Case Note & Summary
The dispute arose from elections to the Delhi Municipal Corporation held on May 2, 1973, for Ward No. 51. The appellant, returned candidate, secured 3974 valid votes against 3882 valid votes obtained by respondent No.1 and was declared duly elected. Respondent No.1 filed an election petition under Section 15 of the Delhi Municipal Corporation Act, 1957, challenging the appellant's election on grounds of corrupt practices and praying that the election be declared void and that respondent No.1 be declared duly elected under Section 19(1)(c). In his written statement, the returned candidate raised preliminary objections and traversed the allegations, but also under 'Additional Pleas' contended that since the petitioner was guilty of corrupt practices, he had become disentitled to be declared elected. The District Judge, acting as Election Tribunal, held that the appellant was not entitled to plead and prove the petitioner's corrupt practices. The appellant then filed a writ petition under Article 226 before the High Court; the learned Single Judge dismissed it, holding that the returned candidate may show that respondent No.1 did not obtain a majority of valid votes as legitimate defence, but cannot go further and show that even if respondent No.1 had obtained a majority, he was not entitled to be declared elected because of corrupt practices. Aggrieved, the appellant filed a Letters Patent Appeal; the Division Bench dismissed it, finding no specific provision in the Corporation Act corresponding to Section 97 of the Representation of the People Act, 1951, and that any conscious omission regarding the returned candidate's right to recriminate could not be supplied by the court. The High Court granted certificate under Article 133(1) of the Constitution, leading to the present appeal before the Supreme Court. The principal question was whether a returned candidate in an election petition under the Corporation Act for declaration of election void and further declaration of petitioner's due election could plead and prove the petitioner's corrupt practices. The appellant contended that such a right could be spelled out from Section 9(1)(d) of the Corporation Act, which disqualifies a person if he has been found guilty of corrupt practice, and that principles of common law or equity could fill any gap. The respondent argued that the right to file an election petition or recriminatory petition is a creature of statute unknown to common law, and no provision corresponding to Section 97 of the Representation of the People Act existed. The Supreme Court analyzed Sections 9(1)(d), 17 and 19 of the Corporation Act. It held that the phrase 'have been' in Section 9(1)(d) means 'immediately prior to a specific time', and construed with Section 17(1)(a), it meant 'found to have been guilty at the time of election, and immediately preceding the election.' Thus, the right to recriminate cannot be legitimately spelled out of Section 9(1)(d) without doing violence to its language. The Court further held that the District Judge's inquiry at the trial of an election petition is limited to investigating matters enabling him to make orders specified in Section 19(1). In a composite petition seeking further declaration, the District Judge must investigate whether the petitioner received a majority of valid votes or would have but for the votes obtained by the returned candidate obtained a majority. Apart from rebutting allegations made against him, the returned candidate can only show that the petitioner did not in fact receive the majority of valid votes; he cannot allege and prove that even if the petitioner had obtained a majority, he could not be granted the declaration because he had committed corrupt practices. Such plea would be a counterattack, not necessary for legitimate defence. The Court also ruled that the maxim casus omissus et oblivioni datus disposition communis juris relinqitur is inapplicable to the construction of election statutes, and courts cannot bridge the gap or supply the apparent omission by importing common law or equity. Relying on P. Malai Chami v. M. Andi Ambalas & Ors. and Jabar Singh v. Genda Lal, the Court concluded that if failure to comply strictly with statutory recrimination requirements precludes recrimination, a fortiori, in the absence of such statutory provision, the returned candidate has no right to recriminate. Accordingly, the Supreme Court dismissed the appeal, affirming that the returned candidate was not entitled to recriminate on any grounds mentioned in Section 17.
Headnote
A) Election Law - Recrimination by Returned Candidate - Delhi Municipal Corporation Act, 1957, Sections 9(1)(d), 17, 19 - No statutory right to recriminate absent provision corresponding to Section 97 of Representation of the People Act, 1951 - In an election petition seeking declaration that election of returned candidate is void and that petitioner be declared elected, the returned candidate cannot plead and prove petitioner's corrupt practices to resist the further declaration. Held that the right to recriminate is a creature of statute and not known to common law; the Corporation Act contains no such express provision. (Pages 2-4) B) Statutory Interpretation - Meaning of 'found to have been guilty' - Delhi Municipal Corporation Act, 1957, Section 9(1)(d) - Phrase means found guilty at time of election or immediately preceding election - The words 'have been' mean 'immediately prior to a specific time'; construed with Section 17(1)(a), the disqualification relates to corrupt practice found at or before the election, not subsequent recrimination. Held that right to recriminate cannot be spelled out without doing violence to language. (Pages 2-3) C) Election Tribunal Jurisdiction - Scope of Inquiry under Section 19 - Delhi Municipal Corporation Act, 1957, Section 19 - Inquiry limited to matters enabling orders specified in Section 19(1) and conditions for further declaration in Section 19(2) - The returned candidate can only show that petitioner did not receive majority of valid votes; he cannot counterattack by alleging petitioner's corrupt practices. Held that such plea is not necessary for legitimate defence. (Pages 3-4) D) Statutory Construction - Casus Omissus in Election Statutes - Delhi Municipal Corporation Act, 1957, Sections 17, 19; Representation of the People Act, 1951, Section 97 - Courts cannot supply omission of recrimination right by importing common law or equity - The maxim casus omissus et oblivioni datus disposition communis juris relinqitur is inapplicable to election statutes; if failure to comply with statutory recrimination requirements precludes recrimination, absence of provision also precludes it. Held that appellant is not entitled to recriminate on any grounds in Section 17. (Pages 4)
Issue of Consideration
Whether in an election petition under the Delhi Municipal Corporation Act, 1957 for getting an election declared void and for a further declaration that the petitioner himself had been duly elected, the returned candidate is entitled to plead and prove that the petitioner was guilty of corrupt practice in the election in question, and was therefore not entitled to be declared as duly elected?
Final Decision
Appeal dismissed. Supreme Court held that returned candidate has no right to recriminate in absence of specific statutory provision; District Judge's inquiry limited to matters specified in Section 19; returned candidate can only show petitioner did not receive majority of valid votes; High Court's decision affirmed.
Law Points
- No statutory right to recrimination for returned candidate under Delhi Municipal Corporation Act
- 1957 absent provision corresponding to Section 97 of Representation of the People Act
- 1951
- phrase 'found to have been guilty' in Section 9(1)(d) means found guilty at or immediately before election
- scope of inquiry under Section 19 limited to specified orders and further declaration conditions
- returned candidate cannot counterattack with petitioner's corrupt practices
- casus omissus cannot be supplied in election statutes
