BANWARI DASS versus SUMMER CHAND AND ORS.

Citation: [1974] 3 S.C.R. 358 · Decided: 13-02-1974 · Supreme Court of India · Bench: V.R. KRISHNA IYER · Disposal: Dismissed

cites 1 · see the full citation network in Lexace

Judgment (excerpt)

358 
BANW ARI DASS 
v. 
SUMMER CHAND AND ORS. 
February 13, 1974 
(V. R. KRIS8NA IYER AND R. S. SARKARIA, JJ.j 
Delhi Muncipal COrporation Act, 1951-Ss. 17 and 19-Scope of-Words 
and phrases-Meaning of 'have been' and being'-Recrimimnion-Eltction-
Petirion to declare election void and to declare the petitioner elected-Returned 
candidate if can plead that petitioner was guilty of corrupt practire. 
The appellant and the respondent contested election to' a ward 
in the 
Municipal Corporation of Delhi in which the appe1lant was declared elected. 
Respondent no. 1 filed an election petition challenging the appellant's election 
on the grouhd of corrupt practice and prayed that he be declared duly elected 
under s. 19(l)(c) of the Corporation Act.. The appellant on the other band 
contended that since the respondent was guilty of corrupt practices 
be 
had 
become disentitled to be declared elected. The Election Tribunal held that the 
appellant was not entitled to raise such a plea. On appeal lhe High Court held 
that in the absence of a specific rrovision in the Corporation Act corre!iponding 
to s. 97 of the Representation o People Act, 1951 the returned. candidate was 
not entitled to recriminate on the grounds contained in s. 17 of the Corporation 
Act. 
Section 9(1) (d) of the Corporation Act enacts that a 'person shall be dis-
qualified for being chosen as, and for being, a councillor, or alderman if he 
has, in proccediitgs for questioning the validity or regularity of an election. 
been found to /la1•e bee11 guilty of any corrupt practice ..• Section 17 enacts 
1he grounds on which the election could be deClared void. One of such grounds 
in s. 17( 1) (a) is that "on the date of his election a returned candidate was not 
qualified or was disqualified to be chosen as a councillor." · 
On the question whether in an election petition under the Act for getting 
an election declared \'Oid 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, 
· 
Dismissing the appeal to this Court, 
Hr10 : ( 1} There is no provisiOn in the Corporation Act corresponding to 
s. 97 of the Representation of People Act expressly giving a riaht of recrimi-
nation to the returned candidate. The effect of th! word "being" in the opening 
sentence of s.9( 1) appears to have been largely off-set Uy the use of the wor~s 
"to have been guilty" in cl.(d). The meaning of the phrase "have been". ts 
"immediately prior to a specific time''. If the phrase "found to have .beei:i guQty" 
in s.9(1)(d) is construed in the context of cl._(a) of s.17(1), then It will mean 
"found to have been guilty at t/le time of election, and imm~diately preceding 
the election." The .right ~o recriminate cannot be legitimately spc4ed !>ut 
of 
s._9(1)(d) without doing violence to its language or .unduly stretching 1t. 
[364 F] 
(2) The inquiry of. ,the .Dis.tri~t Judge, w.~o is. th~ cfoction tribunal, at the 
trial of an election petition 1s hm1ted to the 1nvesttga!1on of those matters on!Y 
\Vhich will enable hin1 to make the~orders specified in s.19(1). But where m 
a composite petition relief _is claimed t.hat. the peti~oner ~e d~Jare~ el~cted in 
place (Ii the; returned candidate, the D1stnct Judge ts t~ 1nvest1~~te if either of 
the two conditions for the grant of a further declaration specttied 10 s.19(2). 
is made ouf namely: (a) "-'hether in fact the petitioni:r received a maiority 
r~~ 
tile valiJ votes, or (b) whether the pet.itioner WO!Jl~ have but fo,r tbe 
votes 
obtained by the returned candidate, obta1ne~ a ma1onty ~f the valtd v~te&. ,In 
such a composite position apart from rebutting the allegations mad~ against h1b' 
in the petition all that the returned candidate can further shew is 
that 
t e 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
BANWARI PASS v. SUMMER CHAND (Sarkaria, !.) 
359 
petitioner did not in fact receive the majority of valid votes and is therefore, not 
entitled to the further declaration of his due election. In the absence of a 
provision specifically conferring such a right, the returned 
candidate 
cannot 
alJege and prove further that even if the petitioner had obtained a majority of 
valid 'Votes, he could not be granted the declaration of his due election because 
he had committed corrupt practices. 
Such plea an

Excerpt shown. Read the full judgment & AI analysis in Lexace.