Supreme Court of India
MD. ALAUDDIN KHANversusKARAM THAMARJIT SINGH
- Citation
- 2010 INSC 418
- Decided
- 22 July 2010
- Disposal
- Matter referred to larger bench
- Bench
- V S SIRPURKAR
Holding
Section 97 of the Representation of the People Act, 1951, being a specific provision of a special statute, prevails over Order VIII Rule 6A of the CPC and bars the returned candidate from raising a counter‑claim or recrimination when the election petition does not include a declaration of any other candidate as elected.
Summary
The election for the 9th Manipur Legislative Assembly was won by MD Alauddin Khan by a margin of two votes over Karam Thamarjit Singh, who filed an election petition under Section 100(1)(d)(iii) alleging impersonation of dead voters in certain polling stations and seeking a recount and declaration of the election as void. In his written statement, the returned candidate raised paragraphs 22‑31 asserting that similar impersonation occurred in other polling stations and prayed for a recount of votes of all candidates, which the election judge struck out as a counter‑claim. The central issue was whether, in the absence of a prayer for declaration of any other candidate as elected (Section 84), the returned candidate could rely on Order VIII Rule 6A of the CPC to raise a defence or counter‑claim despite Section 97 of the Representation of the People Act, 1951 barring recrimination in such circumstances. The Supreme Court, by a majority, held that Section 97 is a specific provision of a special statute and prevails over the general CPC provisions; consequently, the returned candidate could not raise a counter‑claim and the striking‑out of the paragraphs was proper. A dissenting judgment argued for a broader interpretation allowing a general recount. The Court dismissed the appeal, leaving the order of the election judge intact and referred the matter to the Chief Justice for consideration by a larger bench.
Issues considered
- When does Section 97 of the Representation of the People Act, 1951 bar a returned candidate from filing a recrimination or counter‑claim in an election petition that does not seek a declaration of any other candidate as elected?
- Can Order VIII Rule 6A of the Code of Civil Procedure, 1908 be invoked to raise a defence or counter‑claim in such election petitions despite the specific provisions of the Act?
- Whether a recount ordered under Section 100(1)(d)(iii) must be limited to the named polling stations or can be a general recount of all votes.
Legislation cited
- Code of Civil Procedure, 1908s. Order VIII Rule 6A, s. Order VI Rule 16
- Indian Evidence Act, 1872
- Representation of the People Act, 1951s. 100(1)(d)(iii), s. 101, s. 117, s. 118, s. 83, s. 84, s. 87, s. 97
Subjects
election petitionrecriminationcounter‑claimSection 97Section 100(1)(d)(iii)void votesrecountCivil Procedure Codespecial law vs general lawbasic structure doctrinedemocratic elections
Judgment
[201 O] 8 S.C.R. 525
/
MD. ALAUDDIN KHAN A
v.
KARAM THAMARJIT SINGH
(Civil Appeal No. 5851 of 2010)
JULY 22, 2010
B
[V.S. SIRPURKAR AND DR. MUKUNDAKAM SHARMA,
JJ.]
Representation of the People Act, 1951: ss. 97,
100(1 )(d)(iii) - Election petition - Allegation that some C
impersonators voted in the name of dead persons in named
polling station - Prayer to order recount of votes cast in the
named polling station and to declare election of returned
candidate as void - By way of defence, the returned
candidate in the written statement stated that even the D
petitioner had not secured the votes shown to have been cast
in his favour as even in his case there were void votes and
prayed for recount of votes of all the candidates - High Court
ordered to delete the paragraphs in written statement on the
ground that they were in the nature of counter claim and held E
that only the votes cast in the named polling stations would
be liable to be counted and not those which were named in
the paragraphs ordered to be deleted from the written
statement
I
- HELD: Per Dr. Mukundakam Sharma, J: In view
of specific provision of s.97, the returned candidate cannot F
resort to file counter claim or recrimination petition under
Order VIII rule 6A - Only votes cast in the named polling
station liable to be counted and not those named in paras
ordered to be deleted from written statement - Per V.S.
Sirpurkar, J: Pleas raised by returned candidate were not in G
the nature of recrimination - By virtue of Order VIII, Rule 6
CPC, the returned candidate, could still raise his defence by
way of a counter claim - The language of s. 9 7 of the Act which
is in the nature of positive language, does not bar raising of
525 H
526 SUPREME COURT REPORTS [201 O] 8 S.C.R.
A any such defence - Recount should be of the votes of all the
candidates.
In view of difference of opinion. the matter is referred to
larger bench - Code of Civil procedure, 1908 - Order VIII r. 6A
8 - Elections laws - Reference to larger bench.
In the legislative assembly elections, appellant
defeated the respondent-election petitioner by margin of
two votes. Respondent challenged the election of
appellant under Section 100(1)(d)(iii) and (iv) of the
C Representation of the People Act, 1951 on the ground
that number of impersonators voted in the name of dead
persons in named polling stations and prayed that the
election of the appellant be declared void. The appellant ·
filed a written statement in which apart from contesting
0 the allegations made in the election petition, the appellant-
returned candidate made several statements in the nature
of counter claim/recrimination in paras 22-31. It was
contended therein that the votes were cast in the name
of dead persons in all the polling stations and prayed for
E direction to recount of votes of all the candidates. The
respondent thereafter filed an application under Order VI
Rule 16 CPC praying for striking off these paras allegedly
made by way of counter claim/recrimination. The said
application was allowed by Election Judge. Aggrieved
F appellant filed the appeal.
Referring the matter to larger bench, the Court
Held:
G Per: DR. MUKUNDAKAM SHARMA, J:
1.1. In the present case since there was no prayer in
the election petition to declare the election petitioner or
any other candidate as elected candidate, therefore, the
provisions of Section 97 of the Representation of the
H People Act, 1951 would not be applicable or attracted. In
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 527
fact, statements which are intended and could be made A
in the light of Section 97 of the Act are counter-claims.
· When the specific provision which provides for raising a
counter-claim is excluded and is not attracted, it cannot
be said that such counter-claim could be raised in terms
of the provisions of Order VIII Rule GA, CPC. The B
Representation of People Act, 1951 is a self contained
code. Under the Act, a specific provision is incorporated
in the form of Section 97 providing for considering
recrimination petition/counter-claim under certain
circumstances, and therefore, the same being a provision c
under a special Act, would prevail over the provisions of
Order VIII Rule GA, CPC which is a general law. The said
legal principle is based on the latin maxim generalia
specia/ibus non derogant which means general words do
not derogate from special. In view of this mandate,
D
permitting the returned candidate to file a counter claim
in terms of Order VIII Rule GA, CPC when the same
cannot be done under Section 97 of the Act would
tantamount to completely obliterating the effect of Section
97 of the Act. If Section 97 of the Act expressly allows a
recrimination petition when an election petition is filed E
seeking a declaration that the election petitioner or any
other candidate is the returned candidate, then there is
an implied bar on filing a recrimination petition in the
absence of such a declaration. As the principle of
statutory construction, Expressio Unius Est Exc/usio F
Alterius states, the express inclusion of one thing is the
exclusion of all others. In this case, the specific inclusion
of a condition for filing a recriminatory petition under
Section 97 of the Act, namely that a declaration that the
election petitioner or any other candidate is the returned G
candidate should be filed, excludes its filing in all other
cases. Section 97 of the Act bars filing of a counter-claim
by way of a recrimination petition when an election
petition is filed without seeking for a declaration that the
election petitioner or any other candidate is the returned H
0
528 SUPREME COURT REPORTS [2010] 8 S.C.R.
A candidate. In such a case, the application of Order VIII
Rule 6A, CPC would not be permissible, as permitting the
same would amount to allowing indirectly, what is
prohibited by law to be done directly. It is settled law that
whatever is prohibited by law to be done directly cannot
B be allowed to be done indirectly. [Paras 18, 19] [543-F-G;
544-F-H; 545-A-D]
Jyoti Basu v. Debi Ghosal Al R 1982 SC 983, held
applicable.
C 1.2. Section 87 of the Act opens with the expression
"subject to the provisions of this Act and any other rules
made thereunder". This definitely means that Section 87
is subject to the provisions of Section 97 of the Act.
Section 87 also specifically provides that the procedure
D under the Code would be applicable "as nearly as may
be" meaning thereby that only those provisions for which
there is no corresponding provision in the Act could be
made applicable. Therefore, the provisions of the Code
are not wholly applicable to the trial of the election
E petitions. Accordingly, if there is no scope for filing a
recrimination petition under Section 97 of the Act, this
limitation cannot be sought to be removed or overcome
by taking resort to another provision of the Code which
will be explicitly and impliedly inconsistent with the
F provisions of Section 97 of the Act. A similar view was
taken by the Constitution Bench of this Court in the case
of *Jabar Singh. In view of the fact that there was a
pronouncement of the Constitution Bench of this Court
in *Jabar Singh and also the decision of this Court in
**T.A. Ahammed Kabeer which on an interpretation of
G Section 97 of the Act, had carved out a settled position
of law, a different view cannot be taken. So long the
Legislature does not change the law to obliterate the
discrepancy, if any, the Court cannot do so on its own. It
would not be appropriate for the Court to go beyond the
H
MD: ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 529
legislative intent as derived from the existing provisions A
and lay down its views on a particular matter although
such a view could be a possible view. The judiciary does
not have any power to legislate and that is to be strictly
adhered to. [Paras 20, 22] [545-G-H; 546-A-D]
8
*Jabar Singh v. Genda Lal (1964) 6 SCR 54; **T.A.
Ahammed Kabeer v. A.A. Azees and Others (2003) 5 SCC
650, relied on.
Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav and
Others (1975) 2 SCC 447; N. Gopa/ Reddy v. Bona/a C
Krishnamurthy and Others (1987) 2 SCC 58, distinguished.
Bachan Singh v. State of Punjab (1982) 3 SCC 24,
referred to.
D
2. The concept of counter-claim was 'for the first time
inserted in the Code of Civil Procedure in the year 1976.
Though it is true that there was no specific provision for
raising a counter-claim by the defendant in the written
statement prior to the amendment of the Code in 1976
but claims by way of counter claims were in fact raised E
and considered by all the Courts including the Supreme
Court of India which would be apparent from a bare
reference of the decision in the case of Jabar Singh.
Section 97 of the Act bestows a right upon the returned
candidate to raise a defence when an additional claim F
under Section 84 of the Act is made by the election
petitioner. Recrimination, as envisaged under Section 97
of the Act, is nothing else but a counter-claim and this
concept was incorporated in the Act, which is a special
Act, even prior to 1976 when the provision of counter G
claim now contained in Order VIII Rule GA was inserted
in the Code. Therefore, the said change brought in the
Code, which is a general common law, would not have
any consequential effect so far as the present case is
concerned. Thus, the concept of counter-claim was not H
530 SUPREME COURT REPORTS [2010] 8 S.C.R.
A foreign or totally absent prior to 1976. In view of the said
position and also in view of the fact that there is a specific
provision in the Act to raise counter-claim with certain
pre-conditions and on certain specific conditions the
provisions of Order VIII Rule GA, CPC cannot be invoked
B in view of the bar and prohibition enforced by Section 97
of the Act. [Paras 24-25] [550-E-H; 551-A-B]
' Virendra Kumar Sak/echa v. Jagjiwan & Others (1972) 1
sec 826, referred to.
C Per: V.S. SIRPURKAR, J.
1. The plea raised in the paragraphs 22 to 31 of the
written statement of elected candidate was not in the
nature of recrimination, but, thereby the elected candidate
0 was setting up a valid defence and was suggesting that
it was a case of the election petitioner that in particular
number of polling stations, some impersonators had
voted in the name of dead persons. Such things had
happened in other constituencies also and, therefore, the
E votes cast in the name of dead persons in all the polling
stations, more particularly, the named polling stations
should also be deleted or held to be void votes. This
could not be viewed as a recriminatory plea which was
barred under Section 97 of the Act. The counter claim
F by the elected candidate was only to raise a valid defence
to save his own election and it was in the nature of
raising or introducing pleadings permitting him to show
that it is not only in respect of the particular polling
stations named in the election petitions that some votes
cast in the name of dead persons were required to be
G declared as void, but such votes, cast in other polling
stations also were required to be declared void in order
to know as to who had, in fact, polled the majority of
votes. There was nothing wrong in raising this plea,
more particularly, because rule of democracy, which
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 531
depends upon the valid elections, can be called to be the A
'basic structure of the Constitution of India'. [Paras 10,
11, 12] [554-G-H; 555-A-F]
Jabar Singh v. Genda Lal AIR 1964 SC 1200; lnayatullah
Khan v. Diwanchand Mahajan AIR 1959 M.P. 58; Bhim Sen
8
v. Gopali 22 Election Law Reports 288 SC; N. Gopa/ Reddy
v. Bona/a Krishnamurthy & Ors. 1987 (2) SCC 58;
P. Malaichami v. Andi Ambalam 1973 (2) SCC 170; Arun
Kumar Bose v. Mohd. Furkan Ansari 1984 (1) SCC 91;
Janardan Dattuappa Bondre v. Govind Shiv Prasad
Chaudhary 1979 (4) SCC 516; Bhag Mal v. Ch.Prabhu Ram C
1985 (1) sec 61, referred to.
2. The import of words "the reception of any vote
which is void" in section 100(1)(d)(iii) would cover each
and every void vote received by each and every D
candidate because void vote cannot be counted:
whether it is cast in favour of an elected candidate or any
other candidate contesting the elections. Once the real
import of clause "the reception of any vote which is void"
is realized, it becomes clear that, in recount of the votes E
which are void votes, those would have to be excluded
and for that purpose, the returned candidate can raise a
plea by way of defence that. the void votes were cast
either in favour of elected candidate or any other
defeated candidate. He can at least raise a plea that such F
void votes were actually cast and he would certainly be
justified in raising a plea that the void votes were cast
not only in the polling Stations named in the election
petition, but in some other polling Stations also.
Therefore, if recount was to be ordered, the recount G
cannot be restricted only to the named polling Stations
in the election petition, but it would have to be a general
recount where the void votes would have to be avoided.
Therefore, there would have to be an opportunity to the
elected candidate to prove that there were void votes in
H
532 SUPREME COURT REPORTS [201 O] 8 S.C.R.
A other polling Stations also and for that purpose, there
should be recount of all the votes of all the Polling
Stations. It is only thereafter that the true position as
regards majority of votes could be 'obtained. The plea
raised in the paragraphs 22-31 is not a recriminatory plea
B within the meaning of Section 97 of the Representation
of the People Act, 1950. What is raised is a mere plain
defence that, even if there was going to be a recount, then
it should be a recount of all the votes and not of the votes
cast only in his favour and for that purpose, he would be
C allowed to prove that it is not only in the particular polling
stations that the votes were cast in the name of dead
persons, but they were also cast in other polling stations.
[Paras 24, 26] [570-A-F; 571-B-D]
3. At the time when Jabar Singh's case was decided,
D the amended provisions of Order VIII, Rule GA CPC
providing for counter claim was not available on the
Statute. That provision came only by way of amendment
later on. Though, the concept of counter claim was not
unknown, even in the absence of a specific provision
E therefor, introduction of a specific provision for raising
the counter claim would be a relevant factor for
considering as to whether a candidate, in the absence of
any recrimination, could insist upon counting of the votes
cast in favour of the other losing candidates. Raising of
F a counter claim by way of a valid defence would still be
permissible considering the broad language of that
provision. In ordering counting of the votes of the elected
candidate alone, the whole election process would stand
prejudiced, inasmuch as, then, even if some invalid votes
G are cast in favour of the other candidates or void votes
are cast in the election, those votes would not be counted
and in that case, there could be no correct reflection in
respect of the votes secured by each candidate. This is
apart from the fact that a very unfair advantage can be
H secured by an election petitioner in favour of the losing
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 533
candidate by deliberately not claiming any declaration A
either in favour of the election petitioner or in favour of
any other losing candidate so that the elected candidate
would be rendered completely helpless in showing that
he alone is a candidate having secured majority of votes.
Securing a majority of votes is the very essence of the B
democratic elections and the democracy being a part of
the basic structure of our Constitution, the question
involved herein gains all the more importance. The theory
of basic structure of the Constitution also was not
available when Jabar Singh's case was decided. The_ c
interpretation put forth in Jabar Singh's case, in a majority
decision would, therefore, require reconsideration, more
particularly, in view of the minority decision therein which
was more in accord with the principles of securing
majority votes in a democratic elections. [Paras 27, 28) 0
[571-D-G; 573-A; 572-D-H]
Case Law Reference:
Judgment of Dr. Mukundakam Sharma, J:
AIR (1964) SC 1200 referred to Paras 13, 18, 20, E
22, 23, 24
(2003) 5 sec 650 referred to Para 13, 21, 22
(1972) 1 sec 826 referred to Para 13
F
(1975) 2 sec 447 referred to Para 13, 21
AIR 1982 SC 983 held applicable Para 17, 18
(1979) 1 sec 560 referred to Para 19
G
(2003) 5 sec 650 relied on Para 21
(1975) 2 sec 447 distinguished Para 21 ·
(1987) 2 sec 58 distinguished Para 21, 23
(1982) 3 sec 24 referred to Para 22 · H
534 SUPREME COURT REPORTS [2010] 8 S.C.R.
A (1979) 1 sec 560 referred to Para 22
Judgment of V.S. Sirpurkar, J.
AIR 1964 SC 1200 referred to Paras 15, 16, 22,
24, 27, 28
B
AIR 1959 M.P. 58 referred to Para 16
22 ELR 288 SC referred to Para 16
1987 (2) sec 58 referred to Para 22
c 1973 (2) sec 110 referred to Para 22
1984 (1) sec 91 referred to Para 22
1919 (4) sec 516 referred to Para 22
D 1985 (1) sec 61 referred to Para 22
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5851 of 2010.
From the Judgment & Order dated 11.2.2008 of the Court
E of Gauhati, Imphal Bench in M.C. (Election Petition) No.1 of
2008 in Election Petition No.2 of 2007.
Hijam N.K. Singh, Lenin Singh Hijam, Ashok Kumar
Sharma, Shivaji M. Jadhav, Rahul Joshi for the Appellant.
F P.S. Narasimhan, L. Roshmani, K. Parameshwar, Ritesh
Choudhary (for Aribam Guneshwar Sharma) for the
Respondent.
The Judgment of the Court was delivered by.
G
DR. MUKUNDAKAM SHARMA, J. 1. Leave granted.
2. The present appeal is directed against the order dated
11.02.2008 passed by the Designated Election Judge of the
Gauhati High Court in M. C. (Election Petition) No. 1 of 2008
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 535
[DR. MUKUNDAKAM SHARMA, J.)
in Election Petition No. 2 of 2007, whereby the learned Election A
Judge allowed the miscellaneous application filed by the
election petitioner, respondent herein, with an order that the
statements, in the nature of recrimination and counter claim,
made in the written statement of the returned candidate,
appellant herein,. more particularly, in paragraph nos. 22-31 B
would stand struck off from the defence of the appellant.
3. Being aggrieved by the aforesaid order, the appellant
filed the present Special Leave Petition on which notice was
initially issued and on service the respondent entered C
- appearance. The learned senior counsel appearing for the
parties have been heard at length.
4. The appellant and the respondent and few other
candidates had contested the election of the 9th Manipur
Legislative Assembly from 6-Keirao Assembly Constituency. D
The said election was held on 14.02.2007 and 16.02.2007
(re-poll in polling station No. 615) and the election result was
declared on 27.02.2007, wherein the appellant emerged as the
winner after defeating the respondent-election petitioner by a
margin of only two votes. The aforesaid election of the appellant- E
returned candidate was challenged by the respondent by filing
an election petition basically under Section 100(1 )(d) (iii) and
(iv) of the Representation of the People Act, 1951 [for short ·~the
Act"], with a prayer that the election of the appellant be declared
void. F
5. In order to appreciate the contention of the counsel
appearing for the parties, the relevant portion of the prayer
made in the election petition viz., paras iii to v, is extracted
hereinbelow: -
G
(iii) to order a re-count of the votes after excluding the
void votes if required;
H
536 SUPREME COURT REPORTS [2010j 8 S.C.R.
A (iv) to declare the election of the Respondent No. 1 as
void;
(v) to pass other and further orders as may be
deemed fit by the Hon'ble Court in the facts and
circumstances of the case."
B
So far as the reliefs prayed in paragraphs i) & ii) are
concerned, they relate to seeking for a direction and for calling
certain records. As the same are not directly connected with
the contentions raised herein, they have not been extracted.
c
6. Immediately after appearance in the election petition,
the appellant filed a miscellaneous application before the
Gauhati High Court which was registered as MC (EP) No. 6 of
2007 whereby the appellant challenged the maintainability of
0 the election petition on technical grounds. The said
miscellaneous application was however dismissed on
31.10.2007. After taking a few adjournments, the appellant filed
the written statement on 04.01.2008, in which, apart from
contesting the allegations made in the election petition, the
E appellant-returned candidate made several statements in the
nature of counter claim/recrimination in paragraph nos. 22-31.
7. The respondent thereafter filed an application under
Order VI Rule 16 of the Code of Civil Procedure [for short 'the
Code') praying for striking off the aforesaid paragraphs
F allegedly made by way of counter claim/recrimination. The said
application came up for consideration before the learned
Election Judge, who after an elaborate discussion on the merits
of the said application allowed the same by holding that the
statements in the nature of recrimination and counter claim
G made in the written statement by the appellant, more
particularly, in paragraphs nos. 22-31 would stand struck off
from the defence pleaded. Being aggrieved by the aforesaid
order this appeal was filed.
8. The main contention of the counsel appearing for the
H
MO, ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 537
[DR. MUKUNDAKAM SHARMA, J.]
appellant is that under Order VIII Rule 6A of the Code the A
appellant has a right and a prerogative to raise certain
defences by way of counter claim and the said right can be
exercised even in a case where there is no additional claim in
terms of Se"Ction 84 of the Act; and despite the fact that a
recrimination petition as such·may not be maintainable in terms B
of Section 97 of the Act. It was further submitted that since in
the present case the election petitioner has intentionally avoided
to make additional claim as provided under Section 84 of the
Act, the appellant-returned candidate had no other option
except to fall back upon Order VIII, Rule 6-A of the Code. c
9. The short question that falls for consideration in the
present appeal is: when there is no provision and right vested
in the returned candidate to file a recrimination petition due to
absence ofa prayer by the election petitioner in the election
petition-seeking.for his declaration (or any other candidate) as D
a returned candidate, can the returned candidate in his written
statement take up pleas which are in fact counter claims with
the aid of Order VIII; Rule.6A of the Code?
10. In order to answer the aforesaid issues, it would be E
necessary to peruse· some of the relevant provisions of the Act
and some of the decisions of this Court referred to and relied
upon by the counsel appearing for the parties and also the
contents of the paragraph nos. 22-31 of the written statement
filed by the appellant. However, before proceeding with the F
same, it would be· appropriate to refer to an order passed by
the Election Judge on 29.08.2007, on the application filed by
the appellant under Section 101 of the Act read with Section
151 of the Code; seeking a direction to the election petitioner
to·ctarify the exact'relief sought for in the prayer nos. (iv) to (v) G
(already extracted hereinabove). The said application came
up for hearing:and after conclusion of the hearing, an order was
passed'on·29:08~2007 to the following effect: -
"Under Section 82 of the Representation of People Act,
1951, all the candidates to the election are required to be H
538 SUPREME COURT REPORTS (2010] 8 S.C.R.
A impleaded as a party in the Election Petition if the
petitioner makes any prayer to declare himself or any other
candidate as duly elected representative. In the present
case, the election petitioner has not impleaded the
remaining candidates. Hence, it is implied that the
B petitioner has not made any prayer to declare himself or
any other candidate as elected representative, which
declaration can be given u/s 101 of the Representation of
People Act, 1951.
In my considered opinion, under clause (v) of the prayer,
c this Court can only grant the relief to the petitioner or pass
appropriate orders, which are ancillary to the Election
Petition and no specific declaration can be granted that
either the election petitioner or any other candidate shall
be construed as elected candidate."
D
It is, therefore, established from the aforesaid order
passed by the Election Judge by way of a clarification that
in the election petition what survives for consideration is
the prayer as to whether or not to declare the election of
E the appellant-returned candidate as void. Therefore, there
is no dispute with regard to the fact that in the said election
petition no additional prayer was made by the election
petitioner seeking for a declaration that he or any other
candidate be declared as the elected candidate.
F 11. The relevant statutory provisions, which may now be
referred to, read as follows:
"Section 84: Relief that may be claimed by the petitioner:-
G A petitioner may, in addition to claiming a declaration
that the election of all or any of the returned candidates
is void. claim a further declaration that he himself or any
other candidate has been duly elected.
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 539
[DR. MUKUNDAKAM SHARMA, J.)
Section 87: PcoEedure before the High Court - A
(1) Subject to the provisions of this Act and of any rules
made thereunder every election petition shall be
tried by the High Court as nearly as may be, in
accordance with the procedure applicable under
8
the code of Civil Procedure, 1908 for the trial of
suits.
Provided that the High Court shall have the
discretion to refuse, for reasons to be recorded in
writing to examine any witness or witnesses if it is C
of the opinion that the evidence of such witness or
witnesses is not material for the decision of the
petition or that the party tendering such witness or
witnesses is doing so on frivolous grounds or with
a view to delay the proceedings. D
(2) The provisions of the Indian Evidence Act, 1872,
shall, subject to the provisions of this Act, be
deemed to apply in all respects to the trial of an
election petition.
E
Section 97: Recrimination when seat claimed -
(1) When in an election petition a declaration that any
candidate other than the returned candidate has
been duly elected_i~ claimed, the returned F
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: G
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
H
540 SUPREME COURT REPORTS [2010) 8 S.C.R.
A 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 by in sub-section (1) shall be
accompanied by the statement and particulars
B
required by section 83 in the case of an election
petition. and shall be signed and verified in like
manner.
Section 100 - Grounds for declaring election to be void-
c
S.100 (1) (d) (iii): -
By the improper reception, refusal or rejection of
any vote or the reception of any vote which is void;
or
D
12. The provisions of Order VIII Rule 6A of the Code, which
was repeatedly referred to during the course of the arguments,
E may also be extracted here: -
"Order VIII - Written Statement, Set-off and Counter-
Claim
Rules 6A - Counter-claim by defendant -
F
(1) A defendant in a suit may, in addition to his right of
pleading a set-off under rule 6, set up, by way of
counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action
according to the defendant against the plaintiff
G
either before or after the filing of the suit but before
the defendant against the plaintiff either before or
after the filing of the suit but before the defendant
has delivered his defence or before the time limited
for delivering his defence has expired, whether such
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 541
[DR MUKUNDAKAM SHARMA, J.]
counter-claim is in the nature of a claim for damages A
or not;
Provided that such counter-claim shall not exceed
·the pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as B
a cross-suit so as to enable the Court to pronounce
a final judgment, in the same suit, both on the
original claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written C
.statement in answer to the counter-claim of the
defendant within such period as may be fixed by the
.Court.
(4) 'The counter-claim shall be treated as a plaint and
0
governed by the rules applicable to plaints."
13. Reference was also made to the decisions of this
Court in Jabar Singh v. Genda Lal [AIR 1964 SC 1200]; TA.
Ahammed Kabeer v. A.A. Azees and Others [(2003) 5 SCC
650]; Virendra Kumar Saklecha v. Jagjiwan & Others [(1972) E
1 SCC 826]; Dr. Rajendra Kuman· Bajpai v. Ram Adhar
Yadav and Others [(1975) 2 SCC 447]. Reference was also
made to Order VI Rule 16 of the Code and relying on the same
eounsel appearing for the appellant submitted that interference
by the Hjgh Court at the behest and request of. the respondent F
was unjustified and uncalled for as none of the conditions laid
down in Rule 16 was attracted in the present case. This
argument may be dealt with·at the outset.
14. Order VI Rule 16 of the Code has been incorporated
therein with the idea of empowering the Courts to strike out or G
amend:any matter in any pleading, including the statement in
the written statement, at any stage of the proceedings when the
same is found to be unnecessary, scandalous, frivolous and
vexatious; or which may tend to prejudice, embarrass or delay
H
542 SUPREME COURT REPORTS [2010] 8 S.C.R.
A the fair trial of the suit; or which is otherwise an abuse of the
process of the Court.
15. Order VIII Rule 6A empowers the defendant in a suit
to raise by way of counter-claim against the claim of the plaintiff,
any right or claim in respect of a cause of action accruing to
8
the defendant against the plaintiff and that such a counter-claim
would have the same effect as a cross-suit so as to enable the
Court to pronounce the final judgment in the same suit, both on
the original claim and on the counter-claim. It is also provided
C therein in sub-rule (4) of Rule 6A that the counter-claim shall
be treated as a plaint and governed by the rules applicable to
plaints. So far as in the present case the statements made by
the appellant-returned candidate in the written statement,
particularly in paragraph nos. 22-31 are concerned, it would
indicate that those statements are by way of counter-claim
D against the claim of the election petitioner and relate to the right
or claim in respect of the same cause of action.
16. Section 97 of the Act which deals with an election
petition provides that when an election petition is filed claiming
E a declaration that any candidate other than the returned
candidate has been duly elected, in that event, the returned
candidate or any other party would be entitled to give evidence
to prove that the election of such candidate would have been
void had he been the returned candidate. Therefore,
F paragraphs nos. 22-31 of the written statement relate to matters
in respect of which evidence should have to be laid to prove
that if those allegations are established then the election of such
candidate would be void.
17. An election petition is required to be considered and
G decided in accordance with the procedure laid down in the
Representation of People Act, 1951 which constitutes a
complete and self-contained code. This view was endorsed
by this Court in the case of Jyoti Basu v. Debi Ghosal [AIR
1982 SC 983 : (1982) 1 SCC 691] in the following words:-
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 543
[DR. MUKUNDAKAM SHARMA, J.)
"8 ............... An election petition is not an action at A
common law, nor in equity. It is a statutory proceeding to
which neither the common law nor the principles of eq-uity
apply but only those rules which the statute makes and
applies. It is a special jurisdiction, and a special jurisdiction
m
has always to be exercised accordance with the statute B
creating it. Concepts familiar to common law and equity
must remain strangers to election law unless statutorily
embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such
matters as those, relating to the trial of election disputes, c
is what the statute lays down. In the trial of election
disputes, court is put in a strait-jacket. Thus the entire
election process commencing from the issuance of the
notification calling upon a constituency to elect a member
or members right up to the final resolution of the dispute, D
if any, concerning the election is regulated by the·
Representation of the People Act, 1951, different stages
· of the process being dealt with by different provisions of
the Act ..................... So the Representation of the
People Act has been held to be a complete and self-
E
contained code within which must be found any rights
claimed in relation to an election or an election
dispute ............... "
18. Now since there is a specific provision in the J\ct as
to how a recrimination petition is to be dealt with, the same is F
required to be decided in the manner as provided therein. In
the present case since there was no prayer in the election
petition to declare the election petitioner or any other candidate
as elected candidate, necessarily therefore, the provisions of
Section 97 of the Act could not be said to be applicable or G
attracted. In fact, statements which are intended and could be
made in light of Section 97 of the Act are counter-claims, which
are so stated in the Five-Judge Bench decision of this Court
in Jabar Singh (supra). When the specific provision which
provides for raising a counter-claim is excluded and not H
544 SUPREME COURT REPORTS [2010] 8 S.C.R.
A attracted in terms of the provisions of Section 97 of the Act, it
cannot be said that such counter-claim could be raised in terms
of the provisions of Order VIII Rule 6A. The decision in the
case of Jyoti Basu (supra) is clearly applicable as the provision
of common law is held to be not applicable when specific
B special law would apply. The legality and validity of the
provisions contained either in Section 97 or in Section 87 of
the Act has not been challenged. Therefore, in line with the
provisions in Section 97 of the Act, the counter-claims could
not be allowed to be raised by following the procedure under
c Order VIII Rule 6A. The learned Senior counsel for the appellant
also did not contend that the provision of filing recrimination
petition under Section 97 is in the nature of filing a counter-claim
under the provision in the Code. The same could not have also
been done in view of the ratio of the decision in Jabar Singh
(supra).
0
19. The Representation of People Act, 1951 is a self
contained code and the enacted provisions therein have
substituted the general provisions under the common law.
Under the Act, a specific provision has been incorporated in
E the form of Section 97 providing for considering recrimination
petition/counter-claim under certain circumstances, and
therefore, the same being a provision under a special Act,
would prevail over the provisions of Order VIII Rule 6A of the
Code which is a general law. The said legal principle is based
F on the latin maxim generalia specialibus non derogant which
means general words do not derogate from special. It is also
to be kept in mind that when the legislation inserted the
provision of Order VIII Rule 6A into the Code, it never intended
to bring a corresponding change in Section 97 of the Act,
G despite being fully conscious of the change. In view of this
mandate, permitting the returned candidate to file a counter
claim in terms of Order VIII Rule 6A, when the same cannot
be done under Section 97 of the Act would tantamount to
completely obliterating the effect of Section 97 of the Act. If
H Section 97 of the Act expressly allows a recrimination petition
MD. ALAUDD.IN KHAN v. KARAM THAMARJIT SINGH 545
[DR. MUKUNDAKAM SHARMA, J.]
when an election petition is filed seeking a declaration that the A
election petitioner or any other candidate is the returned
candidate, then there is an implied bar on filing a recrimination
petition in the absence of such a declaration. As the principle
of statutory construction, Expressio Unius Est Exclusio Alterius
states, the express inclusion of one thing is the exclusion of all B
others. In this case, the specific inclusion of a condition for filing
a recriminatory petition under Section 97 of the Act, namely that
a declaration that the election petitioner or any other candidate
is the returned candidate should be filed, excludes its filing In
all other cases. Simply put, Section 97 of the Act bars filing of c
a counter-claim by way of a recrimination petition when an
election petition is filed without seeking for a declaration that
the el.ection petitioner or any other candidate is the returned
candidat~. In such a case, the application of Order VIII Rule 6A
would not be permissible, as permitting the same would amount
0
to allowing indirectly, what is prohibited by law to be done
directly. It is settled law that whatever is prohibited by law to
be done directly cannot be allowed to be done indirectly. The
decision of the Court in Jagir Singh v. Ranbir Singh & Anr.
[(1979) 1 sec 560], maybe referred to, where it was held thus:
E
"5 ........................... We do not think that it is permissible
to do so. What may not be done directly cannotbe allowed
to be done indirectly; that would be an evasion of the
statute. It is a "well-known principle of law that the.provisions
of an Act of Parliament shall not be. evaded by shift or F
contrivance" (per Abbot, C.J. in Fox v. Bishop of Chester).
"To carry out effectually the object of a Statute. it must be
construed as to defeat all attempts to do, or avoid doing,
in an indirect or circuitous manner that which it has
prohibited or enjoined."(Maxwe//, 11th Edn., p.109) G
"
20. Section 87 of the Representation of People Act, 1951
opens with the expression "subject to the provisions of this Act
and any other rules made thereunder''. This definitely means H
546 SUPREME COURT REPORTS [2010] 8 S.C.R.
A that Section 87 is subject to the provisions of Section 97 of the
Act. Section 87 also specifically provides that the procedure
under the Code would be applicable "as nearly as may be"
meaning thereby that only those provisions for which there is
no corresponding provision in the Act could be made
B applicable. The distinction between sub-section (1) and sub-
section (2) of Section 87 of the Act brings out the
contradistinction between the two provisions inasmuch as sub-
section (2) makes the entire Evidence Act applicable subject
to the provisions of the Act but in extenso whereas sub-section
c (1) makes the Code of Civil Procedure applicable subject to
the provisions of the Act and as nearly as possible. Therefore,
the provisions of the Code are not wholly applicable to the trial
of the election petitions. Accordingly, if there is no scope for
filing a recrimination petition under Section 97 of the Act, this
limitation cannot be sought to be removed or overcome by
0
taking resort to another provision of the Code which will be
explicitly and impliedly inconsistent with the provisions of
Section 97 of the Act. A similar view was taken by the
Constitution Bench of this Court in the case of Jabar Singh v.
E Genda Lal [AIR 1964 SC 1200: (1964) 6 SCR 54]. In para 11
this Court has held as follows:-
11. There are, however, cases in which the election petition
makes a double claim; it claims that the election of the
returned candidate is void, and also asks for a declaration
F that the petitioner himself or some other person has been
duly elected. It is in regard to such a composite case that
Section 100 as well as Section 101 would apply, and it is
in respect of the additional claim for a declaration that
some other candidate has been duly elected that Section
G 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 in whose favour a declaration
is claimed by the petition cannot be said to be validly
elected, and these would be pleas of attack and it would
H be open to the returned candidate to take these pleas,.'
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 547
[DR. MUKUNDAKAM SHARMA, J.]
because when he recriminates, he really becomes a A
counter-petitioner challenging the validity of the election of
the alternative candidate ..................... If the returned
candidate does not recriminate as required by Section 97,
then he cannot make any attack against the alternative
claim made by the petition. In such a case an enquiry s
would be held under Section 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 c
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."
21. Reliance was, however, placed by the counsel D
appearing for the appellant on the decision of this Court in the
case of Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav and
Others [(1975) 2 sec 447]. The said decision does not in any
manner advance the case of the appellant because of the fact
that it has already been held hereinbefore that the provision of E
Order VIII Rule 6A cannot be substituted in place of provision
of Section 97 and that Section 97 excludes the applicability of
the provisions of Order VIII Rule 6A of the Code. Attention was
also drawn to the decision of this Court in the case of N. Gopa/
Reddy v. Bona/a Krishnamurthy and Others [(1987) 2 SCC F
58], which is distinguishable inasmuch as in the said case the
issue was whether the returned candidate can refer to and rely
upon the evidence already on record, in the light of the fact that
he is not entitled to lead evidence as he had failed to file the
recrimination petition in a case where there was an additional G
prayer for declaring the election petitioner as the elected
candidate. The said decision was taken notice by this Court
in the case of TA. Ahammed Kabeer v. A.A. Azees and
Others [(2003) 5 sec 650) and after referring to all the existing
H
548 SUPREME COURT REPORTS [2010] 8 S.C.R.
A decisions of this Court on the issue in question, the Division
Bench summed up the legal position as follows:-
"33. We have already stated that the rigorous rule
propounded by the Constitution Bench in Jabar Singh case
has met with criticism in some of the subsequent decisions
B
of this Court though by Benches of lesser coram and an
attempt at seeking reconsideration of the majority opinion
in Jabar Sin~h case has so far proved to be abortive. The
view of the law taken by the Constitution Bench in Jabar
Singh case is binding on us. Analysing the majority opinion
c in Jabar Singh case and the view taken in several
decisions of this Court, referred to hereinabove, we sum
up the law as under:
D
(2) A recrimination by the returned candidate or any other
party can be filed under Section 97(1) in a case where in
an election petition an additional declaration is claimed
that any candidate other than the returned candidate has
been duly elected.
E
(3) For the purpose of enabling an enquiry that any votes
have been improperly cast in favour of any candidate other
than the returned candidate or any votes have been
improperly refused or rejected in regard to the returned
F candidate the Election Court shall acquire jurisdiction to
do so only on two conditions being satisfied: (i) the election
petition seeks a declaration that any candidate other than
the returned candidate has been duly elected over and
above the declaration that the election of the returned
G candidate is void; and (ii) a recrimination petition under
Section 97(1) is filed.
(4) A recrimination petition must satisfy the same
requirements as that of an election petition in the matter
of pleadings, signing and verification as an election petition
H
MD. ALAUDDJN KHAN v. KARAM THAMARJIT S:INGH 549
[DR. MUKUNDAKAM SHARMA, J.]
is required to fulfil within the meaning of Section 83 of the A
Act and must be accompanied by the security or the further
security referred to in Sections 117 and 118 of the Act.
22. In view of the fact that there is a pronouncement of the B
Constitution Bench of this Court in Jabar Singh (supra) and
also the decision of this Court in T.A. Ahammed Kabeer
(supra) which on an interpretation of Section 97 of the Act, has
carved out a settled position of law, a different view cannot be
taken. So long the Legislature does not change the law to C
obliterate the discrepancy, if any, the Court cannot do so on
its own. It would not be appropriate for the Court to go beyond
the legislative intent as derived from the existing provisions.and
lay down its views on a particular matter although such a view
could be a possible view. The judiciary does .not have any power D
to legislate and that is to be strictly adhered to. The
Constitution-bench decision of this Court in the celebrated case
of Bachan Singh v. State of Punjab (1982) 3 SCC 24 may be
, cited here to bring out the position clearly:
E
"77. Now it is true that there are cases where the court lays
down principles and standards for guidance in the exercise
of the discretion conferred upon it by a statute, but that is
done by the court only in those cases where the principles
or standards are gatherable from the provisions of the
F
statute. Where a statute confers discretion upon a court,
the statute may lay down the broad standards or principles
which should guide the court in the exercise of such
discretion or such standards or principles may be
discovered from the object and purpose of the statute, its
underlying policy and the scheme of its provisions and G
sometimes, even from the surrounding circumstances.
When the court lays down standards or principles which
should guide it in the exercise of its discretion, the court
does not evolve any new standards or principles of its own
but merely discovers them from the statute. The standards H
550 SUPREME COURT REPORTS [2010] 8 S.C.R.
A or principles laid down by the court in such a case are not
standards or principles created or evolved by the court but
they are standards or principles enunciated by the
legislature in the statute and are merely discovered by the
court as a matter of statutory interpretation. It is not
B legitimate for the court to create or evolve any standards
or principles which are not found in the statute, because
enunciation of such standards or principles is a
legislative function which belongs to the legislative and
not to the judicial department.
c (emphasis supplied)
23. It is no doubt true that a two-Judges Bench of this Court
in the case of N. Gopal Reddy (supra) opined that the law laid
down in Jabar Singh (supra) requires reconsideration but the
D reference made could not be finally decided as the petition
became infructuous on expiry of the term of five years and the
parties having lost interest in view of that eventuality. Therefore,
the field continues to be governed by the position of law as laid
down in the Jabar Singh (supra). Since then there has been
E no change in the law regarding the issue at hand.
24. It was at one stage argued by the counsel appearing
for the appellant that the concept of counter-claim was for the
first time inserted in the Code of Civil Procedure in the year
F 1976 and therefore when Jabar Singh (supra) was d~cided,
the concept of counter-claim was not there and what was
available was only a concept of written statement and set-off.
It is to be pointed out that though it is true that there was no
specific provision for raising a counter-claim by the defendant
in the written statement prior to the amendment of the Code in
G 1976 but claims by way of counter claims were in fact raised
and considered by all the Courts including the Supreme Court
of India which would be apparent from a bare reference of the
decision in the case of Jabar Singh (supra). It is needless to
point out that Section 97 of the Act bestows a right upon the
H returned candidate to raise a defence when an additional claim
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 551
under Section 84 of the Act is made by the election petitioner. A
Recrimination, as envisaged under Section 97 of the Act, is
nothing else but a counter-claim and this concept was
incorporated in the Act, which as noted earlier is a special Act,
even prior to 1976 when the provision of counter claim now
contained in Order VIII Rule 6A was inserted in the Code. B
Therefore, the aforesaid change brought in the Code, which is
a general common law, would not have any consequential effect
so far as the present case is concerned. It is thus apt to note
that the concept of counte'j\-claim was not foreign or totally
absent during the period prio'r to 1976. c
25. In view of the aforesaid position and also in view of
the fact that there is a specific provision in the Act to raise
counter-claim with certain pre-conditions and on certain specific
conditions the provisions of Order VIII -Rule 6A of the Code
cannot be invoked in view of the bar and prohibition enforced D
by Section 97 of the Act.
26. The present petition is an election petition. In view of
the mandate of Section 86(7), an Election Petition is required
to be considered and finally decided within a period of six E
months. Two and a half years have already passed and the
matter is still pending in the Gauhati High Court and that too at
a preliminary stage. The instant situation is one which warrants
urgent consideration by the High Court.
27. In view of the foregoing discussion, there is no merit F
in this appeal, and the same is hereby dismissed, leaving the
parties to bear their own costs.
V. S. SIRPURKAR, J. 1. I have had the benefit of the
opinion expressed by my brother. Since the facts in this appeal G
have been meticulously put in that judgment, I need not restate
them. It is held in that judgment that the order passed by the
Learned Single Judge deleting paragraphs 22 to 31 from the
written statement of the elected candidate in pursuance of the
application filed by the election petitioner under Order VI Rule H
552 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 16, Code of Civil Procedure is correct. With deepest respect
to my brother, I find myself unable to agree with the view taken,
as also the ultimate order passed in pursuance of that view. In
my opinion, the Learned Designated Election Judge was not
right in striking out those paragraphs and the application made
B by the election petitioner under Order VI Rule 16, CPC was
liable to be dismissed.
2. The election petitioner was a losing candidate and he
had lost his election by merely two votes. In the election petition,
the following prayers were made:
c
(iii) to order a re-count of the votes after excluding the
void votes if required;
D (iv) to declare the election of the Respondent No.1 as
void;
(v) to pass other and further orders as may be
deemed fit by the Hon'ble Court in the facts and
E circumstances of the case."
3. During pendency of the case, an application came to
be made by the winning candidate herein seeking a direction
to the election petitioner to clarify the exact relief sought for in
F prayer Nos.(iv) and (v) as probably, because the prayer in
clause (v) was too general and the appellant herein probably
wanted to know as to what were the ramifications of that
direction and, more particularly, whether it included a prayer for
a direction in favour of the election petitioner in case, if, as a
result of the recount, it was found that he had secured more
G votes than the elected candidate.
4. A clear cut order came to be passed to the effect that
the election petition~r had not made any prayer to declare
himself or any other candidate as an elected candidate, which
H declaration can b~ given under Section 101 of the
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 553
[V.S. SIRPURKAR, J.]
Representation of the People Act, 1950. The Learned Judge, A
therefore, held that, under clause (v), the Court could grant only
such reliefs or pass such reliefs which were ancillary to the
election petition and no specific declaration could be made in
favour of the election petitioner or any other candidate and
resultantly, the elected candidate could not raise a defence that B
the election petitioner had secured votes which were void and
hence, the appellant had secured more votes and was rightly
elected.
5. By way of defence, the appellant herein, who was an
elected candidate, has enumerated from paragraphs 22 to 31 c
that even the defeated candidate had not secured the votes
which have been shown to have been cast in his favour as, even
in his case, number of dead voters had cast votes; besides,
/
numbers of votes were illegally counted in his favour. He,
therefore, raised a question that, if at all recount had to be D
ordered, the votes of all the candidates who contested tlte",.
election should be counted.
6. In paragraph 21, it was suggested in the following words
that: E
"as provided and regulated by the procedure of CPC, the
present answering respondent has hereby sought for
raising counter claim as to the maintainability of the total
number of votes obtained by the election petitioner''.
F
7. In paragraph 22, details have been given regarding four
polling stations, namely 6/1, 6/2, 6/3 and 6/4 suggesting the
number of persons voted, who were, in fact, dead or who could
not have otherwise cast their vote and also gave names of the
persons who had impersonated the dead persons and had cast G
their votes. In these paragraphs, more particularly, paragraph
28 says that, in the alternative, if the High Court has to direct
the recounting, the High Court should also direct recounting of
the void votes of polling station Nos. 6/1, 6/2, 613 and 6/4 and
cancel them. In short, the contention was that if there is going H
554 SUPREME COURT REPORTS [2010) 8 S.C.R.
A
to be a recount, the said recount should be of all the candidates
including the election petitioner.
8. Here was the case where the recount was prayed for,
not of the votes of a returned candidate, but of all the
8 candidates. The prayer was extremely general in nature
suggesting the order of the recount of the votes after excluding
the void votes, if required. Therefore, at least, insofar as the
prayer clause is concerned, there is nothing to suggest that the
recount was restricted to the votes of the returned candidate.
c
9. In order to buttress his case and, more particularly, to
raise a valid defence to the election petition, the elected
candidates alleged that number of dead persons had cast the
votes in other polling_ stations. All that he had claimed was
o scrutiny of the votes polled so that there could be a proper
decision on the issue as to who had polled the maximum votes.
It could not have been said and indeed it was not said by the
elected candidate as to in whose favour these votes had gone
and it was impossible for him to contend that th~ votes polled
E by some impersonators would have gone only in favQur of the
election petitioner or some other candidate. Some of those
could have been cast in his own favour. Therefore, it was clear
by these paragraphs that the plea was to make a recount of all
the votes cast olall the cc;mtesting candidates and for that
purpose, permit him to prove that, even in some other polling
F stations, some impersonators of the dead persons were
allowed to vote. It was not as if the elected candidate had made
any claim in terms of recrimination either against the election,
petitioner or any of the other candidates contesting that election
and in fact, there were three more candidates contesting
G elections.
10. In my opinion, therefore, the plea raised in these ter:i
paragraphs (from 22 to 31) was not in the nature of
recrimination, but, thereby the election candidate was setting
H up a valid defence and was suggesting that it was a case of
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 555
[V.S. SIRPURKAR, J.]
the election petitioner that in particular number of polling A
stations, some impersonators had voted in the name of dead
persons. Such things had happened in other constituencies
also and, therefore, the votes cast in the name of dead persons
in all the polling stations, more particularly, the named polling
stations should also be deleted or held to be void votes. [This, 8
according to me, could not be viewed as a recriminatory plea
which was barred under Section 97 of the Act.]
11. True it is that the words 'counter claim' have been used
in paragraph 21, but then the question would be as to whether
by way of that so-called counter claim, the elected candidate C
wanted any other candidate's proposed election to be upset.
It was not a question of this sort as no declaration was ever
prayed by the election petitioner. Therefore, this counter claim,
in my opinion, was only to raise a valid defence to save his own
election and it was in the nature of raising or introducing D
pleadings permitting him to show that it is not only in respect
of the particular polling stations named in the election petitions
that some votes cast in the name of dead persons were
required to be declared as void, but such votes, cast in other
polling stations also were required to be declared void in order E
to know as to who had, in fact, polled the majority of votes.
12. In my opinion, there w·as nothing wrong in raising this
plea, more particularly, because rule of democracy, which
depends upon the valid elections, can be called to be the
F
'basic structure of the Constitution of India'. Democratic
Government is what we have assured to ourselves by the
Constitution. There is creation of an Election Commission to
control the eleCti9n process in the country and it goes without
saying that obtaining of majority valid votes is the soul of valid G
election.
\
13. In this behalf, when a question was put to the Learned
Counsel appearing for the respondent herein Shri P. S.
Narasimhan, he very candidly agreed that, in fact, only those
votes will be declared void which have been cast in the name H
556 SUPREME COURT REPORTS [2010] 8 S.C.R.
A of dead persons, only in the named polling stations in the
election petition, in the process of recount and the elected
candidate will not be allowed to suggest that such votes have
been cast in other polling stations also which, if proved, would
have the effect of affecting the votes of the election petitioner
8 or other candidates who had lost. Shri Narasimhan further
suggested as a sequel to his argument that, in the process of
recount, if ordered in pursuance of the pleadings in the election
petition, only the votes cast in favour of the elected candidate
alone shall be counted, whereas, even if it is proved that, in
C some other polling stations also votes were cast in the name
of dead persons, those votes cannot be invalidated, even if it
is found that those votes had been cast in favour of the election
petitioner or other defeated candidates. In short, according
to the Learned Senior Counsel, it is only the votes of the elected
candidates which will be counted and counting of votes in
D respect of all the other candidates will be of no consequence.
According to me, if this procedure is adopted in the recount, it
will be direct annihilation of the principle of majority of votes for
declaring the elected candidate.
E 14. I have already shown above that such a recount is not
prayed for. The recount prayed for is a general recount but if
the recount is to be made in such a peculiar fashion, then, it
may be that even when the elected candidate has actually
secured majority of votes, his election would have to be set
F aside. In fact, there will be no way to know as to who has
actually secured majority of votes, if in a recount, the votes cast
only in favour of the returned candidate are counted while
ignoring his plea that there are some void votes cast in favour
of the other candidates. In my opinion, this cannot be the import
G of Sections 100(1) (d) (iii), 84 and 97 of the Act.
Section 100(1 )(d)(iii) runs as under :-
100. Grounds for declaring election to be void:
(1) Subject to the provisions of sub-Section (2) if the
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 557
[V.S: SIRPURKAR, J.]
High Court is of opir:ifoti- A
(a) Not relevant
(b) Not relevant
(c) Not relevant B
(d) that the result of the election, in so far as it concerns
a returned candidate, has been materially affected-
(i) Not relevant
c
(ii) Not relevant
(iii) by the improper reception, refusal or rejection
of any vote or the reception of any vote which is
void, or o
(iv) Not relevant
(2) Not relevant
then the High Court may decide that the election of E
the returned candidate is not void.
Section 84 is as under:
"84. Relief that may be claimed by the petitioner.-A
petitioner may, in addition to claiming a declaration F
that the election of all or any of the returned
candidates is void, claim a further declaration that
he himself or any other candidate has been duly
elected."
G
Section 97 is in the following terms:
"97. Recrimination when seat claimed.-
(1) When in an election petition a declaration that any
candidate other than the returned candidate has H
558 SUPREME COURT REPORTS [2010] 8 S.C.R.
A 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
B 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
c to 2[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
D acco.mpanied 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."
E 15. In the present case, Sections 84 and 97 are not relevant
because there is no such declaration prayed for by the election
petitioner for declaring himself or any other candidate as duly
elected candidate. We shall, therefore, keep those two
Sections a little aside and concentrate on Section 100(1 )(d)(iii)
of the Act. It is only on the basis of this Section and, more
F particularly, the law laid down by this Court earlier that the
concerned paragraphs in the Written Statement have been
ordered to be deleted holding that the returned candidate
cannot urge even by way of a valid defence that the other
candidates have also been benefited by some void votes having
G been cast in their favour. It was held by the High Court that
such plea cannot be raised by an elected candidate where
there is no prayer made under Section 84 and resultantly, if
there is a recount of votes, it will be only of the votes secured
by the elected candidate. For this purpose, heavy reliance was
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 559
[V.S. SIRPURKAR, J.]
placed on the decision in the case of Jabar Singh Vs. Genda A
Lal [AIR 1964 SC 1200]. This was a case where, in addition
to the prayer of election of the returned candidate to be
declared void, another prayer was also made under Section
84 of the Act. However, the returned candidate had failed to
file any recrimination under Section 97 of the Act. It was on B
this backdrop that the case proceeded. It was found that the
course taken by the Tribunal and confirmed by the High Court
in regard to examining validity of the votes cast in favour of the
election petitioner was not correct and that, on bare reading of
Section 100(1)(d)(iii) of the Act, it was possible only to examine C
validity of the votes cast in favour of the returned candidate
alone.
16. The factual scenario in the case of Jabar Singh Vs.
Genda Lal (cited supra) was that appellant Jabar Singh was
declared elected having defeated the respondent Genda Lal D
by 2 votes. The election petition filed by respondent Genda
Lal before the Election Tri~unal ordered a recount and found
, that Genda Lal had secured 5664 votes as compared to Jabar
Singh, who had secured 5652 votes. This was the position
after recount which was ordered by the Tribunal. However, at E
that stage, Jabar Singh raised an objection that there should
be recounting and re-scrutiny on the ground that improper votes
had been accepted in favour of Genda Lal and valid votes had
been improperly rejected when they were cast in favour of
appellant Jabar Singh. Respondent Genda Lal, of course, F
objected to this course on the ground that Jabar Singh had
neither recriminated nor had complied with the provisions under
Section 97(1). The Tribunal, however, rejected the contention
raised by respondent Genda Lal and held that, in order to
consider the relief which respondent Genda Lal had claimed G
in his election petition, it was necessary to decide whether
Genda Lal had, in fact, received majority of votes under Section
101 of the Act and so the Tribunal went on to re-examine the
ballot papers of the respondent, as also appellant Jabar Singh
and came to the conclusion that 22 ballot papers having votes
H
560 SUPREME COURT REPORTS [2010] 8 S.C.R.
A cast in favour of the respondent had been wrongly accepted.
Thus, it came to the conclusion that respondent had not secured
majority of the votes. The Tribunal, however, held the election
of Jabar Singh to be void and also refused to grant declaration
to the respondent Genda Lal that he was duly elected. Two
B appeals came to be filed before the High Court against the
decision of the Election Tribunal; one by Jabar Singh and
second by Genda Lal. Relying on the reported decision in the
case of lnayatu/lah Khan Vs. Oiwanchand Mahajan [AIR 1959
M.P. 58] as well as the decision of this Court in the case of.
C Bhim Sen Vs. Gopali [22 Election Law Reports 288 SC]. both
the appeals were dismissed by the High Court. Jabar Singh
filed an appeal before this Court. while Genda Lal's appeal was
dismissed on the ground of delay. The matter was referred to
the Five Judges' Bench on account of the earlier judgment by
this Court in the case of Bhim Sen Vs. Gopali (cited supra].
D Before this Court, appellant Jabar Singh contended that. in fact
22 votes received in favour of Genda Lal could not have been
so received by him and they could not have been accepted as
valid votes in his favour. This Court, therefore, went into the
true import of Section 100(1) read with Section 101 of the Act.
E The Court noted the following contentions raised by appellant
Jabar Singh:-
"Mr. Kapoor contends that in dealing with the cases falling
under Section 100(1 )(d)(iii), Section 97 can have no
F application and so, the enquiry contemplated in regard to
cases falling under that class is not restricted by the
prohibition prescribed by Section 97(1 ). He suggests that
when the Tribunal decides whether or not the election of
the returned candidate has been materially affected by the
improper reception, refusal, rejection of any vote, or the
G
reception of any vote which is void, it has to examine the
validity of all votes which have been counted in declaring
the returned candidate to be elected, and so, no limitation
can be imposed upon the right of the appellant to require
the Tribunal to consider his contention that some votes
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 561
[V.S. SIRPURKAR, J.]
which were rejected though cast in his favour had been A
improperly rejected and some votes which were accepted
in favour of the respondent had been improperly accepted.
Basing himself on this position, Mr.Kapoor further
contends that when Section 101 requires that the Tribunal
has to come to the conclusion that in fact that petitioner or 8
such other candidate received a majority of the valid votes,
that can be done only when a recount is made after
eliminating invalid votes, and so, no limitations can be
placed upon the scope of the enquiry contemplated by
Section 101 (a). Since Section 100(1 )(d)(iii) is outside the c
purview of Section 97, it would make no difference to the
scope of the enquiry even if the appellant has not
recriminated as required by Section 97(1)."
17. This argument was resisted and the Court had dealt
with the argument in para 9 of the judgment as under :- D
"On the other hand, Mr.Garg who has addressed to us a
very able argument on behalf of the respondent, urged that
the approach adopted by the appellant in dealing with the
problem posed for our decision in the present appeal is E
inappropriate. He contends that in construing Sections 97,
100 and 101, we must bear in mind one important fact that
the returned candidate whose election is challenged can
face the challenge under Section 100 only by making pleas
which can be described as pleas affording him a shield F
of defence, whereas if the election petition besides
challenging the validity of the returned candidate claims
that some other person has been duly elected, the returned
candidate is given opportunity to recriminate and by way
of recrimination he can adopt pleas which can be G
described as weapons of attack against the validity of the
election of the other person. His argument is that though
Section 100(1 )(d)(iii) is outside Section 97, it does not
mean that in dealing with a claim made by an election
petition challenging the validity of his election, a returned
H
562 SUPREME COURT REPORTS (2010] 8 S.C.R.
A candidate can both defend the validity of his election and
assail the validity of the votes cast in favour of the
petitioner or some other person. It is in the light of these
two rival contentions that we must now proceed to decide
what the true legal position in the matter is."
B
18. Following were the observations made in the majority
judgment in para 10:-
"lt would be convenient if we take a simple case of an
election petition where the petitioner makes only one claim
c and that is that the election of the returned candidate is
void. This claim can be made under Section 100. Section
100{1}(a), (b) and (c) refer to three distinct grounds on
which the election of the returned candidate can be
challenged. We are not concerned with any of these
D grounds. In dealing with the challenge to the validity of the
election of the returned candidate under Section 100(1 )(d),
it would be noticed that what the election petition has to
prove is not only the existence of one or the other of the
grounds specified in clauses (i) to (iv) of Section 100(1 )(d),
E but it has also to establish that as a result of the existence
of the said ground, the result of the election in so far as it
concerns a returned candidate has been materially
affected. It is thus obvious that what the Tribunal has to
find is whether or not the election in so far as it concerns
F the returned candidate has been materially affected, and
that means that the only point which the Tribunal has to
decide is: has the election of the returned candidate been
materially affected? And no other enquiry is legitimate
or permissible in such a case. This requirement of
Section 100(1)(d) necessarily imports limitations on the
G
scope of the enquiry. Confining ourselves to clause (iii)
of Section 100(1)(d}, what the Tribunal has to consider
is whether there has been an improper reception of votes
in favour of the returned candidate. It may also enquire
whether there has been a refusal or rejection of any vote
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 563
[V.S. SIRPURKAR, J.]
in regard to any other candidate or whether there has A
.been a reception of any vote which is void and this can
only be the reception of a void vote in favour of the
returned candidate. In other words, the scope of the
enquiry in a case falling under Section 100(1 )(d)(iii) is to
determine whether any votes have been improperly cast B
in favour of the returned candidate, or any votes have been
improperly refused or rejected in regard to any other
candidate. These are the only two matters which would
be relevant in deciding whether the election of the returned
candidate has been materially affected or not At this c
enquiry, the onus is on the petitioner to show that by reason
of the infirmities specified in Section 100(1 )(d)(iii), the
result of the returned candidate's election has been
materially affected, and that, incidentally, helps to
determine the scope of the enquiry. Therefore, it seems
0
to us that in the case of a petition where the only claim
made is that the election of the returned candidate is void,
the scope of the enquiry is clearly limited by the
requirement of Section 100{1)(d) itself. The enquiry is
limited not because the returned candidate has not
recriminated under Section 97(1); in fact, Section 97(1) E
has no application to the case falling under Section
100(1 )(d)(iii); the scope of the enquiry is limited for the
simple reason that what the clause requires to be
considered is whether the election of the returned
candidate has been materially affected and nothing else..... F
the Tribunal has to make a declaration to that effect, atld
that declaration brings to an end the proceedings in the
election petition." (emphasis supplied)
This judgment was given by Hon'ble Gajendragadkar, J. G
However, Hon'ble Ayyangar, J., in his minority judgment, did not
agree with the interpretation put forward by Hon'ble
Gajendragadkar, J. on the correct import of Section
100(1 )(d)(iii). Hon'ble Ayyangar, J. had very painstakingly
pointed out that the interpretation put forward in the majority H
564 SUPREME COURT REPORTS (2010) 8 S.C.R.
A judgment was not correct. In Para 30 of the judgment, after
quoting the Section, the learned Judge formulated the question
of law in the following words:-
"what is the import of the words by the improper reception,
refusal or rejection of any vote or the reception of any vote
B
which is void?
The learned Judge left out of the consideration the last
clause i.e. "the reception of any vote which is void" and
considered only the earlier clause. The learned Judge further
C held that the jurisdiction of the Election Tribunal to declare the
election void arises only if it is of the opinion that result of the
election has been materially affected by the defects or
improprieties set out in clause (i) to (iv), so that even if there
are such improprieties or illegalities and yet if the result of the
D election is not materially affected, the returned candidate would
retain his seat. The learned Judge then pointed out that, the
Tribunal, in considering whether the result of an election had
been materially affected, was confined to the consideration of
any impropriety alleged as regards reception of the votes of
E the returned candidate as well as the improprieties alleged by
the petitioner in refusal or rejection of votes stated to have been
cast in favour of that petitioner and denials of these charges
by the returned candidate. It was further observed that the
contention raised was that, in dealing with an objection under
F Section 100(i)(d), the Tribunal had jurisdiction to proceed only
on the allegations made in the petition and that, even where a
case had been established for a scrutiny and recount was
ordered, it would be so confined and that its jurisdiction would
not extend to the cases of complaints by the returned candidate.
G The learned Judge specifically refused to accept this argument.
In para 32, the learned Judge then gave a specific example in
the following words:-
"32 ....... Let us suppose that A has been declared
elected as having secured, say 200 votes as
H against B who has secured 190. If B in his
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 565
[V.S. SIRPURKAR, J.]
election petition says that A's votes have been A
wrongly counted as 200, whereas, in fact, if they
were recounted they would only be 180 and the
Tribunal on a recount finds the allegation in the
petition made out and that the returned candidate
had obtained only 180 votes the acceptance of B
Mr. Garg's argument would mean that the election
of A would have to be set aside notwithstanding
that there has been a similar mistake in the
counting of B's votes and if these were properly
counted they might not amount to more than 170. c
Mr. Garg submitted that though if B claimed the
seat there would have to be a recount of the votes
of both the candidates and this a/so, only in the
event of a recrimination being filed under Section
97, still if no seat was claimed the election of the 0
returned candidate would be set aside and that the
latter had no means whereby he could maintain
his election notwithstanding that as a fact he had
obtained a majority of lawful votes."
19. In para 33, the learned Judge observed:- E
"33. . ....... I do not see any force in the contention that
the returned candidate is confined merely to
disproving what is alleged to dislodge him from his
seat and is forbidden from proving that votes which F
under the law had to be counted in his favour, have
been wrongly omitted to be so counted. The words
in clause (iii) do not impose any such restriction, for
they speak of the "improper reception or refusal of
any vote", and as the inquiry under Section G
100(1 )(d) is for ascertaining whether the result of
the election has been materially _affected which in
the context of clause (iii) obviously means "the
returned candidate has been proved not to have
obtained, in fact, a majority of valid votes", there
H
566 SUPREME COURT REPORTS [2010] 8 S.C.R.
A appears to me no scope for the argument pressed
before us by Mr.Garg."
The learned Judge gave another example, while
considering Rule 59 under the Act, in the following words:-
B "Let ·us for instance assume that the voting procedure
adopted in an election was that prescribed in rule 59 i.e.
by placing the ballot papers in the ballot boxes set apart
for the different contesting candidates. The returning
officer counts the valid votes cast in the several boxes and
C declares A elected as having secured 200 votes as against
B whose votes are counted as 198. If B files a petition
and alleges that the counting was irregular, that the totals
of the ballot papers in the result sheet are not properly
computed, and that as a matter of fact A's papers if
D counted, would be 196, Mr. Garg's submission is that
though the discrepancy disclosed in the totals is
considerable, A cannbt prove that there has been a
miscounting of B's votes also, and that though if properly
counted his total is only 190, still A's election should be
E set aside. It is said that the position would be different and
the anomaly would be overcome in cases where the
election petitioner, besides claiming a declaration that the
election of the returned candidate is void, also seeks a
further declaration that he should be declared duly elected
F and the returned candidate files a recrimination against
such a prayer."
20. The learned Judge proceeded to hold:-
''Therefore we would have the anomalous situation wherein
G the election of the returned candidate is declared void by
reason of his not obtaining the majority of valid votes so
far as the decision under Section 100(1 )(d) is concerned
and then after the matter set out in the claim to the seat
and the recrimination is inquired into and decided the
H election tribunal holds that the returned candidate had a
MD. ALAUODIN KHAN v. KARAM THAMARJIT SINGfj 567
[V.S. SIRPURKAR, J.]
majority of lawful votes but that this affected only the right A
of the defeated candidate to claim the seat. In my judgment
the provisions of Section 100 read with Section 101 do
not contemplate this position of a candidate's election
being set aside because he did not get a majority of lawful
votes but in the same proceedings and as part of the same 8
inquiry, he being held to have obtained a majority of lawful
votes. A construction of Section 100(1 )(d) which would
lead to this result must, in my opinion, be rejected as
unsound."
In para 35 also, the learned Judge had shown, again taking C
an example of multi-cornered contest, that the interpretation put
forward by the majority judgment was incorrect. The learned
Judge observed:-
"35. . ...... I cannot accept the position that either o
Section 100(1)(d)(iii) or Section 101(a)
contemplate this result which is at once so unjust
and anomalous and appears to me to contradict the
basic principles underlying election law viz., (1) that
apart from disqualification, corrupt practices etc., E
the election of a candidate who obtains the majority
of valid votes shall not be set aside, and (2) no
candidates shall be declared duly elected who has
not obtained the majority of valid votes."
21. In para 36, the learned judge had shown the findings F
where majority proceeded on the misconception of the
procedure involved in a scrutiny. In that para, the learned Judge
had considered Rule 57(3) also. The learned Judge ultimately
observed in para 37:-
G
"37. . ........ I do not consider that it is possible to
contend that it is beyond the power of the returned
candidate to establish this fact which he might do
in any manner he likes. He might do this by
establishing that though a few votes were wrongly H
568 SUPREME COURT REPORTS [201 O] 8 S.C.R.
A counted as in his favour, still a larger number of his
own votes were counted in favour of the petitioner
or that votes which ought to have been counted as
cast for him, have been improperly counted as cast
in favour of defeated candidates other than the
B petitioner. Without such a scrutiny it would
manifestly not be possible to determine whether the
election of the returned candidate has been
materially affected or not. Nor do I see anything in
the langu0:ge of clause (iii) which precludes the
returned candidate from establishing this ....... "
c
In para 38, the language of Section 101 was also
considered on the backdrop of Section 1OO(i)(d)(iii) alongwith
Rule 57(1) and 57(3) and ultimately, the learned Judge held that
the construction put forward by the majority judgment was not
D correct.
22. Therefore, the view that has been taken by me is in
consonance with the view taken by the minority judgment, which
according to the law of precedents is not possible. However,
E the judgment in the case of Jabar Singh Vs. Genda Lal (cited
supra) was doubted by a Two Judge Bench in the decision in
the case of N.Gopa/ Reddy Vs. Bona/a Krishnamurthy & Ors.
[1987 (2) sec 58], where the identical controversy was
involved. In that case, the learned Judges considered the law
F laid down in P.Malaichami Vs. Andi Amba/am [1973 (2) SCC
170], Arun Kumar Bose Vs. Mohd. Furkan Ansari [1984 (1)
SCC 91], Janardan Oattuappa Bondre Vs. Govind Shiv
Prasad Chaudhary [1979 (4) SCC 516) and Bhag Mal Vs.
Ch.Prabhu Ram [1985 (1) sec 61] and recommended that
this question should be referred to a larger Bench for
G reconsidering the views expressed in the decision in the case
of Jabar Singh Vs. Genda Lal (cited supra). It was specifically
noted that in the decision in Janardan Oattuappa Bondre Vs.
Govind Shiv Prasad Chaudhary (cited supra}, the Division
Bench had taken a view which was not strictly in accordance
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 569
[V.S. SIRPURKAR, J.]
with the principles laid down in the decision in Jabar Singh Vs. A
Genda Lal (cited supra) and the High Court had refused to grant
benefit of 250 votes to the returned candidate while recounting
in view of the absence of recriminating notice under Section
97 of the Act. In that case, this Court had held that the claim of
the returned candidate that he should be granted benefit of250 B
votes cast in his favour although placed in another candidate's
package, was justified and his claim could not be rejected in
the absence of recriminatory notice under Section 97 as the
claim of the returned candidate did not involve reconsideration
of validity of the votes. However, unfortunately, it is reported at c
the Bar that the matter never came to be considered by the
larger Bench, though a specific reference was made, probably
on the ground that the period of election was over by the time
the matter came up before this Court again.
23. Now, the law is settled that a Two Judge Bench cannot D
. make a direct reference to Seven Judge Bench and can only
make a reference to Three Judge Bench. Therefore, I am not
in a position to recommend a reference to a larger Bench to
reconsider the decision in the case o{Jabar Singh Vs. Genda
Lal (cited supra). However, in view of the peculiar history of E
this controversy and further, in view of importance of the
question and its direct impact on the principle of majority of
valid votes for winning an election, it would be worthwhile if the
position is reconsidered.
F
24. It must be noted that, the present matter, with which
we are dealing, more or less depends upon incorrect
acceptance of votes but not the void votes. According to the
election petitioner, the elected candidate has received some
votes which were cast by some impersonators of the dead G
voters. In reality, therefore, the question before the present
Election Tribunal is whether the election petitioner proves that
some dead voters were impersonated and in their name, votes
were cast. Again, it will have to be proved by the election
petitioner that those impersonated had voted in favour of the
H
570 SUPREME COURT REPORTS [2010] 8 S.C.R.
A elected candidate because that will be the only way to prove
that the void votes have affected the result in favour of elected
candidate materially. The question of void votes was not
considered in Jabar Singh's case. Even, in the minority
judgment, Hon'ble Ayyanger, J. restricted himself to the earlier
B part of clause 100 (1) (d) (iii) and left the clause of "the
reception of any vote which is void". The import of words "the
reception of any vote which is void" would, in my opinion, cover
each and every void vote received by each and every candidate
because void vote cannot be counted: whether it is cast in
c favour of an elected candidate or any other candidate
contesting the elections. Once the real import of clause "the
reception of any vote which is void" is realized, it becomes
clear that, in recount of the votes which are void votes, those
would have to be excluded and for that purpose, the returned
candidate can raise a plea by way of defence that the void votes
0
were cast either in favour of elected candidate or any other
defeated candidate. He can at least raise a plea that such void
votes were actually cast and he would certainly be justified in
raising a plea that the void votes were cast not only in the polling
Stations named in the election petition, but in some other
E polling Stations also. Therefore, if recount was to be ordered,
the recount cannot be restricted only to the named polling
Stations in the election petition, but it would have to be a general
recount where the void votes would have to be avoided.
Therefore, there would have to be an opportunity to the elected
F candidate to prove that there were void votes in other polling
Stations also and for that purpose, there should be recount of
all the votes of all the Polling Stations. It is only thereafter that
the true position as regards majority of votes could be obtained.
In this view also, I cannot agree with my learned brother Sharma
G J, as also the Judgment of the High Court holding that it is only
the votes cast in the named polling Stations which are liable to
be counted and not those which have been named in the
questioned paragraphs which have been ordered to be deleted
from the Written Statement of the elected candidate.
H
MD. t'\LAUDDIN KHAN v. KARAM THAMARJIT SINGH 571
[V.S. SIRPURKAR, J.]
25. There is one more reason why I felt compelled to differ A '
with my learned brother and recommend reconsideration of this
question.
26. The plain language, according to me, does not suggest
that where the declaration is not prayed for by the election
B
petitioner, the elected candidate cannot raise any plea in his
written statement that, in fact, he has secured the majority of
votes. In my opinion, the plea raised herein is not a
recriminatory plea within the meaning of Section 97 of the
Representation of the People Act, 1950. What is raised is a
mere plain defence that, even if there was going to be a recount, C
then it should be a recount of all the votes and not of the votes
cast only in his favour and for that purpose, he would be allowed
to prove that it is not only in the particular polling stations that
the votes were cast in the name of dead persons, but they were
also cast in other polling stations. All that the elected candidate D
is doing here is trying to show that it is he who is actually the
elected candidate having secured the majority of valid votes.
27. At the time when Jabar Singh's case (cited supra) was
decided, the amended provisions of Order VIII, Rule 6A of the E
Code of Civil Procedure providing for counter claim was not .
available on the Statute. That provision came only by way of
amendment later on. Though, the concept of counter claim was
not unknown, even in the absence of a specific provision
therefor, introduction of a specific provision for raising the F
counter claim would, in my opinion, be a relevant factor for
considering as to whether a candidate, in the absence of any
recrimination, could insist upon counting of the votes cast in
favour of the other losing candidates. The provisions of Order
VIII, Rule 6A have not been considered in the later decisions. G
In my opinion, raising of a counter claim by way of a valid
defence would still be permissible considering the. broad .
language of that provision. Shri Singh, very earnestly argued
that an election petition has to be tried in accordance with Civil
Procedure Code and, therefore, the amended provisions
H
572 SUPREME COURT REPORTS [2010] 8 S.C.R.
A providing or laying of a counter claim has to be read in favour
of the elected candidate for raising a plea that it is he, who has
secured the maximum votes. The recount order should,
therefore, be not limited to counting of his votes alone, but it
should be a general recount in respect of the votes secured by
B all the contesting candidates. Shri Singh, therefore, urged that,
by introducing the paragraphs, which have been ordered to be
struck off from the written statement of the appellant, the
appellant, who was an elected candidate, had raised a valid
defence by way of a counter claim. The argument is
c undoubtedly a novel one and has not been so far considered
by this Court. At this juncture, I must point out again, at the cost
of repetition that, in ordering counting of the votes of the elected
candidate alone, the whole election process would stand
prejudiced, inasmuch as, then, even if some invalid votes are
cast in favour of the other candidates or void votes are cast in
0
the election, those votes would not be counted and in that case,
there could be no correct reflection in respect of the votes
secured by each candidate.
28. This is apart from the fact that a very unfair advantage
E can be secured by an election petitioner in favour of the losing
candidate by deliberately not claiming any declaration either in
favour of the election petitioner or in favour of any other losing
candidate so that the elected candidate would be rendered
completely helpless in showing that he alone is a candidate
F having secured majority of votes. As I have already expressed,
securing a majority of votes is the very essence of the
democratic elections and the democracy being a part of the
basic structure of our Constitution, the question involved herein
gains all the more importance. I may point out here that the
G theory of basic structure of the Constitution also was not
available when Jabar Singh's case (cited supra) was decided.
In my opinior;, the interpretation put forth in Jabar Singh's case,
in a majority decision would, therefore, require reconsideration,
more particularly, in view of the minority decisions therein which
H
MD. ALAUDDIN KHAN v. KARAM THAMARJIT SINGH 573
[V.S. SIRPURKAR, J.]
is more in accord with the principles of securing majority votes A
in a democratic elections. The very roots of the democracy
would be shaken if the majority view expressed in Jabar Singh's
case, which was already recommended to be reconsidered, is
valid. For these reasons, I am not in a position to agree with
my learned brother, nor can I agree with the judgment of the B
High Court (Election Tribunal).
In short, my conclusions are as follows:-
(1) Jabar Singh's case (cited supra), which was
referred to the Seven Judge Bench needs C
reconsideration, since the question involved therein
goes to the very root of the democratic election
process.
(2) The interpretation put forward to the provision of D
Section 100(1 )(d)(iii) read with section 97 of the
Representation of the People Act would be very
unfair for an elected candidate, particularly where
the election petition seeks for recount of votes. In
such a petition where the question involved is of
E
recount, it will be extremely unfair to count only the
votes of returned candidate and ignore all his
objections regarding the votes improperly accepted
in case of the other candidates or the other
candidates having secured void votes. Such
F
unfairness cannot be permitted at least to maintain
the purity of election process.
(3) The observations in Jabar Singh's case particularly
in para 10 thereof, could amount to obiter dicta,
particularly, in view of the factual position in Jabar G
Singh's case. It is to be remembered that the
observations in para 10 were taken only by way of
an example. This position is all the more obtained
because in that case though the declaration was
claimed, there was no recrimination filed and, H
574 SUPREME COURT REPORTS [2010] 8 S.C.R.
A therefore, the observations in Jabar Singh's Case
would become a binding law only in case where
though a declaration is claimed in favour of other
candidate than the elected one, yet the elected
candidate has not claimed any recrimination. In
B short, the observations made in para 10 thereof
may not become a binding law in case where no
declaration is sought for at all and, therefore, no
recrimination is claimed by the elected candidate.
(4) When a recount is ordered at the instance of a
c election petitioner, it cannot be a partial recount. It
has to be a general recount where the void votes
can be located and ignored to arrive at a conclusion
that this will also apply to the votes improperly
accepted of the other candidates than the elected
D candidates. It is only then that a correct position
could be arrived at as to which candidate has, in
fact, secured majority of votes. It has to be
remembered that securing 01 majority of votes is the
basis of democratic election.
E
(5) in the wake of amended provision of Order VIII,
Rule 6 of the Code of Civil Procedure introducing
counter claim, the defendant in this case - the
elected candidate, could still raise his defence by
F way of a counter claim. The language of Section
97 of the Representation of the People Act, 1950,
which is in the nature of positive language, does not
bar raising of any such defence.
29. In view of the difference of opinion, the papers be kept
G before the Hon'ble, the Chief Justice of India for referring the
matter to an appropriate bench.
D.G. Referred to the matter larger bench.
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