Research › Search › Judgment

Gauhati High Court · body

2021 DIGILAW 344 (GAU)

Er. Lupalum Kri v. Dasanglu Pul

2021-04-08

NANI TAGIA

body2021
JUDGMENT : 1. Heard Mr. P.K. Tiwari, learned senior counsel, assisted by Mr. K. Saxena, learned counsel for the applicant/returned candidate and Mr. H. Lampu, learned counsel for the opposite party/election petitioner. 2. The opposite party/election petitioner having filed a Election Petition No. 03(AP)/2019, before this court praying for; (i) order dated 23.5.2019 declaring Smt. Dasanglu Pul, BJP candidate, as a winning candidate of 45-Hayuliang (ST) Assembly Constituency be held void and (ii) Er. Lupalum Kri, the election petitioner be declared elected candidate of the 45-Hayuliang (ST) Assembly Constituency; and in view of the second prayer of the election petitioner made in the election petition, the present applicant/returned candidate having filed a recrimination petition under section 97 of the Representation of the Peoples Act, 1951, registered as Recrimination Case No. 01(AP)/2020, seeking a declaration that the election petitioner was holding an office of profit on the day his nomination papers were scrutinized by the Returning Officer of 45-Hayuliang (ST) Assembly Constituency and as such, was disqualified for being chosen as and for being a member of the Legislative Assembly of the State of Arunachal Pradesh; this application under section 151 of the Code of Civil Procedure has been filed by the applicant/returned candidate for holding of joint trial of the Election Petition No. 03(AP)/2019 and Recrimination No. 01(AP)/2020. 3. Contending that it is the requirement under the law that election petition and recrimination petition needs to be tried together, Mr. Tiwari, learned senior counsel for the applicant has relied on the following decisions: (i) Jabar Singh v. Genda Lal, AIR 1964 SC 1200 , paragraph Nos. 10 and 11. “…10. It would be convenient if we take a simple case of an election petition where the petitioner makes only one claim 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 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 sub-clauses (i) to (iv) of section 100(1)(d). 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 sub-clauses (i) to (iv) of section 100(1)(d). but it has also to establish that as a result of the existence of the said ground, the result of the election insofar 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 insofar as it concerns 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 scope of the enquiry. Confining ourselves to sub-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 in regard to any other candidate or whether there has 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 failing under section 100(1)(d)(iii) is to determine whether any votes have been improperly cast 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 enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in section 1(X)(1)(d)(iii). the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determined the scope of the enquiry. At this enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in section 1(X)(1)(d)(iii). the result of the returned candidate's election has been materially affected, and that, incidentally, helps to determined the scope of the enquiry. Therefore, it seems 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) 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. If the result of the enquiry is in favour of the petitioner who challenges the election of the returned candidate, the Tribunal has to make a declaration to that effect and that declaration brings to an end the proceedings in the election petition. 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 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 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 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. 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 section 100 so far as the validity of the returned candidate's election is concerned, and if as a result of the said enquiry a declaration is made that the election of the returned candidate is void, then the Tribunal will proceed to deal with alternative claim, but in doing so, the returned candidate will not be allowed to, lead any evidence because he is precluded from raising any pleas against the validity of the claim of the alternative candidate…” (ii) Amrit Lal Basumatari v. Abdul Muhib Mazumdar, AIR 1991 Gau 85 , paragraph Nos. 4,5,6 and 7. “4…. In Jabar Singh's case (supra), the para 13 of the judgment runs :— ‘“If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under section 100 and the matter proceeds to be tried under section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by section 100(1)(d)(iii) and the latter part of the enquiry which is governed by section 101(a) will have to be tried on broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under section 97(1).” In the above quoted passage, the Supreme Court has laid down the procedural step or machinery for carrying on recrimination petition including evidence and practice. It may be noted that in the above passage, the Supreme Court has used the word ‘may’ and, therefore, the passage indicates that the recrimination petition may be tried after the question relating to the validity of the election of the returned candidate is decided. But the Supreme Court has not said that the election petition and the recrimination petition cannot be heard together or proceedings in the election petition and the recrimination petition cannot be consolidated. In Jabar Singh's case, at para 11, the Supreme Court has also observed that when the returned candidate recriminates, “he really becomes a counter-petitioner” challenging the validity of the election of the person in whose favour declaration is claimed by the election petition; and that the result of section 97(1), therefore, is that in dealing with a composite election petition, the court enquires into not only the case made out by the petitioner, but also the counter-claim made by the returned candidate. The observation of the Supreme Court shows that there are cases, where such proceedings are consolidated, as the counter-claim made in the recrimination cannot be enquired into unless it is heard together with the election petition. 5. Section 87 provides that subject to the provision of the RP 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 the Code of Civil Procedure. Under order 8, rule 6A of the Code, counter-claim shall have the effect as 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, and the counter-claim shall be treated as a plaint and shall be governed by the rules applicable to plaints. Therefore, under rule 6A the claim and counter-claim are to be regarded as a unified proceeding and the same are to be disposed of by a single judgment, both on the original claim and counter-claim. However, rule 6C provides that the plaintiff may apply to the court for an order that the counter-claim is an independent suit and that the suit be separated from the counter-claim. In other words, to hear the claim and counter-claim together is the general rule and to hear the counter-claim separately is an exception. 6. However, rule 6C provides that the plaintiff may apply to the court for an order that the counter-claim is an independent suit and that the suit be separated from the counter-claim. In other words, to hear the claim and counter-claim together is the general rule and to hear the counter-claim separately is an exception. 6. As already discussed, the Supreme Court has observed that the returned candidate who recriminates becomes a counter-petitioner making a counter-claim. Therefore, the counter-claim made in the recrimination is a cross-action in the nature of a cross-suit as is provided under rule 6 A. The Supreme Court in Jabar Singh's case (supra) has laid down the procedural step or machinery for carrying on a recrimination petition, as already stated. But the decision of the Supreme Court relating to the procedure is not helpful for the decision of the present question as the decision was before the Code of Civil Procedure (Amendment) Act, 1976. By the amendment, rules 6 A to 6 G have been inserted. 7. As regards the procedure and practice for the trial, apart from rule 6 A, the trial court has also inherent power to consolidate the proceedings depending on the facts and circumstances of the case. Although, the exercise of the inherent powers are not controlled by the provision of the Code, the powers are not to be exercised if the exercise of mat powers may override express provision of the Code. These powers are in addition to, or complementary to, the powers conferred under the Code. Under the RP Act or rules framed thereunder, there is no provision that both the election petition and the recrimination petition cannot be heard together or cannot be disposed of by a single judgment. As already stated, the Supreme Court has not said that the election petition and the recrimination petition cannot be heard together or proceedings in the election petition and the recrimination petition cannot be consolidated. The election petition requires quick disposal. As already stated, the Supreme Court has not said that the election petition and the recrimination petition cannot be heard together or proceedings in the election petition and the recrimination petition cannot be consolidated. The election petition requires quick disposal. On perusal of the election petition as well as the recrimination petition, I am of the view that on the facts and circumstances of the case, if the present election petition and the recrimination petition are heard together and disposed of by a common or single judgment in exercise of the inherent powers or under the provisions of rule 6 A, in the absence of an order under rule 6 C, I do not think I would commit any jurisdictional error…” (iii) Bijoyshree Rout Roy v. Madhusudan Panigrahi, AIR 1986 Ori 105 , paragraph No. 4. “..A. Section 98 of the Act provides that at the conclusion of the trial of an election petition, the High Court shall make an order:— (a) dismissing the election petition, or (b) declaring the election of all or any of the returned candidate to be void; or (c) declaring the election of all or any of the returned candidate to be void or any other candidate to have been duly elected. Section 99 provides for the consequential order to be passed while making the order under section 98. Parliament also kept in view that separate trials may be necessary and in that view under section 86(3) provided for the same only when separate petitions are filed challenging one election at the discretion of the Judge; No other ground is there for separate trial. Section 87 of the Act provides that the trial of the election petition shall be in accordance with the procedure under the Code of Civil Procedure applicable to the trial of suits as nearly as may be subject to the provisions of the Act. No provision under the Act has been brought to my notice by Mr. Misra which would be inconsistent with order 14, rule 2 Civil Procedure Code. Thereunder, court is to pronounce judgment on all issues. Same is the principle envisaged under section 98 of the Act. No provision under the Act has been brought to my notice by Mr. Misra which would be inconsistent with order 14, rule 2 Civil Procedure Code. Thereunder, court is to pronounce judgment on all issues. Same is the principle envisaged under section 98 of the Act. Postponement of the settlement of other issues is possible only where the case or any part thereof may be disposed of on an issue of law only if that issue relates to the jurisdiction of the court or being barred by law. Order 14, was amended by Act 104 of 1976 to avoid piecemeal trials and where answer to an issue would depend upon consideration of evidence even though it relates to jurisdiction or a bar of suit by any law, the same would be heard along with other issues…” 4. Mr. H. Lampu, learned counsel for the opposite party/election petitioner, on the other hand, while contending that it is not the requirement of law, as contended by the learned senior counsel for the applicant that the election petition and recrimination petition filed under section 97 of the Representation of the Peoples Act, 1951 are to be tried together; rather, it is only after the decision is rendered in the election petition that the recrimination petition has to be tried, has relied on the following two decisions ; (i) Jabar Singh v. Genda Lal, AIR 1964 SC 1200 , paragraph No. 13 and (ii) Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, (2014) 5 SCC 312 , paragraph Nos. 24 and 25; (i) Jabar Singh v. Genda Lal, AIR 1964 SC 1200 , paragraph No. 13: “… 13. If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under section 100 and the matter proceeds to be tried under section 101(a). If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under section 100 and the matter proceeds to be tried under section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by section 100(1)(d)(iii) and the latter part of the enquiry which is governed by section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under section 97(1)….” (ii) Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, (2014) 5 SCC 312 , paragraph Nos. 24 and 25: “…. 24. This brings us to the next question involved herein as to whether election petition and recrimination petition have to be tried simultaneously? 25. In a composite election petition wherein the petitioner claims not only that the election of the returned candidate is void but also that the petitioner or some other person be declared to have been duly elected, section 97 of the Act comes into play and allows the returned candidate to recriminate and raise counter-pleas in support of his case, “but the pleas of the returned candidate under section 97 have to be tried after a declaration has been made under section 100 of the Act.” The first part of the enquiry is in regard to the validity of the election of the returned candidate which is to be tried within the narrow limits prescribed by section 100(1)(d)(iii) while the latter part of the enquiry governed by section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas taken by him in his recrimination petition. If the returned candidate does not recriminate as required by section 9, then he cannot make any attack against the alternative claim made by the election petitioner. If the returned candidate does not recriminate as required by section 9, then he cannot make any attack against the alternative claim made by the election petitioner. In such a case an enquiry 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 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…” 5. The learned counsels for the contesting parties have been heard and the decisions cited at the Bar have been perused. 6. It appears that there are 2 kinds of election petitions presented under the Representation of the Peoples Act, 1951; (i) under section 100, wherein the election petitioner seeks declaration of the election of the returned candidate as void on any of the grounds mentioned therein, (ii) In addition to seeking an election of the returned candidate as void under section 100 of the Representation of the Peoples Act, 1951 and additional claim under section 101 of the Representation of the Peoples Act, 1951 that a candidate other than the returned candidate may be declared to have been elected on the grounds specified therein. Section 97 of the Representation of the Peoples Act, 1951, which is a provision for recrimination comes into play when an additional claim under section 101 of the Representation of the Peoples Act, 1951 is made for declaration of a candidate other than the returned candidate, be declared to have been elected, in addition to seeking a declaration of the returned candidate as void under section 100 7. In the aforesaid context, section 97 of the Representation of the Peoples, Act, 1951, at this stage, may be noticed the provision of which itself may be quoted hereinbelow for ready reference: “97. Recrimination when seat claimed. In the aforesaid context, section 97 of the Representation of the Peoples, Act, 1951, at this stage, may be noticed the provision of which itself may be quoted hereinbelow for ready reference: “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 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 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 in like manner.” 8. As can be noticed from the section quoted hereinabove, section 9 provides that in an election petition when a declaration is sought for, that any other candidate other than the returned candidate be declared duly elected, 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 has been presented calling in question his election, subject to the fulfilment of the proviso to subsection (1) of section 97 and sub-section (2) thereof. 9. 9. The object and scope of a recrimination petition filed under section 97(1), therefore, appears to be to give an opportunity to the returned candidate to make a counter-claim against the election petitioner when the election petition, apart from directing against the election of the returned candidate, also seeks a declaration under section 101 that a candidate other than the returned candidate may be declared to have been duly elected, by enlarging the scope of enquiry by an Election Tribunal facilitating/enabling the election petitioner to lead/give evidence to prove that the election of such candidate would have been void, if he had been the returned candidate and an election petition had been presented calling in question his election; subject of course to the fulfilment of conditions laid down under proviso of sub-section (1) of section 97 and sub-section (2) thereof. 10. In the light of the above provision, the question raised by the applicant/returned candidate in this application as to whether the election petition and the recrimination petition should be analogously tried, have been answered by the hon'ble Supreme Court in two of the decisions, referred to hereinabove: (i) In the case of Jabar Singh v. Genda Lal, AIR 1964 SC 1200 , it has been held in paragraph No. 13 as under: “13. If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under section 100 and the matter proceeds to be tried under section 101(a). If the returned candidate has recriminated and has raised pleas in regard to the votes cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may have to be tried after a declaration has been made under section 100 and the matter proceeds to be tried under section 101(a). In other words, the first part of the enquiry in regard to the validity of the election of the returned candidate must be tried within the narrow limits prescribed by section 100(1)(d)(iii) and the latter part of the enquiry which is governed by section 101(a) will have to be tried on a broader basis permitting the returned candidate to lead evidence in support of the pleas which he may have taken by way of recrimination under section 97(1)….” (ii) In the case of Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, (2014) 5 SCC 312 , it has been held in paragraph No. 25 as follows: “….[B]ut the pleas of the returned candidate under section 97 have to be tried after a declaration has been made under section 100 of the Act….” 11. Thus, from the ratio of the two decisions of the hon'ble Supreme Court, referred to hereinabove, it is clear that the recrimination petition filed by the returned candidate under section 97 of the Act will have to be tried after a declaration has been made under section 100 of the Act in respect of the election of the returned candidate. 12. The decision rendered by the Gauhati High Court in the case of Amrit Lal Basumatari v. Abdul Muhib Mazumdar, AIR 1991 Gau 85 as well as by the Orissa High Court in the case of Bijoyshree Rout Roy v. Madhusudan Panigrahi, AIR 1986 Ori 105 , was in the context of provisions of counter-claim, as contained in order 8 of the Code of Civil Procedure; and, pronouncement of judgment on all issues, as contained in order 14 of rule 2 of the Code of Civil Procedure, respectively. The decision rendered in both the cases by the Gauhati High Court as well as by the Orissa High Court, therefore, cannot be understood to have laid down a proposition of law invariably prescribing that an election petition and a recrimination petition will have to be necessarily tried together and analogously. The decision rendered in both the cases by the Gauhati High Court as well as by the Orissa High Court, therefore, cannot be understood to have laid down a proposition of law invariably prescribing that an election petition and a recrimination petition will have to be necessarily tried together and analogously. That is for the reason that the application of the Code of Civil Procedure is subject to the provisions of Representation of the Peoples Act, 1951. In the case of Kailash v. Nanhku, (2005) 4 SCC 480 , the hon'ble Supreme Court in paragraph No. 46(ii)(iii), it has been held as follows: “…46. (ii) On the language of section 87(1) of the Act, it is clear that the applicability of the procedure provided for the trial of suits to the trial of election petitions is not attracted with all its rigidity and technicality. The rules of procedure contained in the CPC apply to the trial of election petitions under the Act with flexibility and only as guidelines. (iii) In case of conflict between the provisions of the Representation of the Peoples Act, 1951 and the Rules framed thereunder or the Rules framed by the High Court in exercise of the power conferred by article 225 of the Constitution on the one hand, and the Rules of Procedure contained in the CPC on the other hand, the former shall prevail over the latter… 13. In view of the above and having taken note of the express decisions, rendered by the hon'ble Supreme Court in both the cases : (i) Jabar Singh v. Genda Lal, AIR 1964 SC 1200 and in the case of (ii) Arikala Narasa Reddy v. Venkata Ram Reddy Reddygari, (2014) 5 SCC 312 that the recrimiriation petition filed under section 97 of the Representation of the Peoples Act, 1951 would have to be tried after a declaration has been made under section 100 of the Representation of the Peoples Act, 1951, this application fails and the same is dismissed being devoid of merit.