NARPAT KARAN Vs. DISTRICT JUDGE BALOTRA

JUDGEMENT

(1.) - This writ petition is directed against the findings recorded by the District Judge, Balotra, on issues No. 10 and 11 framed in election petition submitted by the non - petitioner No. 2 Tej Singh.

(2.) THE writ-petitioner Narpat Karan and the non - petitioner Tej Singh had contested the election of Pradhan of the Panchayat Samiti, Balotra and its result was declared on 30. 12. 1981, in which the writ - petitioner was declared elected. He secured 205 votes, whereas the non - petitioner No. 2 Tej Singh secured 203 votes. An election petition was filed by the non - petitioner No. 2 Tej Singh on 19. 1. 1982, in which he prayed that he be declared elected as Pradhan of the Panchayat Samiti, Balotra. THE writ - petitioner submitted reply to the election petition, in which he also pleaded recrimination alleging corrupt practices against the election-petitioner. Issues No. 10 and 11 were framed by the learned District Judge, which on translation in English, read as under:- Issue No. 10: Whether the plea relating to corrupt practices raised by the non-petitioner, cannot be considered in the election petition ? Issue No. 11: Whether the counter claim or plea relating to recrimination of the non -petitioner, is not in accordance with law and the same is not accompanied with challan showing the deposit of money, so the recrimination is liable to be dismissed? THE learned District, Judge after hearing the arguments on both issues, decided them in favour of the election petitioner Tej Singh and against the writ - petitioner Narpat Karan. It was found that the plea relating to corrupt practices raised in the form of recrimination, cannot be heard and the recrimination is not accompanied with a treasury receipt of 250/-, so the same is dismissed.

(3.) MR. M S. Singhvi, learned counsel for the non-petitioner No. 2, on the other hand, urged that the rule itself introduces a fiction and the plea of recrimination will be treated as if an election petition has been presented. If the election of a person, who is sought to be declared elected, is to be challenged, then that can be done in the same manner as if he had presented a petition against the election of such person, when election is challenged by an election petition. That being so, provision of Rule 5 will he attracted and the plea of recrimination would be required to be accompanied with a treasury challan of Rs. 250/- and the other conditions of Rule 5 relating to the form of the petition, would also be attracted. MR. Singhvi placed emphasis on the expression "in the same manner", which expression, according to him, is clearly suggestive of the intention of the rule miking authority that the plea of recrimination would be admissible as if the election being challenged by way of an election petition and if by fiction the plea of recrimination is considered to be in the form of the remedy by way of election petition, then for such a plea Rule 5 will come into play. Unless compliance of Rule 5 is made by the returned candidate in respect of plea of recrimination, the plea of recrimination cannot be tried and the returned candidate will have no right to give evidence to prove that the person sought to be declared elected, should not be declared so elected. It was pointed out that like the election-petitioner, the returned candidate should also submit a treasury challan of Rs. 250/- by way of security for costs. The election petitioner will have to defend the plea of recrimination and if the returned candidate fails in proving the plea of recrimination without deposit of costs, the election-petitioner would not be able to recover the costs MR. Singhvi urged that it is true that Rule 6 does not contain a proviso similar to the proviso contained in Sec. 97 of the Representation of People Act, 1951 or proviso contained in sub-sec. (6) of Sec. 41 of the Rajasthan Municipalities Ac, 1959, still the same object has been achieved by the rule making authority by using the expression "in the same manner as if he had presented a petition against the election of such person". MR. Singhvi emphasised that the remedy under the election law is a statutory remedy and not common law remedy and so the provisions of election law has to be strictly complied with. When the provision of Rule 6 has not been complied with, the learned District Judge was right in deciding the issues No, 10 and 11 against the writ petitioner.