B.D. Agarwal, J.
1. This miscellaneous application has stemmed out of Election Petition No. 2 of 2007. The election petitioner has filed this application objecting the counterclaim made in the written statement filed by the respondent in the main election petition.
2. Before I step in the legal question raised in this miscellaneous application, it would be apposite to set out the facts of the case giving raise to the filing of the election petition, as well as this application.
2.1 The election petitioner and the respondent and few other candidates contested the election of the 9th Manipur Legislative Assembly from 6-Keirao Assembly Constituency. The election result was declared on 27-2-2007. The respondent defeated the election petitioner by a thin margin of 2 (two) votes only. Having realized that due to improper and illegal reception of few votes materially effecting the election of the respondent, one of the defeated candidates namely Shri Thamarjit Singh has challenged the election of the respondent namely Md. Allauddin Khan basically under Section 100(1)(d) (iii) and (iv) of the Representation of the People Act, 1951 (hereinafter referred to as 'the R.O.P. Act' for short) so as to declare the election of the sole respondent as void. The relevant prayers made in the election petition are reproduced below:
(i) and (ii) xxx xxx xxx xxx
(iii) to order a recount of the votes after excluding the void votes, if required.
(iv) to declare the election of 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.
3. On being notified the sole respondent appeared in the election petition No. 2 of 2007 on 11-6-2007. Filing of the written statement was deferred till the disposal of another miscellaneous application No. 6 of 2007, challenging the maintainability of the election petition on technical grounds. The said miscellaneous case was dismissed on 31-10-2007. Even thereafter the respondent took few adjournments and finally filed his written statement on 4-1-2008. In his written statement, apart from disputing the allegations of anomaly in the election, the respondent/returned candidate has also made several recriminating statements in paragraph Nos. 22 to 31. Precisely in these paragraphs, the respondent has made counter allegation that as many as 240 void votes have also been cast in favour of the election petitioner and if these alleged void votes are deducted from the total votes secured by the election petitioner, the respondent would emerge with more comfortable victory. Basically the recriminating statements are in the nature of 'Counter-Claim' as prescribed under Order VIII, Rule 6-A of the Civil Procedure Code (briefly 'CPC'). According to the learned Counsel for the petitioner the counter-claim made in the written statement are not maintainable within the provisions of the ROP Act, hence liable to be struck off under Order VI, Rule 16 of CPC.
4. Heard Shri NPC Singh, learned senior counsel for the petitioner and Shri HNK Singh, learned senior counsel appearing for the respondent. I have also perused the pleadings of both the parties.
5. Chapters II and III of the ROP Act deal with the procedure of filing of election petition and trial thereof. Section 84 specifies the reliefs that may be claimed by the petitioner; Section 87 prescribes the procedure to be followed by the High Court for hearing the election petition; Section 97 gives liberty to the returned candidate or any other party in the case to recriminate the claim of the election petitioner that either the petitioner or any other candidate should be declared as an elected candidate and Section 100 lays down the grounds upon which election of a candidates can be assailed.
6. Since these provisions of law have a bearing in the present case, it is necessary to reproduce the relevant parts of the aforesaid provisions of law for ready reference:
84. Relief that may be claimed by the petitioner-
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.
87. Procedure before the High Court--
(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 the Code of Civil Procedure, 1908 (5 of 1908) to the trial of suits:
Proviso: (2) xx xx xx xx
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 the 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-sec-tion (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.
100. (1) Subject to the provisions of Sub-section (2) if the High Court is of opinion.
(a) to (c) xx xx xx xx
(d) that the result of the election, insofar as it concerns a returned candidate, has been materially affected.
(i) by the improper acceptance or any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or
(iii) by the improper reception, refused or rejection of any vote or the reception of any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
(2) xx xx xx xx
7. Shri NPC Singh, learned senior counsel for the petitioner vehemently objected raising of counter allegations in the written statement by the respondent and submitted that recriminatory statements have been made with mischievous and mala fide intention, having known the legal position that such counter allegations are not permitted in the written statement. According to the learned Counsel, in the absence of any additional claim under Section 84 either to declare the election petitioner or any other candidates as duly elected the respondent has no right to make any counter-claim in his written statement. In the opinion of the learned Counsel, such counter-claim is permitted under Section 97 only if there is an additional claim in pursuance to Section 84 of the ROP Act and that too with certain preconditions. Shri NPC Singh, learned senior counsel further contended that since ROP Act is a self contained code, the election petition has to be decided within the frame work of this special law. Learned Counsel further submitted that certain provisions of CPC can be invoked in exceptional circumstances but no provision of CPC can supplant the specific provisions found in the ROP Act.
8. In order to strengthen his arguments the learned Counsel for the petitioner pressed into service few judgments from the Hon'ble Supreme Court rendered in the case of Jabar Singh v. Genda Lal, reported in : [1964]6SCR54 , T. A. Ahammed Kabeer v. A. A. Azeez, reported in : [2003]3SCR511 and Arun Kumar Bose v. Mohd. Furkan Ansari reported in : [1984]1SCR118 .
9. Per contra Shri HNK Singh, learned senior counsel for the respondent defended raising of counter allegations on the ground that since there is no specific provision in the ROP Act for making counter-claim the same is permitted under Section 87, which authorizes the High Court to make use of the procedure laid down in CPC. Learned Counsel for the respondent further added that since the election petitioner has intentionally avoided to make additional claim as provided under Section 84, the respondent had no other option except to fall back upon Order VIII, Rule 6-A of CPC.
10. In order to substantiate his contention Shri HNK Singh, learned Counsel for the respondent cited the judgment of Gauhati High Court rendered in the case of Soneswar Borah v. Nagen Neog reported in AIR 1987 Gau 11, judgment of Rajasthan High Court given in the case of Dinesh Kumar v. Ram Sahai reported in , decision of Punjab & Haryana High Court rendered in the case of Jugal Kishore v. Doctor Baldev Parkash reported in as well as the authority of the Apex Court rendered in the case of Dr. Rajendra Kumari Bajpai v. Ram Adhar Yadav reported in : [1976]1SCR255 .
11. By now, it is the settled principle of law that if there are two identical provisions, one in the special law and one in the general law, the provision found in the special law would prevail. It is also the accepted principle that when a general law is made applicable to the proceeding under a special law, making it subject to the provisions of the special law, the general law will not be applicable when there is a provision contrary to or in variance to the provision of the special enactment and to that extent the provision of special law will subrogate the general law. In the case before me, the learned Counsel for the respondent did not seriously contend that the provision of filing recrimination petition under Section 97 is not pari materia to the counter-claim provision in CPC under Order VIII, Rule 6-A. Hence it has to be examined whether the recrimination statements made in the written statement can be entertained with the aid of Order VIII, Rule 6-A, CPC.
12. The rigidity of ROP Act in particular has been lucidly spelt-out in the case of Jyoti Basu v. Debi Ghosal, reported in : [1982]3SCR318 . In this authority the Hon'ble Supreme Court has categorically stated that adherence to the provisions of ROP Act in its letter and spirit is the rule and departure therefrom on the ground of equity and natural justice is exception. Relevant observations of the Apex Court can be fruitfully reproduced below:
8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a Common Law Right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. An election petition is not an action at Common Law, nor in equity. It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies. It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute 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, is what the statute lays down. In the trial of election disputes, Court is put in a straight 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, 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. There can be no election to Parliament or the State Legislature except as provided by the Representation of the People Act, 1951 and again, no such election may be questioned except in the manner provided by the Representation of the People Act. So the Representation of the People Act has been held to be a complete and self-contained code within which must be found any right claimed in relation to an election or an election dispute. We are concerned with an election dispute. The question is who are parties is an election dispute and who may be impleaded as parties to an election petition. We have already referred to the scheme of the Act. We have noticed the necessity to rid ourselves of notions based on Common Law or Equity. We see that we must seek an answer to the question within the four corners of the statute. What does the Act say?.
13. The aforesaid proposition of law has been reiterated by the Hon'ble Supreme Court in the case of Arun Kumar Bose v. Furkan Ansari : [1984]1SCR118 (supra) relying upon the case of Jagannath v. Jaswant Singh : [1954]1SCR892 , thus approving the ratio of law laid down in the case of Jyoti Basu : [1982]3SCR318 .
14. Coming to the question as to whether counter-claim of the respondent can be entertained without there being any right to file recrimination petition under Section 97 of the ROP Act, I find answer to this question in the case of Jabar Singh v. Genda Lal : [1964]6SCR54 (supra). In this case, the Hon'ble Apex Court has ruled out scrutiny of votes in favour of the election petitioner and other candidates in the absence of additional plea in the election petition and without any recrimination petition under Section 97. The relevant observations are extracted below:
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 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 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 sofaras 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....
15. The Hon'ble Apex Court further observed thus:.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....
16. The aforesaid proposition of law has been reiterated in catena of judgments. However, without multiplying authorities in this regard, I am quoting below the relevant portion of the observations made by the Hon'ble Supreme Court in the case of T.A. Ahammed Kabeer AIR 2003 SC 2271 (supra):
33. (1) In an election petition wherein the limited relief sought for is the declaration that the election of the returned candidate is void on the ground under Section 100(1)(d)(iii) of the Act, the scope of enquiry shall remain confined to two questions: (a) finding out any votes having been improperly cast in favour of the returned candidate, and (b) any votes having been improperly refused or rejected in regard to any other candidate. In such a case an enquiry cannot be held into and the election petition decided on the finding (a) that any votes have been improperly cast in favour of a candidate other than the returned candidate, or (b) any votes were improperly refused or rejected in regard to the returned candidate.
(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.
(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 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 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 is required to fulfil within the meaning of Section 83 of the Act and must be accompanied by the security or the further security referred to in Sections 117 and 118 of the Act.
(5) xx xx xx
17. From the aforesaid authorities, it is crystal clear that no counterclaim either under Section 97 of the ROP Act or under Order VIII, Rule 6 of the CPC is maintainable unless an additional plea is taken in the election petition to declare the petitioner or any other candidate elected after setting aside the election of the returned candidate.
18. All the authorities cited on behalf of the respondent are distinguishable on facts. In the case of Dr. Rajendra Kumari Bajpai (supra) the question was that whether a prayer for delivery of interrogatory made under Order XI, CPC can be entertained. The prayer was acceded on the ground that Section 87 of the ROP Act has neither expressly or impliedly excluded the application of Order XI. Their Lordships have, however, added that the provisions of CPC can be adopted under the following situations:
(i) where the Act contains express provision for certain matters which are inconsistent with the procedure prescribed by the Code: and (ii) where a particular provision of the Code of Civil Procedure is either expressly or by necessary intendment excluded by the Act. Subject to these two exceptions. Section 87 is very wide in its connotation.
19. In the case before me the objection is with regard to accepting counter-claim for which there is a specific provision under Section 97 of the ROP Act. On similar ground the authority of Rajasthan High Court is distinguishable. In that case, the question of admitting replication under Order VIII, Rule 9, CPC was involved. Such prayer was entertained in the absence of any identical provision under the ROP Act.
20. In the case of Jugal Kishore AIR 1968 Punj & Har 152) (supra) one of the question before the Hon'ble Punjab & Haryana High Court was whether an election petition can be dismissed for non-prosecution. Since ROP Act did not have any provision in this regard, the Court was of the view that an election petition can be dismissed for default with the aid of Order IX or Order XVIII of CPC. In the case of Soneswar Borah AIR 1987 Gauh 11 (supra) the question of admitting deposition of witnesses without counter signature of the Judge was involved. Even in this case the Gauhati High Court has held that the provisions of CPC cannot be applied in toto in the trial of election petitions. The relevant observations are as below:
The provisions in Section 87(1) of the 'Act' shows that the whole of the Civil Procedure Code is not fully applicable. The Section 87(1) provides that the proceeding should be tried 'as nearly as may be' in accordance with the procedure applicable under the Code of Civil Procedure. The reason for using the expression 'as nearly as may be' appears to be that Under Section 86(7) of the 'Act' endeavour is to be made to conclude the trial of an election petition within 6 (six) months from the date on which the election petition is presented and if the technicalities of the Code is followed the trial may not be concluded expeditiously. The technicalities of the Code should not make the progress of the trial of an election petition difficult. However, it must be consistent with the interests of justice. As such, the expression 'as nearly as may be' shows only an approximation. In the other words, an election Court shall be guided by the spirit of the Code, but shall not be bound by the letter of the Code.
21. The submission of the learned Counsel for the respondent is that since no additional relief to declare the petitioner or any other candidate as duly elected has made in the election petition, the respondent had no scope to file the recrimination petition under Section 97. Under such circumstances, it was contended, the counter-claim of the respondent can be accepted. In my considered opinion, it is the prerogative of the election petitioner to confine his prayer to declare the election of the returned candidate as void. The Court cannot compel any such petitioner to make the additional plea as permitted under Section 84 so that the returned candidate can file recrimination petition. I find no difficulty to hold that the provisions of recrimination petition under Section 97 of the ROP Act are mutatis mutandis and pari-materia to the provisions of counter-claim under Order VIII, Rule 6-A CPC. In absence of additional plea in the election petition, the respondent is debarred from raising any counter-claim in his/her written statement akin to recrimination petition provided under Section 97 of the ROP Act. For the reasons set out herein above. 1 am constrained to hold that the counter allegations made in the written statement are not maintainable in law.
22. In the result, this miscellaneous application filed by the election petitioner stands allowed. The statements, in the nature of recrimination and counter-claim, made in the written statement by the respondent, more particularly in paragraphs 22 to 31 shall stand struck-off from the defence pleading.
23. The cost of filing of this miscellaneous application is assessed as Rs. 5,000/-, payable by the respondent to the election petitioner within a period of three weeks from today. Registry is directed to list the Main case i.e. Election Petition No. 2 of 2007 on 5-3-2008 for framing of issues.