Baiju Prasad Singh v. Sheo Dani Sharma — 1971 DIGILAW 150 (PAT)

Judgment B.D.Singh, J. 1. This application by Baiju Prasad Singh under Articles 226 and 227 of the Constitution of India is directed against the order dated the 23rd August, 1971 (Annexure 2) passed by the Election Tribunal, respondent No. 3 refusing to frame issue No. 2, as suggested by the petitioner, in the election case, which was instituted by Sheo Dani Sharma, respondent No. 1, against the election of the petitioner as Mukhiya held on the 2nd June, 1971. The suggested issue No. 2 is to this effect: "Whether the order dated 5-4-1971 passed by Shri B.N. Mishra. S.D.O., i.e., regarding the acceptance of nomination paper of Shri Sheo Dani Sharma is bad in law as well as illegal?" 2. In order to appreciate the point involved in this application it will be necessary to state briefly the facts. On 12-6-1971 respondent No. 1 filed an election petition challenging the election of the petitioner before respondent No. 3 and the same was admitted and notices were ordered to be issued on the petitioner under Rule 78 of the Bihar Panchayat Election Rules, 1959 (hereinafter referred to as the Rules). On 18-6-1971 notice, it is alleged by respondent No. 1, was served upon the petitioner. On 28-6-1971 the petitioner appeared and filed an application for adjournment on the ground that the petitioner had to obtain certified copies of necessary documents. The case was adjourned to 1-7-1971. On that date also another application more or less on the same ground was filed on behalf of the petitioner. The case was again adjourned to 5-7-1971 on which date the petitioner filed written statement. On 6-7-1971 the petitioner also filed a challan showing deposit of Rs. 10/-under Rule 81 of the Rules. On 6-7-1971 the petitioner suggested as many as ten issues before the Tribunal (vide annexure 1). Respondent No. 3 by order dated 12-8-1971, after considering the issues suggested by the Parties, framed as many as eight issues. He, however, rejected to frame issue No. 2 which was suggested by the petitioner. The petitioner thereafter filed a petition before it! praying therein that issue No. 2 regarding acceptance of the nomination paper of respondent No. 1 was a vital issue and ought to have been included as one of the issues framed by the Tribunal. Respondent No. 3, however, after hearing the parties by the impugned order rejected the prayer of the petitioner. praying therein that issue No. 2 regarding acceptance of the nomination paper of respondent No. 1 was a vital issue and ought to have been included as one of the issues framed by the Tribunal. Respondent No. 3, however, after hearing the parties by the impugned order rejected the prayer of the petitioner. 3. Mr. Lakshman Saran Sinha, learned counsel appearing on behalf of the petitioner, placed before me the impugned order and contended that the Tribunal has erred in construing the provision contained in Rule 81 of the Rules, which reads as: "Where at a trial of election petition, any candidate other than the returned candidate claims the seat for him-self, the returned candidate or any other party to the proceeding may give evidence to prove that the election of such candidate would have been void if he had been presented complaining against his election: Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he had, within fourteen days of the service of notice under Rule 78, given notice of his intention to do so to the Election Tribunal, and deposited as security a sum of ten rupees only." He submitted that thereby it erred in holding that the petitioner had not complied with the requirements contained under the said Rules. He urged that no notice was served upon the petitioner as required under Rule 78 of the Rules. In fact, according to him, no notice was served upon the petitioner and the process server wrongly reported that the petitioner got the notice read out and re-fused to take the notice and thereafter the notice was affixed to a conspicuous place in the house of the petitioner. The petitioner had no knowledge about it and he learnt about it only when the petitioner appeared on 28-6-1971 before the Tribunal. Thereafter the petitioner filed written statement on 5-7-1971 and also filed Challan showing deposit of Rs. 10/-as security as required under Rule 81 of the Rules, as mentioned earlier, on 6-7-1S71. Learned counsel drew my attention to paragraph 10 of the election petition filed on behalf of respondent No. 1, which is to this effect. Thereafter the petitioner filed written statement on 5-7-1971 and also filed Challan showing deposit of Rs. 10/-as security as required under Rule 81 of the Rules, as mentioned earlier, on 6-7-1S71. Learned counsel drew my attention to paragraph 10 of the election petition filed on behalf of respondent No. 1, which is to this effect. "That the petitioner, who was a candidate for the office of the Mukhiya, as submitted above, had absolutely no notice about any addition of further voters be-cause there was no publication in respect of those voters at all as required by Rule 13 (1) of the Rules". As against the said statement the petitioner made various allegations in paragraph 12 of his written statement which read as: "That the statement made in paragraph 10 is incorrect and denied. He had full knowledge of the voters of serial Nos. 1923 to 1978 as published on 15-3-1971. To this effect, the petitioner is ready to examine a number of persons as per the list. Today petitioner is depositing Rs. 10.00 as cost for the same. No notice of the election petition has been served on this petitioner as yet. This petitioner came to Patna on 28-6-1971 at 9.45 a. m. and at Patna Junction he was informed by one Sri Ram Shankar Sharma of village Saguni, Police Station Masaurhi. District Patna about the present case. The petitioner hurriedly rushed to Court and contacted with Mr. Ram Chandra Prasad, Advocate, who advised him to file a petition for time. Accordingly, petition was filed for time. The report of the process server is absolutely false and the same has been served bala bala. On the alleged date of service this petitioner was at Patna taking his oath which was organised by the C.P.I. at its District Head Quarter which situates in R. Block, Quarter No. 16, Road No. 8, Patna". 4. On the basis of the aforesaid statements learned counsel submitted that the said statement in the written statement was in effect a notice of recrimination as required under Rule 81 and in fact Respondent No. 1 has clearly understood that it is such a notice, because in paragraph 4 of the rejoinder to the written statement, which respondent No. 1 has filed before the Tribunal, he stated that the written statement is in the nature of recriminatory petition. Learned counsel further contended that since the petitioner learnt about the election case instituted by respondent No. 1 only on 28-6-1971 and as no notice was served upon the petitioner, the period of fourteen days prescribed under Rule 81 would run from 28-6-1971. Therefore, the petitioner has filed challan as well as the written statement within 14 days. In that view of the matter, the learned Tribunal, he urged, has erred in holding that the petitioner had not complied with the provision contained under Rule 81 of the Rules end it wrongly rejected the prayer of the petitioner for framing issue No. 2, as suggested by him. He contended that the Tribunal has assumed without giving finding that the notice was duly served on the petitioner on 18-6-71, as required under Rule 78, and for that reason it held that any step by the petitioner for recrimination as required under Rule 81 was barred. He submitted that the Tribunal ought not to have taken it as granted that the notice was served upon the petitioner on 18-6-71 when the petitioner had made definite allegation in paragraph 12 of his written statement that no notice was served on the petitioner and the report of the process server was not correct. On the pleadings of the parties on this point the Tribunal had also framed an issue, the English version of which read as: Whether Rule 78 of the Rules has been complied with. Therefore, the learned counsel contended that it was incumbent upon the Tribunal to have decided that issue first as to whether the provision contained under Rule 78 had been complied with and then and then alone it had jurisdiction to decide as to whether the petitioner had complied with the requirement contained under Rule 81. Learned counsel drew my attention to the proviso to Rule 81, referred to above, which clearly mentions, according to him, that the notice under Rule 78 has to be served before the provisions contained under Rule 81 are attracted. On the basis of these provisions and the facts and, circumstances of the case, he suggested that the case be remitted to the Tribunal for a finding whether the report of the process server was correct and the notice was duly served on the petitioner on 18-6-1971 as contemplated under Rule 78. 5. On the basis of these provisions and the facts and, circumstances of the case, he suggested that the case be remitted to the Tribunal for a finding whether the report of the process server was correct and the notice was duly served on the petitioner on 18-6-1971 as contemplated under Rule 78. 5. On the other hand, learned counsel appearing on behalf of respondent No. 1 submitted that the report of the process server is correct and the said notice was served on the petitioner on 18-6-1971. He submitted that it would be also apparent from the fact that in the said notice it was mentioned that the petitioner was directed to appear before the Tribunal on 28-6-1971 and to show cause as to why the petition filed by respondent No. 1 should not be accepted. Accordingly, the petitioner did appear before the Tribunal on 28-6-1971. That clearly shows that the petitioner was aware of the said notice. Even after the petitioner had appeared, he took adjournments on two occasions on the ground of obtaining copies in order to file written statement. The petitioner never objected that he had not received the notice as required under Rule 78; nor did he make any attempt to examine the record of the case and to take steps for filing recrimination petition under Rule 81 within the time prescribed. Therefore, any step alleged to have been taken by the petitioner on 5-7-1971 and 6-7-1971 was obviously time barred and it was due to his own laches. He further argued that even assuming that the time would begin to run from 28-6-1971 when the petitioner appeared before the Tribunal, none of the steps taken by the petitioner amounts to fulfil the requirement of Rule 81. The deposit of Rs. 10.00 by the petitioner is also not under Rule 81. He referred to the petition, which was filed by the petitioner along with the said Challan. Copy of the said petition is Annexure A to the show cause filed by respondent No. 1 in this Court, the relevant portion of which reads: "That your petitioner has under Rule 81 of the G. P. Act and Rule 1959 deposited rupees ten as security amount for procuring the attendance of the P. Ws. whom he wants to examine in this case". whom he wants to examine in this case". In this connection he also referred to paragraph 10 of the petition filed by the petitioner in this Court wherein it is stated that on 6-7-1971 the petitioner filed a petition under Rule 81 of the Rules along with a challan showing deposit of Rs. 10.00 only as required under the rule. Learned counsel urged that the petition contained under Annexure A can by no stretch of imagination be considered as recrimination petition as required under Rule 81. According to him, a separate petition is required for the said purpose. The assertion or any allegation made by the petitioner in Ms written statement before the Tribunal in paragraphs 7(d), (e). (i), 8 and 12 cannot take the place of a petition under the said rule. Learned counsel in this connection drew my attention to paragraph 4 of the rejoinder petition, which was filed by respondent No. 1 in reply to the written statement filed by the petitioner before the Tribunal. In this Court also in the show cause, which has been filed on behalf of respondent No. 1 in reply to the petition of the petitioner similar stand has been taken. 6. In my opinion, on the submissions of the learned counsel of the parties and on the materials on the record, it will not be possible at present to decide in this application whether the notice as required under Rule 78 was duly served on the petitioner on 18-6-1971." There is acute controversy between the parties on this point. It is well settled that the disputed question of facts cannot be decided in a writ application. Besides, as I have mentioned earlier, the Tribunal has already framed issue as issue No. 3, namely, whether Rule 78 of the Rules has been complied with? The Tribunal has not yet decided that issue. Therefore, any observation by this Court on that issue would prejudice the case of the parties before the Tribunal. On that account I refrain from giving my opinion on that point. In that view of the matter I will assume at present that the petitioner learnt about the institution of the election case only on 28-6-1971 when he appeared before the Tribunal. 7. Therefore, only two questions now remain to be decided by this Court in this application. They are: (i) whether the deposit of Rs. In that view of the matter I will assume at present that the petitioner learnt about the institution of the election case only on 28-6-1971 when he appeared before the Tribunal. 7. Therefore, only two questions now remain to be decided by this Court in this application. They are: (i) whether the deposit of Rs. 10.00 made by the petitioner was in terms of Rule 81 and (ii) whether the petitioner has filed a petition as required under the said Rule, I will take up for consideration question No. (i) first. I have examined the challan under which Rs. 10.00 was deposited by the petitioner. The challan clearly mentions under column full particulars of the remittance and of authority (if any) as security fee under Rule 81 of G. P. Election Rules 1959". In Annexure A also the relevant portion of which I have quoted earlier, the petitioner has mentioned clearly that the money was being deposited under Rule 81. No doubt in the said petition it is further mentioned that it was being deposited for procuring the attendance of P. Ws. whom the petitioner wanted to examine in the case. In my opinion, any assertion in Annexure A would not alter the object for which the deposit was made by the petitioner under the said challan. Under Rule 81 also the said deposit has to be made as security. In that view of the matter I hold that the deposit made by the petitioner was under Rule 81. 8. Now I turn to consider question No. (ii). Learned counsel for the petitioner, as mentioned earlier, has submitted that Rule 81 does not require a separate petition to be filed. What the petitioner has stated under the various paragraphs referred to above in the written statement are by way of recrimination and they are in accordance with the requirements of Rule 81. On the contrary learned counsel for respondent No. 1 submitted that a separate petition is required. What the petitioner has stated under the various paragraphs referred to above in the written statement are by way of recrimination and they are in accordance with the requirements of Rule 81. On the contrary learned counsel for respondent No. 1 submitted that a separate petition is required. He referred to Section 97 of the Representation of the People Act, 1951, which reads as: "(1) When in an election petition a declaration that any candidate other than the returned candidate has been duly elected is claimed, the returned candidate or any other party may, give evidence to prove that the election of such candidate would have been void if he had been presented calling in question his election: Provided that the returned candidate or such other party, as aforesaid shall not be entitled to give such evidence unless he has within fourteen days from the date of commencement of the trial, given notice to the High Court of his intention to do so and has also given the security and the further security referred to in Sections 117 and 118 respectively. (2) Every notice referred to in Sub-section (1) shall be accompanied by the statement and particulars required by Section 83 in the case of an election petition and shall be signed and verified on like manner". He submitted that Sub-section (1) of the said section is similar to Rule 81 of the Rules. He placed before me a judgment of the Supreme Court in Jabar Singh V/s. Genda Lal, ( AIR 1964 SC 1200 ) where their Lordships were dealing with Sections 97 and 100 of the Representations of the People Act and Rule 57 made thereunder. It will be useful to quote in extenso their Lordships observations in paragraph 11 at Page 1206. "There are, however, oases 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 that the petitioner himself or some other person has been duly elected. It is in regard to such a composite case that Sec.100 as well as Sec.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 97 comes into play. It is in regard to such a composite case that Sec.100 as well as Sec.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 97 comes into play. Section 97 (i) 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 be open to the returned candidate to take these pleas, because when he recriminates, he really becomes a counter-petitioner challenging the validity of the election of the alternative candidate. The result of Section 97 (1) therefore, is that in dealing with a composite election petition, the Tribunal enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. That being the nature of the proceedings contemplated by Section 97 (1), it is not surprising that the returned candidate is required to make his recrimination and serve notice in that behalf in the manner and within the time specified by Section 97 (1) proviso and Section 97 (2). 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 would be held under Sec.100 so far as the validity of the returned candidates election is concerned and if as a result of the said enquiry declaration is made that the election of the returned candidate is void then the Tribunal will proceed to deal with the alternative claim, but in doing so the returned candidate will not be allowed to lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate". Reliance was also placed on Ravindra Nath V/s. Raghbir Singh, ( AIR 1968 SC 300 ) and on the observation in paragraph 5 at Page 302 with particular reference to their Lordships observation that "the notice of recrimination is thus in Substance a counter petition calling in question the claim that the other candidate has been duly elected". Reliance was also placed on Ravindra Nath V/s. Raghbir Singh, ( AIR 1968 SC 300 ) and on the observation in paragraph 5 at Page 302 with particular reference to their Lordships observation that "the notice of recrimination is thus in Substance a counter petition calling in question the claim that the other candidate has been duly elected". 9 Learned counsel for the Petitioner, however, contended that the provisions contained under Rule 81 are not in pari materia with those contained in Section 97 of the Representation of the People Act, as whatever is provided in Sub-section (2) of Section 97 is not to be found in Rule 81. Therefore, the observations of their Lordships in the two cases, referred to above are of no avail for construing the provisions contained under Rule 81. 10. In my view, this submission of learned counsel is not acceptable. It may be noticed that their Lordships were considering only Sub-section (1) of Section 97 in AIR 1964 SC 1200 (supra) which contains more or less similar provision as in Rule 81. At least the above observations of their Lordships in the two cases clearly lay down that if a returned candidate wants to recriminate he becomes counter petitioner and the notice of recrimination is in substance a counter petition calling in question the claim that the other candidate has been duly elected. In my view, therefore, if the petitioner wanted to recriminate under Rule 81, he should have filed a counter affidavit, that is a separate petition making allegations regarding invalidity of the nomination of respondent No. 1. The said object could not have been achieved by making such allegation only in the written statement which he had filed. Even if Rule 81 is considered in isolation without taking recourse to the analogy and construction of Section 97 of the Representation of the People Act, the language of Rule 81 indicates that it was the intention of the rule-making authority that the returned candidate would be required to file a separate petition if he wants to take steps for recrimination. In the substantive clause of Rule 31 it may be noticed that the word petition is clearly mentioned. It seems that the petitioner himself was in doubt whether the statement made by him in the written statement would suffice the requirement of filing a petition as required in Rule 81. In the substantive clause of Rule 31 it may be noticed that the word petition is clearly mentioned. It seems that the petitioner himself was in doubt whether the statement made by him in the written statement would suffice the requirement of filing a petition as required in Rule 81. It may be recalled that in paragraph 10 of the petition before this Court, the petitioner had mentioned that on 6-7-1971 he had filed a petition under Rule 81 along with a challan showing deposit of Rs. 10/-. There is no such petition on the record, except Annexure A referred to above, which cannot be considered as a counter petition or recrimination petition as required under Rule 81. In the absence of such a petition, in my opinion, the Election Tribunal (Respondent No. 3) has rightly rejected the prayer of the petitioner to frame issue No. 2 as suggested by him, I find no reason to interfere with the impugned order, which has got to be affirmed. 11. In the result, the application is dismissed and the order of Respondent No. 3 is upheld. In the circumstances, however, there will be no order as to costs.