i955.

Ml!!' a

SUPREME COURT REPORTS

(1955 J

BHIKAJI KESHAO JOSHI AND ANOTHER

BRIJLAL NANDLAL BIYANI AND OTHERS.

[MuKHER.JEA C. J.,

VIVIAN BosE, ]AGANNADHADAs, VENKATARAMA AYYAR and fAFER IMAM JJ.]

Representation of the People Act (Act XLTII) 1951, proviso to Section 85-Section 90( 4)-Reconsideration of question of limitation by Tribunal-Section 82-N01J-compliance with provisions-Omission to include a party in list of respondents-Defect whether fatal-Section 83(1)-Code of Civil Procedure, Order 6, rules 15(2) and (3)- Effect o, f-Section 83(2)-"Full Particulars"-Duties of Tribunal when particulars filed are vague-Serious allegations of corrupt practiees-Duty of Tribunal to inquire into.

The appellants, two of the electors of the Akola Constituency of the Madhya Pradesh State Assembly, filed an Election Petition against Respondent No. I, the successful candidate in the election held on December 13, 1951, and the three other respondents who having been validly nominated went to the polls but were defeated.

The Election Petition, under Section 80 of the Representation of the People Act of 1951, was admittedly time-barred by one day.

The Election Commission condone-d the delay under the proviso to Section 85 of the Act and cOnstituted a Tribunal for the trial of the petition. On pleadings of the parties, nine issues were framed by the Tribunal which are covered by the following questions:

(1) Whether the election petition was presented by a properly authorised person.

(2) Whether there was sufficient cause for presentation of the petition' one day ouf o_f time. ( 3) Whether the petition was defective for non-joinder of certain parties as respondents. ( 4) Whether the petition was defective for want of proper verification.

(5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto.

The Tribunal found only the first of the above points in favour ofthe petitioners by a majority.

But in respect of the other four points, it held against the petitioners unanimously.

As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits.

It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.

When the delay in submitting an election petition is condoned

by the Election Commi, Ssion in exc; rcise of its power under the proviso to Section 85 of the Representation of the People Act (Act XLIII of 1951 ), it is not open to the Election Tribunal, under Section 90( 4) of the Act, to reconsider the question of limitation. Even if, according to the requirement of Section 82 of the Representation of the People Act, any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limine on that sole ground; but it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.

Section 83( 1) of the Act provides that an election petition has to be verified in the manner provided for verification of pleadings under the Code of Civil Procedure. Clauses (2) and '(3) of rule 15 in Order VI of the Code lay down the procedure for verification of pleadings.

Apart from those cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of the absence of the date of verification.

In such a case the applicant should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.

The requirement of "full particulars" of corrupt practices in Section 83(2) of the Act, is one that has got to be complied with, with sufficient fullness and clarification, so as to enable the opposite party to meet the allegations against him fairly, and so as to prevent the enquiry from being turned into a rambling and roving inquisition.

The primary responsibility for furnishing full particulars of alleged currupt practices and for filing a petition in full compliance with Section 83(2) of the Act is that of the petitioners. If they fail to do so initially it is their duty and responsibility to remove the defects when opportunity is available.

Tribunals, however, should not take an all too narrow view of their function in dealing with the various alleged defects in. the petition and dismiss it on the ground of want of particulars. They should call for better particulars and if that order was not complied with strike out such of the charges as arc vague.

The petitioners also alleged that the returned candidate was disqualified to stand because he had interest in contracts with the Government.

But the Tribunal ignored these allegations and without enquiring into their truth dismissed the petition on the ground that the allegations relating to the charge of corrupt practices were vague.

Held that it was not in the interest of purity of elections that such allegations of disqualification should be ignored and 'that it was a matter which called for enquiry.

Case remitted for enquiry with reference to the allegations that the returned candidate was disqualified and the charge of corrupt practice, which was held to be not vague.

Dinabandhu v.

Jadumoni ([1955] 1 S.C.R. 140) and Jagan Nath v. Jaswant ([1954] S.C.R. 892), followed.

B~Kuhao ]Olhi and'aMl/wr w B "lal .Mwllal Bi'll 'and 11an1 olhm.

Bhik'!ii T"sluzo 7oshi aNl anothtt-

Vi JBrijlal Nandlal

Rfyani and others

CML

APPELLATE JUR1so1CTION : Civil Appeal No. 158 of 1954.

Veda Vyas, (S. K. Kapur and Ganpat Rai, with him), for the appellants.

M. C. Setalvad, Attorney-General for India (M. N.

Phadke and Naunit Lal, with him), for respondent No. 1. 1955.

May 2.

The Judgment of the Court was delivered by.

JAGANNADHADAS J.-This is an appeal by special leave against the judgment and order of the Election Tribunal, Akola, Madhya Pradesh, dated the 1st May, 1953, dismissing the election petition filed by the appellants.

It relates to the election for the Akola Constituency of the State Assembly of Madhya Pradesh which was held on the 13th December, 1951, and the result of which was notified in the Gazette on the 4th April, 1952.

The two appellants are the electors of the said constituency.

The first respondent was the successful candidate at the election. Respondents Nos. 2, 3 and 4 were the other three candidates who, having been validly nominated went to the polls but were defeated.

The appellants filed the election petition under section 80 of the Representation of the People Act, 1951 (Act XLIII of 1951) (hereinafter referred to as the Act) for setting aside the election on various allegations.

Th~ petition was filed on the 19th April, 1952, before the Election Commission at Delhi and was admittedly one day beyond the prescribed time.

The Election Comµllssion admitted the petition after condoning the delay under the proviso to section 85 of the Act and thereupon constituted a Tribunal for the trial of the petition at Akofa by notifications dated the 30th July, 1952, and 22nd September, 1952.

In due course respondent No. 1 appeared and filed his written statement on the 6th October, 1952, and the petitioners filed their reply thereto on the 16th October, 1952. With reference to these pleadings, the Tribunal was of the opinion that it was advisable to frame certain preliminary issues and to dispose of the same before entering on the

trial of the case on its merits.

Accordingly, nine preliminary issues were framed.

These nine issues substantially cover the following questions: (1) Whether the election petition was presented by a properly authorised person. (2) Whether there was sufficient cause for presentation of the petition one day out of time.

(3) Whether the petition was defective for non-joinder of certain parties as respondents. ( 4) Whether the petition is defective for want of proper verification.

(5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto. The Tribunal found only the first of the above points in favour of the petitioners by a majority. But in respect of the other four points, it held against the petitioners unanimously.

As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits. It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.

Before dealing with the merits of the appeal, it may be mentioned that at an early stage of these proceedings before the Tribunal, an objection was taken to the composition of the Tribunal on the allegation that one of the Members, Shri A. S. Athalye was not competent to be a Member thereof on account of his alleged bias in favour of the first respondent.

The bias was sought to be made out by showing that shortly before the election, Shri Athalye had written a letter to the 1st respondent offering to assist him in his election campaign. On objection being taken, the Tri'.mnal stayed its hands for a preliminary decision of that question.

Meanwhile, the petitioners took proceedings in the High Court for the quashing of the constitution of the Tribunal on the above ground by means of an application under article 226 of the Constitution.

That application was dismissed after hearing both sides. Thereupon the petitioners moved this Court for special leave against the order of the High Court.

But this Court declined to grant leave.

Learned counsel for the appellants attempted to

Bhikaji Kuhao Joshi and 1J11Dthlr

"' Brijlal Nanti/al B!1ani and ot"4r1

Jagannall1uldas J.

B/Jlkqji Ktshao ]oslil and """'"" ...

Brijlal Nondlal Bi.Jani and others

attack the validity of the decision of the Tribunal now under appeal on the same ground.

But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened. On the other side, the .learned Attorney-General for the 1st respondent attempted to reopen before us the question :ls to whether the petition was presented to the Election Commission by an authorised person, which as stated above, was found against him by a majority of the Tribunal.

The ground on which he attempted to reopen this question was that the finding was based on a wrong view as to the burden of proof. We were not prepared, .. however, to permit this finding of fact to be reopened • in this appeal on special leave, irrespective of the question whether the burden of proof was rightly laid on the petitioners.

The only points, therefore, that have been argued before us are whether the view taken by the Tribunal with reference to the following questions, viz. ( 1) limitation, (2) joinder of parties, (3) verification, and ( 4) specification of particulars of corrupt practices in Schedule A attached to the petition, is correct, and if so, whether the same entailed dismissal of the petition. The questions may be taken up one after the other.

LIMITATION: As stated above, the petition was -filed on the 19th April, 1952, admittedly one day beyond time.

On the 28th April, 1952, the petitioners filed also an application for condonation of delay setting out the reasons for the . same.

In paragraphs 3, 4 and 5 threof the circumstances under which the delay is said to have occurred were set out as follows:

"3. The applicants were under the belief that Notice under Rule 113 of the Rules framed under the above Act was published on 5th April, 1952, in the official Gazette of the State of Madhya Pradesh.

They felt therefore that their petition was duly presented within 14 days as prescribed by Rule 119. Applicants, however, learn that actually the Notice under Rule 113 was published in the Official Gazette of 4th April, 1952.

It therefore appears that there was a delay of

one day in the representation of the election ptition.

This delay occurred under the following circumstances:-

4. The applicants prepared their election petition on the 17th April, 1952.

They sent the said petition with Shri P. B. Gole, Senior Advocate, Akola, with a written authority to present the petition through any person of his choice at Nagpur on the 18th April.

They also sent with Shri Gole Rs. 1,000 for being deposited in the Government Treasury at Nagpur as required by section 117 of the Act and to obtain Treasury receipt for security of costs to be filed with the petition.

The applicants were under the belief that an officer must have been appointed by the Election Commission under section 81 of the Act to whom election petitions could be represented for the State of Madhya Pradesh at Nagpur.

Accordingly Shri Gole left Akola for Nagpur by the 1 Down Nagpur Mail, reaching Nagpur at about 9-30 A. M. on 18th April, 1952.

5. Mr.

Gole caused the deposit of Rs. 1,000 security for costs to be made in the Government Treasury at Nagpur through Mr. Sidhaye, Advocate, Nagpur, and obtained the necessary Government Treasury receipt on the 18th April, 1952.

He then made enquiries about the officer who may have been appointed to receive the election petitions.

He consulted R. S. Rangole, who was attached to the Election Office at Nagpur.

On enquiries Shri Gole learnt that there was none at Nagpur, who was authorised to receive election petition under the Act.

Under these circumstances Shri Gole booked a seat in the Night Plane for Delhi and flew to Delhi on the 18th and reached there on the morning on 19th April, 1952.

On 19th April Shri Gole caused the petition to be presented to the Secretary to the Eelection Commission".

The explanation thus furnished was accepted by the Election Commission as appears from the intimatibn to the petitioners by letter dated the 30th July, 1952.

The Tribunal was of the opinion that notwithstanding the order of the Election Commission condoning the delay and admitting the petition, it was free to

Bhikoji X11/i11a ]Ol/ii Olld Ollal/rn

Brijlal N andlal Bi;, oni and al/wrs

Bhikaji XtJhao Joshi and anollur

Brijlal N andlal B!Jiani and others

Jagannadhada, ].

reconsider the question by virtue of the powers vested in it under section 90( 4) of the Act.

In this view it went into the merits of the explanation furnished and came to the conclusion that the petitioners were negligent and that the delay, even of one day, could not be condoned.

It accordingly held that the petition was liable to be dismissed as barred by time. Now, apart from the merits of the sufficiency of the cause for delay, the question as to whether, notwithstanding the condonation of the delay by the Election Commission, it was open to a Tribunal to reconsider the matter by virtue of section 90( 4) of the Act, is now covered by the decision of this Court reported in Dinabandhtt v. fadttmoni(').

It was therein heid that it was not open to the Tribunal to reconsider the matter in such a case.

The conclusion of the Tribunal, therefore, on this point cannot be maintained.

The learned Attorney-General attempted to argue that the decision of this Court referred to above was obiter as regards the legal point and required further consideration.

But we were not prepared to permit that question to be reopened.

We were also not satisfied that there was any adequate reason for the Tribunal to interfere wiih the view taken by the Election Commission condoning the delay of one day on the explanation furnished to it.

This explanation has not been found, even by the Tribunal, to be false.

JOINDER OF PARTIES: The objection as to joinder of parties arises as follows. Three persons by name Shri Sohom, Shri Kulkarni, and Shri Kothkar were nominated as candidates at the election. Their nominations were found to be in order on scmtiny by the Returning Officer. But within the time allowed,. these three withdrew from the elections under section 37 of the Act.

The petitioners, while they impleaded as respondents the three unsuccessfuI candidates who went to the polls, did not implead these three persons.

The view taken by the Tribunal was that these were also necessary parties and that their non-joinder rendered the petition liable for

(1) [1955] l S. C.R. 140.

dismissal.

In support of their view, the Tribunal

elied upon section 82 of the Act which is 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".

It has been argued before us that this view is erroneous and that persons who filed their nominations and who '}'ithdrew from the contest within the prescribed time in spite of their nominations having been found to be in order on scrutiny by the Returning Officer,. cannot be said to fall within the category of "candidates duly nominated at the election".

In support of this contention two decisions Sitaram v. Yograjsing(1) and Shea Kumar v. V. G. Oak(2) have been cited. On the other side the case in Mohammad Umair

v. Ram Charan Singh(3) was brought to our notice in support of the view taken by the Tribunal. These three decisions have treated the decision of the question as depending on a construction of the phrase "at the election" in section 82 of the Act.

The Bombay and Allahabad cases hold that this phrase confines the necessary parties under this section to those who were candidates for the actual poll, while the Patna High -Court takes the view that the phrase "at the election" has no such limiting significance. It appears to us to be unnecessary and academic to go into thi~ judicial controversy having regard to the decision of this Court in /agan Nath v. Jaswant Singh('). If we were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase "at the election" but on a comprehensive consideration of the relevant provi sions of the Act and of the rules framed thereunder and of the purpose, if any, of the requirement under section 82 as to the joinder of parties other than the returned candidate. we are, however, relieved from this, since it has been decided in /agan. Nath v. /aswant Singh( ) that even if any of the necessary parties other than the returned candidate has not been

(1) A.I.R. 1953 Bombay 293.

(3) A.I.R. 1954 Patna 225.

(2) A.I.R. 1953 All. 633.

(4) [1954] S.C.R. 892.

Bhilcaji Keshao Joshi and anvtMr'

Brijlal Nandlal BiJani and olhzrs

Jagannadhadas ].

Bhikaji K1sltao :Jo, hi and anol/ur

B.jjlal N andlal B!Yat1i and ot/wrs

impleaded, the petition is not liable to be dismissed in limine on that sole ground but that it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case. In view of this ruling the decision of the Tribunal on this point also cannot be maintained.

VERIFICATION: The view taken by the Tribunal on this question is based on section 83(1) of the Act which is as follows :

"An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of pleadings".

I The relevant provision in the Civil Procedure Code referred to herein is Order VI, rule 15, clauses (2) and (3), which are as follows :

"(2) The person verifying shall specify, by reference to the numbered paragraphs of the . pleading, what he verifies of his. own knowledge and what he verifies upon information received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed".

In the present case the verification of the petition as well as the schedule of particulars of corrupt practices are each signed by both the petitioners and there is now no dispute about it.

The verification clause in the petition is as follows :

"The above-named applicants hereby affirm that the contents of the above petition are true to information received from the press reports and several other electors and believed by them to be true.

Signed and verified at Akola on ".

The verification clause relating . to the particulars of corrupt practices in Schedule A is as follows :

"The above-named applicants aflirm that the contents in this schedule are true to information received and believed by us to be true.

Signed and verified at Akola on "

In the view of the Tribunal there were two defects in these verifications.

They do not refer to any numbered paragraphs nor do they bear the dates on which they were signed. In the view of the Tribunal

the petition was liable to dismissal for non-compliance ·~ the specific provision in the Act in this behalf.

Tht the verification neither in the petition nor in the schedule of particulars bears any date is not disputed.

But it is contended that the view taken by the Tribunal in so far as it was of the opinion that the verifications do not refer to any numbered paragraphs is unsustainable.

It is pointed out that the statements in the verification were clearly meant to convey that the various allegations in the petition and schedule were, in their entirety, based on information and belief.

It is urged, therefore, that there was no scope and hence no need to specify which were based on personal knowledge and which upon information.

We agree with this contention.

It is to be noticed that a verified pleading is different from an affidavit which, by virtue of Order XIX, rule 3, is specifically required to ' be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated.

But there is notand in the nature of things there cannot be-any such limitation for pleadings. Hence it became necessary in the verification of a pleading to demarcate clearly between the two. The allegations in the petition in this case purport to be based only on information. Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect.

The verifications are accordingly defective only as regards the requirement of the dates thereof.

The question is whether the petition is liable to dismissal on this ground.

Though there may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismi~

Bhilcaji Kesllao Joshi and anothn

Brijlal Nandlal BiYani and otMrs

jagaMadhadas J.

.iBhikaji Keshao Joshi and another v.

Brij/a/ Nandlal , Bi)ani and others

JagaMadhadas ].

an application on the sole ground of absence of date of verification.

In such a ease the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission.

PARTICULARS OF CORRUPT PRACTICES: The objection is based on section 83(2) of the Act which is as follows : ''The pet1t10n shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including as full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice".

The objection is that the particulars of the instances furnished in Schedule A to the petition are all of them vague and not in compliance with .the above provision. The list of particulars is as follows:

SCHEDULE "A".

List of particulars of instances referred in the accompanying petition.

1. That in the month of December, 1951, respondent No. 1 has been to the premises of Akola Shree Gurudwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book 'Granth Saheb' on the 7th day of the death of daughter of one Sardar Suratsingh.

At this meeting respondent No. 1 canvassed for votes for himself and paid Rs. 201/-, apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola Constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election.

Respondent No. 1 was guilty of bribery within the meaning of that term in section 123 of the Representation of the People Act.

Similar instances of giving illegal gratifications for securing votes of respective groups arc-

(a) Donation to Hariharpeth Akhada ;

(b) Payment to Panch-bungalow Committee of Bhangis of Old City. ( c) Donation to Bhaji Bazar Association. ( d) Distribtion of blankets and sanes and money to voters.

2. At the instance of respondent No. 1 a meeting of workers in Berar Oil Industries-a concern of Birla, was called by its manager on the eve of the dection and they were threatened to vote for respondent No. 1 on pain of losing their service or suffer pecuniary loss, in case they did not vote for respondent No. 1. The poster of the rival candidate affixed , on the post-office within the premises of the Berar Oil Industries was removed and stolen away.

3. Respondent No. 1 caused groups and sections of castes and communities, such as Bohara, Lohars, Marwaries, Muslims, Rajasthanies, Bhangies, to issue appeals stating that resolutions were passed for voting for respondent No. 1, coercing the voters by threats, , etc., to vote for respondent No. 1 and openly canvassing on communal and caste lines and using undue influence.

4. Issuing pamphlets and handbills without names of printer or publisher.

5. At the time of counting votes in Polling Station No. 53, several folded bundles amounting to -about 20 in number, of ballot papers were found in the ballot box of respondent No. 1, when it was opened for counting votes. This was noted by the Returning Officer.

Each bundle consisted three or more than three ballot papers, folded to gether.

Obviously each of the bundl.! of these. ballot papers were put in the ballot box by one person, as the ballot papers put in the ballot box by different voters could not automatically fold themselves into a compact bundle in the ballot box.

The ballot papers issued to voters were not put in the box by the voters themselves, but were illegally brought back by the voters and handed over to persons working for and on behalf or respondent No. 1 on payment of illegal gratification. These ballot papers thus collected were bundled together ,56

Bhikaji KeJhao Joshi and another

•• Brijlal Nandlal Biyani and ot!rtrl

Jagannadhadas J.

Bhikaji Keshao Joshi and another

Brijlal Nartdlal Biyani and olhtrs

and put in the ballot box by persons working for and on behalf of respondent No. 1 by taking illegal gratifications.

This was done on 31st December, 1951, at Chandur by persons with the connivance of respondent No. 1.

6. False personation of several dead voters and voters absent in Pakistan has taken place, in Ward No. 12 and 15.

7. The respondent No. 1 resorted to false propaganda.

His man announced on loud speakers from place to place that rival candidate Dr. Joglekar was of the caste and party of Godse, the murderer of M.

Gandhi and a vote for him was a vote for Gandhi's Murderer.

Another false propaganda was that Dr.

Joglekar was Mishra's man, supported by Mishra's money.

Lectures for respondent No. 1 in public meetings, including respondent No. 1 have freely made these false defamatory and malicious statements against Dr. Joglekar, the rival candidate and thus prejudiced the prospects of Dr.

Joglekar's election.

Personal character and conduct of Dr. Joglekar was also falsely attacked, thus prejudicing his prospects of election.

8. Voters were carried in hired carts at many polling stations, particularly at Kapshi Polling Station.

This was arranged by persons working for and on behalf of respondent No. 1 at his expense and connivance.

A written objection for police enquiry was given at Kapshi and one in Rifle Range area.

9. Respondent No. 1 spent lacs of rupees over his election transgressing the prescribed limit of Rs. 6,000.

He has given a totally untrue .return of election expenses.

This is in contravention of law. 10.

Mohota Mills released workers and paid them for canvassing work for respondent No. 1 on polling day.

Substitutes for these workers were engaged by the mills and they were also paid. This was done at .the instance of respondent No. l".

There can be no doubt that almost all the instances herein-above set out are extremely vague and lack sufficient particulars.

Learned counsel for the appellants invited our attention to the fact that the Tribunal, while considering the question of vagueness dealt only with the instances of corrupt practices specified in paragraphs l(a), l(b), l(c), l(d), 2, 4, 5, 6, 7 and 8 and not others.

He accordingly contended that, by implication, the Tribunal was not prepared to hold that items mentioned in paragraphs 1, 3, 9 and 10 were vague.

He urged that at least these four items must be taken not to be vague and that there is no reason why the petitioners should not have been called upon to amend the schedule by furnishing better particulars as to the rest.

He further urged that, at any rate, they were entitled to a trial in respect of those four items of corrupt practices.

We cannot agree with learned counsel for the appellants that the items set out in paragraphs 3, 9 and 10 are not vague.

There is no specification therein of the requisite details which the Act in terms requires. Section 83(2) requires not only what may reasonably be considered "full particulars" having regard to the nature of each allegation, but enjoins in terms that the following particulars should also be given.

(1) Names of the parties alleged to have committed the corrupt or illegal practice.

(2) The date of the commission of each such corrupt or illegal practice.

(3) The place of commission of each such corrupt or illegal practice.

There can be no reasonable doubt that the requirement of "full particulars" is one that has got to be complied with, with sufficient fullness and clarification so as to enable the opposite-party fairly to meet them and that they must be such as not to turn the enquiry before the Tribunal into a rambling and roving inquisition.

On a careful scrutiny of the list in Schedule A we are satisfied that none of the items except that which is set out in paragraph 1 of item No. 1 can be said to comply with the requirements of section 83(2).

In this view of -the contents of Schedule A, the contention of the learned counsel for the appellants is that even so the Tribunal should have called upon the petitioners to furnish better particulars as regards all the other items, by virtue of the powers conferred on it under section 83(3), and in the 10-83 S.C. lndia/59

B'""4ji K11hoo ]Olm atuJ _,,,,.. .,..

Brijlal N aMlal I Bi1oni ottd olhm

J"gotinodhadu J.

Bhikaji Kesh4o ]Dlhi and another

v, Brijlal }fandlal Biyani and olher1

Jagannadhadas J.

alternative, it should have at least called upon them to substantiate the allegation in paragraph 1 in item No. 1, which was sufficiently specific and which, if made out, might have resulted in the election being set aside.

On the question whether or not the Tribunal should have called upon the petitioners to amend the schedule by furnishing better particulars, the learned Attorney-General for the 1st respondent has invited our attention to the objection taken in the written statement as regards the vagueness of the, particulars and to the various orders made by the Tribunal as appears from the order-sheet of the, .case.

In the written statement of the 1st respondent-: paragraph 9 is as follows :

"9. (a) It is, further, submitted that the petition ought to be dismissed as it does not contain concise statement of material facts on which the petitioners rely.

Similarly the list of particulars given in the schedule or in the petition are not in compliance with section 83(2).

(b) Without prejt.dice to the generality of this objection, it is further submitted that para V of petition read with para VI ( e) will show that the particulars given in Schedule relate to corrupt and illegal practices alleged to have been committed by respondent No. 1 and by his agents and persons working on behalf of respondent No. 1 with his connivance. Such particulars are bad in law. The applicants are bound to state the names of the persons who are alleged to have actually committed the corrupt or illegal practice. ( c) Paras 1 and 2 of the petition allege that there was no free election by reason of general bribery and undue influence exercised by and on behalf of respondent No. 1.

Similarly the allegation in para 2 is that the coercion was the result of manipulation by or at the instance of respondent No. 1.

Thus these allegations must be supported by giving the necessary particulars regarding the names, date and place of commission of corrupt or illegal practice alleged. The allegations in paras 1 and 2 of the petition are allegatior.s of corrupt and illegal practice within the meaning of sections 123, 124 and 125 of the Act, and are not allegations of a general charactj:r which do not implicate the candidate personally. ( d) Further by way of example, para 1 of the schedule, no names, date of the alleged practices are given.

Same is the case with the allegations in paras 2, 3, 4, 5, 6, 7, 8, 9 & 10 . ( e) It is for the petitioners to satisfy the Election Commission and the Tribunal that the particulars given are according to law. This has not been done and the petition, therefore, ought to be dismissed on this ground".

Now the order-sheet of the proceedings before the Tribunal discloses the following.

By order dated the 16th October, 1952, the Tribunal decided that the case was in the first instance to be taken up for decision on the preliminary issues.

Having so decided it passed the following order:

"We call upon the parties whether they want to add by way of amendment to the pleadings on facts which they have already made, as in some of the preliminary points the question of fact is involved.

The respondents do not want to add to their pleadings on facts in respect of the above preliminary issues.

The petitioners have made an application under Order

VI, rule 16, Civil Procedure Code for striking out spmc i}ortion in paras 3-b and para 4-(d)

(2) of the written statement of the respondent No. 1".

On. the 17th January, 1953, the Tribunal passed the following order:

"The respondent No. 1. prays for time to amend his written-statement and to ask for particulars.

In the interests of justice the time is granted .... The application for amendment and for particulars to be filed five days before the date of hearing and copies thereof given to the petitioners. The petitioners shall be ready with their replies on the date of hearing".

On the 27th January, 1953, the order is

"The petitioners have filed their reply to the amendment application of the respondent No. 1. The

BJ.ikaji Kesh.a Joshi aN/ anollllr

Brijlal Nandltd Bi1atti and olhert

Jagannadhadas ].

ll/rikqji Kn/tao

]DJ/ri """ - v.

Brjjlol NllllllW Bi1alli and olhns

Jllplrl1ltldWas ].

latter has amended his application, to which there was no objecion".

On the 29th January, 1953, the order is "The petitioners do not want to amend their pleadings in view of the amendment of the written statement".

In view of the specific objection taken in the written statement and the opportunities which the petitioners had for amending the petition which the above orders disclose, there is considerable force in the contention of the learned Attorney-General that the pet1ttoners, for some reasons best known to themselves, have come forward with a somewhat irresponsible petition and that while the Court has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there was no duty cast upon the Tribunal to direct suo motu the furnishi.ng of the better particulars.

It is true that the petitioners in the reply that they filed to the written statement of the 1st respondent and in answer to the objection that the particulars as to the alleged corrupt practices were vague, said as follows :

"The petitioners are prepared to give further particulars if the Tribunal is pleased to permit under section 83(3) of the Representation of the People Act".

This reply was filed on the 16th October, 1952, which is the very date on which the first of the above orders extracted from the order-sheet was passed. It is also true that the order dated the 17th January, 1953, shows that the respondent No. I at one stage, indicated an intention .. himself. to ask for particulars. But

':i a matter of/this kind the primary responsibility for furnishing full particulars of the alleged corrupt practices and to file a petition in full compliance with section 83(2) of the Act was on the petitioners.

While undoubtedly the Tribunal has, in our opinion, taken all too narrow a view of their function in deal- ; ng with the various alleged defects in the petition and in treating them as sufficient for dismissal, the petitioners are not absolved from their duty to

comply, of their own accord, with the requirements of section 83(2) of the Act and to remove the defects when opportunity was available.

They cannot take shelter behind the fact that neither the Tribunal nor the respondent No. 1 has, in terms, called upon them to furnish better particulars.

The position, therefore, on the question of compliance or otherwise of the requirements of section 83 of the Act is that (1) the verifications in the petition and schedule are defective inasmuch as the dates thereof are not specified, and (2) the schedule of particulars consists of a number of items of which only one at best could have been taken up for inquiry by the Tribunal. But all the rest were not only extremely vague but no amendment was applied for nor was an opportunity for amendment of pleadings in general, open on two occasions, availed of. Learned counsel for the appellants urges that however this may be, there Was no justification for the Tribunal dismissing the petition in toto and that it was bound to have called upon the petitioners to substantiate the first allegation by evidence after striking out, if need be, the rest of the particulars, under the powers vested in it under Order VI, rule 16, Civil Procedure Code.

On the other hand the learned Attorney-General for the respondent No. 1 urges that in such a situation it was open to the Tribunal to consider whether, taking the petition as a whole and in its total effect, there was substantial compliance with the requirements of section 83.

He contends that if, in exercise _ of its judgment, it thought that there was substantial non-compliance, notwithstanding that one out of the various items may have been specific, it was not bound to exercise its discretion in favour of the petitioners by ordering a striking out of the various items and to direct the trial of the petition to be confined to one single item which may be in order. The learned Attorney-General urgues that this would be really making out for the petitioners a different petition from what they brought up before the Election Commission and that in this class of case$ the Tribunal had the right and the duty to exercise great strictness

"--

J55 '

B/tikqji Ka!IM Joshi and anolhlr

v. 11'ijlal N and14l Bipi and OIMn

Jagannadhadas J.

.1955 in order that the machinery for setting aside elections might not be abused for the purpose of maligning the Bhikajf Keshao Joshi and another successful candidate _by levelling vague and irresponv. sible. charges against him. _ \Vhile there is consider- . Bdjlal Nandlal able force in this argument,. we think that in a case Biyani and others of this kind the Tribunal when dealing with the

1 -;;: d J matter .in the early stages should riot have dismissed aganna a as • th'e application~ It should have exerCised its powers and called for better particulars. On non-compliance therewith, it should have ordered a striking out of such of the.'charges which remained vague and called upon the petitioners to substantiate the allegations in respect-of those which were reasoncibly specific. \Ve are, therefore, of the opinion that the order of the .tribunal in dismissing the petition outright was clearly erroneous. : Notwithstanding this opinionwe -\vould, in the normal course,. not have felt called upon to interfere fo this case under article 136 after this lapse of time arid at the instance of persons like the appellants before us who are mere voters having no direct personal interest in the result of the election.·

But there is one other circumstance .in this case which we.have noticed and which we feel 'we ought not to overlook, though in the course of, the arguments the same was riot brought to our notice. Para~ graphs 6(a), (b) and (c) _of the application for setting aside the election sets out certain_ grounds of alleged disqualification of the returned candidate to stand for the election. It is also stated therein that objections in this _behalf were taken at the. time of scrutiny of the nomination papers bufthat they were summarily , ov:erruled by the Returning Officer. without any enquiry and that accordingly the objections to the ._. _ disqualification have been raised in the , application. ·

The objections are as follows: - ... 6. The material facts in support of the grounds are as follows:~ . ' . ' ' . . " · (a) The .election of candidate for the Madhya Pradesh State Assembly in the single member Akola Constituency was announced to be held on31-12-1951.

N:ominations were to be filed qn or before 15-11-1951; - . . .

and scrutiny of nomination was due on 17-11-1951.

At this time of scrutiny objection was taken to the nomination paper of respondent No. 1 on several grounds but the material grounds were that respondent No. 1 was disqualified for being chosen as and for being a Member of Madhya Pradesh State Assembly under Chapter III, section 7 ( d) of the Representation of the People Act, 1951 (Act XLIII of 1951). That the respondent No. 1 is disqualified to fill the seat under the Act, because he is the Managing Agent or Managing Director of Rajasthan Printing and (Litho Works -private limited company under the Indian Companies Act.

He has, as a share-holder and director, interest, in contracts for supply of goods, viz. stationery, paper and printing materials, etc., to the State Government of Madhya Pradesh. He has also interest in contracts for the execution of works or performance of services, such as printing; etc., undertaken by the State Government of Madhya Pradesh.

The respondent No. 1 gets a share by way of commission on sales effected by the Limited Company He has, therefore, by himself interest in the contracts of the company with the State Government of Madhya Pradesh.

(b) The respondent No. 1 is a partner in the firm Berar General Agency.

The said firm has entered into a contract for the performance of cloth distribution on behalf of the State Government to retailers and holds a licence for the same.

The respondent No. 1, therefore, has interest by himself in the said contract for the performance of services unpertaken bv the Government.

 ( c) The respondent No. 1 is the proprietor of the monthly Journal "Prawaha" and a by-weekly paper "Matru-bhumi" These publications print Government advertisements on contract basis.

The respondent No. 1 has, therefore, interest in the said contract for the performance of services undertaken by the State Government Madhya Pradesh.

The income derived from these contracts by the respondent No. 1 are noted in the private accounts of

Bltikaji K.sliao Juhi and anotlrlr

Brjjlal N and/al Biyani and ot/rlrs

Jazannadhadas J.

...

Bltiiqji K1Moo .]ol/ti """~ ... /hiflal NOIUll4l BIJOni and otlrlrs

j111j.

the respondent No. 1 and their details are shown in the profit and loss . statements filed with income-tax return of the respondent No. 1 for the relevant year and current year.

The sales and other details of the "Matru-bhumi" concern are noted in the private accounts of the respondent No. L

These objections were summarily overruled by the Returning Officer, without any inquiry or any reason".

These allegations, if made out with such further details as may be necessary, might well prove serious and bring about the setting aside of the election of the returned candidate .

The 1st respondent in answer to these allegations states as follows:

"It is denied that there was any improper acceptance of the nomination paper of respondent No. 1 and in particular it is denied that any of the allegations made in paragraph 6(a), (b) & (c) of the petition constitute in law a disqualifications of section 7 of the Representation of the People Act. Without prejudice to this it is submitted that the respondent No. 1 was not suffering from any of these disqualifications in fact on the date of the submission of the nomination paper".

Having regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates, it was very necessary that the matters should have been cleared up in the enquiry before th~ Election Tribunal.

It is not in the interest of purity of elections that such allegations oi disqualification should be completely ignored without cnqufry and it appears rather surprising that

the Tribunal should have ignored them and exercised its powcc to dismiss the petition. However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due aiquicy. But bc£"e doing so and in view of the delay and other circumstances that have already happened,

we, in exercise of the powers which the Tribunal in •he normal course might itself have exercised, direct the striking out of all the items of alleged corrupt practices set out in Schedule A excepting the one covered by paragraph 1 of item 1, i.e., as follows:

"That in the month of December, 1951, respondent No. 1 had been to the premises of Akola Shree Gurdwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book 'Granth Saheb' on the 7th day of the death of daughter of one Sardar Suratsingh.

At this meeting respondent No. 1 canvassed for votes for himself and paid Rs. 201, apparently as donation to the Gurudwara, but realy as gift for inducing the Sikh Community in the Akola constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election. Respondent No. 1 was guilty of bribery within the meaning of that term in section 123 of the Representation of the People Act".

The case will, therefore, go back for enquiry and trial with reference only to (1) the allegations in paragraphs 6(a), (b) and (c) of tbe application for setting aside the election, and (2) the allegations in paragraph 1 of item 1, in Schedule A attached to the application as set out above.

The Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule.

It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.

The appeal is allowed as stated above but in the circumstances without costs.

Bhikaji Keshao Joshi and anolhu

Brijlal N andlal Bi1ani and others

Jagannadharlas ].

J

BHIKAJI KESHAO JOSHI AND ANOTHER

BRIJLAL NANDLAL BIYANI AND OTHERS

VIVIAN BosE

fAFER IMAM JJ.

Representation of the People Act

Section 85

Section 90( 4)

Section 82

Section 83(1)

Code of Civil Procedure

Order 6, rules 15(2)

Section 83(2)

Section 80

Representation of the People Act

Election Commission

Section 85

Section 85

Representation of the People Act

Section 90( 4)

Section 82

Representation of the People Act

Section 83( 1)

the Code of Civil Procedure

Order VI of the Code

Section 83(2)

Section 83(2)

[1955] 1 S.C.R. 140

Rfyani

Veda Vyas

S. K. Kapur

Ganpat Rai

M. C. Setalvad

M. N.

Phadke

Naunit Lal

JAGANNADHADAS

section 80

Representation of the People Act, 1951

19th April, 1952

Election Commission at Delhi

section 85

Akofa

6th October, 1952

16th October, 1952

A. S. Athalye

Athalye

article 226

Bhikaji Kuhao Joshi

Brijlal Nondlal Bi

28th April, 1952

5th April, 1952

17th April, 1952

P. B. Gole

Akola

Nagpur

Gole

section 117

section 81

State of Madhya Pradesh

Sidhaye

R. S. Rangole

Delhi

30th July, 1952

Bhikoji

Bhikaji XtJhao Joshi

section 90( 4)

section 90( 4)

Sohom

Kulkarni

Kothkar

section 37

section 82

section 82

Bombay

Allahabad

Patna High -Court takes

section 82

Bhilcaji Keshao Joshi

Brijlal Nandlal BiJani

Bhikaji K1sltao

B.jjlal N andlal B!Yat1i

section 83(1)

Code of Civil Procedure, 1908

Bhilcaji Kesllao Joshi

Brijlal Nandlal BiYani

jagaMadhadas

.iBhikaji Keshao Joshi

section 83(2)

Sardar Suratsingh

section 123

Representation of the People Act

Hariharpeth Akhada

Bhaji Bazar Association

Berar Oil Industries

Birla

Bhikaji KeJhao Joshi

Jagannadhadas

Bhikaji Keshao Joshi

Brijlal Nartdlal Biyani

31st December, 1951

Chandur

Pakistan

Joglekar

Godse

M.

Gandhi

Mishra

Kapshi

Mohota Mills

Section 83(2)

section 83(2)

section 83(3)

J"gotinodhadu

Bhikaji Kesh4o ]Dlhi

section 83(2)

sections 123, 124 and 125

Civil Procedure Code

17th January, 1953

BJ.ikaji Kesh.a Joshi

Brjjlol NllllllW Bi1alli

latter

section 83(3)

Representation of the People Act

section 83(2)

section 83(2)

section 83

Civil Procedure Code

section 83

Bhikajf Keshao Joshi

The learned Attorney-General urgues that this would be really making out for the petitioners a different petition from what they brought up before the Election Commission and that in this class of case$ the Tribunal had the right and the duty to exercise great strictness

"--

J55 '

B/tikqji Ka!IM Joshi and anolhlr

v. 11'ijlal N and14l Bipi and OIMn

Jagannadhadas J.

.1955 in order that the machinery for setting aside elections might not be abused for the purpose of maligning the Bhikajf Keshao Joshi and another successful candidate by levelling vague and irresponv.

Bdjlal Nandlal

Biyani

article 136

Madhya Pradesh State Assembly

section 7

Representation of the People Act, 1951

Madhya Pradesh

Berar General Agency

Bltikaji K.sliao Juhi

Jazannadhadas

section 7

Representation of the People Act

Akola constituency

section 123

Representation of the People Act

Bhikaji Keshao Joshi

anolhu

Brijlal N andlal Bi1ani


Stpttmbr 6

SUPREME COURT REPORTS [1955]

SHRI S.

ELECTION

SUCHETA KRIPALANI

ti.

DULAT, I.C.S., CHAIRMAN OF THE

TRIBUNAL, DELHI AND OTHERS.

[VIVIAN BosE,

BHAGWATI,

JAGANNADHADAS,

B. P.

SINHA and JAFER IMAM JJ.]

Election Dispute-Election petition by unsuccessful rival-A/legations of r12ajo1 co"upt practices and falsity in the return of election expenses against the returned candidate-Return of election expenses

found defective and returned candidate disqualified by the Election Commission-Removal of such disqualification on lodging of fresh return-furisdiction of Election Tribuna/_:_If competent to inquire into identical allegations of falsity against the second return-Repre sentation of the People Act (XL/II of 1951), s. 143-The Representa tion of the People (Conduct of Elections and Election Petitions) Rules, 1951, rule 114(4), (5) and (6).

The provisions of the Representation of the People Act and the Rules framed thereunder assign distinct and different jurisdictions to the Election Commission and an Election Tribunal so far as a Re.turn of election expenses is concerned.

Where there are allegations of major corrupt practices and a Tribunal constituted is in lawful seisin Of the dispute, s. 143 of the Act gives it the sole jurisdiction and makes it incumbent on it to inquire into the falsity of any particulars mentioned in the return where such falsity is alleged and brought into issue and is reasonably connected with the major corrupt practices.

What the Election Commission has to do under Rule 114( 4) is to satisfy itself that the return is in the prescribed form.

It is no part of its function to inquire into the correctness of any particulars mentioned therein.

That question can only arise when some one raises a dispute and brings the matter into issue.

Consequently, in a case where, as in the present, the Election Commission removed the disqualification it had imposed on the returned candidate for lodging a defective return of election expenses on the lodging of a fresh return; Held, that the decision of the Election Commission removing the disqualification attaching to the first return in no way precluded the Tribunal from inquiring into the falsity of the particulars in the second return although they were identical with those challenged in the first return;

that the removal of the disqualification only meant that the accepted return was the only valid return, being the first to be correct in form, and the Tribunal had only that return before it.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 139 of 1955. - . suC11efa- Kri'plani Appeal under Articles 132and 133 of the Constitution of India against the Judgment and Order dated the 23rd December 1953 of the High Court of Judicature for the State of Prinjab, in Civil \Vrit Application No. 24 of 1953.L_____ ·;- 0 • "·. . • • ' ' . ~: 1-tl -. . . . . - ; .

N. 0. Chatterjee, (R. S. N!irula, with him) for the appellant. . . . . . . ·. a:s. Pathak and Veda Vyds',-(Ganpat :Ri, ith them), for respondent No. 5 "" . -~- ·- .. i955.

Septeber, 6.' The Judgment _of the Court was delivered by • ,. · ·,

BosE J.-· The proceedings that have given rise fo this appeal arise out of aneJection petition liefore the Election Tribunal; Delhi. ' . . .. ' The appellant Shrimati SuchetaKripalani together with the contesting respondent Shrimati Manmohirii Sahgal and others were candidates for election to the House of the People from the Parliamentary , Con- . stituency of New Delhi.

The polling took place on - 14th January, 1952, and when the' votes.were counted on 18th January, 1952; it was found that the appellant had secured the largest number of votes an_d that the contesting respondent 1\Ianmohlni came next; The appellant '.was accordingly notified as the returned candidate on 24th January, 1952. · .· . On 6th larch, 1952, the appellant filed her return

of election expenses. This was found to be defective, and on .17th April, 1952, tlie Election Commission published a notification in the Gazette of India dis-· qualifying the appellant under Rulell4(5) of the Representation of the People (Conduct of Electio_ns and Election Petitioris) Rules, 1951, ori the ground that she had · . . · '•-" • : · _ . : "failed to lodge the rel urn' of election expenses in the manner required" and that she had thereby "incurred the disqualifications under clause (c) of section 7 and section 143 of the Representation of the People Act, 1951':, _ --

v.

Shi S.S.- Duiat~ I.C.S., Chairman

Of the Eiection

Tribunal~ Delhi

and others

Sru; hlta Jrripalairi

•• Sht'i S. S. Dulal, J.C.S., Chairman

of the El<di°" T ribunol, Ddhi

and oth"s

Bose].

In view of this the appellant submitted a fresh return with an explanation under Rule 114(6) on 30th April, 1952.

This was accepted . by the Commission and on 7th May, 1952, it published a notification in the Gazette of India under Rule 114(7) stating that the disqualification had been removed.

In the meanwhile, on 7th April, 1952, the contesting respondent Manmohini filed an election petition praying that the appellant's election be declared void and that she (the petitioner) be declared to have been duly elected.

It will be noticed that this was before 17th April, 1952, the date on which the Election Commission disqualified the appellant.

The validity of the election was attacked on many grounds.

A number of major corrupt practices were alleged and the return which the appellant had filed on 6th March, 1952, of her election expenses' was challenged as a minor corrupt practice on two grounds :

(1) that the return was false in material particulars and (2) that it was not in accordance with the rules and so was no return at all in the eye of the law.

Particulars of the instances in which the return was challenged as false were then set out.

The appellant filed her written statement in reply on 7th October, 1952.

It will be noticed that this was after she had put in her second return and after the Election Commission had removed the disqualification due to the first return.

Her reply was as follows : (I) That as the disqualification with respect to the return of her election expenses had been removed by the Election Commission under section 144 of the Representation of the People Act, 1951, this question could not be reopened;

(2) That a minor corrupt practice which cannot vitiate an election and which is not capable of materially affecting an election is wholly outside the scope of a proper election petition and so no cognisance of. it can be taken by the Election Tribunal;

(3) That only such matters can be put in issue as arc necessary to decide whether the election of the returned candidate fo liable to be set aside within the meaning of section 100(2) of the Act.

The contesting respondent Manmohini filed a replication on 15th October, 1952. In it she said:-

(1) that the Election Commission did hot and could not decide whether the return was or was not false in material particulars and so the question was still open. (This had reference to the first return dated 6th March, 1952.) ;

(2) that in any event "even the revised return is false in material particulars and the objections with regard to the original return also apply exactly with regard to the revised return".

The broad propositions of law raised by points (2) and (3) in the appellant's written statement were also. denied.

Then followed an item by item reply to the allegations made by the appellant in the list which she had appended to her written statement.

That lisc was a reply to the particulars of false return and corrupt practices furnished by the contesting respondeilt Manmohini. It is evident then that Manmohini attacked the second return on exactly the same grounds as the first and furnished the same particulars.

Now we have spoken of these returns as the first and the second.

But counsel on both sides agreed before us that the first return was in fact no return at all in the eye of the law and that therefore the contesting respondent's real attack was on the second return which must be regarded as the only return wi1ich the law will recognise as a valid return. It was agreed

that there cannot be two returns of expenses: either the one originally filed is amended or it is treated as a nullity so far as it purports to be a return.

In view of this agreement, it is not necessary for us to express any opinion on the matter and we will concentrate our attention on what, for convenience, we will continue to call the second return.

The first point that now arises is whether the decision of the Election Commission to remove the disqualification attaching to the first return precludes an enquiry into the falsity of the second return simply because the respondent Manmohini alleged that the

1955

Sue hi ta K ripalart

Shri S. S. Dulat, I.C.S., Chairmart

of lire Ek&tion Tribunal, Delhi

and others

Bose].

llwhtla Kripal<uii

Slwi S. S. Dulal, 1.c.s., Ch.airman

of '"' Ellai.,. 1" ri/Junal Delhi

and others

particulars of the falsity are exactly the same as before.

Our answer to that is No. If the first return is no return in the eye of the law, then the only return we are concerned with is the second and that must be treated in the same way as it would have been if it had been the only return made.

If there had been no other return and this return had been challenged on the grounds now raised, it is clear that the truth of the allegations made would have to be enquired into.

That enquiry cannot be shut out simply because the allegations against the second return .. happen to be exactly the same in the matter of its falsity as in the case of the first return.

We are therefore of opinion that the jurisdiction of the Tribunal to enquire into these matters was not ousted on that account. Opr reasons for this are these.

Section 76 of the Act requires every candidate to file a return of election expenses in a particular form containing certain prescribed particulars.

The form and particulars are set out in the Rules.

Section 143 prescribes the penalty for failure to observe those requirements.

It is disqualification.

This ensues if there is a "default" in making the return.

It also ensues:-

"if such a return is found ........ upon the trial of an election petition under Part VI ........ to be false in any material particular".

That places the matter beyond doubt.

The trial of an election petition is conducted by an Election Tribunal and this section makes it incumbent on the Tribunal to enquire into the falsity of a return when that is a matter raised and placed in issue and the allegations are reasonably connected with other allegations about a major corrupt practice.

The jurisdiction is that of the Tribunal and not of the Election Commission. The duty of the Election Commission is merely to decide under Rule 114(4) whther any candidate has, among other things,

"failed to lodge the return of election expenses .... m the manner required by the Act and these rules''.

It is a question of form and not of substance. lf

the return is in proper form no question of falsity can arise unless somebody raises the issue. If it is raised, the allegations will be made in some other document by some other person and the charges so preferred will be enquired into by the Tribunal.

If the return is not in proper form, disqualification ensues but the Election Commission is invested with the power to remove the disqualification under Rule 114(6).

If it does, the position becomes the same as it would have been had the Election Commission decided that the form was proper in the first instance.

That would still leave the question of falsity for determination by the Tribunal in cases where the issue is properly raised.

Mr. Chatterjee contended on behalf of the appellant that we were not concerned with the second return in this appeal and strongly protested against Mr. Pathak being allowed to argue this point. But that has been the main bone of contention almost from the start.

When the election petition was filed, there was only one return to attack.

The second had not been put in. Later, when it was put in, the contesting respondent, Manmohini, attacked both and the appellant herself said that questions about the falsity of the return could not be gone into because of the Election Commission's order removing the disqualification.

That argument applies as much to the second as to the first return and raises an issue about the respective jurisdictions of the Election Commission and the Election Tribunal on this point.

The Tribunal decided against the appellant on this point and held, as we do, that the Election Commission was not concerned with the issue of fact about the falsity of the return.

The appellant then filed a petition under article 226 to the High Court and questioned the Tribunal's jurisdiction to enquire into the issue of falsity.

The High Court upheld the Tribunal's decision and the appellant pursued the matter here both in her grounds of appeal and in her statement of the case.

She cannot at this stage ask us to leave

Suto Kripalani ,,.

Sltri S. S. Du/al, 1.c.s., C/iainun

oftlwEUdittti T mllllal, Dllhi

4lld olhm

Bm].

Sueheta Kripalani

Yo Slwi S. S. Dulat, l.C.S., Chairman

°"' tht Election T ribMnal, Dtlhi

and others

Bose J.

the matter open so that she can come here again and re-agitate this question.

We accordingly overrule Mr. Chatterjee's objection.

The next question argued was whether an Election Tribunal can enquire into a minor corrupt practice if it is of such a nature that, standing by itself, it could not have been made the basis of an election . petition because it could not materially affect the result of the election.

We need not go into that because the question is purely academic in this case.

The allegation about the minor corrupt practice does not stand by itself.

There are also allegations about major corrupt practices which require investigation and the minor corrupt practices alleged are reasonably connected with them. Section 143 of the Act is a complete answer to the question of the Tribunal's jurisdiction on this point when it is properly seised of the trial of an election petition on other grounds. Whether it could be properly seised of such a trial if this had been the only allegation, or if the minor corrupt practice alleged was not reasonably connected with the other allegations about major corrupt practices, doe> not therefore arise.

As the trial is proceeding on the other matters the' Tribunal is bound under section 143, now that the issue has been raised, also to enquire into the question of the falsity of the return. Without such an enquiry it cannot reach the finding which section 143 contemplates.

We need not look into the other sections which were touched upon in the arguments and in the Courts below because section 143 is clear and confers the requisite jurisdiction when a trial is properly in progress.

The appellant has failed on every question of substance that she raised.

There was some vagueness in the Election Tribunal's order about which of the two returns formed the basis of the enquiry on this point but even if the Tribunal intended to treat the first return as the basis that did not really affect the substance because exactly the same allegations are made about the second return and the issue of fact would therefore have to be tried in any event. The appellant's whole enc!-eavour was to circumvent such an enquiry and oust the Tribunal's jurisdiction.

In that she has failed, so she will pay the contesting rcspondent' s costs throughout.

The appeal fails and is dismissed with costs all through.

TIRATH SINGH

ti.

BACHITT AR SINGH AND OTHERS

[S. R. DAs, ACTING C. J. and VENKATARAMA

AYYAR J.]

Election Dispute-Election petition-Contents alleged to be vague and wanting in particulars-Mainu1inability-Naming of persons for disqualification-Recommendation for exemption from disqualification-Notice-Jurisdiction of the Tribunal-The Representation of the People Act (XLIII of 1951), ss. 83, 99(1)(a) proviso.

Where the respondent in an election petition contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which it was open to him to do and was not found to have been misled or in any way prejudiced in his defence, it \Vas not open to him to contend that the petition was liable to be dismissed for non-compliance with the provisions of s. 83 of the Act.

Clauses (a) and (b) of the proviso to s. 99 of the Representation of the People Act read together leave no scope for doubt that clause

(a) contemplates notice only to such persons as were not parties to the election petition and it is, therefore, not obligatory on the Tribunal under cl. (a) to issue notices on such persons as were parties in order that it may name them for disqualification under sub-clause (ii) of s. 99(l)(a) of the Act. Clause (b) to the proviso obviously has the effect of excluding such persons as have already had the opportunity of cross-examining witnesses, calling evidence and of being heard, which the clause seeks to afford.

The Indian and the English Law on the matter arc substantially the same.

Ke.rho Ram v. Hazura Singh, [1953] 8 Election Law Reports 320, overruled.

The jurisdiction that sub-clause (ii) of s. 99(1)(a) of the Act confers on the Tribunal for making recommendation for exemption 11-83 S. C, India/59.

Sw:lrda Kripalani v.

Shri S. S. Dulat,

I.C.S., Chairman

4 the Ekction T ribunaJ, Delhi

and others

Bose].

<; tpkmb1r 15

SUCHETA KRIPALANI

S.S. DULAT, I.C.S., CHAIRMAN OF THE TRIBUNAL, DELHI AND OTHERS

VIVIAN BosE

BHAGWATI

JAGANNADHADAS

SINHA

JAFER IMAM JJ.

s. 143

Representation of the People Act

s. 143

Articles 132and 133

Constitution of India

R. S. N!irula

Veda Vyds',-(Ganpat

Shrimati SuchetaKripalani

Shrimati Manmohirii Sahgal

India

This was found to be defective, and on .17th April, 1952, tlie Election Commission published a notification in the Gazette of India dis-· qualifying the appellant under Rulell4(5) of the Representation of the People (Conduct of Elections and Election Petitioris) Rules, 1951, ori the ground that she had · . . · '•-" • : ·

section 7

section 143

Representation of the People Act, 1951

S.S.- Duiat~

S. S. Dulal

7th April, 1952

Manmohini

17th April, 1952

6th March, 1952

7th October, 1952

section 144

Representation of the People Act, 1951

section 100(2)

15th October, 1952

Manmohini

S. S. Dulat

Section 76

Section 143

Chatterjee

Pathak

article 226

Suto Kripalani

Sueheta Kripalani

Bose

Section 143

section 143

section 143

section 143

TIRATH SINGH

BACHITT AR SINGH

S. R. DAs

VENKATARAMA

AYYAR

Representation of the People Act

ss. 83, 99(1)(a)

s. 83

s. 99

Representation of the People Act

s. 99(l)(a)

s. 99(1)(a)

Ekction T ribunaJ, Delhi


2S.C.R.

SUPREME COURT REPORTS 457

lant's whole enc!-eavour was to circumvent such an enquiry and oust the Tribunal's jurisdiction.

In that she has failed, so she will pay the contesting rcspondent' s costs throughout.

The appeal fails and is dismissed with costs all through.

TIRATH SINGH

ti.

BACHITT AR SINGH AND OTHERS

[S. R. DAs, ACTING C. J. and VENKATARAMA

AYYAR J.]

Election Dispute-Election petition-Contents alleged to be vague and wanting in particulars-Mainu1inability-Naming of persons for disqualification-Recommendation for exemption from disqualification-Notice-Jurisdiction of the Tribunal-The Representation of the People Act (XLIII of 1951), ss. 83, 99(1)(a) proviso.

Where the respondent in an election petition contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which it was open to him to do and was not found to have been misled or in any way prejudiced in his defence, it \Vas not open to him to contend that the petition was liable to be dismissed for non-compliance with the provisions of s. 83 of the Act.

Clauses (a) and (b) of the proviso to s. 99 of the Representation of the People Act read together leave no scope for doubt that clause

(a) contemplates notice only to such persons as were not parties to the election petition and it is, therefore, not obligatory on the Tribunal under cl. (a) to issue notices on such persons as were parties in order that it may name them for disqualification under sub-clause (ii) of s. 99(l)(a) of the Act. Clause (b) to the proviso obviously has the effect of excluding such persons as have already had the opportunity of cross-examining witnesses, calling evidence and of being heard, which the clause seeks to afford.

The Indian and the English Law on the matter arc substantially the same.

Ke.rho Ram v. Hazura Singh, [1953] 8 Election Law Reports 320, overruled.

The jurisdiction that sub-clause (ii) of s. 99(1)(a) of the Act confers on the Tribunal for making recommendation for exemption 11-83 S. C, India/59.

Sw:lrda Kripalani v.

Shri S. S. Dulat,

I.C.S., Chairman

4 the Ekction T ribunaJ, Delhi

and others

Bose].

<; tpkmb1r 15

Tit-at/a SU.gh ...

Baehittar Singh

and ol/urs

from disqualifications mentioned in ss. 141 to 143 is purely advisory.

Where it omits to do so, aggrieved parties have access to the Election Commission which under s. 144 has the power to act suo motu. No person, be he a party or a stranger, has a right to be heard by the Tribunal on the question of such exemption and, therefore, no question of any service of notice under the proviso in this regard can arise.

Even supposing that the proviso requires notice on a party to the dection petition, the noti.:e to him of the election petition itself can be treated as a notice under the proviso.

C1VIL

APPELLATE JuRISDICTION : Civil Appeal No. 21 of 1955.

Appeal under Article 133(1) (c) of the Constitution of India against the Judgment and Order dated the 12th January 1954 of the Pepsu High Court in Civil Misc. No. 182 of 1953.

M. C. Setalvad, Attorney-General of India, Veda Vyas and /agannath Kaushal, (Natmit Lal, with them), for the appellant.

The respondents did not appear. 1955.

September 15.

The Judgment of the Court was delivered by

VENKATARAMA AYYAR J.-The appellant was a candidate for election to the Legislative Assembly of the State of PEPSU from the Dhuri Constituency, and having secured the largest number / of votes was declared duly elected.

The first respondent who is one of the electors in the Constituency filed the petition out of which the present appeal arises, for setting aside the election on the grounds, . inter alia,

(1) that the nomination of one Mali Singh had been wrongly rejected by the returning officer, and (2) that the appellant was guilty of the corrupt practice of bribery.

The Tribunal held that both these grounds were made out, and accordingly set aside the election. It further recorded a finding in terms of section 99(1) (a) of the Representation of the People Act No. XLIII of 1951 that the appellant was proved to have committed the corrupt practice of bribery as mentioned in section 123(1) of the Act. The Appellant thereupon filed in the High Court of Patiala and East Punjab States

Union an application under Article 227 attacking the finding of the Tribunal that he was guilty of bribery.

The order of the Tribunal in so far as it set aside his election was not challenged.

By der dated 12-1-1954 the High Court upheld the findings of the Tribunal, and dismissed the application, and by order dated 7-6-1954 granted a certificate for appeal to this Court under Article 133(1)(c).

That is how the appeal .comes before us.

On behalf of the appellant, the learned Attorney- General raised two contentions : ( 1) The finding that the appellant was guilty of bribery was reached in disregard of the mandatory provisions of section 83, and that it was besides open to other legal objections; and (2) the finding recorded under section 99 of the Act was bad, because no notice was given to the appellant, and no enquiry held as required by the proviso to section 99.

This point was not taken in the application under Article 227, and was sought to be raised at the time of the argument in the High Court ; but the leo.rned Judges declined to entertain it. ( 1) On the first question, the complaint of the appellant is that in the election petit;:.n the allegations relating to bribery were ·:ague and wanting in particulars, and that the petition should accordingly have been dismissed under sections 83 and 85 of the Act; that the charge that was sought to be proved at the hearing was at variance with the charge as alleged in the petition, and that the Tribun:\l had erred in giving a finding of bribery on the basis not of the allegations in the petition but of the evidence addur'!d at the trial.

The allegations in the petition relating to this charge are as follows:

"The sweepers of Small Town Committee, Dhuri were each granted good work allowance at Rs. 5 p.m. for three months only during Election days, simply because they happened to be voters in the said Constituency, vide letter No. ST/1(4)/52/20702 dated 7th December, 1951.

All this was done to induce these sweepers to vote for the respondent No. 1. The allowance was against the Rules".

Baehitlar Singh

and ollurs

Vmkatarama

AyJar J.

Tirath Singh

Bacbiuar Singh

and olhen

The reply follows: of the appellant to this charge

[1955]

was as

"The sweepers of Small . Town Committee represented to me in writing that their pays should be increased, and they also quoted the pays that the employees of other Small Town Committees and Municipal Committees were getting.

The representation was forwarded to the Secretariat.

The Secretariat examined it on merits, passed legal orders. Such concessions were also shown to other employees of the various Small Tmvn Committees and Municipal Committees in Pepsu before and after this case. This was an official act done in the routine and not to induce the sweepers to vote for respondent No. 1".

On these averments, the following issue was framed: "5. Whether the sweepers of Small Town Committee, Dhuri, were granted good work allowance at Rs. 5 p.m. for three months only during the election days in order to induce them to vote for the Respondent No. 1 ?"

At the trial, the petitioner examined the Darogha of the Small Town Committee (P. W. 28), and five sweepers, P. W s. 12, 13, 14, 39 and 40, and their evidence was that sometime in November 1951 the appellant came to Dhuri, enquired about the number of sweepers in the service of the Committee, and offered to raise their pay if they would vote for him, that the sweepers thereupon held a meeting and considered the suggestion of the appellant, and then decided to vote for him, if the pay was increased. It must be stated that the appellant was then Minister for Health, and was in charge of Local Administration.

On 28-11-1951 he passed an order on a memorial sent by the sweepers that their pay would be increased by Rs. 5 per mensem. Objection to the order was taken by the Department, and thereupon, the appellant passed the modified order dated 7-12-1951 granting good work allowance for a period of three months from December 1951 to February 1952. The Tribunal accepted the evidence on the side of the petitioner that the appellant offered to increase the salary of the sweepers in 1951, and held that the order dated

7-12-1951, granting good work allowance for the election period was the outcome of the bargain come to in November 1951, and that the charge of bribery had been established.

It is contended for the appellant that in the petition there was no mention of the bargain on which the finding of bribery by the Tribunal was based, that the charge in the petition related only to the order dated 7-12-1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded.

This is to put too technical and narrow a construction on the averments. The charge in the petition was not merely that the appellant had passed the order dated 7-12-1951 but that he had passed it with a view to induce the sweepers to . vote for him.

That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence the voters.

Issue 5 put the matter beyond doubt, when it pointedly raised the question whether the grant was "for three months only during the election days in order to induce them (the sweepers) to vote for the respondent No. l". Under the circumstances, the compiaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance.

It may be that the allegations in the petition are not as full as they might have been; but if the appellant was really embarrassed by the vagueness of the charge, it was open to him to have called for particulars; but he did not do so.

At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.

It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded.

But this is denied by the petitioner in his affidavit filed in the High Court dated 3-12-1953.

Even apart from this, the witnesses on behalf of the petitioner gave evidence on this point on the 8th and 11th

T irath Singh v.

Bachittar Singh

and others

Venkatarama

AJ!)'arJ.

Baehittar Singh

alfd others

November, 15th and 16th December, 1952, and on the 2nd February, 1953.

Then the appellant entered on his defence.

On 26-2.1951 he examined R.W. 4, a member of the Small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances. under which the order came to be passed.

Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings.

The contention that is urged for him Is that the petition should have been dismissed under section 83 for wan: of particulars. This was rightly rejected by the High Court as without force, and we are in agreement with it.

' It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in section 79(2) at the time when the bargain was made.

But the allegation in the petition is clear that the order dated 7-12-1951 was made with a view "to induce the sweepers to vote for the appellant".

The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to . vote" for him.

Far from there being any specific denial that the sweepers were electors, the r{!ply of the appellant proceeds on the basis that they were entitled to vote.

This objection was not raised before the Tribunal, and, as pointed out by the High Court, P. W. 12 does say in his evidence that he is a voter.

This contention must accordingly be overruled.

Nor is there any substance in the contention that there is no proof that the appellant was a candidate at the time of the bargain.

This again is an objection which was not taken before the Tribunal, and on the evidence of the witnesses examined on the side of, the petitioner which was accepted by the Tribunal, the appellant would be a prospective candidate as aefined in section 79(b) of the Act.

The finding that the appellant is guilty of bribery is therefore not open to attack.

(2) It is next contended that the order of the

Tribunal in .so far as it recorded a finding that' the appellant had committeed the corrupt practice specified in section 123(1) is bad, as no notice was given to him as required by the proviso to section 99 and no opportunity to show cause against it.

Section 99 runs as follows:

"99. (1) At the time of making an order under section 98 the Tribunal shall also make an order- ( a) whether any charge is made in the petition of any corrupt or illegal practice having been committed at the election, recording-

(i) a finding whether any corrupt or illegal . practice has or has not been proved to have been committed by, or with the connivance of, any candidate or his agent at the election, and the nature of that corrupt or illegal practice; and

(ii) the ilames of all persons, if any who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice, together with any such recommendations as the Tribunal may think proper to make for the exemption of any persons from any disqualifications which they may have incurred in this connection under sections 141 to 143.

Provided that no person shall be named in the order under sub-clause (ii) of clause (a) unless- ( a) he has been given notice to appear before the Tribunal and to show cause why he should not be so named; and

(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the Tribunal and has given evidence against him, of calling evidence in his defence and of being heard ...... " The point for detision is whether it was obligatory on the part of the Tribunal to issue notice under the above proviso to parties to the election petition before recording a finding under section 99(1)(a). The contention of the ppellant is that under section 99(1)(a) the Tribunal has to record the names of all persons

Bachittar Sinh

end others

Y tnkatarama

AJyar J.

who are proved to have been guilty . of corrupt or illegal practice, that that would include both parties to the petition as well as non-parties, that the proviso requires that notice should be given to all persons who are to be named under section 99(1) (a), subclause (ii), and that the appellant was accordingly entitled to fresh notice under the proviso.

It is argued that if the language of the enactment is interpreted in its literal and grammatical sense, there could be no escape from the conclusion that parties to the petition are also entitled to notice under rhe proviso.

But it is a rule of interpretation well-established that, "Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence". (Maxwell's Interpretation of Statutes, 10th Edition, page 229).

Reading the proviso along with clause (b) thereto, and construing it in its set ting in the section, we are of opinion that notwithstanding the wideness of the language used, the proviso contemplates notice only to persons who are not parties to the petition.

The object of giving notice to a person under the proviso is obviously to give him an opportunity to be heard before a finding is given under section 99(l)(a)

(i) that he has committed a corrupt or illegal practice.

This clearly appears from clause (b) of the proviso, which enacts that the person to whom notice is to be given should have an opportunity of crossexamining witnesses who had been examined before and given evidence against him, of calling his own evidence and of being heard.

This is in accordance with the rule of natural justice which requires that no one should be condemned without being given an opportunity to be heard.

The reason of the rule, therefore, requirs that notice should be given to persons who had had no previous opportunity in respect of the matters mentioned in sub-clause (b) to the proviso. Such for example would be witnesses and possibly agents of the parties, as observed in Nyalchand Virchand v. Election Tribuna/( 1), though it is i10t necessary to decide that point, but it cannot refer to parties to the petition who have had every opportunity of taking part in the trial and presenting their case.

Where an election petition is founded on a charge of corrupt practice on the part of the candidate, that becomes the subject-matter of enquiry in the petition itself.

If at the trial the Tribunal came to the conclusion that the charge had been proved, then it has to hold under section 100(2) (b) that the election is void, and pass an order to that effect under section 98(d). Section 99(1) enacts that the finding of corrupt practice under section 99(1)(a)(i) or naming a person under section 99(1) (a)(ii) should be at the time of making an order under section 98.

If the contention of the appellant is to be accepted, then the result will be that even though there was a full trial of the charges set out in the petition, if the Tribunal is disposed to hold them proved it has first to give notice of the finding which it proposes to give, to the parties, and hold a fresh trial of the very matters that had been already tried.

That is an extraordinary result, for which it is difficult to discover any reason or justification. It was argued by the learned Attorney.

General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross-examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under article 311 to show cause against the action proposed to be taken against him. In a warrant case, the accused is not bound to cross- <:xamine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they arc entitled to a second opportunity was based on the peculiar language of sections 240(2) and (3) of the Government of India Act, 1235, and Article 311 of the Constitution.

They arc

(I) [1953] 8 Electiou Law Reporta 417, 421.

Tiralh Singh

Baehillar Singh

and others

V enkatarama

AY.)'ar ].

Tirath Singh

Bachiltar Singh

and othtr1

V1nkatarama

.dy)'ar ].

exceptional cases, and do not furnish any safe or useful guidance in the interpretation of section 99.

The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in section 99(l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any disqualifications which may have been incurred under sections 141 to 143.

The argument is that the disqualifications mentioned in section 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken under section 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.

The fallacy m this argument is in thinking that notice to a person is requisite for making a recommendation under section 9(1) (a) (ii)· Section 99(1) (a)(ii) deals with two distinct matters-naming persons who are proved to have been guilty of corrupt and illegal practices, and recommending whether there should be any exemption in respect of the disqualifications mentioned in sections 141 to 143, and the proviso, properly construed, requires notice only in the former case and not the latter. It will be noticed that while in cases falling within sections 139 and 140 the disqualification is automatic and immutable, in cases falling within sections 141 to 143 the Election Commission has power to grant exemption under section 144 of the Act.

It is to guide the Commission in exercising its powers under section 144, that the Tribunal is directed in section 99(l)(a)(ii) to make any recommendations with reference thereto.

The jurisdiction of the Tribunal in respect of this matter is purely advisory.

There is nothing to prevent the Commission from taking up the question of exemption under section .144 suo motu, even though the

Tribunal has made no recommendation.

Indeed, there . is nothing to prevent the person adversely affected from applying directly to the Commission for exemption.

While, therefore, there is compelling reason why a person should have an opportunity of showing cause before he is named there is none such when the question is one of recommendation.

As we construe the proviso, it confers no right on any person, party or stranger, to be heard on the question whether he should be recommended for exemption from the disqualifications under section 141 to 143.

The provision for exemption in section 99 (l)(a)(ii) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.

Reliance was also placed by the appellant on thedecision of the Election Tribunal in Kesho Ram v.

Hazura Singh(1), wherein it was held by a majority that notice under the proviso to section 99 should be given to the parties to the petition also. For the reasons given above, we do not agree with the decision of the majority.

Our conclusion is that while the persons to bcnamed under section 99(1) (a)(ii) would include both parties to the petition as well as non-parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice should issue under the proviso will depend on whether the person had an opportunity to cross-examine witnesses who had given evidence against him and to adduce his own evidence.

This conclusion is in accord with the law in England.

Under section 140, sub-clause (1) of the Representation of the People Act, 1949, an election Court has to state in its report the names of all persons who are found guilty of corrupt and illegal practice but "in the case of some one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition", the court has to issue notice to him, give him an opportunity of being

(I) [19,53] 8 Election Law Reports 320.

Tirath Singh

Baehittar Singf,

and ot/wt

Venkatarama

AyyarJ.

Tiralh Singh

IJaehiltarSmgh

ondolhm

heard by himself, and calling evidence in his defence.

It was suggested for the appellant that the law as enacted in section 99 makes a deliberate departure from that under section 140( l) of the English Act.

The difference in the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the matter, there was any intention to depart from the English law on the subject; nor is there any reason therefor.

In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein.

He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to section 99 before recording a finding under section 99(1)(a) (ii). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing that the reliefs which could be claimed in the election petition under section 84 are those mentioned in section 98, and that action under section 99(1) (a) is to be taken at the time when the order under section 98 is pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to section 99( l) (a) as well.

This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.

In the result, all the contentions urged in support of the appeal fail, which must accordingly be rejected.

As the respondent has not appeared to contest the appeal, there will be no order as to costs.

TIRATH SINGH

BACHITT AR SINGH AND OTHERS

S. R. DAs

Representation of the People Act

ss. 83, 99(1)(a)

s. 83

s. 99

Representation of the People Act

s. 99(l)(a)

s. 99(1)(a)

lrda Kripalani

S. S. Dulat

Ekction T ribunaJ, Delhi

ss. 141 to 143

s. 144

Article 133(1)

Constitution of India

Pepsu High Court

M. C. Setalvad

Veda Vyas

/agannath Kaushal

Natmit Lal

VENKATARAMA AYYAR

Dhuri

Mali Singh

section 99(1)

Representation of the People Act

section 123(1)

Article 227

Article 133(1)(c)

section 83

section 99

section 99

Article 227

sections 83 and 85

Baehitlar Singh

AyJar

Bacbiuar Singh

Pepsu

s. 12, 13, 14, 39 and 40

Venkatarama

Baehittar Singh

section 83

section 79(2)

section 79(b)

section 123(1)

section 99

Section 99

section 98

sections 141 to 143

section 99(1)(a)

section 99(1)(a)

Bachittar Sinh

AJyar

section 99(1)

Maxwell

section 99(l)(a)

section 100(2)

section 98(d)

Section 99(1)

section 99(1)(a)(i)

section 99(1)

section 98

article 311

sections 240(2)

Government of India Act, 1235

Article 311

Tiralh Singh

Baehillar Singh

Bachiltar Singh

section 99

section 99(l)(a)(ii)

sections 141 to 143

section 143

section 143

section 9(1)

Section 99(1)

sections 141 to 143

sections 139 and 140

sections 141 to 143

Election Commission

section 144

section 144

section 99(l)(a)(ii)

section 141 to 143

section 99

section 99

section 99(1)

England

section 140

Representation of the People Act, 1949

Tirath Singh

section 99

section 140( l)

section 99

section 99(1)(a)

section 84

section 98

section 99(1)

section 98

section 99( l)