMER CHAND & Ors.

Dr. Singhvi, learned Counsel for the appellant, vehemently con tends that a right to plead and prove thai the election-petitioner him self was guilty of corrupt practice and, as such, was disqualified to be declared to have been duly elected has been given by s. 9(1) (b) of the Corporation Act to the returned candidate. Section 9, it h mab tained, applies to all stages of an election petition, and, if at the time of granting relief in an election petition, a returned candidate can show that the petitioner had committed corrupt practices in the election in question, then the colirt will not grant him the declaration that he has been duly elected. Stress has been laid on the word 'being' in section 9 ( 1) (b) . Learned Counsel further maintains that in interpreting the provisions of the Corporation Act, two principles have to be kept in view. The first is ubi jus ibi remedium (where there is a right, there is a remedy). The argument is that once it is conceded that th~ retur ned candidate has a right to plead that the petitioner had incurred any of the disqualifications enumerated in s. 9, he cannot be debarred from It is contended that if the leading evidence to substantiate that plea. returned candidate is not permitted to lead evidence to establish such a counter-allegation, in defence, to a composite election petition of this nature, he will be leftwithout any remedy because s. 21(1) will make the order of the District Judge in the petition final and conclusive, while sub-s.(2) of the same section will bar any other procedure for impeach- ing the election of the election-petitioner on the ground that he has com mitted a corrupt practice. It is added the remedy provided ins. 33 will also be not open to the returned candidate after the decision of the elec- In any case, the remedy in s. 3.3 (3) is too circuitous tion petition. ' illusory and inadequate. The second principle relied on by the Counsel is the Mischi<i Rule as enunciated in Heydon's case(1), that the court should make such construction as shall suppress the mischief,. and advance the remedy. The main object of these statutory provisions, it is urged, is to ensure (1) (1584) 3 Co. Rep. J ' ' 364 SUPREME COURT REPORTS [ 19741 3 S.C.R. purity ·of the elections, and if the returned candidate is not allowed to A expose the corrupt practices committed by the election-petitioner, him- self, it would defeat that object of the statute. The other grounds of appeal have not been pressed before us. Mr. 0. P. Malhotra, learned Counsel for the respondents, submits that in clause (d) of s. 9(1), the words "to have been" read together with clause (a) of s. 17(1) put it beyond doubt that this particular dis qualification must have been incurred or in existence at the date of the poll or election. The plea sought to be established by the returned can didate, according to the Counsel, is a plea of recrimination, and the Corporation Act does not contain any provision analogous to s. 97 of the People Act, giving him such a right. The only remedy of the re turned candidate, says the Counsel, is to avail of the machinery of s. 33(3). In approaching the matter under consideration, we must first ap preciate the true nature of the plea set up by the returned candidate. What the appellant seeks is in substance, a right to give evidence to prove that the election of the election-petitioner would have been void on account of corrupt practices committed by him in the election, if he had. been the returned candidate and a petition had been presented calling in question his election. Although Dr. Singhvi is reluct; mt to style this plea as one of recrimination, the nature of the plea or the right claimed is too obvious to be concealed. To all intents and pur poses, it is a plea of recrimination of the type mentioned in s. 97 of the People Act, 1951. It is in the nature of a counter-petition Qn ,the ground of corrupt practices under clause (b) of s. 17 ( 1) and not on' the ground of the petition-or being disqualified at the date of the election, which is a distinct and separate ground under clause (a) of s. 17(1). B c D E ··' There is no provision in the Corporation Act corresponding to s. 97 of the People Act, expressly giving a right of recrimination lo the re turned candidate. The question therefore, is; Can such a right be legi timately spelled out of s.9(1) (d)? The entire argument of Dr. Singhvi . has been built upon the edifice of the word "being" in the opening sen tence of s.9(1). But the effect.of the word "being" appears to have been largely off'set by the use of the words "to have been guilty" in clause (d). Stroud's Judicial Dictionary P.'.ves the meaning of the phrase "have been'' as "immediately prior to~ specific time". In Re storie,(1·) a scheme for the management of the Charity declared that the boys should be chosen from those boys "who shall have been three years at the Free School". A complaint was made that an undue election had been made. On appeal, Lord Justices Knight Bruce and Turner, con struing the scheme, held that only those boys were eligible "who fwd been three years at the school at the time of, and immediately preceding the election". (Emphasis supplied). F G In tho instant case, also, if the phrase "found to have b..""en guilty" in s.9(1)(d) is construed in the context of clause(a) of s.17(1), then H (I) (IS6t) 30, L. J. Ch. 193; BANWARI DASS v. SUMMER CHAND (Sarkaria, /.) 3 llS A on the analogy o( Re Storie, it will mean "found to have been guilty at 1he 1i111e of the e/ec1io11, and immediately preceding the election". Thus a right to recriminate cannot be legitimately spelled out of s. 9( 1) ( d) without doing violence to its language or unduly stretching it. The above interpretation fits better in the general scheme of the Corporation Act. As will be apparent from s.19, quoted earlier, the tribunal i.e. the District Judge can pass only three kinds of final orders indicated in clauses (a), (b) and (c) of sub-section (1) of that section. The District Judge's inquiry at the trial of an election petition is, rhere fore, limited to the investigation of those matters only which will enable him to make the orders specified in s.19(1). But, where in a com posite petition, like the one in the present case, relief is claimed that the petitioner be declared elected in place of the returned candidate, the District Judge is to investigate if either of the two conditions for the grant of a further declaration, specified ins. 19(2) is made out. That is to say, he has to confine his enquiry to the determination of either of these two questions namely : (a) whether in fact the petitioner received a majority of the valid votes, or (b) whether the petitioner would have but for the votes obtained by the returned candidate, obtaind a majo rity of the valid votes. Rule 68 (I) of the Rules framed under the Cor poration Act, defines 'valid vote' as "every ballot paper which is not rejected under Rule 67 shall be counted as one valid vote". The con cept of validity of votes is different from that of corrupt practices defined in s. 22 on the basis of which an election petition can be instituted. In such a composite petition, apart from rebutting the allegations made against him in the petition, all that the returned candidate can further show is that the petitioner did not in fact receive the majority of valid votes and is therefore, not entitled to the further declaration of his due Jn the absence of a provision specifically conferring such a election. right, the returned candidate cannot allege and prove further that even if the petitioner had obtained a majority of valid votes, he could not be granted the declaration of his due election because ho had committed corrupt practices. Such plea and proof will, in reality, be in the nattKe of a counter-attack, not necessary for legitimate defence. Having seen that there is no provision in the Corporation Act which specifically or by inevitable implication gives to a returned candidate a right to recriminate. the further question to be determined is : Whether the court is competent to provide this casus. omissus by invoking the maxim ubi jus ibi remedium or Mischief Rule or other principles of common law ? · It. appears to us that the answer to this question must be in the negative. This Court has repeatedly held that 'an election cont<'t is not an action at law or a suit in equity but a purely statutory pr<Y".eeding un known to comr_n!'n law and t~e court possesses no. common Jaw powers.' Statutory provts1ons of election law are to be stnctly construed and its In P. Malai Chami v. M. AndiAmbalam requirement strictly observed. and ors.,(') this Court speaking through Alagiriswami J., again pointed out: B c D E F G H (I\ A. I .. R. 1973 S. C. 2077. 1 l-L954Sup.Cf/74 366 SUPREME COURT REPORTS [ 1974] 3 S.C.R. "Courts in general are averse to allow justice to be defea ted on a mere technicality. But in deciding an election peti tion, the High Court is merely a tribunal deciding an election dispute. statute Its powers are wholly the creature of the under which it is conferred the power to h.ear election-peti tions." It must be remembered-to use the oft-quoted words of Grover /. in Taunton's ca.\'e( 1 ) - "that although the object of the statute by which the elec tion tribunals were created was to prevent corrupt practices, still the tribunal is a judicial, and not an inquisitorial one, it is a. court to hear and determine according to law, and not a commission armed with powers to enquire into and suppress corruption." In the light of these well-established principles, it is clear that the court cannot bridge the gap or supply this apparent omission in the Cor poration Act with regard to a returned candidate's claim to recriminate, law or equity, the maxim casus by importing principles of common omissus et oblivioni datus dispositioni communis juris relinquitur being inapplicable to the construction of election statutes. A right to file an election petition or a recriminatory petition which, in substance, is a counter-election-petition, being the mere creature of statute, unknown to common law, the appellant, in the absence of a clear statutory pro vision, is not entitled to recriminate on any of the grounds mentioned in section 17-_ . -- We do not think it necessary to notice all the authorities cited at the bar or to dilate on this point further. We will close the discus sion by referring to labar Singh v. Genda Lal('), wherein Gajendra gadkar C.J. clarified the nature of the right of recrimination thns : "There are, however, cases in which the eledtion petition makes a double claim; it claims that the election of the re turned candidate is void, and also asks for a declaration that the petitioner himself or some other person has been duly elec It is in regard to such a composite case that s. 100 as ted. well as s. 101 would apply, and it is in respect of the additio nal claim for a declaration that some other candidate bas been duly elected that s. 97 comes into play. Section 97 (1) thus allows the returned candidate to recriminate and. raise pleas in support of his case that the other person i~: whose favour a declaration is claimed by the petition cannot be said to be validly elected, and these wo~ld be pleas of a.ttack and it would be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter~petitioner challenging the validity of the election of the alternative can didate. The result of s. 97 (1), therefore, is that 1i1 dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also -"(!) 20 M & H. p. 74. (2) [t96l] ~' S. C.R. 54 A B c D E F H A B c D E F G H BANWARI DASS v. SUMMER CHAND (Sarkaria, J.) 367 counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by s. 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 bys. 97(1) proviso and s.97(2). If the returned candidate does not recriminate as required by s. 91, then he cannot make any attack against the alternative claim made by the petition. 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 a declaration is made that the election of the returned candidaie is void, then the Tribunal will proceed to deal with 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." (emphasis supplied) Although the above observations were made in a case. under the People Act, but the principle enunciated therein applies with greater force to the problem in hand. If the failure to comply strictly, with the requirements of a statutory provision as to recrimination, precludes the returned candidate from recriminating, a fortiori, in the absence of such a statutory provision in an election law, the returned candidate has no right to recriminate. For the foregoing reasons, we would affirm the view taken by the Division Bench of"the High Court in regard to the returned candidate's claim to recriminate. Before parting with this judgment, we will like to emphasise the desirability of making a clear provision, corresponding to s. 97 of the People Act, 19 51 in the Corporation Act specifically conferring a right of recrimination on the returned candidate in an election-petition in which the petitioner, in addition to getting the election of the returned candidate declared void, seeks a further declaration that he or some other candidate has been duly elected. One of the primary objects of these provisions relating to corrupt practices, is to ensure purity of the elections. If corrupt practices committed by the returned candidate are abhorrent to that object, so are the corrupt practices indulged in by the petitioner or any other candidate and his agent in favour of whom the further declaration of the doe election is claimed, What is sauce for the goose is sauce for the gander. According to the learned Counsel for the Respondent, the returned candidate would be entitled to get the petitioner disqualified by moving the Commissioner under s. 33 which inter alia provides that "if any question arises as to whether a coun cillor or an alderman has become subject to any of the disqualifications mentioned in s. 9, the Commissioner shall refer the question to the District Judge of Delhi for his decision and the decision of the District Judge shall be final. Assuming-not holding-that s. 33 provides for impeaching the election of a candidate declared duly elected under s. 19 (I) ( c), on the ground of corrupt practices committed by him, the remedy provided appears to be cumbersome, circuitous and dialtory in- 368 SUPREME COURT REPORTS [ 1974 J 3 S.C.R. volving multiplicity of proceedings. The duplication of judicial pro ceedings by compelling the aggrieved petitioner to start a fresh chal lenge against the respondent after the formality of his being made coun cillor is published, not only defeats the object· of an early determina tion regarding the purity of the election but also renders the proceeding ineffective for the very reason of the long delay. Again, tbe time that may be taken for the reference to the District Judge under .s. 33 and the time consumed for the preliminaries before a trial begins or gains momentum can all be eliminated if there is provision, as in the Peoples' Rcpresent~tion Act, for recrimination. A We express the hope that the Commissioner, in the evtnt of a chal lenge being made to the respondent's election on the ground of corrup tion, will not delay a reference to the District Judge wh0 certainly will go into the legal and factual questions involved on which we pronounce no opinion. c In the result, the appeal fails and is dismissed with costs. P.B.R. Ap,eal dismissed.