# BANW ARI DASS v. SUMMER CHAND AND ORS

- **Citation:** [1974] 3 S.C.R. 358
- **Court:** Supreme Court of India
- **Decided:** 1974-02-13
- **Case number:** Civil Appeal No. 893 of 1973
- **Bench:** V. R. Kris8Na Iyer, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/banw-ari-dass-v-summer-chand-and-ors-6063
- **Pages:** 11

## Headnote

Delhi Muncipal COrporation Act, 1951-Ss. 17 and 19-Scope of-Words
and phrases-Meaning of 'have been' and being'-Recrimimnion-EltctionPetirion to declare election void and to declare the petitioner elected-Returned
candidate if can plead that petitioner was guilty of corrupt practire.
The appellant and the respondent contested election to' a ward
in the
Municipal Corporation of Delhi in which the appe1lant was declared elected.
Respondent no. 1 filed an election petition challenging the appellant's election
on the grouhd of corrupt practice and prayed that he be declared duly elected
under s. 19(l)(c) of the Corporation Act.. The appellant on the other band
contended that since the respondent was guilty of corrupt practices
be
had
become disentitled to be declared elected. The Election Tribunal held that the
appellant was not entitled to raise such a plea. On appeal lhe High Court held
that in the absence of a specific rrovision in the Corporation Act corre!iponding
to s. 97 of the Representation o People Act, 1951 the returned. candidate was
not entitled to recriminate on the grounds contained in s. 17 of the Corporation
Act.
Section 9(1) (d) of the Corporation Act enacts that a 'person shall be disqualified for being chosen as, and for being, a councillor, or alderman if he
has, in proccediitgs for questioning the validity or regularity of an election.
been found to /la1•e bee11 guilty of any corrupt practice ..• Section 17 enacts
1he grounds on which the election could be deClared void. One of such grounds
in s. 17( 1) (a) is that "on the date of his election a returned candidate was not
qualified or was disqualified to be chosen as a councillor." ·
On the question whether in an election petition under the Act for getting
an election declared \'Oid and for a further declaration that the petitioner himself
had been duly elected, the returned candidate is entitled to plead and prove that
the petitioner .was guilty of corrupt practice in the .election in question, and was
therefore not entitled to be declared as duly elected,
·
Dismissing the appeal to this Court,
Hr10 : ( 1} There is no provisiOn in the Corporation Act corresponding to
s. 97 of the Representation of People Act expressly giving a riaht of recrimination to the returned candidate. The effect of th! word "being" in the opening
sentence of s.9( 1) appears to have been largely off-set Uy the use of the wor~s
"to have been guilty" in cl.(d). The meaning of the phrase "have been". ts
"immediately prior to a specific time''. If the phrase "found to have .beei:i guQty"
in s.9(1)(d) is construed in the context of cl._(a) of s.17(1), then It will mean
"found to have been guilty at t/le time of election, and imm~diately preceding
the election." The .right ~o recriminate cannot be legitimately spc4ed !>ut
of
s._9(1)(d) without doing violence to its language or .unduly stretching 1t.
[364 F]
(2) The inquiry of. ,the .Dis.tri~t Judge, w.~o is. th~ cfoction tribunal, at the
trial of an election petition 1s hm1ted to the 1nvesttga!1on of those matters on!Y
\Vhich will enable hin1 to make the~orders specified in s.19(1). But where m
a composite petition relief _is claimed t.hat. the peti~oner ~e d~Jare~ el~cted in
place (Ii the; returned candidate, the D1stnct Judge ts t~ 1nvest1~~te if either of
the two conditions for the grant of a further declaration specttied 10 s.19(2).
is made ouf namely: (a) "-'hether in fact the petitioni:r received a maiority
r~~
tile valiJ votes, or (b) whether the pet.itioner WO!Jl~ have but fo,r tbe
votes
obtained by the returned candidate, obta1ne~ a ma1onty ~f the valtd v~te&. ,In
such a composite position apart from rebutting the allegations mad~ against h1b'
in the petition all that the returned candidate can further shew is
that
t e
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BANWARI PASS v. SUMMER CHAND (Sarkaria, !.)
359
petitioner did not in fact receive the majority of valid votes and is therefore, not
entitled to the further declaration of his due election. In

## Text

358
BANW ARI DASS
v.
SUMMER CHAND AND ORS.
February 13, 1974
(V. R. KRIS8NA IYER AND R. S. SARKARIA, JJ.j
Delhi Muncipal COrporation Act, 1951-Ss. 17 and 19-Scope of-Words
and phrases-Meaning of 'have been' and being'-Recrimimnion-EltctionPetirion to declare election void and to declare the petitioner elected-Returned
candidate if can plead that petitioner was guilty of corrupt practire.
The appellant and the respondent contested election to' a ward
in the
Municipal Corporation of Delhi in which the appe1lant was declared elected.
Respondent no. 1 filed an election petition challenging the appellant's election
on the grouhd of corrupt practice and prayed that he be declared duly elected
under s. 19(l)(c) of the Corporation Act.. The appellant on the other band
contended that since the respondent was guilty of corrupt practices
be
had
become disentitled to be declared elected. The Election Tribunal held that the
appellant was not entitled to raise such a plea. On appeal lhe High Court held
that in the absence of a specific rrovision in the Corporation Act corre!iponding
to s. 97 of the Representation o People Act, 1951 the returned. candidate was
not entitled to recriminate on the grounds contained in s. 17 of the Corporation
Act.
Section 9(1) (d) of the Corporation Act enacts that a 'person shall be disqualified for being chosen as, and for being, a councillor, or alderman if he
has, in proccediitgs for questioning the validity or regularity of an election.
been found to /la1•e bee11 guilty of any corrupt practice ..• Section 17 enacts
1he grounds on which the election could be deClared void. One of such grounds
in s. 17( 1) (a) is that "on the date of his election a returned candidate was not
qualified or was disqualified to be chosen as a councillor." ·
On the question whether in an election petition under the Act for getting
an election declared \'Oid and for a further declaration that the petitioner himself
had been duly elected, the returned candidate is entitled to plead and prove that
the petitioner .was guilty of corrupt practice in the .election in question, and was
therefore not entitled to be declared as duly elected,
·
Dismissing the appeal to this Court,
Hr10 : ( 1} There is no provisiOn in the Corporation Act corresponding to
s. 97 of the Representation of People Act expressly giving a riaht of recrimination to the returned candidate. The effect of th! word "being" in the opening
sentence of s.9( 1) appears to have been largely off-set Uy the use of the wor~s
"to have been guilty" in cl.(d). The meaning of the phrase "have been". ts
"immediately prior to a specific time''. If the phrase "found to have .beei:i guQty"
in s.9(1)(d) is construed in the context of cl._(a) of s.17(1), then It will mean
"found to have been guilty at t/le time of election, and imm~diately preceding
the election." The .right ~o recriminate cannot be legitimately spc4ed !>ut
of
s._9(1)(d) without doing violence to its language or .unduly stretching 1t.
[364 F]
(2) The inquiry of. ,the .Dis.tri~t Judge, w.~o is. th~ cfoction tribunal, at the
trial of an election petition 1s hm1ted to the 1nvesttga!1on of those matters on!Y
\Vhich will enable hin1 to make the~orders specified in s.19(1). But where m
a composite petition relief _is claimed t.hat. the peti~oner ~e d~Jare~ el~cted in
place (Ii the; returned candidate, the D1stnct Judge ts t~ 1nvest1~~te if either of
the two conditions for the grant of a further declaration specttied 10 s.19(2).
is made ouf namely: (a) "-'hether in fact the petitioni:r received a maiority
r~~
tile valiJ votes, or (b) whether the pet.itioner WO!Jl~ have but fo,r tbe
votes
obtained by the returned candidate, obta1ne~ a ma1onty ~f the valtd v~te&. ,In
such a composite position apart from rebutting the allegations mad~ against h1b'
in the petition all that the returned candidate can further shew is
that
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BANWARI PASS v. SUMMER CHAND (Sarkaria, !.)
359
petitioner did not in fact receive the majority of valid votes and is therefore, not
entitled to the further declaration of his due election. In the absence of a
provision specifically conferring such a right, the returned
candidate
cannot
alJege 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
he had committed corrupt practices.
Such plea and proof will, in reality, be
in the nature of a counterattack, not necessary for legitimate defence.
[365 C]
(3) In the light of the we11-established principles the court cannOt bridge
the gap or supply this apparent omission in the Corporation Act with r~gard to
a returned candidate's claim to recriminate, by importing principles of common
law or equity, the maxim casus omissus et oblivioni datus dispositioni communis
juris relinqitur being in-applicable to the construction of election statutes.
A
right to file an election petition or a recriminatory petition being a mere creature
of statute, unkno"'n to common law, the appellant, in the absence of a clear
statutory provision, is not entitled to
recnminate on any
of
the
grounds
mentioned in s. 17.
[366 D]
(b) If the failure to comply strictly with the requirements of a statutory
provision as to recrimination precludes the returned candidate from rccriminat·
ing. a fortiori, in the absence of such a statutory provision in an election law,
the returned candidate has no right to recriminate.
[367 DJ
P. Malai Chami v. M. Andi Ambalas & Ors. A.I.R. 1973 S.C. 2077
and
labar Singh v. Genda Lal [1964]6 S.C.R. 54, followed.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 893 of 1973.
From the judgment and order dated the 18th April, 1973 of the
Delhi High Court in Letters Patent Appeal No. 289 of 1972.
L. M. Sin~hvi, S. S. Dhanduja and K. B. Rohatgi, for the appellant.
E ._
0. P. Malhotra, Sat Pal, K. N. Sehgal and N. S. Das Behl, for respondent No. 1.
F
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The Judgment of the Court was delivered by
SARKARIA, J. The principal question that falls to be determined in
this appeal on certificate, is : whether in an election petition under
the Delhi Municipal Corporation Act, 1957 (for short, the Corporation Act), for getting an election declared void and for a further declaration that the petitioner himself had been duly elected, the returned
.candidate is entitled to plead and prove that the petitioner was guilty
of corrupt practice in the election in question, and was therefore not
entitled to be declared as duly elected ?
The material facts bearing on this question may now be stated :
The elections to the Delhi Municipal Corporation were held on
May 2, 1973. Appellant, Benarsi Dass and Sumer Chand, Respondent
1 and others contested the election fteim Ward No. 51. The appellant
secured 3974 valid votes as against 3882 valid votes obtained. by Respondent 1. The appellant was declared duly elected.
. Respondent 1 filed an election petition under s. 15 of the Corporatton Act. be~ore th~ Election Tribunal (District Judge)_ to challenge
~he electron mter ali~ ?n the ground of corrupt practices ·particularised
m para 9 o~ the petition. Apart from getting the election of the returned ·candidate declared void, the election-petitioner prayed that he
360
SUPREME COURT REPORTS
[ 1974 J 3 S.C.R.
be declared duly elected to the Municipal Corporation under s. 19 ( 1)
( c) of the Corporation Act.
In his written statement, the Returned Candidate raised some preliminary objections (which have not been pressed before us) and traversed the allegations in the election petition. He further pleaded
under the caption
"Additional Pleas" that since the petitioner was
guilty of the corrupt practices, particularised in the written statement,
he .bad become disentitled to be declared elected.
The District Judge held that the appellant was not entitled to plead
and prove in reply to the election petition that the petitioner was also
guilty of corrupt practices. To impugn those orders of the District
Judge, the appellant moved the High Court by a writ application under
Article 226 of the Constitution. The learned Single Judge who tried
the application negatived the contentlbn of the appellant and dismissed
the writ application with these observations :-
"The petitioner may show that the Respondent No. 1 did
not obtain a majority of valid votes. This is the legitimate
defence. But he cannot go further and show that even if the
Respondent No. 1 has obtained a majority of votes, the Respondent No. 1 is not entitled to be declared to be duly elected candidate because he committed corrupt practices. An
election petition to declare the election of a returned candidate void lies only when the election is notified and published under s. 14 of the Act. Since the election of the Respondent No. 1 has not been so published under section 14
of the Act, the petitioner does not have the right to challenge,
it by proving corrupt practices against Respondent No. l ".
Aggrieved, the appellant carried an appeal under cl. 10 of the Letters Patent to the Division Bench of the High Court. The Bench dismissed the appeal holding that in the absence of a specific provision in
the Corporation Act corresponding to s. 97 of the Representation of
the People Act, 1951, the Returned Candidate is not entitled to recriminate on th!Vgrounds contained in s. 1 7 of the Corporation Act. It
was noticed that if at all there was a conscious omission in the Corporation Act, about the Returned Candidate's right to recri!!.J.inate, the Court
was not empowered to supply that omission.
The High Court, however, granted the certificate under Article 133(1) of the Constitution.
Hence this appeal.
According to the relevant statutory provisions in Chapter Ir of the
Corporation Act, the Councillors are chosen by direct election on the
basis of adult suffrage from various wards into which Delhi has been
divided.
The normal term of office of a Councillor is four years Crom
the date of publication Qf the result of his election.
The persons
entitled to vote at election of Councillors are the persons registered,
by virtue of the provisions of the Constitution and the Representation of the People Act, 1950 as voters at elections to the House
of the People for the area comprised in a ward.
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BANWAIU DASS v. SUMMER CHAND (Sarkaria, /.)
According to section 8 :
"a person shall not be qualified to be chosen as a Couacillor unless his name is registered as an elector in the electoral roll for a ward''.
361
Section 9 lays down disqualifications for membership of Corporation. Its material part reads :
"9(1) A person shall be disqualified for being chosen as.
and for being, a councillor, or alderman--
( a) to (c)
x
x
x
(d) if he has, in proceedings for questioning the validity
or regularity of· an election, been found to have been guilty
of-
(i) any corrupt practice, or
(ii) any offence punishable under section 171E or section
l 71F of the Indian Penal Code or any offence punishable under section 29 or clause (a) of sub-section (2)
of section 30 of this Act, unless a period of five years
has elapsed since the date of the finding or the disqualification has been removed either retrospectively
or prospectively by the Central Government
(e) to (1)
x
x
K
Section 14 enjoins that the names of all persons elected as councillors or aldermen shall, as soon as may be, after such election, be
published by the Commissionedn the Official Gazette. Sections 15 to
21 relate to ·disputes regarding elections. The mandate of s. 15 (1) is
that no election of a councillor or alderman shall be called in question
except by an election petition presented to the court of District Judge,
Delhi within 15 .days from the date of the publication of the result of
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the election under s. 14. Sub-s. (2) provides :
G
"An election petition ·calling in question any such election may be presented on one or more of the. grounds specified in section 17-
(a) by any candidate at such election
(b) (i) in the case of an election of a Councillor, by an
eleetor of the ward concerned;
. (ii) in the case of an election of an alderman, by any
councillor."
Its sub-section ( 4) requires that :
H
"An election petition-
( a) shall contain a concise statement of the material facts
on which the petitioner relies;
362
SUPREME COURT REPORTS
l 1974J 3 s.c.1..
A.
(a) shall, with sμfficient 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
mauner laid down in the Code of Civil Procedure l 908, for
the verification of pleadings."
The relief that may be claimed by the petitioner is indicated ia s.
B .
16(1) which says:
"A petitioner may claim-
(a) a declaration that the election of all or any of the
returned candidates is void, and
(b) in. addition thereto, a further declaration that he himC
self or any other _candidate has ·been duly elected."
Section 17 indicates the grounds on which an election can be declared void. One of such grounds vide clause (a) of s. 17 (I) is "that
on the date of his election a returned candidate was not qualified or was
disqualified, to· be chosen as a councillor or, as the case may be, as an
alderman under this Act". Another ground in clause (b) is of corrupt
D
practices committed by a returned candidate or his ·agent or other person with his eonsent. Section 18 applies the Code of Civil Procedure,
1908 to the trial and disposal of an election petition "as far as it can
be made applicable". Section 19 enumerates ti e nature of orders
which the District Judge can make at the coni:lusion of the trial of an
election petition. It reads :
·
"19 ( 1) At the coi,:iclusion of the trial of an election petition, the court of the District Judge shall make an order-
(a) dismissing the election petition; or
(h) declaring the election of all or JUIY of the returned
candidates to be void; or
·
( c) declaring the ·election of all or any of the returned
candidates to be void and the petitioner and any other caadidate to have been duly elected.
(2) If any person who has filed an election petition has,
in additiori to calling in question the election of the returned
candidate, claimed . declaration that ·he himself or any other
candidate hlll! been duly elected and the court of the district
judge is of opinio,n-
( a) that in fact the petitioner or such other candidate received a majority of the valid votes, or
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(b) that but for the votes obtained by the returned candidate the petitjoner or such other candidate would have obH
tained a majority of the valid votes, the court shall, after declaring the election of the returned candidate to be void, de-
BANWARI DASS v. SUMMER CHAND (Sarkaria, /.)
363
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clare the petitioner or such other candidate, as the case may
be, to have been duly elected."
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Section 21 says :
"(!) An order of the court of the district judge on an election petition shall be final and conclusive.
(2) An election of a councillor or an alderman not called in question in accordance with the foregoing provisions
shall be deemed to be good and valid election."
The provisions of ss. 9,15(1), 16(1), 17(1), 19(1), 19(2) of the
Corporation Act are more or less parallel to those in Sections 9A, 18,
84, 101, 98 and 100 of the Representation of the People Act, 1951
(for Short the People Act) respectively. It will be seen that a provision corresponding to s. 97 of the Representation of the People Act,
1951 is conspicuous by its absenoe from the Corporation Act, though
the latter enactment was placed on the statute book in 1957.
Dr. Singhvi, learned Counsel for the appellant, vehemently contends that a right to plead and prove thai the election-petitioner himself 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 mabtained, 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~ returned candidate has a right to plead that the petitioner had incurred any
of the disqualifications enumerated in s. 9, he cannot be debarred from
leading evidence to substantiate that plea. It is contended that if the
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 impeaching the election of the election-petitioner on the ground that he has committed 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 election petition. In any case, the remedy in s. 3.3 (3) is too circuitous
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
H
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, himself, 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 disqualification must have been incurred or in existence at the date of the
poll or election. The plea sought to be established by the returned candidate, 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 returned candidate, says the Counsel, is to avail of the machinery of s.
33(3).
In approaching the matter under consideration, we must first appreciate 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 purposes, 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).
There is no provision in the Corporation Act corresponding to s. 97
of the People Act, expressly giving a right of recrimination lo the returned candidate. The question therefore, is; Can such a right be legitimately 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 sentence 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, construing 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).
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
(I) (IS6t) 30, L. J. Ch. 193;
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BANWARI DASS v. SUMMER CHAND (Sarkaria, /.)
3 llS
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, rherefore, 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 composite 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 majority of the valid votes. Rule 68 (I) of the Rules framed under the Corporation Act, defines 'valid vote' as "every ballot paper which is not
rejected under Rule 67 shall be counted as one valid vote". The concept 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
election.
Jn the absence of a provision specifically conferring such a
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 unknown 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
requirement strictly observed. In P. Malai Chami v. M. AndiAmbalam
and ors.,(') this Court speaking through Alagiriswami J., again pointed
out:
(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 defeated on a mere technicality. But in deciding an election petition, the High Court is merely a tribunal deciding an election
dispute.
Its powers are wholly the creature of the statute
under which it is conferred the power to h.ear election-petitions."
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 election 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 Corporation Act with regard to a returned candidate's claim to recriminate,
by importing principles of common law or equity, the maxim casus
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 provision, 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 discussion by referring to labar Singh v. Genda Lal('), wherein Gajendragadkar 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 returned candidate is void, and also asks for a declaration that
the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that s. 100 as
well as s. 101 would apply, and it is in respect of the additional 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 candidate. 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 the
-"(!) 20 M & H. p. 74.
(2) [t96l] ~' S. C.R. 54
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BANWARI DASS v. SUMMER CHAND (Sarkaria, J.)
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)
367
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 councillor 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 proceedings by compelling the aggrieved petitioner to start a fresh challenge against the respondent after the formality of his being made councillor is published, not only defeats the object· of an early determination 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.
We express the hope that the Commissioner, in the evtnt of a challenge being made to the respondent's election on the ground of corruption, 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.
In the result, the appeal fails and is dismissed with costs.
P.B.R.
Ap,eal dismissed.
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