Arimardan Singh Vs. Chottey Lal Misra and Others - Court Judgment

Excerpt:
election - recriminatory petition - section 97 of representation of the people act, 1951 - section 97 does not give any right to an elector to give notice of intention to lead evidence to prove that the election of the petitioner would have been void if he had been the returned candidate and to file recriminatory petition - held, petitioner neither the returned candidate, nor any other party to the election petition , has no locus standi to give notice of his intention to high court for leading evidence to prove that the election of the petitioner would have been void if he had been the returned candidate and to file recriminatory petition. - - (2) every notice referred in sub-section (1) shall be accompanied by the statement and the particular required by section 83 in the case of election petition and shall be signed and verified in the like manner.order1. one sri rajendra prasad dwivedi claiming himself to be an elector in assembly constituency no. 325 (mahoba) distt. hamirpur, to which the present election petition relates, has given notice regarding his intention to give evidence in the above election petition to prove that the election of the petitioner would be void if he had been the returned candidate. this notice, which was accompanied by a statement and particulars stayled as recriminatory petition, under section 97 of the representation of the peopleact, 1951 (for brevity hereinafter referred to as 'the act') was presented before the registrar of this court on 1-11-1991. the recriminator was identified by sri prabhakar bisoni, an advocate before the registrar.2. this court on 28-11-1991 directed for giving notice to sri rajendra prasad dwivedi the recriminator fixing 19-12-1991. the notices were sent by registered post with a/c, but the recriminator did not appear and accordingly, this court on 20-12-1991 held the service sufficient and directed the said notice of intention to be put on 13-1-1992 for orders. on that day also the recriminator did not appear and, therefore, the said notice of intention along with the recriminatory petition is put up before this court today for orders.3. section 97 of the representation of the people act, 1951 is as extracted below :--'recrimination when seat claimed :-- (1) when in an election petition a declaration that any candidate other than 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 a returned candidate and a petition had been presented calling in question as election. provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within 14 days from the date of commencement of the trials, given notice to the high court or 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 in sub-section (1) shall be accompanied by the statement and the particular required by section 83 in the case of election petition and shall be signed and verified in the like manner.' 4. the scope of section 97 of the act does not appear to be so wide as to include in its fold even an elector, who may approach this court and give notice of his intention to leadevidence in the aforesaid election petition and file a recriminatory petition. the language of the provisions under section 97 is clear. it confers right only on the returned candidate and any other party. the question which is for consideration is as to whether an elector can be covered within the meaning of words 'other party'. section 82 of the act, which is as extracted below, provides who to be the parties in an election petition;'parties to the petition:-- a petitioner shall join as respondent to his petition; (a) where the petitioner in addition of blaiming declaration that the election of all or any other returned candidate is void, claims a further declaration that he himself or an other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and (b) any other candidate against whom the allegations of any corrupt practice are made in the petition.'the aforesaid section 82 makes it incumbent on the petitioner to join in the election petition all the contesting candidates other than the petitioner as respondents where the petitioner in addition of claiming declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, but where no such declaration is claimed in the election petition, then only the returned candidate had to be arrayed as respondents in the election petition. the words 'other party' in section 97 cannot apply to a person, who is not the respondent in the election petition.5. sri rajendra prasad dwivedi is neither the returned candidate nor the contesting candidate. he does not fait within the category of any other party.6. in the case of jyoti basu v. debi ghosal, 1982 (sc) uj 186 : (air 1982 sc 983) supreme court held that the person who is not the candidate at the election not to be joined as a respondent in the election petition. supreme court in the case (supra) stated thatthe election matters to be controlled, regulated and disposed in accordance with the provisions of the statute. the following passage is extracted from para 8 of the said report at page 986.'a right to elect, fundamental though it is to democracy, is, anonymously 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 creation, 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 proceedings 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 consideration 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.'7. in view of the above, this court cannot travel beyond the ambit of the act. the act has not given any right to an elector under section 97 of the act to give notice of intention to lead evidence to prove that the election of the petitioner would have been void, if he had been the returned candidate and to file recriminatory petition.8. the recriminatory petition, in fact, is a counter petition presented by a returned candidate or any other party. the contest in the petition then is not between the petitioner and the returned candidate, but also between the returned candidate, and any other party to the petition and the candidate who has been sponsored by the petitioner and for whom the declaration of seat is claimed. the purpose behind it seems to maintain purity of election. the recriminator, who is not a respondent inthe present petition, cannot claim to be declared as elected. such a declaration can be claimed only by the original petitioner.9. in the present case sri rajendra prasad dwivedi, who is neither the returned candidate nor any other party to the election petition, has no locus standi under section 97 of the act to give notice of his intention to this court for leading evidence to prove that the election of the petitioner would have been void, if he had been the returned candidate and to file recriminatory petition.10. the present notice of intention is misconceived not having been covered by the provision of section 97 of the act and is not entertainable. the recriminatory, petition is consequently rejected. no order as to costs.11. petition rejected.

Judgment:
ORDER

1. One Sri Rajendra Prasad Dwivedi claiming himself to be an elector in Assembly constituency No. 325 (Mahoba) Distt. Hamirpur, to which the present Election petition relates, has given notice regarding his intention to give evidence in the above election petition to prove that the election of the petitioner would be void if he had been the returned candidate. This notice, which was accompanied by a statement and particulars stayled as recriminatory petition, under Section 97 of the Representation of the PeopleAct, 1951 (for brevity hereinafter referred to as 'the Act') was presented before the Registrar of this Court on 1-11-1991. The recriminator was identified by Sri Prabhakar Bisoni, an advocate before the Registrar.

2. This Court on 28-11-1991 directed for giving notice to Sri Rajendra Prasad Dwivedi the recriminator fixing 19-12-1991. The notices were sent by registered post with A/C, but the recriminator did not appear and accordingly, this Court on 20-12-1991 held the service sufficient and directed the said notice of intention to be put on 13-1-1992 for orders. On that day also the recriminator did not appear and, therefore, the said notice of intention along with the recriminatory petition is put up before this Court today for orders.

3. Section 97 of the Representation of the People Act, 1951 is as extracted below :--

'Recrimination when seat claimed :--

(1) When in an election petition a declaration that any candidate other than 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 a returned candidate and a petition had been presented calling in question as election.

Provided that the returned candidate or such other party as aforesaid shall not be entitled to give such evidence unless he has, within 14 days from the date of commencement of the trials, given notice to the High Court or 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 in sub-section (1) shall be accompanied by the statement and the particular required by Section 83 in the case of election petition and shall be signed and verified in the like manner.'

4. The scope of Section 97 of the Act does not appear to be so wide as to include in its fold even an elector, who may approach this Court and give notice of his intention to leadevidence in the aforesaid election petition and file a recriminatory petition. The language of the provisions under Section 97 is clear. It confers right only on the returned candidate and any other party. The question which is for consideration is as to whether an elector can be covered within the meaning of words 'other party'. Section 82 of the Act, which is as extracted below, provides who to be the parties in an election petition;

'Parties to the petition:-- A petitioner shall join as respondent to his petition;

(a) where the petitioner in addition of blaiming declaration that the election of all or any other returned candidate is void, claims a further declaration that he himself or an other candidate has been duly elected, all the contesting candidates other than the petitioner and where no such further declaration is claimed, all the returned candidates; and

(b) any other candidate against whom the allegations of any corrupt practice are made in the petition.'

The aforesaid Section 82 makes it incumbent on the petitioner to join in the election petition all the contesting candidates other than the petitioner as respondents where the petitioner in addition of claiming declaration that the election of the returned candidate is void, claims a further declaration that he himself or any other candidate has been duly elected, but where no such declaration is claimed in the election petition, then only the returned candidate had to be arrayed as respondents in the election petition. The words 'other party' in Section 97 cannot apply to a person, who is not the respondent in the election petition.

5. Sri Rajendra Prasad Dwivedi is neither the returned candidate nor the contesting candidate. He does not fait within the category of any other party.

6. In the case of Jyoti Basu v. Debi Ghosal, 1982 (SC) UJ 186 : (AIR 1982 SC 983) Supreme Court held that the person who is not the candidate at the election not to be joined as a respondent in the election petition. Supreme Court in the case (supra) stated thatthe election matters to be controlled, regulated and disposed in accordance with the provisions of the statute. The following passage is extracted from para 8 of the said report at page 986.

'A right to elect, fundamental though it is to democracy, is, anonymously 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 creation, 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 proceedings 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 consideration 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.'

7. In view of the above, this Court cannot travel beyond the ambit of the Act. The Act has not given any right to an elector under Section 97 of the Act to give notice of intention to lead evidence to prove that the election of the petitioner would have been void, if he had been the returned candidate and to file recriminatory petition.

8. The recriminatory petition, in fact, is a counter petition presented by a returned candidate or any other party. The contest in the petition then is not between the petitioner and the returned candidate, but also between the returned candidate, and any other party to the petition and the candidate who has been sponsored by the petitioner and for whom the declaration of seat is claimed. The purpose behind it seems to maintain purity of election. The recriminator, who is not a respondent inthe present petition, cannot claim to be declared as elected. Such a declaration can be claimed only by the original petitioner.

9. In the present case Sri Rajendra Prasad Dwivedi, who is neither the returned candidate nor any other party to the election petition, has no locus standi under Section 97 of the Act to give notice of his intention to this Court for leading evidence to prove that the election of the petitioner would have been void, if he had been the returned candidate and to file recriminatory petition.

10. The present notice of intention is misconceived not having been covered by the provision of Section 97 of the Act and is not entertainable. The recriminatory, petition is consequently rejected. No order as to costs.

11. Petition rejected.