1. By means of Miscellaneous Application No. 57 Shri Bobde appearing for the respondent No. 2 Shri Radhey Shyam Morarka has raised an objection of a preliminary nature relating to the non-maintainability of the recrimination petition filed on behalf of Shri R. K. Birla -- Respondent No. 1 --the returned candidate. The case of the respondent No. 2 is that the additional declaration sought by the election petitioner that the respondent No. 2 was duly elected, could not have been claimed by him. According to him, such a declaration could be claimed by a candidate petitioner and not merely a voter petitioner. Since the petitioner could not in law, claim such a relief, the respondent No. 1 did not acquire any right to file the recrimination petition and as such, the recrimination petition is not maintainable in law. The respondent No. 2 further submits that the question is purely of law and does not need any additional evidence and goes to the root of the Jurisdiction of the Court to decide the recrimination petition. He prayed for raising and trying a preliminary issue to be framed as follows:---

"Is the recrimination petition maintainable?"

2. It may be stated at the outset that the present stand of the respondent No. 2 is inconsistent with his stand originally taken in the case. In his written statement filed in reply to the election petition, the respondent No. 2 entirely supported the petitioner's case. In para 15 of his written statement the respondent No. 2 stated as follows:--

"This respondent, therefore, submits that the petition of the petitioner be allowed and the election of respondent No. 1 be declared void and it may be declared that this respondent has been duly elected to the House of the People from the Jhunjhunu Parliamentary Constituency."

At that stage the respondent No. 2 not only supported the petitioner's prayer for a declaration that the election of the respondent No. 1 be declared void but also supported the additional prayer for a declaration that the respondent No, 2 should be declared elected. The respondent No. 2 also took no plea as has been taken in the miscellaneous petition, in his reply to the recrimination petition.

3. As the question raised in the miscellaneous petition is purely one of law and as the learned counsel for the respondent No. 1 and the petitioner did not seriously dispute the right of the respondent No. 2 to raise such a purely legal controversy, the learned counsel for the parties were heard on the controversy.

4. In support of his prayer, the counsel for the respondent No. 2 relied upon the use of the expressions "he himself or any other candidate", and "all the contesting candidates other than the petitioner" appearing in Section 82 of the Representation of the People Act (hereinafter to be referred to as the Act) and similar words in section 84 of the Act and contended that on a proper construction of the language in these two sections a petitioner who is merely a voter and who was not one of the contesting candidates, cannot be entitled to seek the additional declaration that he himself or any other candidate has been duly elected.

5. As the respondent No. 2 questioned the right of the petitioner to claim additional declaration, I heard Mr. Pai appearing for the petitioner on the controversy. He in the first instance, pointed out his incapacity and inability to withdraw the prayer for additional declaration made in the election petition having regard to the decision of the Supreme Court on the point. He also sought to justify the petitioner's additional relief for the additional declaration by referring to some observations of the Supreme Court but hastened to add that the observations of the Supreme Court were of a casual nature and should not be held to lay down a binding law. He did not take any positive stand and frankly stated that much could be said on either side. He, however, placed some considerations favouring Shri Bobde's case and showed his eventual leaning in support of the miscellaneous petition.

6. Mr. Purshottam appearing for the respondent No. 1 opposed the petition on two grounds--

Firstly, he relied upon some observations in the Supreme Court decisions indicating the right of a voter petitioner, to claim additional relief.

Secondly, he contended that on a proper construction of the language of Sections 81, 82, 84, 97 and 101 of the Act a voter petitioner should be held entitled to claim the additional relief that any candidate other than the returned candidate should be declared elected.

7. It is necessary in the first instance to notice the Supreme Court decisions containing observations with regard to the right of a voter petitioner to claim additional relief with a view to ascertain whether they lay down any binding law. Now, referring to the law relating to the binding effect of the opinions expressed by the Supreme Court, it must be stated that on considerations of judicial uniformity and judicial discipline the High Courts must accept as binding not only the ratio decidendi in the decisions of the Supreme Court but also the obiter dicta. At the same time, it will not be proper to give any unduly wide connotation to the expression obiter dicta so as to include any and every expression of opinion even though it may be casual and unconnected with the point arising in the case. In determining the binding nature of the expression of opinion, the courts should consider--

(i) Whether the expression of opinion was casual or considered.

(ii) Whether it was connected with any point arising in the case. Of course, a decision on the point arising in the case need not be necessary for the disposal of the case.

(iv) Whether it lays down any rule of law. Reference may be made in this connection to three cases cited by Shri Bobde, namely, Mohandas Issardas v. A. N. Sattanathan, AIR 1955 Bom 113, Ram Swarup v. State, AIR 1958 All 119 and Ranchhoddas Atmaram, v. Union of India, AIR 1961 SC 9S5.

8. Now, proceeding to consider the observations of the Supreme Court, the first case to be noticed is K. Kamaraja Nadar v. Kunju Thevar, 14 Ele LR 270 = (AIR 1958 SC 687). In this case, in the first instance, there are some observations of a general nature relating to the nature of the election contest in which it was emphasised--

(i) One of the essentials of that law is also to safeguard the purity of the election process and also to see that people do not get elected by flagrant breaches of that law or by corrupt practices,"

(ii) An election petition is not a matter in which the only persons interested are candidates who strove against each other at the elections. The public also is substantially interested in it and this is not merely in the sense that an election has news value. An election is an essential part of the democratic process. The citizens at large have an interest in seeing and they are justified in insisting that all elections are fair and free and not vitiated by corrupt or illegal practices. In a civil action the only persons who are interested are the individuals arrayed as plaintiffs or defendants but that is not so in an election petition.

(iii) The election petition is not a suit between two persons but is a proceeding in which the constituency itself is the principal party interested."

The specific observations, however, appear at page 290 (of Ele LR) - (at p. 696 of AIR) and read as follows:--

"The words 'other than the petitioner' are meant to exclude the petitioner when he happens to be one of the contesting candidates who has been defeated at the polls, and would not apply where the petition is filed for instance by an elector. An elector filing such a petition would have to join all the contesting candidates whose names were included in the list of contesting candidates prepared and published by the returning officer in the manner prescribed under Section 38, that is to say, candidates who were included in the list of validly nominated candidates and who had not withdrawn their candidature within the period prescribed. Such contesting candidates.........."

There is no doubt that these observations assume the competence of an elector to claim an additional declaration that the petitioner himself or any other candidate be declared duly elected. A critical examination of the decision, however, shows that the main question for determination posed in the Supreme Court was "What is the exact connotation of the expression 'contesting candidate' in Section 82 and whether a candidate whose name was included in the list of contesting candidates published by the returning officer under Section 38 but who retired from the contest under Section 55A(2) is included in that expression." After the general observations, Bhagwati, J. who spoke for the Court, discussed in detail the process of election as also the provisions of Part VI relating to the disputes regarding elections. In this connection, after stating "where the petitioner claims such further declaration, he must join as respondents to his petition all the contesting candidates other than the petitioner and also any other candidate against whom allegations of any corrupt practices are made in the petition" made the observations extracted above and which have been relied upon. It must be pointed out that there was no controversy in the case that the additional declaration can be made only by a candidate petitioner. There was no controversy or argument as to the meaning of the expression all the contesting candidates other than the petitioner". The observations were made in enumerating the main provisions relating to the disputes regarding elections. The decision as to the competence of a voter petitioner to claim declaration could have no substantial bearing on a decision about the exact connotation of the expression "contesting candidate". In this background, I venture to think that the observations of the Supreme Court in this case neither constitute ratio decidendi nor obiter dicta precluding this Court from adjudicating upon the pointed manner in which the controversy was agitated in this Court.

9. The next case to be referred is Inamati Mallappa Bassappa v. Desai Basavaraj Ayyappa, 14 Ele LR 296 = (AIR 1958 SC 608), In this case the election petitioner was one of the contesting candidates who besides claiming a declaration that the election of the returned candidate was void, claimed a further declaration that he himself had been duly elected. On the date fixed for the appearance of the respondents the election petitioner submitted before the Election Tribunal what purports to be an application under Order 23, Rule 1, Civil Procedure Code, abandoning the part of his claims, namely that it be further declared that he had been duly elected etc., and confining his claim to have the election of the respondent No. 1 declared void. The returned candidate opposed this application. The Tribunal upheld the right or the election petitioner to abandon the part of the claim and further held that the returned candidate and other parties would not be entitled to give notice of recrimination under section 97 of the Act. The returned candidate obtained special leave under Article 136 of the Constitution of India and appealed to the Supreme Court. The Supreme Court formulated the question requiring determination as follows:

"Would it then be open to the petitioner to abandon that part of the relief which clamed such further declaration so as to deprive the returned candidate or any other party to the petition of the right of recrimination which has thus accrued to him; or in other words, has the Election Tribunal the power to allow the petitioner to withdraw or abandon a part of his claim as aforesaid, thus rendering the exercise of the said right of recrimination nugatory?"

This question was answered in the negative on consideration of Sections 108 to 112 and Sections 90, 92 and 97 of the Act and Order 23, Rule 1, Civil P. C. Of course, the purpose of recrimination and the nature of election contest was also referred to. During the process of reasoning Bhagwati, J. who spoke for the Court, emphasised the publication of the petition in the official gazette and consequent notice to the constituency as also the interest of the constituency in the following terms:--

"The whole constituency is thus alive to the fact that the result of the election duly declared is questioned on various grounds permitted by law with the likely result that the election of all or any of the returned candidates may be declared void and the petitioner or any other candidate may be declared duly elected, in place and stead of the returned candidate. The constituency may have an interest in either maintaining the status quo or, if per chance the election of the returned candidate is set aside, in seeing that some other deserving candidate is declared elected in his place and stead, and not necessarily the petitioner or any other candidate sponsored by him whose election could be challenged on any of the grounds mentioned in Section 100(1)."

The words "and not necessarily the petitioner or any other candidate sponsored by him" are being relied upon as indicating a voter-petitioner's right to claim additional declaration. Further, the learned Judge referred to the position in England and quoted some passages from Halsbury's Laws of England 3rd Edition, Vol. 14, and also referred to the case of Aldridge v. Hurst, (1876) LR 1 CP 410 at p. 414 and extracted various passages from that case including the following:--

"These sections show that not merely may the candidate who is not returned claim the seat, or, in other words, claim to have been duly elected, but that any other voter might claim the seat for a candidate who has not been returned."

The learned counsel for the respondent No. 1 laid great stress upon the quotation by the Supreme Court of this passage with approval.

10. Having regard to the nature of the question posed by the Supreme Court, the grounds on which the question was answered and the context in which the earlier observations were made, I do not feel persuaded to accept that by these observations the Supreme Court intended to express any opinion laying down a rule of law on a point arising in the case, and the observations in this case stand on no higher footing than the observations of Kamaraja Nadar's case, 14 Elec LR 270 = (AIR 1958 SC 687) discussed earlier. At this stage, I may also refer to the submissions made on behalf of Mr. Pai. He pointed out that the observations of the Supreme Court were made in the context of the emphasis on the publication o£ the petition in the official gazette. It is also pointed out that the provision relating to the publication of the petition in the Official Gazette stands deleted after the amendment of the Act in the year 1966. According to him, the observations relied upon cannot have any importance under the present law. I find some force in this submission also and, in my opinion, under the law as it stands today this is an additional factor against treating the observations as having the force of a binding expression of opinion of the Supreme Court. The passage extracted from (1876) LR 1 CP 410 shows that the conclusion was reached on a consideration of some sections. The provisions of the English law are not before me and having not been placed by either side, and I am unable to attach much importance to this passage based upon the provisions of the English Statute Law, and the counsel for the respondent No. 1 cannot derive any assistance from this passage.

11. For all these reasons, I feel inclined to hold that the precise and the pointed controversy raised before me docs not stand concluded by the decisions of the Supreme Court and it is necessary to adjudicate upon the controversy on first principles on an examination of the relevant statutory provisions,

12. At the outset it will be useful and convenient to refer to section 81 which provides as to who can present an election petition. Under this section undoubtedly an elector has been given a right to present an election petition. The controversy joined at the Bar on this section is whether it contemplates the only prayer for a declaration that the election of the returned candidate is void or it includes the relief for additional declaration that a petitioner or some other candidate be declared duly elected. The controversy is pertinent because of its bearing on the meaning of the expressions in the subsequent sections referring to the election petitioner. If it be held that the section contemplates both the reliefs then having regard to the consideration that a elector is competent to present an election petition in respect of both the prayers, the meaning of the expressions in the subsequent sections referring to petitioner should take some colour from the provisions of section 81 and in the absence of adequate reasons there should be a reluctance to impose restrictions with regard to the persons competent to file an election petition seeking the additional declaration. The position will certainly be different on a view that section 81 of the Act contemplates only the prayer for a general declaration. The learned counsel for the respondent No. 2 emphasized the expression "calling in question any election" appearing in Section 81 of the Act and contended that the expression contemplated a prayer for a declaration that the election of returned candidate is void. In this connection, he relied upon the following portion appearing in section 301 of the Act:--

'If any person who has lodged a petition has, in addition to calling in question the election of the returned candidate, claimed a declaration that he himself or any other candidate has been elected."

It is submitted that the portion extracted above indicates that the legislature treated "calling in question the election of the returned candidate" as equivalent to a declaration that the election of the returned candidate is void and treated the declaration that "he himself or any other candidate has been elected" as an addition to the first relief.

Reliance was also placed upon the language of Section 84 of the Act where the expression

"in addition to claiming a declaration that the election of all or any of the returned candidates is void"

13. The counsel for the respondent No. 1 however submitted in answer that Section 81 of the Act also provides the grounds on which an election petition can be presented and there is a reference to Sections 100 and 101 in Section 81 of the Act. The reference to both the sections indicates that the legislature contemplated both the declarations in Section 81. At this stage, I may refer to an argument advanced by Mr. Pai in this connection. It was submitted by him that Section 100 only contemplates the grounds on which an election petition should be based. Section 101 does not really refer to grounds but to the findings to be arrived at by the High Court. He emphasised the expression "the High Court is of opinion" preceding Clauses (a) and (b) stated to be grounds of the election petition. I have not been very much impressed by this argument. I may immediately point out that Section 100 which admittedly refers to the grounds of the election petition contains the same expression "the High Court is of opinion". Section 101 also purports to contain the grounds for which a candidate other than the returned candidate may be declared. It must, however, be borne in mind that Sections 100 and 101 of the Act overlap to some extent. In the first instance, the relief for additional declaration referred to in Section 101 can be available only on the grant of the general relief for a declaration that the election of the returned candidate is void and naturally, therefore, the grounds referred to in Section 301 do embrace some of the grounds mentioned in Section 100 of the Act. A finding as contemplated in Section 101 does involve that results of an election qua the returned candidate have been materially affected and that his election is void. Reference to Section 101 in Section 81 of the Act is understandable even on an assumption of the section being confined only to the general declaration inasmuch as a petition containing statements constituting grounds under Section 101 seeking the general declaration without a prayer for additional declaration is conceivable and it is not possible to question the validity of such a petition or to deny a relief for general declaration on such a petition. Reference to the grounds referred to in Section 101 in Section 81 cannot be therefore decisive in determining whether it should be confined only to the general declaration about the returned candidate or whether it envisages both the reliefs. Turning to the argument of Mr. Bobde based upon the language of Section 101 and Section 84 of the Act, I may at once refer to slight difference in the language of Sections 81 and 101, of the Act. In Section 81 of the Act the expression used is "calling in question any election" whereas in Section 101 of the Act the expression used is "calling in question the election of the returned candidate".

14. I have given very careful consideration to the language of Section 81 along with the language of Sections 101 and 84 of the Act. While, I am not prepared to go to the extent of excluding the prayer for additional declaration altogether in the provisions of section 81 of the Act, I am inclined to hold that the primary relief contemplated in Section 81 is the relief relating to general declaration about the returned candidate and the fact that an elector has been empowered to present an election petition need not cause an undue obsession while interpreting the expressions referring to "election petitioner" occurring in the subsequent provisions.

15. I now turn to sections 84 and 82 of the Act whose language has been very much relied upon by Mr. Bobde. Section 84 of the Act reads as follows:---

"A petitioner, may "in addition to claiming a declaration that the election of all or any of the returned candidates is void", claim a further declaration that he himself or any other candidate has been duly elected."

According to Mr. Bobde, the expression "he himself or any other candidate" must refer to contesting candidates. Reliance was placed by him in this connection upon Har Swarup v. Brij Bhushan Saran, AIR 1967 SC 836 where the expression "any other candidate" in Section 82(a) of the Act was held to mean "any other contesting candidate". Co-relating the pronoun "he himself to the noun "the petitioner" for which they have been used, he submits that the petitioner in Section 84 is intended to be one of the contesting candidates. It was further submitted that "any other candidate" following the pronoun "he himself" apparently have been used to distinguish candidates other than the petitioner from the petitioner represented by "he" and that the petitioner and the other candidates represent the contesting candidates other than the returned one and the additional prayer is for declaring the return of one of this class of candidates.

16. As against this, the submission of the learned counsel for the respondent No. 1 is that Section 84 of the Act contains composite provision both for "candidate petitioner" as also for "voter petitioner" and that while interpreting the section, regard must be had for the right of an elector to present an election petition as given in Section 81 of the Act. Being faced with a situation that in connection with the claim for declaration the pronoun "he" must refer to one of the contesting candidates, he submitted that the legislature merely intended to say that he himself if he was one of the contesting candidates, can seek declaration for himself. He says that although the legislature has not used the words "if he is one of the contesting candidates" after "he himself", still these words are implicit in the language of Section 81 of the Act. Referring to the use of "any other candidate" he pointed out that the expression has been used to distinguish tie other candidates not from a "petitioner candidate" but from a "returned candidate". He suggested that after the election where one of the candidates is declared returned, the petitioner wants another declaration for some other candidate and it was in this back ground that the legislature used the expression "any other candidate" in Section 84 of the Act.

17. Before proceeding to adjudicate upon these rival submissions, it will be proper to refer to Section 82 relating to joinder of parties as a proper conclusion on the rival contentions can be correctly arrived at on a combined consideration of all relevant provisions. Section 82 reads as follows:--

"A petitioner shall join as respondents to his petition--

(a) where the petitioner, "in addition to claiming a declaration that the election of all or any of the returned candidates is void", claims a further declaration that he himself or any 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 allegations of any corrupt practice are made in the petition."

Originally Section 82 of the Act was worded as follows:--

"A petitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated."

The language of the section, while using the expression "all the candidates who were duly nominated at the election" contemplated the possibility of a petitioner being either a "voter petitioner" or a "candidate petitioner" and consequently, provided for the exclusion of the petitioner from the list of respondents in case he was a candidate duly nominated by adding the words "other than himself if he was so nominated". Referring to the present section, the counsel for the Respondent No. 2 pointed out that the legislature did not think it proper to add similar words, such as, "if he was a contesting candidate after the words "candidates other than the petitioner". The omission, according to him cannot be easily brushed aside. According to him, the expression "all the contesting candidates other than the petitioner" form a class of all contesting candidates other than the returned candidate and the legislature thought it necessary to exclude the petitioner from the array of respondents by using the words "other than the petitioner". In connection with the claim for additional declaration, the legislature assumed the petitioner to be one of the contesting candidates and provided for his exclusion from the list of respondents. Mr. Bobde also interpreted "he himself or any other candidate" in the same manner as was done in connection with Section 84 of the Act. The counsel for the respondent No. 1 made the same submissions with regard to the interpretation of the expression "he himself or any other candidate" and explained the omission of the words "if he was a contesting candidate" in the new section also on the basis of Section 81 containing composite provisions.

18. The learned counsel for the respondent No. 1, during the course of arguments, had laid great stress upon the language of Sections 101 and 97 of the Act in support of his conclusion. The language in both these sections is general and is capable of appropriate meaning on any view that may be taken on the point under controversy and therefore, it is unnecessary to discuss these sections in any detail,

19. Having given my careful thought to the rival submissions made at the Bar, I do not find it easy to reject any one of them as wholly untenable. I must confess that the question agitated is indeed difficult and intricate one and does not admit of an easy answer. On the whole, I have felt inclined to prefer the view contended for by Mr. Bobde and I proceed to state my reasons as follows:

1. The expression "he himself or any other candidate" appearing in Sections 82 and 84 when literally interpreted conveys an idea that the expression "any other candidate" has been used to distinguish, "other candidates" from the petitioner who is assumed to be one of the candidates, and there is no adequate justification for brushing aside the literal meaning.

2. That the expression "all the contesting candidates other than the petitioner" when considered in the light of the language of the old Section 82 of the Act points out that the legislature contemplated the petitioner to be one of the contesting candidates in connection with the additional declaration and sought to exclude him from the list of expressions by using the words "other than the petitioner" after "contesting candidates". I find it difficult to disregard the plain and clear implications following from the language of Section 82 of the Act either by reference to the composite nature of the provision or on consideration arising out of lection 81, having given the elector a right to present an election petition.

3. I may also observe that a voter calling in question the election of the returned candidate and claiming no additional relief is seeking a general declaration in which the constituency as a whole may be directly interested. The additional declaration that either the petitioner or some other person has been duly elected, is not of such a general character. It is personal in the sense that the petitioner joins a direct controversy with the returned candidate and wants Ms election to be set aside and further desires a declaration as to the return of himself or some other contesting candidate. The constituency as a whole is not much directly interested in such controversy. Besides, in such controversy the interests of the contesting candidates are directly involved and if none of the contesting candidates, including the person who thinks that he should have been declared, comes forward to claim a declaration which in a sense is of a personal character, it will be proper to allow the matter to be closed rather than to permit an elector to raise any such controversy. Instead of safe-guarding the purity of election, such a course is likely to encourage benami election petition at the instance of the defeated candidates likely to affect the purity of the judicial proceedings.

4. It may also be stated that under the Representation of the People Act, an elector as such, has not been given any right to recriminate and to allege and establish corrupt practices by other candidates except the returned candidate or any other candidate in relation to the election of the returned candidate. If a candidate by some reason or the other does not feel interested in Seeking a declaration about his having been duly elected and thus to invite recrimination it does not appear proper that an elector as such, should be allowed to invite recrimination against him by adding a prayer for additional relief for a declaration of his having been duly elected against his will.

20. I should make it clear that the last two reasons have no independent value but have been relied upon as additional factors supporting the conclusions based on the literal interpretation of the relevant expressions.

21. In the light of the aforesaid discussions, I hold that the petitioner's prayer for additional declaration that the respondent No. 2 should be declared elected, was not permissible in law and deserved no notice. His petition will be treated as only restricted to the prayer for a general declaration relating to the returned candidate. I further hold that the prayer being not legally permissible and no valid prayer, the respondent No. 1 or any other party to the election petition did not acquire any right to file recrimination petition and that the recrimination petition, therefore, is also not maintainable. I, therefore direct that the prayer in the election petition relating to the declaration about the respondent No. 1 as having been duly elected be deleted. The recrimination petition becomes non-maintainable and is dismissed. Although the respondent No. 2 succeeds but having regard to his earlier full support to the petitioner's petition and the facts and the circumstances of the case, I do not pass any order as to costs. In passing, it may be mentioned that although the respondent No. 2 wanted that a formal issue of law should be framed, I heard the counsel for the parties at length on the controversy raised without framing an issue on a pure question of law.