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Madhya Pradesh High Court · body

2006 DIGILAW 110 (MP)

Jaipal Singh v. Girish Chandra Patwa

2006-01-18

A.P.SHRIVASTAVA, K.K.LAHOTI

body2006
ORDER Lahoti, J. -- 1. The petitioner has sought following reliefs: (1) To quash Rule 10 of M.P. Municipalities (Election Petition) Rules, 1962 for being ultra vires and illegal in regard to M.P. Municipality Act, 1961. (2) To quash impugned order Annexure P-l. (3) To lay down correct interpretation and meaning of Rule 10 if it is held intra vires. (4) Any other order or direction appropriate in the facts and circumstances of the case. (5) To allow costs. 2. The petitioner has challenged vires of Rule 10 of M.P. Municipalities (Election Petition) Rules 1962 (hereinafter in short referred to as "the Rules") as ultra vires. For ready reference Rule 10 reads as under: "10. Recrimination when seat claimed. -- Where, at an enquiry into an election petition, any candidate, other than the elected or selected candidate claims the seat for himself, the elected or selected candidate or any other party may give evidence to prove that the election or selection of such candidate would have been void if he had been the elected or selected candidate and a petition had been presented complaining of his election or selection. 3. Before proceeding further, it will be appropriate to state facts of this case :- The petitioner contested the election of the President of Municipal Council, Ashoknagar M.P. on 27.12.1999. Respondent No.2 Mahendra Singh Yadav filed an election petition on 3.2.2000 against petitioner which was registered as Case No. 5/ A/2000 by the First Additional District Judge, Ashoknagar. The prayer in the election petition is that respondents No.3 Neelam Singh in the present petition be declared as elected. 4. Respondent No.1 Girish Patwa filed a Recrimination claim under section 97 of the Representative of People Act, 1951 praying that he may be declared as elected in place of a returned candidate. The Election Tribunal on 8.5.2000 rejected the recrimination of respondent No.1 on the ground that it is beyond limitation and security has not been deposited in time. Against this order, respondent No.1 preferred a writ petition before Gwalior Bench of this Court registered as W.P. No. 1118/2000. The Election Tribunal on 8.5.2000 rejected the recrimination of respondent No.1 on the ground that it is beyond limitation and security has not been deposited in time. Against this order, respondent No.1 preferred a writ petition before Gwalior Bench of this Court registered as W.P. No. 1118/2000. This writ petition was allowed and the order passed by the Election Tribunal dated 8.5.2000 rejecting the claim of recrimination was set aside and election Tribunal was directed to proceed with the trial of election petition and to consider the claim made by respondent No.1 for recrimination and decide the matter according to law. The order passed by this Court is on record as Annexure P-4. Against the order of the learned Single Judge, the petitioner preferred an Letters Patent Appeal before the Division Bench at Gwalior which was registered as Letters Patent Appeal No. 18/2003. This Letters Patent Appeal was decided on 22.4.2004 vide order Annexure P-5 and the Division Bench with following directions decided the Letters Patent Appeal finally :-- "At this stage without entering into the controversy in the matter we direct that the appellant will have right to object the recrimination claimed by the respondent No.1 before the Court of Additional District Judge in the election petition. Appellant will raise the objection available to him against such claim. If the objections are raised the Court trying the election petition shall decide the said objections while deciding the election petition finally and any party aggrieved by the said decision will be at liberty to challenge that finding before the appropriate forum. Petitioner in election, and the returned candidate may lead evidence on the question of allowing or disallowing the recrimination." 5. Thereafter the petitioner filed objections under Rule 10 of the Rules on the ground that under M.P. Municipalities Act, 1961 (hereinafter referred as Act), there is no such provision for recrimination and Rule 10 is ultra vires. The Election Tribunal by the impugned order directed that as per the orders passed by the High Court in Writ Petition and the Letters Patent Appeal has directed parties to raise objection and the election Tribunal was directed to decide the objections and rejected the application. After rejection of the aforesaid application, the petitioner filed this petition challenging vires of the Rule 10 of the Rules. 6. After rejection of the aforesaid application, the petitioner filed this petition challenging vires of the Rule 10 of the Rules. 6. The learned counsel for petitioner submitted that under the M.P. Municipalities Act, 1961, there is no such provision for recrimination and the Rule 10 which provides recrimination is ultra vires on the grounds :-- (i) That though rule 10 provides for recrimination, but these Rules are framed under M.P. Municipalities (Election Petition) Rules, 1962 which does not empower for framing of such Rules. (ii) Section 21 of the Act provides relief that may be claimed by election petitioner which does not provide any such recrimination. (iii) Under section 24 (i) (c) the Court deciding an election petition, declaring the election or nomination of all or any of the returned candidates to be void but there is no provision for recrimination in the aforesaid section. 7. It is submitted that Rule 10 of the Rules which is contrary to the main enactment may be declared as ultra vires. 8. The learned Dy. Advocate General opposed the petition and submitted that the Rules are framed under section 35 of the Act which empowers the State Government to make rules. It is submitted that under section 21 the petitioner may claim relief in the election petition that the election of a returned candidate is void and in addition thereto a further declaration that he himself or any other candidates have been duly elected. Clause (b) of subsection (1) empowers the Court to grant relief of recrimination. Similar is the position under section 24 (i)(c) of the Act. It is submitted that the Rule 10 is intra vires and this petition is without merit and may be dismissed with costs. 9. To appreciate contentions of the parties, it is necessary to look into the Rule 10 of the Rules. Rule 10 is para materia to section 97 (1) of the Representation of People Act. Except that the proviso of section 97 of the Representation of People Act does not find place in rule 10, the scope of Rule 10 is to grant relief by the Election Tribunal at the time of enquiry into an election petition in which any candidate other than elected or selected candidate claims the seat for himself. Except that the proviso of section 97 of the Representation of People Act does not find place in rule 10, the scope of Rule 10 is to grant relief by the Election Tribunal at the time of enquiry into an election petition in which any candidate other than elected or selected candidate claims the seat for himself. In that situation the tribunal shall permit the elected or selected candidate or any other party to give evidence to prove that the election of such candidate would have been void if he had been elected and a petition shall be deemed to have been presented complaining of his election. The other party in Rule 10 is a party who is a respondent in the election and any other party who is also the respondent in the election petition. The right to the recrimination accrues any other party to the petition, the moment an election petition is presented contending a claim for further declaration that the petitioner himself or any other candidate be declared duly elected. The entire purpose of recrimination is to maintain purity of the election in which entire constituency as a whole is vitally interested and no person would get elected by flagrant breach of the election law or corrupt practice. Now the question arises whether Rule 10 is contrary to the statutory provisions of the M.P. Municipalities Act or such relief can be granted under section 21 and 24 of the Act. Section 21 of the Act specifically provides that the petitioner may claim by an election petition a declaration that the election of the returned candidate is void. He can also claim in addition to the aforesaid relief that he himself or any other candidate has been duly elected. This section specifically empowers the Court to give a declaration that either the election petitioner or any other candidate may be declared as duly elected. While deciding the election petition, the Judge is empowered under section 24 to declare the election of returned candidate to be void and the petitioner or any other candidate to have been elected. This section specifically empowers the Court to give a declaration that either the election petitioner or any other candidate may be declared as duly elected. While deciding the election petition, the Judge is empowered under section 24 to declare the election of returned candidate to be void and the petitioner or any other candidate to have been elected. For ready reference sections 21 and 24 of the Act are quoted as under: "Section 21 : Relief that may be claimed by petitioner -- (1) A petitioner may claim -- (a) a declaration that the election or nomination of all or any of the returned candidates is void; and (b) in addition thereto a further declaration that he himself or any other candidate has been duly elected. (2) The expression "returned candidate" means a candidate whose name is notified in the Gazette under section 45. Section 24 : Decision on election petition -- (1) At the conclusion of the trial or an election petition the Judge shall make an order-- (a) dismissing the election petition; or (b) declaring the election or nomination of all or any of the returned candidates to be void; or (c) declaring the election or nomination of all or any of the returned candidates to be void and the petitioner and any other candidate to have been duly elected or nominated. (2) If any person who has filed an election petition has, in addition to calling in question the election or (nomination) of the returned candidate, claimed declaration that he himself or any other candidate has been duly elected or (nominated) and the Judge is of opinion-- (a) That in fact the petitioner or such candidate received a majority of the valid votes; or (b) That but for the votes obtained by the returned candidate the petitioner or such other candidate would have obtained a majority of the valid votes; the Judge shall, after declaring the election or (nomination) of the returned candidate, as the case may be, to have been duly elected or (nominated). (3) At the time of making an order under this section, the Judge shall also make an order -- (a) Where any charge is made in the petition of any corrupt practice having been committed at the election or nomination, regarding -- (i) A finding where any corrupt practice has or has not been proved to have been committed and the nature of that corrupt practice; and (ii) The names of all person, if any, who have been proved at the trial to have been guilty of any corrupt practice and the nature of that practice; and (b) Fixing the total amount of costs payable, and specifying the person by and to whom costs shall be paid: Provided that person who is not a party to the petition shall not be named in the order sub-clause (ii) of clause (a) unless-- (a) he has been given notice to appear before the Judge and show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the Judge and has given evidence against him of calling evidence in his defence and of being heard." When such powers are vested with the Election Tribunal, this power is also vested with the Court to declare any other candidate as the returned candidate. This empowers the Court to decide that except the election petitioner, any other candidate as returned candidate who may claim the seat for himself, and is also empowered to permit the evidence to prove that the election of the returned candidate would have been void if he had been elected. The aforesaid power is within the scope of sections 21 and 24 of the Act and the Court is empowered to declare that the election petitioner or any other candidate has been duly elected. 10. In view of the aforesaid, the contention of the petitioner that such recrimination is not permissible under the Act and the Rule 10 is ultra vires has no merit and accordingly it is held that the Rule 10 of Election Petition Rules is intra vires and this petition is without merit and dismissed· with costs. Counsel's fee Rs. 1,000/-, if certified.