VIDYA DHAR Vs. MOHAN LAL

JUDGEMENT

(1.) This is an application filed by respondent No. 1 (the returned candidate) praying that the enquiry relating to the issues regarding the recrimination notice be deferred and be tried after a declaration has been made under Section 100 (l)(d) of the Representation of the People Act (hereinafter referred to as the Representation Act) declaring the election of respondent No. 1 as void The learned counsel for the petitioner has opposed this application.

(2.) At the time of arguments, a preliminary objection was raised that the petition filed by the returned candidate for recrimination was barred by limitation. This contention was, however, not pressed and rightly so, as the petition was admittedly within limitation.

(3.) On merits it is contended by the learned counsel for the returned candidate that according to law settled by the Supreme Court, if the returned candidate has recriminated and has raised pleas then the pleas as contained in the recrimination petition 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). A reference has been made to a decision in Jabar Singh v, Genda Lal, [AIR 1964 SC 1200], In this judgment, it was ruled : "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)....." The learned counsel for the returned candidate has also referred to a decision in Ram Autar Singh Bhadauria v. Ram Gopal Singh and others, [AIR 1975 SC 2182] in support of his contention. The relevant observations may be reproduced for a ready reference : "It is true that 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 would also come into play and allow 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 in regard to the validity of the election "of the returned candidate has therefore to be tried within the narrow limits prescribed by Section 100 (1) (d) (iii) and 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 recriminatory petition ; but even in such a case the enquiry necessary while dealing with the dispute under Section 101 (a) will not be wider if the returned candidate has failed to recriminate and in a case of this type the duty of the Election Tribunal will not be to count and scrutinise all the votes cast at the election."