G.M. LODHA, J. - (1.) 'Recrimination' in Panchayat election petition whether permissible, in the absence of provision for the same, is the important question of juristice debate ? "Yes", as a weapon of defence, spelled out from "counter claim, set off under order 8 C.P.C. is the answer". Knocked down, at the polls, Narana Ram challenge Anoop Singh, in a legal dual, and wants that Anoop Singh should be first disarmed being deprived of weapon of recrimination, like Abhimanyu of Mahabharat.
(2.) PETITIONER, Naranaram, is a defeated candidate in the general elections of Gram Panchayat Siriasar Kalan, which took place on 9th February, 1978. The contestees were the respondents No.2 and 3. Polling took place on 9.2.1978 and the result was declared by the Returning Officer on the same day. Respondent No. 2 Anoop Singh was declared elected by a majority of 3 votes against the respondent No. 3. Anoop Singh respondent No. 2 got 672 valid votes while Parsa, respondent No. 3 secured 669 valid votes. An application was filed by the petitioner on 28-2-1978 before the Munsiff& Judicial Magistrate, Jhunjhunu, under Rule 78 of the Rajasthan Pan-chayat and Nyaya Panchayat Election Rules, 1960 (hereinafter referred to as 'the Rules of 1960'). The election of respondent No. 2 was challenged on the various grounds, including improper reception, and rejection of votes. Respondent No. 2, Anoop Singh, elected Sarpanch, in his written statement alleged corrupt practices against the respondent No. 3 Parsa. It was stated that the election of respondent No. 3 would have been void, if he had been the returned candidate and if an election petition had been presented calling in question his election. He also pleaded the wrongful reception and rejection of votes. The learned Munsif framed issues No. 9 to 16 on the allegations pleaded by way of 'recrimination' in his written statement. Issue No. 17, was framed on the objection of the petitioner, that since there is no provision of making recrimination in the election rules of Panchayat, issues No. 9 to 16 cannot be treated, and enquired into by the Tribunal. Issue No. 17 was decided as preliminary issue, and the learned Tribunal, held that although there is no provision in the Rules of 1960 which provides to plead counter allegation against the defeated candidate by way of recrimination, but there is no prohibition also, and therefore, respondent No. 1 can plead counter allegation of corrupt practice etc., against respondent No. 3 by way of recrimination.
(3.) IT is this order of the Election Tribunal dated 17th August, 1978 permitting the inquiry into the counter allegations, which has given rise to this writ petition. No one has appeared on behalf of the respondents to oppose this writ petition. The learned counsel for the petitioner has argued that the election law, is a special law and election as well as election petition are creation of statutes. There is no common law right either for contesting the election or for the rights in the election petition as such. It was pointed out that since election petitions are creation of statute and they are not governed by the common law, as there is no analogous provision to Sec. 97 of the Representation of Peoples Act, 1951, a recrimination cannot be entertained. During the course of the arguments, learned counsel was confronted with the judgment of this Court in Shiv Kishan Vs. Radha Kishan(l) wherein the question of recrimination in an election petition, so far as it relates to the counting of ballet papers is concerned, was considered by this Court. The learned counsel submitted that it is true that this is the nearest case to the point, but in this ease, exact and precise point, whether the recrimination in an election petition is maintainable has not been adjudicated upon. It was argued that the provisions of Code of Civil Procedure for counter claim contained in Order 6 and Order 8 of C.P.C. cannot be availed of by a non-petitioner in an election petition. The submission was that election petition is granted by a special law and the election petition procedure as provided in the Rajasthan Rules only says that Code of Civil Procedure is applicable, so far as possible. Reliance was placed upon the judgment of Hon'ble the Supreme Court in Jabar Singh vs. Genda Lal (2). ;