Election Law Reports, Vol. V

532
ELECTION LAW REPORTS Containing cases on election law decided by the Supreme Court the High Courts of India, opinions of the Election Commission and important decisions of the Eleption Tribunals. Vol. V 1953 Editor: A. N. AIYAR, B.A., B.L., Senior Advocate, Supreme Court. 5 E.L.R. Published under the authority of the Election Commission of India by the Manager of Publications, Civil Lin"es, Delhi, and Printed by the Company Law Institute Press, Madras. All Rights Reserved,

Transcript of Election Law Reports, Vol. V

Page 1: Election Law Reports, Vol. V

ELECTION LAW REPORTS

Containing cases on election law decided by the Supreme Courtthe High Courts of India, opinions of the ElectionCommission and important decisions of the

Eleption Tribunals.

Vol. V1953

Editor:A. N. AIYAR, B.A., B.L.,

Senior Advocate, Supreme Court.

5 E.L.R.

Published under the authority of the Election Commission of India• by the Manager of Publications, Civil Lin"es, Delhi,

andPrinted by the Company Law Institute Press, Madras.

All Rights Reserved,

Page 2: Election Law Reports, Vol. V

CONTENTS.

PAGI?

I. Table of Cases Reported .,, i~—\\

II. Table of Cases Cited ... Hi—xji

III. Reports of Cases ... 1—510

IV, Index .,. 5U

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The Mode of Citation of this the Fifth Volume of the Election LawReports is as follows :

5 E. L. R.

A TABLE

OF THE

NAMES OF THE CASES REPORTEDIN THIS VOLUME

PAGE

Amin Ahmad v. Nand Lai Sinha ... 40Biswanath Roy v. Tarakdas Banerjee and Others ... 223Brindaban Prasad Tiwari v. Sita Ram and Others ... 48Hamirkha Aiarkha v. Returning Officer, Jamnagar

City and Others [H. C] ... 230Hanuman Prasad Misra v. Tara Chand and Others ... 446Hari Vishnu Kamath v. Syed Ahmed and Others ... 248Jamna Prasad Mukhariya v. Lachhiram Ratanlal Jain

and Others ... 1Joginder Singh v. Raghbir Singh and Others ... 81Kalicharan Singh v. Ramcharitar Rai Yadava and

Others ... 98Kandasami Kandar v. Subramania Goundar and

Others ... 156Rhushwaqt Rai v. KaranSingh and Others ... 93Krishnaji Bhimarao Antrolikar v. Shankar Shanta-

ram More and Others ... 34Lumba Ram v. Ram Narain and Others ... 319Maharaja Anand Chand, In re [E. C] ... 197Marutrao Bhaurao and Others v. Gulabrao Dadasaheb

and Others ... 303Natwar Lai o. Bhartendra Singh and Another ... 408

Pandit Harish Chandra v. Raja Man Singh andOthers ,., 129

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ii ELECTION LAW REPORTS [VOL. V

PAGEParmatma Singh v. Deo Saran Sinha and Others ... 353

Ramachandra Choudhuri v. Sadasiva Tripathy andOthers (No. 2) ... 194

Ramachandra Chowdhuri v. Sadasiva Tripathy andOthers (No. 2) ... 401

Ramakrishna Reddy v. Kamala Devi ... 173Ramayan Sharan Singh and Another v. Rameshwar

Yadav and Others ... 296Ram Chand v. Wadhawa Ram and Others ... 386Ratan Shukla v. Brijendra Swarup and Others ... 116Roop Chandra Sogani and Others v. Rawat Man

Singh and Others (No. 2) ... 327

Sambandam S..K. v. Election Tribunal, Madras, andOthers [H. C] ... 341

Sankara Pandia Nadar, A. S. S. S. v. V. V. Rama-swami and Others ... 417

Sheo Kumar and Another v. V. G. Oak and Others[H. C] ' ... 103

Shiva Dutt and Others v. Bansidas Dhangar andOthers ' ... 55

Shivdev Singh v. Dara Singh and Others ... 496Subba Raj A. S. v. M. Muthiah and Others ... 21Sujaniram v. Lai Shyam Shah and Others [H. C] ... 183

Udainath Singh v. Jagat Bahadur Singh and Others(No. 2) . ... 199

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TABLE OF CASES CITED• - • • • • • • * P A G B

Abdul Hayat Khan Choudhari v. Zabur Ahmad Choudhari (2Doabia 10) ... 48

Abdul Majid v. Sayed Ahmed (1 Doabia 229) ... 248Ahamad Thambi Maracayar v. Basava Maracayar (I.L.R. 46

Mad. 123) ... 156Ambala and Simla, 1937 (Sen and Poddar 6) 173, 199Amir Mohammad Khan v. Atta Mohammad Khan (1 Doabia

98) ... 48Amritsar Central (Sikh) Constituency: Sardarani Prakash

Kaur v. Rai Bahadur Basakha Singh (1 Doabia 332)48, 116, 129,408

Amritsar City case (2 Hammond's E.P. 26) ... 21Anandrao Rege v. Kailash Chandra Giri (1 E.L.R: 211) ... 48Anglo-Indian Constituency, Punjab, 1946 (Sen and Poddar

66) 48, 129, 173, 408Anglo-Indian Constituency, Punjab, 1947 (Sen and Poddar

883) 48, 81, 129,173Apurba Krishna v. Emperor (I.L.R. 35 Cal. 141) ... 173Baijyanath Prasad v. Chandereshwar Prasad (2 E.L.R. 88) ... 353BalailalDas Mohapatra v. Trailakya Nath Prodhan and Others

(4E.L.R. 221) ... 248P. N. Balasubramanian v. C. R. Narasimhan and Others (1

E.L.R. 461) 81,386Bapu Vithal Rajput v. Secretary of State (A.I.R. 1932 Bom.

370) ... 183Basdeo v. John Smidt (1899) I.L.R. 22 All. 55 ... 21Bashir Ahmad v. Akhtar Husain Khan (2 Doabia 341) 48, 129Basti Election Case (Sen and Poddar 106) 129, 446

—'—applied ... 341Batala Sikh 1937 (Sen and Poddar 115) ... 116Batala Sikh case (Sen and Poddar 122) ... 446Batuk v. Surat Municipality (A.I.R. 1953 Bom. 133) ... 230Bavalal v. Jivanlal (A.I.R. 1951 Sau. 43) ... 230Bellary M. R. (1 Doabia 169) disapproved ... 199Benares and Miffapur Districts Mohammadan Rural Constitu-

ency, 193? (Sen and Poddar 154) ... 230•Reference is to the page at which the Judgment begins.

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iv ELECTION LAW REPOBTS [VOL. V

Benares-cum-Mirzapur Cities (Sen and Poddar 166) 173, 199Bengal Legislative Council case: Sinha v. B. A. Roy (2

"Doabia 368) followed ^ , : ... 199Beohar Singh Raghubir Singh v. Commissioner of Income-tax

(A.I.R. 1948 Nag. 228) ... 183Beresford Hope v. Lady Sandhurst ([1889] 23 Q.B.D. 79)

distinguished ... 199Bbagalpur North (N.M.R.) 1921 (Hammond 165) ... 81Bhola Nath v. Krishna Chandra Gupta and Others (3 E.L.R.

288) . ... 55Bihar case (Sen and Poddar 746) ... 173Bijay Singh v. Narbada Charan Lai (2 E.L.R. 426) ... 55Bishanlal v, Kisan Vithoba (A.I.R. 1937 Nag. 108) ... 21Board of Education v. Rice ([1911] A.C. 179) ... 230Bombay Central Division (M.R.) 1925 (Hammond 203) ... 81Brij Kishore Ram Sarup v. Sheo Charan Lai (A.I.R. 1938 All.

69) ... 446Brij Naresh Singh v. Thakur Hukum Singh and Others (2

E.L.R. 266) ... 129followed ... 248

Brojo Lai Sahu v. Budh Nath Pyari Lai (A.I.R. 1928 Cal.148) ... 446

Bulandshahr case (1 Hammond's E.P. 85) dissented fram ' ... 156Bulandshahr Dist. (M.R.) 1940 (Sen and Poddar 243) ... 116Bulandshahr East case (Hammond 217) ... 446Burdwan Central General Rural Constituency (Sen and

Poddar 249) ... 32?Burdwan North-East .General Rural Constituency (Sen and

Poddar 251) ... 327

Camden (Marquis) v. Inland Revenue Commissioners ([1914]1 K.B. 641) • 183

Carter v. Mills (9 C.P. 117) . ... 496Cawnpore District (N.M.R.) 1931 (Hammond 271) ... SIChander Nath v. Kunwar Jaswant Singh and Others (3 E.L.R. .

Vri47) "- ' ' - \.[ •_; ._. _-_{ '• ' • : . . , "...'; 129Cbinnappa Reddi v. Thomasu Reddi (A.I.R.-1928 Mad.

) . .. ^ _;Colonial Bank of Australasia v, Willan [(1874) 5 P.C.<417J

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E. L/E. j tABLE OF CASES CltED V

PAGECox v. Ambrose (60 L.J.Q.B. 114) • ... 417Cox v. Truscott ([1905] 69 J.P. 174) ... 417C. P. Commerce and Industry, 1927 (Hammond 279) ... 81Dartmouth case (1845) B. & Arn. 460 distinguished ... 417Davies v. Lord Kensington (L.R. 9 C.P. 720) ... 48Debi Prasad v. Mohammad Naseer and Others (3 E.L.R.

137) ' ... 55followed ... 93

Dera Ghazi Khan North Muhammadan Constituency (1.: Doabia 98) ... 327

Dilworth v. Commissioner of Stamps [1899] A.C. 99 ... 183Ebrahim Aboobakar v. Custodian General of Evacuee Pro-

perty ([1952] S.C.R. 696) 1,103,230Election Commission v. Saka Venkata Rao (2 E.L.R. 499)

followed ... 197Emperor v. Ali (5 I. C. 915) ... 183Emperor v. Savalaram Kasinath (A.I.R. 1948 Bom. 156) ... 173Enatulla Basunia v. Jiban Mohan Roy (I.L.R. 41 Cal. 956) ... 327Exeter Case (6 O'M. & H. 228) ... 496Farquharson v. Morgan ([1894] 1 Q.B. 552) ... 21Feni Muhammadan Rural Constituency (Sen and Poddar

310) 116, 327Ferozpore East (Sikh) Rural Constituency; Sardar Basant

Singh v. Sardar Rattan Singh (1 Doabia 80) 48, 129Ford v. Newth ([1901] 1 Q.B. 683) relied on ... 417Dr. K. N. Gairola v. Gangadhar Maitbani and Others (3 E.L.R.

162) followed ... 116Gajendra Chandra Chaudhuri and Others v. P. C. Datta (2

Jagat Narain 85) relied on ... 401Gian Chand v. Sriram Bansal and Others (2 E.L.R. 136)

distinguished ... 386followed ... 129

Gidwani Choithram Partabrai v. Agnani Thakurdas Chuhar-mal and Others (1 E.L.R. 194) dissented from ... 248

Gokaldas Hirjee v. Zaveri Vallabhadas Valji and Others (2E.L.R. 234) ... 129

Gdonesinha v. O.L. de*Krcster (A.I.R. 1945 P.C 83) ... 1

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VI ELECTION LAW REPO&TS (VOL.

PAGE

Goree v. Cahill (Ann. Cas. 1914 D. 549) ... 156Gosling v. Veley (16 L.J.Q.B. 201) ... 199Gurbaksh Singh v. Baldeo Singh (1 Doabia 13) ... 173

Habibgang South N.M.R. 1924 (Hammond 387) relied on ... 401Hackney case (2 O'M. & H. 77) 156, 199Hangu Mohammadan Rural Constituency (Sen and Poddar

987) ... 248Hari Shanker Bagla v. Kishan Chand Puri (Sen and Poddar

840) ,: ... 81Harish Chandra v. Rex (A.I.R. 1949 All. 15) ... 183Holden v. Southwark Corporation ([1921] 1 Ch. 550) ... 386Hoshangabad case (Hammond 407) N ... 327Hoshiarpur West, 1937 (Sen and Poddar 395) ... 173Hoshiarpur West General Constituency, 1946: S. Moola

Singh v. Ch. Mangu Ram and Others (Sen and Poddar945) ... 446

followed ... 199

Insein case, 1923 : P. D. Patel v. Maung Ba Glay and MaungKyaw Din (Hammond 411) ... 446

Institute of Patent Agents v. Lockwood ([1894] A. C. 347) ... 248Ishwari Singh v. Province of Bihar (A.I.R. 1949 Pat. 369) ... 173Islington case (5 O'M. & H. 120) ... 156Jagarinath v. Mt. Puniya (A.I.R. 1952 Madh. B. 51) ... 230Jagannath v. Pandurang and Others (4 E.L.R. 167) ... 446Jagannath Prasad v. Maheswar Dayal Seth (2 Doabia 217) ... 48Jay Dayal Madan Gopal, In re (I.L.R. 54 All. 846) ... 446Dr. John Mathai, In re (1 E.L.R. 1) ... 230Jones v. Robson ([1901] 1 Q.B. 673) ... 21Julius v. Bishop of Oxford ([1880] 5 App. Cas. 214) ... 21Kadir Bux Omer Hayat v. Bakt Behari (A.I.R. 1932 Cal.• . • 768) ... 446

Kalika Prasad v. Hayat Chand (4 E.L.R. 118) ... 353Kalyan Chandra Mohile v. Bishambhar Nath Pandey and

Others (3 E.L.R. 125) , ... 55Kanaiyalal Durllabhram Bhansali v. Popatlal Mulshankar ,-. •

• Joshiand Others (1 E.L.R. 244) ... 55followed *' ... 93

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E. L. E.] TABLE OF OASES CITED vii

PAGE

Kannabiran v. A. J. Arunachalam and Others (2 E.L.R.167) ... 446

followed . • • 386distinguished ... 129

C. M. Karale v. B. K. Dalvai and S. N. Angadi (2 JagatNarain 31) ... 446

Karnal South General Constituency Case: Pt. Mangal Ram t\Chaudhari Anant Ram (Sen and Poddar 438) 173, 199

Ker v. Kennedy [1942] 1 K.B. 409 ... 199Khan Bahadur Shah Muhammad Yahya v. Choudhry Muham-

mad Nazirul Hasan (.Sen and Poddar 549) ... 55Khilumal and Another v. Arjun Das and Others (1 E.L.R.

497) ... 55King v. Assessment Committee of the Metropolitan Borough

of Shoreditch : Ex parte Morgan ([1910] 2 K.B. 859) ... 1King v. Lincolnshire Appeal Tribunal; Stubbins, ex patte

([1917] 1 K.B. 1) ... 21

Lahore City case (1 Hammond's E.P. 148) ... 21Lahri Singh v. Attar Singh (3 E.L.R. 403) followed ... 327Lakhan Lai Mishra v. Tribeni Kumar and Others (3 E.L.R.J ... 423) dissented from ... 199Lancashire and Yorks Ry. Co. v. Knowles (20 Q.B.D. 391)... 199Lancaster Case (5 O'M. and H. 41) 55, 446Lapish v. Braithwaite ([1925] 1 K.B. 474) - ... 386Leek v. Emsom Rural District Council ([1922] 1 K.B; 383)... 417Leominster (1827) (2 Rogers 619) ..." 353Lewis v. Sb:ephardson-.([1948] 2 All. E.R. 503) ... 248Local Government Board v. Arlidge ([1915] A.C. 120) .;. 40Re London Scottish Permanent Building Society ([1893] 63

L J . Q . B . 112). ' ... 21Ludhiana Mohamniadan Rural Constituency case (Sen and

Poddar 970) ... 199Mackonochie v. Penzance ([1881] 6 App. Cas. 424) ... 21Madan Gopal v. Bhagwan Das [1888] I.L.R. 11 All. 304 ... 21Mahadev Parashram Diwan i\ Vinayak Pandhari Nath Thorat

(1 Doabia 137) ... 48Mahadev Prashad v. Emperor (223 I.C. 263) • • \ ... 173

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Vlii ELECTION LAW REPORTS [VOL. V

PAGEMaharaja Manindra Chandra Nandi v. Pravesh Chandra

Mitter (Hammond 545) ... 173Maha Ram and Others v. Emperor (A.I.R. 1918 All. 168) ... 183M.M. Mahida v. C.I. Khoda Bhai (1 E.L.R. 330) ... 230Maidstone case (Rog. 1204) distinguished ... 417Maldah North M. R. Constituency Case 1937 (Sen and

Poddar 542) ... 199Mallikarjun v. Satyanarayan. (A.I.R. 1953 Bom. 207) ... 230Manmatha Nath v. Emperor (A.I.R. 1933 Cal. 132) ... 230Marshall v. James (9 C. P. 702) ... 496Martin v. Mackonochie ([1878] 3 Q.B.D. 730) ... 21Mathra Dass v. Dara Singh (4 E.L.R. 441) 81, 496Maulvi Tahur Ahmed Choudhury v. M. Humayun Raza

Choudhry (2 Doabia 17) ... 81Ma Yon v. Ma Shwe Thin (A.I.R. 1933 Rang. 410) ... 21Menghr^ij v. Bhimandas and Others (2 E.L.R. 301) ... 230Mills i\ Walford (Sen and Poddar 75) ... 81Ex parte Milner (1851) ]5 Jur. 1037 ... 1Mohan Lai Mandal v. Radhanath Das (Sen and Poddar 388) 81Mohan Singh v. Santokh Singh (1 Doabia 192) ... 248Mohsinali v. State of Bombay (A.I.R. 1951 Bom. 303) ... 230Monghyr North M. R. 1937.(Sen and.Poddar 549) ... 173K. T. M. Muhammad Abdul Latiff Routher v. S. M. S. Sheikh

Ismail Routher (A.I.R. 1934 Mad. 9) ... 446Muhammad Zaman Khan v. Md. Sarwar Khan (Sen and

Poddar 352) ... 81Mukti Nath Rai v. Uma Shankar Misra and Others (3 E.L.R.

109) ... 55followed ... 93

Multan Division Towns (Mohammadan) Constituency (No. 2):Syed Zain-ul-Abdin Shah v. Khan Sahib Sheik Muham-mad Amin (2 Doabia 302) 48, 129

Nagjibhai v. Mithabhai (1 E.L.R. 162) 199, 446Naranarayan Goswami v. H. D. Chaudhury and Others (2

E.L.R. 253) ... 248Naranjan Singh v. Brish Bhan and Others (3 E.L.R. 179) ... 449

followed ... 93

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E. L. R.] TABLE OF CASES CITED ix

PAGENawabshah South Muhammadan Rural Constituency (Sen

and Poddar 620) 116,327Nazamuddin v. Queen (I.L.R. 28 Cal. 344) ... 401Nimar M. R. Case (Sen and Poddar 625) ... 496Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho

(A.I.R. 1948 Cal. 294) ... 183North Meath Case (4 O'M. and H. 185) ... 55Nrisinha Kumar v. Returning Officer (1 E.L.R. 23) ... 230Nural Islam v. Muhammad Rafique and Others (2 E.L.R.

70) 248, 496Nutton v. Wilson (22 Q.B.D. 747) ... 386O'Carroll v. Hastings (1905) 2 I.R. 590 ... 417Panchanathan Pillai In re (I.L.R. 52 Mad. 529) ... 183Pandurang v. Ramachandra (A.I.R. 1930 Bom. 554) ... 21Pantam Venkayya, In re (I.L.R. 53 Mad. 44) relied on ... 417Parry & Co.. Ltd. v. C. E. Association, Madras (A,I.R. 1952

S. C. 179) 1, 103, 230Patna West N. M. R. (Hammond 521)followed ... 199Pearse v. Morrice [1834] 2 A. & E. 84, 96 ... 248Pembroke election petition (1908) 2 I. R. 433 ... 248K. Perumal Mudaliar v. Province of Madras (A.I.R. 1950

Mad. 194) ... 446Phillips v. Goft (17 Q.B.D. 812) ... 248Piarelal v. Bagwandas (A.I.R. 1933 All. 295) ... 21Piarey Lai v. Munshi Amba Prasad (4 Jagat Narain 4 : Ham-

mond 29) ... 446Ponnuswami v. Returning Officer, Namakkal (1 E.L.R. 133 ;

[1952] S.C.R. 218) 1, 40, 173, 183, 230, 248, 341Prabhudas Ramjibhai Mehta v. Lallubhai Kishordas Maniar

(1 E.L.R. 154) ... 386T. Prakasam v. U. Krishna Rao and Others (2 E.L.R. 54) ... 55

followed ... 93Prem Nath v. Ram Kishan (1 E.L.R. 271) ... 129President, Union Board, Alandur v. Balakrishna Reddiar

(A.I.R. 1932 Mad. 508) ... 173Pritam Singh v. Charan Singh and Others (2 E.L.R. 276)

dissented from -•>

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X ELECTION LAW EEPOETS [VOL. V

PAGEPunjab Anglo-Indian Constituency (No. 1): E. Few v. C. E.

Gibbon (1 Doabia 247) 129, 408Punjab Anglo-Indian Constituency (No. 2): S. R, Lewis v.

C. E. Gibbon (1 Doabia 259) ... 129Purshottamdas Ranchoddas Patel v. Shantilal Girdharilal

Parekh (1 E.L.R. 223) ... 55followed ... 93

Queen v. Arayi (I.L.R. 7 Madras 17) ... 401Queen v. Mathura Prasad (I.L.R. 21 All. 127) ... 401

R. v. Income Tax Special Purposes Commissioners [(1888)21 Q.B.D. 313] ... 1

R. v. Loxdale [1758] 1 Burr. 445 ... 248R. v. Northumberland Compensation Appeal Tribunal ([1951]

1 All E. R. 268) ... 1R. v. Northumberland Compensation Appeal Tribunal

([1952] 1 All. E.R. 122) ... 103Raj Bahadur v. Emperor (A.I.R. 1947 All. 105) ... 173Rajit Ram v. Kateshar Nath (I.L.R. 18 All. 396) 21, 55, 446Ramachandra Annaji Khevgikar v. Shiv Vishal Singh Harpal

Singh (1 Doabia 211) ... 48Ramachandran Nair v. Ramachandra Das and Others (1

E.L.R.442) 55, 446Ram Das v. Ram Babu (158 I. C. 25) ... 446Ratilal Abhechand v. Custodian General of Evacuee Property

(A.I.R. 1952 Sau. 112) ... 230Razzar M. R. Case (Sen and Poddar 716) ... 446Reg. v. James Bolton [1841] (1 Q.B. 66) ... 1Reg. v. St. Olave's Board of Works [(1857) 8 El. & B1.529]... 1Rex v. North ; Ex parte Oakey ([1927] 1 K. B. 491) ... 21Re Ripon Housing Order ([1939] 2 K.B. 838) ... 183Royse v. Birley [(1869) 38 L.J. C.P. 203] 353, 417

Sadanand Pyne v. Harinam Sha (A.I.R. 1950 Cal. 179) ... 55Sarafally Mamooji, In the matter of (I.L.R. 34 Bom. 659) ... 1Sardar Gurbaksh Singh v. Sardar Baldeo Singh (1 Doabia 13) 48Sardar Harcharan Singh v. Sardar Narottam Singh (1 Doabia

77) ... 48A. R. Sarin v. B. C. Patil (A.I.R. 1951 Bom. 423) ... 230

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E. L, B.] TABLE OF CASES CITED xi

PAGESatyendra Kumar Das v. The Chairman of the Municipal

Commissioners of Dacca (I.L.R. 58 Cal. 180) 353, 446Secretary of State v. Mask & Co. (A.I.R. 1940 P.C. 105) ... 1Seodoyal Khemka v. Joharmull Manmull (I.L.R. 50 Cal. 549) 446Seshaiah v. Koti Reddi (3 E.L.R. 39) ... 353Seturatnam Aiyar v. Venkatachala Goundar (I.L.R. 43 Mad.

567) ... 173Shahabad Mohammadan Rural Constituency 1946 : Manjoor

Husain v. Gholam Mohiuddin (Sen and Poddar 746) 173, 199Shankari Prasad Singh Deo v. Union of India ([1952] S.C.R.

89; A.I.R. 1951 S.C. 458) ... 40Shankar Nana Saheb v. Returning Officer, Kolaba (1 E.L.R.

13) ... 230Shankar Nanasaheb Karpe v. Maruti Sitaram Sawant and

Others (1 E.L.R. 302) distinguished ... 319Shankar Rao v. State of Madhya Bharat (1 E.L.R. 34) 1, 230Shyam Chandra Basak v. Chairman, Dacca Municipality

(I.L.R. 47 Cal. 524) ... 156Sitapur District (East) General Rural Constituency: Babu

Jagan Nath Prasad v. Raja Maheswar Dayal Seth (2Doabia217) ... 129

Sitaram Hirachand v. Yograjsingh Shankarsingh (2 E.L.R.283) ... 103, 173

followed ... 116Sochet Singh v. Thakar Singh and Others (3 E.L.R. 102)

followed ... 93The State of Orissa v. Madan Gopal Rungta ([1952] S.C.R.

28) ... 183Stepney Case(4 O'M. and H. 34) ... 417Strause & Co., Ltd., In re (A.I.R. 1937 Bom. 16) ... 183K. Subrahmanyam v. Abdul Hameed Khan and Others (1

E.L.R. 432) followed ... 93Sukar Gope v. State of Bihar (1 E.L.R. 68) ... 40

Tebbe v. Smith (1895) 49 Am. St. Rep. 68 ... 156Thakur Udaya Vir Singh v. Raj Kumar Singh (Hammond 56) 48Theberge v. Laudry [1875] 2 A.C. 102 ... 40Thompson i>. Pearce (129 E.R. 632) ... 386

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Xii ELECTION LAW REPORTS [VOL. V

PAGEThornbury (16 Q.B.D. 746) ... 248Trade Union Labour (North Western Railway Union) Cons-

tituency, 1946: R.S. Ram Jawaya Kapur v. R.B. GangaSaran and Others (Sen and Poddar 823) ... 446

-dissented from ... 156Trantor v. Astor (33 T.L.R. 383) ... 353United States v. Classic (85 L.Ed. 1368) ... 341Veerappa Pillai v. Raman and Raman Ltd. (A.I.R. 1952 S.C.

192) 1, 230Vijaya Mohan Reddy v. Paga Pulla Reddy and Others (2

E.L.R. 414) 129,446Wamanrao Deorao v. Shrikumar Jaikumar and Another (A.I.R.

1946 Nag. 42) ... 183Wasawa Singh v. Waryam Singh and Others (2 Doabia 263) 173Woodward v. Sarsons (L.R. 10 C.P. 733) ... 248Worthington v. Jaffries ([1875] L.R. 10 C.P. 379) ... 21

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ELECTION LAW REPORTSVOLUME V.

[MADHYA BHARAT HIGH COURT.]

JAMNA PRASAD MUKHARIYAv.

LACHHIRAM RATANLAL JAIN AND OTHERS.SHINDB, C. J., and DIXIT J.

March 9, 1953.Election Tribunal—Jurisdiction of High Court to interfere with

decisions of Tribunal—Recrimination—Conditions—Presentation ofnotice to member of Tribunal—Validity—" Trial", when commences—Representation of the People Act, 1951, ss. 86(5), 97, 105—Constitution ofIndia, arts. 236, 227, 329(b).

Though it is not open to the High Court to exercise its powersunder article 226 or article 227 of the Constitution so as to interferewith a decision of an Election Tribunal merely upon the ground thatthe decision is erroneous either in respect of facts or in point of law,it has the power to examine and correct any decision of the Tribunalon the ground of jurisdiction, fraud or violation of the principles ofnatural justice.

An Election Tribunal has jurisdiction to determine finally whethera person desiring to give evidence under section 97 of the Eepresenta-tion of the People Act, 1951, has or has not satisfied the conditions laiddown in section 97 and, even though the Tribunal has arrived at anerroneous decision on this question, it cannot be held that the -decisionwas made without jurisdiction or that the Tribunal gave itself, or depriveditself of, jurisdiction by the wrong decision, and the High Court cannot,therefore, interfere with the decision of the Tribunal under article 226 or227 of the Constitution merely because the decision was erroneous.

Under section 86(5) and section 97 of the Act a notice of recrimina-tion to the Tribunal in order to be valid must be given to the Chairmanby presenting the notice personally or by sending it by registered postso as to reach him within time in the ordinary course of post. The pre-sentation of the notice to a member of the Tribunal who was notauthorised either by the Act, or by the Chairman himself, to receive thenotice would not be a valid presentation.

The " t r ia l" of an election petition commences when, after the filingof a reply thereto and of a recriminatory petition, if any, the pointsin controversy between the parties are settled and their investigationbegins,

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2 JAMNA PRASAD V. LAOHHIRAM RATANLAL JAIN [VOL. V

Shankar Bao v. State of Madhya Bharat (A.I.E. 1952 Madh. B. 97),Ponnuswami v. Returning Officer, Namahkal (A.I.E. 1952 S.C. 64), B. v.Northumberland Compensation Appeal Tribunal [(1951) 1 All E. R. 268],Colonial Bank of Australasia v. Willan [(1874) 5 P.O. 417], Secretary ofState v. Mask & Co. (A.T.E. 1940 P.O. 105), Goonesinha v. 0. L. deKretser (A.I.E. 1945 P. C. 83), King v. Assessment Committee of theMetropolitan Borough of Shoreditch; Ex parte Morgan [(1910) 2 K.B.859), Parry & Co., Ltd. v. Commercial Employees' Association, Madras(A.I.E. 1952 S.C. 179), Veerappa Pillai v. Baman and Banian Ltd.(A.I.E. 1952 S.C. 192), Ebrahim Aboobakar v. Custodian General ofEvacuee Property, New Delhi (A.I.E. 1952 S.C. 319), B. v. Income TaxSpecial Purposes Commissioners [(1888) 21 Q.B.D. 313), Beg v. JamesBolton [(1841) 1 Q.B. 66), Beg v. St. Olave's Board of Works [(1857)8 El. & Bl. 529], Sarafally v. Mamooji, In the matter of (34 Bom. 659)and Ex parte Milner [(1851) Jur. 1037] referred to.

MISCELLANEOUS CASE NO. 2 of 1953. Application underarts. 226 and 227 of the Constitution of India for a writto quash an order of the Election Tribunal of Gwalior.

Anand Bihari Misra, for the petitioner.Shivdayal, for the respondent No. 1.K. A. Chitaley (Advocate-General), amicus curia e.

ORDER.

DIXIT J.—This is an application under articles 226 and227 of the Constitution of India for an order to quash adetermination of the non-applicant Tribunal, whereby itdetermined that as the applicant had failed to give to theTribunal a notice of his recriminatory petition within theprescribed time, he was not entitled to give evidence insupport of it, and for a direction to the Tribunal to receivethe evidence that may be tendered by the applicant to provethat the election of the opponents Ramsahai and Sunnulalwould have been void if they had been the returned candi-dates and a petition had been presented calling in questiontheir election.

The matter for our consideration arises in this way.At the general elections of the Madhya Bharat StateAssembly held in January, 1952, seven persons were nomi-nated as candidates for election to fill two seats in theBhelsa constituency. The applicant Jamnaprasad and thenon-applicant No. 7, Chaturbhuj, were declared duly elected.A petition was shortly afterwards lodged with the Election

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Commission under section 81, Representation of the PeopleAct, 1951,(hereinafter referred to as "the Act") by one of theunsuccessful candidates, namely, Lachhiram, opponent No. 1,praying for a declaration that the election of the returnedcandidates was void and that the non-applicants Ramsahaiand Sunnulal have been duly elected. The: election peti-tion is being tried by a Tribunal consisting of Mr. Dongre,the District Judge of Dhar as the Chairman, andMr. Surajbhan, the District Judge of Gwalior, andMr. Bhagwan Swaroop, an advocate of the Court, as mem-bers of the Tribunal.

On the publication of the election petition under section90 of the Act in the Official Gazette of 21-8-1952, theapplicant Jamnaprasad gave notice to the Tribunal of hisintention to lead evidence to prove that the election ofRamsahai and Sunnulal would have been void if theyhad been the returned candidates, by presenting beforeMr. Surajbhan—a member of the Tribunal—at Gwalior arecriminatory petition addressed to the Chairman of theTribunal. The recriminatory petition was filed on 4-9-1952.Mr. Surajbhan received it and then forwarded it toMr. Dongre, the Chairman of the Tribunal, by registeredpost. Mr. Dongre received the notice on 11-9-1952. Atthe hearing of the election petition the non-applicantLachhiram took the objection that the recriminatory peti-tion had not been presented within time to the properauthority, namely, the Chairman of the Tribunal. There-upon the Tribunal framed an issue as to whether the noticeof recrimination under section 97 of the Act had beenpresented to the proper authority within time.

After hearing the parties on this issue, the Tribunal cameto the conclusion that, as under the proviso to section 97read with section 86(5) of the Act, notice of recriminationwas required to be given to the Chairman of the Tribunalwithin fourteen days from the date of publication of theelection petition under section 90, the presentation on4-9-1952 of the recriminatory petition by the applicantJamnaprasad to Mr. Surajbhan, a member of the Tribunal,did not constitute a valid notice to the Chairman of theTribunal and that when the notice was received on11-9-1952 by the Chairman by registered post, the timelimit prescribed in the proviso to section 97 for givingnotice had already elapsed. The Tribunal, therefore, did

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not permit the applicant to give any evidence in support ofhis recriminatory petition.

In this petition, challenging the correctness of thedecision of the Tribunal, the applicant states that, inasmuchas the trial of an election petition commences when it ispresented to the proper authority and as the giving of anotice to the Tribunal under section 97 of the Act is amatter to be done after the commencement of the trial, sub-section (5) of section 86 cannot be applied in construingthe meaning of the word 'Tribunal' used in section 97; thatin relation to section 97 'Tribunal' means the Chairman andall the members of the Tribunal; that when a copy of theelection petition was served on the applicant under section90, the applicant was also given a notice in writing thatthe petition would be heard on 13-10-1952 at 11 a.m., inGwalior in the Court room of the District Judge, Gwalior,and that he should appear on this date either in personor through his pleader and file his reply to the petition onor before the date of hearing and that in the event ofthere being a change in the place of the trial the applicantwould be able to obtain the necessary information from theCourt of the District Judge, Gwalior; that after the receiptof this notice there was no change in the place of the trial;that on 4th September, 1952, Mr. Surajbhan, one of themembers of the Tribunal, alone was in the Court of DistrictJudge in Gwalior, and the Chairman and the other memberswere not to be found in Gwalior; and that in thesecircumstances the recriminatory notice presented beforeMr. Surajbhan, on 4th September, 1952, should be " con-sidered to have been validly presented to the properauthority ". The applicant's grievance is that the Tribunalhas acted without jurisdiction in deciding that the noticeof recrimination was not given in time to the properauthority and that " in passing the impugned order theTribunal has failed to exercise jurisdiction vested in it".

In the returns filed on behalf of the non-applicants,Lachhiram and Ramsahai, the petition is opposed, firstly onthe ground that under article 329 (b) of the Constitutionthe Election Tribunal has exclusive jurisdiction to deter-mine whether a notice of recrimination has or has not beenvalidly given and that, therefore, the decision of theTribunal on merits cannot be challenged before this Courtunder article 226 and article 227 of the Constitution of

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India. Secondly, it is stated that on merits the decision ofthe Tribunal is in accordance with law ; that under section86(5) of the Act, the Chairman of the Tribunal is deemedto be the 'Tribunal' as respects any matter to be donebefore the commencement of the trial and as the receipt ofthe notice of recrimination is a matter anterior to a trialwhich commences in law only at the stage where the exami-nation and determination of a cause is undertaken by aTribunal, the notice presented by the applicant toMr. Surajbhan was not a valid notice to the Tribunal; thatthe applicant was fully aware of the fact that the office ofthe Chairman of the Tribunal was in Dhar ; and that thefact that the applicant was informed that the electionpetition would be heard in Gwalior was not relevant indetermining the place where matters required to be donebefore the commencement of the trial should be done.

The first question that this case raises is of someimportance. It is whether this Court can enquire into thevalidity and correctness of the proceedings or orders of theElection Tribunal constituted under the Representation ofthe People Act, 1951. The question turns upon theconstruction of article 329 (b) of the Constitution andsection 105 of the Act. Article 329 (b) is :

" Notwithstanding anything in this Constitution, noelection to either House of Parliament or to the House oreither House of the Legislature of a State shall be called inquestion except by an election petition presented to suchauthority and in such manner as may be provided for byor under any law made by the appropriate Legislature. "

Section 105 of the Act is as follows:" Every order of the Tribunal made under this Act,

shall be final and conclusive."The meaning and scope of article 329 (b) has been

explained by the various High Courts including this Court,and the Supreme Court in cases where nomination papersof candidates seeking election were rejected by the return-ing officers. I am not going to refer to all these cases. ButI should like to refer to this Court's decision in ShankarRao v. State of Madhya Bharat^), and to the decision ofthe Supreme Court in Ponnuswami v. Returning Officer,Namahkal^). In the first case a Full Bench of this Courtheld that article 329 (b) of the Constitution means that

(1) 1 E.L.R. 34. (2) 1 E.L.R. 133; [1952] S.C.R. 218,

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notwithstanding anything contained in articles 225, 226,227 and 228 and other articles of the Constitution, noelection can be called in question by invoking the powers ofthe High Court under these articles and that the word'elec-tion' in article 329 (b) means the whole procedure wherebya person is elected to the Parliament or to the State Legis-lature in accordance with the provisions of the Act, andthat the acceptance or rejection of a nomination paperforms a part of the election. It was also observed by thisCourt that sections 105 and 170 of the Act did not bythemselves in any way affect the jurisdiction of the HighCourt under article 226 or article 227 and that the juris-diction of the High Court to enquire under articles 226 and227 into the validity of any election was taken away notby the Act, but by article 329 itself.

In the case of Ponnuswami the Supreme Court alsoheld that the word 'election' had been used in Part XV ofthe Constitution in the wide sense, that is to say, to con-note the entire procedure to be gone through to return acandidate to the Legislature; that article 329 (b) ousted thejurisdiction of the Court in regard to electoral matters andwas enacted to lay down the only mode in which an electioncould be challenged and to provide that any matter whichhas the effect of vitiating an election should be brought uponly at the appropriate stage in an appropriate mannerbefore a special Tribunal and should not be brought up atan intermediate stage before any Court. It is thus plainfrom the meaning put by the Supreme Court on the word'election' that article 329 (b) excludes the jurisdiction ofthe Courts with regard to matters forming a part of thewhole procedure whereby a candidate is returned to theLegislature.

The learned Advocate-General appearing as amicuscuriae suggested that the words " notwithstanding any-thing in this Constitution" and the words "in suchmanner as may be provided for by or under any law madeby the appropriate Legislature " must be read as meaningthat the jurisdiction of the High Court is taken away notonly with regard to matters forming a part of the wholeprocedure whereby a candidate is returned but also inregard to the proceedings and orders of the ElectionTribunal set up under the Act, to try an election petitioncalling in question an election. As I understood him, he

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said that, as the Constitution created the right of calling inquestion an election and prescribed a remedy under astatute specially enacted for enforcing that right, thatprocedure and remedy and no other must be followed;that if, therefore, the special statute, namely, the Represent-ation of the People Act, 1951, provides that every orderof the Tribunal made under the Act shall be final andconclusive, then this Court has no power under article 226or article 227 to determine whether the order of theTribunal is valid or correct.

It is quite true that the words " notwithstanding any-thing in this Constitution " which occur in article 329 (b)override all other provisions of the Constitution. But itappears to me that the argument of the learned Advocate -General does not give due weight to the words " election "and '' by an election petition " which occur in article 329 (b).The words "in such manner as may be provided for by orunder any law made by the appropriate Legislature " onwhich the learned Advocate-General laid considerablestress have to be read with the preceding words " exceptby an election petition presented to such authority ". Theeffect of article 329 (b) is that so far as calling in questionany election is concerned, it can be done only " by anelection petition" and by presenting it to "such authority"and " in the manner" prescribed by a law of the appropriateLegislature. The word 'election' must now be read in thesense indicated by the Supreme Court in the case ofPonnuswami^).

It is no doubt true that the Supreme Court explainedthe meaning of the word 'election' while dealing with thequestion whether rejection of a nomination paper is a partof election. But there is nothing in the decision of theSupreme Court to justify the view that the word 'election'would include proceedings and orders of an ElectionTribunal and that " calling in question an election " couldcover calling in question the working of the machinery setup for " calling in question an election". There is, how-ever, a strong probability that very different languagewould have been used by the Constituent Assembly if'election' as used in article 329 (b) had been intended tobear what I cannot help calling the artificial meaning forwhich the learned Advocate-General contends,

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The learned Advocate-General drew our attention to theobservation of the Supreme Court in the case of Ponnu-swami, that the words " notwithstanding anything in thisConstitution " give to article 329 (b) " the same wide andbinding effect as a statute passed by a sovereign Legis-lature like the English Parliament " and said that inasmuchas the Representation of the People Act is the law con-templated in article 329 (b), section 105 of that Act mustbe taken to have the same binding effect so as to excludethe jurisdiction of this Court to question the validity ofproceedings and orders of the Election Tribunal. As I readthe observation which is to be found at the end of para-graph 14 of the judgment of the Supreme Court in thecase of Ponnuswami, I think it refers to the bindingeffect of the provisions of article 329 (b) and not to thebinding effect of any law contemplated by it. In thatobservation their Lordships of the Supreme Court did notimport that the Representation of the People Act, 1951,had also the same binding effect " as a statute passed bya sovereign Legislature like the English Parliament".Even assuming that the Representation of the People Act,1951, has the binding effect suggested by the learnedAdvocate-General, I do not think that the provision insection 105 of the Act, that " every order of the Tribunalmade under the Act shall be final and conclusive " can betaken as preventing this Court from setting aside a deci-sion of the Tribunal given without or in excess of itsjurisdiction.

In this connection I need only refer to what Lord God-dard, C. J., has said with regard to statutes passed by theEnglish Parliament making the decisions of a Court orindividual or a statutory authority final and conclusive, inR. v. Northumberland Compensation Appeal Tribunal^).

" Many statutes have taken away certiorari in respectof the matters with which those statutes have dealt, butthat never debarred the Court from granting certiorari if itwas a question of jurisdiction. If an inferior Court hadwrongly given itself jurisdiction, certiorari would lie toquash its order, because it had no jurisdiction to make it.The taking away of ceriorari by statute no doubt preventedthe Court from inquiring into what I may call the merits

(1) [1951] 1 All E. R. 268 at p. 273,

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of the determination, but it did not prevent the Court frominquiring whether or not the inferior Court had any juris-diction to make the order. Many cases are found in thereports where certiorari had been taken away, the statuteproviding that the decision of the inferior Court was ngt tobe removed into any Court by writ of certiorari or other-wise, and yet the Courts granted certiorari in respect ofthose very matters on the ground of jurisdiction. "

The proposition that where a statute lays down thatorders made or proceedings taken under it shall be finaland conclusive, the finality cannot be attached to proceed-ings and orders coram non judice also follows from thedecisions of the Privy Council in Colonial Bank ofAustralasia v. Willan^), and in Secretary of State v. Mask &Co.(2). In the former case, Sir James Colville, in deliveringthe judgment of the Privy Council, pointed out that:

" There are numerous cases in the books which establishthat, notwithstanding the private clause in a statute, theCourt of Queen's Bench will grant a writ of certiorari,but some of those authorities establish, and none areinconsistent with the proposition that in any such case thatCourt will not quash the order removed, except upon theground either of a manifest defect of jurisdiction in theTribunal that made it, or of manifest fraud in the partyprocuring it ."

In Secretary of State v. Mask & Co. (2), the PrivyCouncil observed as follows :

'* It is settled law that the exclusion of the jurisdictionof the Civil Courts is not to be readily inferred, but thatsuch exclusion must either be explicitly expressed or clearlyimplied. It is also well settled that even if jurisdiction is soexcluded the Civil Courts have jurisdiction to examine intocases where the provisions of the Act, have not beencomplied with, or the statutory Tribunal has not acted inconformity with the fundamental principles of judicialprocedure. "

I am, therefore, inclined to think that while it wouldnot be open to this Court to exercise its powers underarticle 226 or article 227 so as to interfere with a decisionof the Tribunal merely upon the ground that the decisionis erroneous either in respect of facts or in point of law,

(1) (1874) 5 P.C. 417. (2) A-I.R. 1940 P.C, 105,

PL—2

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this Court has the power to examine and correct any deci-sion of the Tribunal on the ground of jurisdiction, fraud orviolation of the principles of natural justice. Indeed, the*learned Advocate-General, though at first he was disposedto say that the jurisdiction of this Court under article 226or article 227 of the Constitution to review a decision of theTribunal was completely barred, conceded later on thatthis Court was not prevented from inquiring whether ornot the Tribunal had any jurisdiction to make the orderchallenged.

During the course of their arguments the learnedAdvocate-General and Mr. Shivdayal, learned counsel forthe opponent Lachhiram, contended that a writ in the natureof certiorari could not be made in respect of an order passedby the Election Tribunal as it was not an inferior Tribunal.Learned counsel relied especially on the fact that under sec-tion 86 of the Act a Judge of a High Court could be appointeda Chairman of the Tribunal and on the Privy Council deci-sion reported in Goonesinha v. 0. L. de Krester (x).There is no force in the contention that the Election Tri-bunal is not an inferior Tribunal. The Tribunal is acreature of the Representation of the People Act and itsjurisdiction is strictly controlled by the Act which bringsit into existence. It has to function within the four cor-ners of the Act. It is a Tribunal of limited jurisdictionand authority. That being so, it is clearly a Tribunalinferior to a Court of general jurisdiction. It may bementioned that the expression " inferior Court " came intouse as a means to distinguish between the superior Courtand other Courts over which the superior Court exercisesa supervisory jurisdiction by writs of mandamus, certiorarior prohibition or other writs, but the expression is nowused to denote Courts of special or limited authority cons-tituted " on such principles that their proceedings mustshow jurisdiction." The inferior or superior character ofa Court or Tribunal is not determined by the position orthe status of the persons constituting it. It depends onthe powers and jurisdiction conferred on the Tribunal orthe Court by the statute establishing it. On the questionof the subordination of all the Tribunals of limited juris-diction to the High Court, there is a significant decision of

(1) A.I.R, 1945 P.C, 83

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the King's Bench Division in The King v. AssessmentCommittee of the Metropolitan Borough of Shoreditch; ExparteMorganQ). Farwell L. J. observed as follows at page 880 :

" The existence of the provisional list is a conditionprecedent to their jurisdiction to hear and determine, andas the claimant is entitled to require them to hear anddetermine, they cannot refuse to take the steps necessaryto give rise to such jurisdiction; if they do, their refusalmay be called in question in the High Court. No Tribunalof inferior jurisdiction can by its own decision finallydecide on the question of the existence or extent of suchjurisdiction: such question is always subject to review bythe High Court, which does not permit the inferior Tribu-nal either to usurp a jurisdiction which it does not possesswhether at all or to the extent claimed, or to refuse toexercise a jurisdiction which it has and ought to exercise.Subjection in this respect to the High Court is a necessaryand inseparable incident to all Tribunals of limited juris-diction for the existence of the limit necessitates anauthority to determine and enforce i t : it is a contradictionin terms to create a Tribunal with limited jurisdiction andunlimited power to determine such limit at its own willand pleasure—such a Tribunal would be autocratic, notlimited—and it is immaterial whether the decision of theinferior Tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact;a Court with jurisdiction confined to the city of Londoncannot extend such jurisdiction by finding as a fact thatPiccadilly Circus is in the ward of Chepe."

In our country, having regard to the provisions ofarticles 226 and 227 of the Constitution, the High Courtmust be regarded as a superior Court to whom all Tribunalsof limited jurisdiction are subordinate. The Privy Councildecision reported in Ooonesinha v. 0. L. de Kretser (2) isnot an authority for the proposition that where a Judge ofthe High Court is the chairman or a member of the.Tribunalthen the Tribunal becomes a superior Court to whom anothersuperior Court cannot issue a writ of certiorari. In that casethe Privy Council affirmed an order of the Chief Justice ofthe Supreme Court of Ceylon refusing to issue a writ of cer-tiorari, to quash an order passed by a Judge of the

(1) [1910] 2 K, B. 859. (2) A.I.R, 1945 P,C. 83,

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Supreme Court as the Election Judge on the ground thatthe order was passed by the Election Judge as a Judge ofthe Supreme Court and that the cognizance of electionpetition was under an Order-in-Council an extension of,or addition to, the ordinary jurisdiction of the SupremeCourt. The Ceylon case is not in point here.

This brings me to the question whether the Elec-tion Tribunal had jurisdiction to hold that the notice ofrecrimination given by the petitioner was not presented intime to the proper authority and whether by so holding theTribunal gave itself jurisdiction which it did not possess ordeprived itself of jurisdiction which had been entrusted toit by the Act. Learned counsel for the petitioner made noattempt to show how the decision of the Tribunal whichhe was attacking was without jurisdiction or how by thatdecision the Tribunal assumed a jurisdiction which it didnot possess. He, however, urged that the Tribunal haddivested itself of jurisdiction by a wrong decision. Thelearned Advocate-General, and Mr. Shivadayal who adopt-ed the arguments of the Advocate-General, relying on theSupreme Court's decisions in Parry 6s Co., Ltd. v. Com-mercial Employees'' Association, Madras!^), Veerappa Pillai v.Raman and Raman Ltd.(2) and Ebrahim Aboobakar v. Custo-dian General of Evacuee Property, New Delhi (3), contendedthat the question whether the applicant had or had notpresented in time the notice of recrimination to the properauthority was not a matter of jurisdiction of the Tribunaland that, therefore, even if the Tribunal's decision waserroneous it could not be said that it was made withoutjurisdiction or that by that decision the Tribunal assumed ajurisdiction not given to it or refused to exercise the juris-diction vested in it.

When one considers the provisions of section 97 ofthe Representation of the People Act, it seems plain thatthe contention put forward on behalf of the applicant isuntenable. Under that section the returned candidate orany other party after fulfilling certain conditions is entitledto give evidence to prove that the election of a particularcandidate would have been void if he had been the return-ed candidate and a petition had been presented calling inquestion his election. The conditions are: that the returned

(1) A.I.R. 1952 S.C. 179, (2) A.I.R. 1952 S.C. 192. (3) A.I-R, 1952 S.C, 319,

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candidate or such other party must give a notice to theTribunal of his intention to give evidence within fourteendays from the date of publication of the election petitionunder section 90 ; he must also give the security referredto in sections 117 and 118 ; and the notice must be accom-panied by the statement and list of particulars required bysection 83 in the case of an election petition and the noticemust be signed and verified in like manner. The questionwhether the notice is to the Tribunal or whether it hasbeen given in the proper form and within the time pres-cribed or whether the security has been furnished are allmatters for the decision of the Tribunal. The jurisdictionof the Tribunal to decide these questions is inherent in itsvery constitution as an Election Tribunal under the Act.It cannot, therefore, be maintained that the decision of theTribunal on these questions is one without jurisdiction.

Now, it must be remembered that the questions whetherthe notice is in proper form, or to the proper authorityand within the prescribed time, are a part of the very issuewhich the Tribunal has to decide in seeing whether thereturned candidate or any other party concerned is entitledto give evidence. They are not what have been calledcollateral facts which have to be decided first by the Tri-bunal to enable itself to obtain jurisdiction before itproceeds to decide any main issue or to decide whetherit shall or shall not do certain things. Having decidedthat the party desiring to give evidence has fulfilled theconditions laid down in section 97 of the Act, the Tribunalis not required to take any further decision. If the partyconcerned has satisfied those conditions, then the Tribunalin exercise of the jurisdiction conferred on it under sec-tion 90 of the Act records such evidence as may be tenderedby that party. If on the other hand the party has failedto observe the preliminaries referred to in section 97 thenhe is not entitled to give any evidence. The right of thereturned candidate or any other party to give evidenceunder section 97 of the Act is no doubt conditioned bycertain requirements. But the jurisdiction of the Tribunalin no way depends on the existence of any of the factsstated in section 97. It may seem rather a fine distinctionbut I think there is a distinction between a jurisdictionwhich is in fact limited by certain requirements, and a case

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in which a person having satisfied certain conditions be-comes entitled to do or not to do a particular thing. Inthe latter case the question whether the person has or hasnot fulfilled certain conditions is part of the very issue whichthe Tribunal has to decide when the person claims theright to do a particular thing and the decision of the Tri-bunal on those questions is not one which goes to itsjurisdiction.

In B. v. Income Tax Special Purposes Commissioners^),which is the leading case usually cited on this question,Lord Esher M. R. stated the law in this way :

" When an inferior Court or Tribunal or body, whichhas to exercise the power of deciding facts, is first esta-blished by Act of Parliament, the legislature has to consi-der what powers it will give that Tribunal or body. Itmay in effect say that, if a certain state of facts exists andis shown to such Tribunal or body before it proceeds to docertain things, it shall have jurisdiction to do suchthings, but not otherwise. There it is not for themconclusively to decide whether that state of facts exists,and, if they exercise the jurisdiction without its existence,what they do may be questioned, and it will be held thatthey have acted without jurisdiction. But there is anotherstate of things which may exist. The legislature mayentrust the Tribunal or body with a jurisdiction, which in-cludes the jurisdiction to determine whether the prelimi-nary state of facts exists as well as the jurisdiction, onfinding that it does exist, to proceed further or do some-thing more. When the legislature are establishing such aTribunal or body with limited jurisdiction, they also haveto consider, whatever jurisdiction they give them, whetherthere shall be any appeal from their decision, for other-wise there will be none. In the second of the two cases Ihave mentioned it is an erroneous application of the for-mula to say that the Tribunals cannot give themselvesjurisdiction by wrongly deciding certain facts to exist,because the legislature gave them jurisdiction to determineall the facts, including the existence of the preliminaryfacts on which the further exercise of their jurisdictiondepends ; and if they were given jurisdiction so to decide,without any appeal being given, there is no appeal fromsuch exercise of their jurisdiction."

(1) (1S83) 21 Q, B. D, 313 at p, 319,

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Again in the Privy Council case Colonial Bank ofAustralasia v. Willan (*), after observing that absence ofjurisdiction may be founded either on the character andconstitution of the Tribunal or upon the nature of thesubject matter of the inquiry, or upon certain proceedingswhich have been made essential preliminaries to theinquiry, or upon a fact or facts to be adjudicated upon inthe course of inquiry, Sir James Colville proceeded to' say :

" Objections founded on the personal incompetencyof the Judge, or on the nature of the subject matter, oron the absence of some essential preliminary, mustobviously, in most cases, depend upon matters which,whether apparent on the face of the proceedings orbrought before the superior Court by affidavit, are extrinsicto the adjudication impeached. But an objection thatthe Judge has erroneously found a fact which, thoughessential to the validity of his order, he was competent totry, assumes that, having a general jurisdiction over thesubject matter, he properly entered upon the inquiry butmiscarried in the course of it. The superior Court cannotquash an adjudication upon such an objection withoutassuming the functions of a Court of appeal, and thepower to retry a question which the Judge was competentto decide. Accordingly the authorities of which Reg v.James Bolton (2) and Reg v. St. Olaves Board of Works(3),may be taken as examples, establish that an adjudi-cation by a Judge having jurisdiction over the subjectmatter is, if no defects appear on the face of it, to betaken as conclusive of the facts stated therein, and thatthe Court of Queen's Bench will not on certiorari quashsuch an adjudication on the ground that any such fact,however essential, has been erroneously found."

These cases have been applied by the SupremeCourt in Ebrahim Aboobakar's case (4) and Parry & CoSscase (5), and also by other High Courts in several cases.The law to be gathered from the Supreme Court's decisionsrelied upon by the opponents and especially from theEnglish cases referred to above, is that if a certain state offacts has to exist before an inferior Tribunal has

(1) (1874) 5 P. C. 417. (4) A.I.R. 1952 S.C. 319.(2) (1841) 1 Q. B. 66. (5) A.I.R, 1952 S.C. 179,(3) (1857)8 EL & Bl, 529.

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jurisdiction to do certain things, the Tribunal must, to enableitself to obtain jurisdiction, find that those facts exist. TheTribunal cannot give itself jurisdiction by a wrong decisionon them and the superior Court may by means of proceed-ings for certiorari, inquire into the correctness of thedecision. The decision as to those facts is collateral because,though the existence of jurisdiction depends thereon, itis not the main question which the Tribunal has to decide.If on the other hand the Tribunal is given jurisdiction todetermine certain facts and those facts form a part of thevery issue which the Tribunal has to decide and the Actconstituting the Tribunal gives it the power to come to afinal decision on that matter then the decision of theTribunal cannot be treated as one going to its jurisdictionand cannot, therefore, be questioned in any Court.

Here I must explain the decision of the Bombay HighCourt to which I referred during the course of the hearingof the petition. It is the case of Sarafatty Mamooji, Inthe. matter of {*). In that case in a Municipal Election peti-tion, the Chief Judge of the Small Causes Court unseatedtwo of the successful candidates and found cause of objec-tion against the candidate in whose favour were recordedthe next highest number of votes. He declined to inquirefurther into the claims of any other candidate or todeclare any other candidate elected, as, on his interpreta-tion of section 33 (2), Bombay Municipal Act 1888, he wasnot enabled to do so. Macleod J., issued a mandamusholding that section 33 empowered the Chief Judge to fillup any number of vacancies, created by setting aside theelection of any number of the returned candidates, from thelist of unsuccessful candidates and that the case fell withinthe general principle referred to in Ex parte Milner^)that where an inferior Tribunal improperly refused to enterupon a complaint, a mandamus would lie. The Bombaydecision accords with the principles enumerated above.That was a case where by a wrong construction of section33, Bombay Municipal Act, the Chief Judge divested him-self of the jurisdiction to decide the main question of theclaim of other candidates that they were duly elected. Theconstruction of section 33 was not the main issue which theChief Judge had to decide.

(1) I.L.R. 34 Bom. 659, (2) (1851) 15 Jur. 1037,

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E. L. B.] JAMNA PBASAD V. LACHHIRAM RATANLAL JAIN 17

The case which is very much apposite here is the one towhich I have already referred, namely, Rex v. Income-taxSpecial Purposes Commissioners (*). In that case a personclaimed to be entitled under a statute to a refund of excessincome-tax paid on proving certain facts to the satisfactionof the Commissioners for General Purposes. A certificate forrefund was issued by the Commissioners but the Commis-sioners for Special Purposes refused to act upon it andorder repayment of the amount saying that as the 'facts'necessary for the refund had not been proved, the Com-missioners for General Purposes had no jurisdiction to givea certificate for repayment. It was held by the Court ofAppeal that the Commissioners for General Purposes hadbeen given jurisdiction to finally determine the requisitefacts for a refund and that the Commissioners for SpecialPurposes could not question the decision of the Commis-sioners for General Purposes on those facts, even if errone-ous as without jurisdiction. I think the present case isclearly one where the Tribunal has jurisdiction to deter-mine finally whether a person desiring to give evidence hasor has not satisfied the conditions laid down in section 97of the Act and the question of the fulfilment of those con-ditions is not collateral to any main question which theTribunal has to decide but is the very issue which theTribunal has to enquire. It follows, therefore, that eventhough the applicant may think that the Tribunal arrivedat an erroneous decision, he would not be entitled to say thatthe decision of the Tribunal was one given without jurisdi-ction or that the Tribunal gave itself or deprived itself ofjurisdiction by a wrong decision. It seems to me that theformula stated by Lord Esher, M.R., in Rex v. Income-taxSpecial Purposes Commissioners ('), and applied by theSupreme Court in Ebrahim Aboobakar's case(2) makes itimpossible for us to treat the petitioner's complaint asgoing to the jurisdiction of the Tribunal and on the rule laiddown by the Supreme Court in the cases reported in Parry& Co.'s Case(s), Veerappa Chettiar's Case (4), and EbrahimAboobakar's Case(%), that a writ of certiorari cannot begranted to quash the decision of the inferior courtwithin its jurisdiction on the ground that the decision

(1) (1888) 21 Q.B.D. 313. (3) A.I.R. 1952 S.C. 179.(2) A.I.R. 1952 S.C. 319, (4) A.I,R. 1952 S.C. 192,

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is wrong, the applicant's prayer for an order of certiorarifor quashing the decision of the Tribunal must be refused.

In view of what I have said above it is really un-necessary for me to express an opinion upon the questionwhether the Tribunal arrived at«, right decision. For, evenif the Tribunal has wrongly construed certain provisons ofthe Act and arrived at an erroneous decision, that wouldnot entitle the applicant to say that the decision was givenwithout jurisdiction. But it appears to me extremelydifficult to maintain that the decision of the Tribunal iswrong or manifestly unjust or that in giving that decisionthe Tribunal has acted contrary to the principles of naturaljustice. The notice which was received by the Chairmanon 11-9-1952 being admittedly not within time, the shortpoint is whether the presentation of a notice to a memberof the Tribunal at the place of the trial is a valid presenta-tion to the Chairman under section 97.

The applicant argues that, as the trial of an electionpetition commences when it is presented to the ElectionCommission or at least when a Tribunal is constituted,the word "Tribunal" in section 97 of the Act has not themeaning given to it by section 86(5); that, under section 97a notice need only be given to the Tribunal and not to theChairman ; and that if at the time of giving of a notice atthe place of the trial only one member is present and theothers are not, then the presentation of the notice to themember present would be a valid presentation of thenotice for the purposes of section 97.

In my opinion, this view is not correct. The fact thaton presentation of an election pettion to the Election Com-mission, if the petition is not dismissed under section 85,an Election Tribunal is appointed for the trial of the peti-tion, points with reasonable clarity to the inference thatthe trial of an election petition does not commencewith its presentation to the Election Commission or withthe appointment of a Tribunal. Nor can it be contendedthat it commences with the publication of an electionpetition under section 90. Such a contention would not bein conformity with the natural meaning of the word"trial"which means a judicial examination and determination ofthe issues between the parties, whether they be of law or fact

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by the Judge. I take this definition from the [ OxfordEnglish Dictionary. On this definition it is clear that thetrial of an election petition commences when, after the filingof a reply thereto and of a recriminatory petition, if any,the points in controversy between the parties are settledand their investigation begins. The meaning of the word'trial' suggested by the learned counsel for the applicant, ifaccepted, would render section 86(5) of the Act whollynugatory. In my opinion the giving of a notice of recri-mination to the Tribunal is an act required to be donebefore the commencement of the trial. That being so,under sections 86(5) and 97 a notice of recrimination tothe Tribunal in order to be valid must be given to theChairman. As a matter of fact in present case noticewas given to the Chairman. Therefore, the question whe-ther the notice was addressed to the proper authority doesnot arise.

Now though it is provided by section 81 of the Actthat an election petition shall be deemed to have beenpresented to the Election Commission when it is deliveredto the Secretary of the Commission or to such otherofficer as may be appointed by the Election Commission inthat behalf by the person making the petition orby any person authorised by him in writing or when it issent by registered post is delivered to the Secretaryto the Commission or the officer so appointed, thereis no analogous provision in the Act with regard tothe presentation of a recriminatory petition. The Actnowhere says that a notice of recrimination shall be deem-ed to have been presented to the Chairman when it is leftat the office of the Tribunal or at the place of the trial orwhen it is delivered to any member of the Tribunal or toany person authorised by the Chairman in that behalf. Itis also not the case of the petitioner that the Chairmancould have authorised a member of the Tribunal to receivethe notice on his behalf and that in fact he did so authoriseMr. Surajbhan, a member of the Tribunal. It was, there-fore, incumbent on the applicant to deliver the notice with-in time to the Chairman of the Tribunal by presenting thenotice personally or by sending it by registered post so as toreach him within time in the ordinary course of post. Thefact that the applicant was informed by a notice that the

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fi. L. R.j A. S. SUBBA RAJ V. M. MUTHtAH 21

[MADRAS HIGH COURT.]

A. S. SUBBA RAJv.

M. MUTHIAH AND OTHERS.VENKATARAMA AYYAR, J.

March 13, 1953.Election petition—Verification—Power of Election Commission and

Election Tribunal to alloiu amendments—Jurisdiction of Tribunal—" Shall dismiss ", meaning of—Representation of the People Act, 1951,ss. 83, 85, 90(4).

Where the verification of an election petition stated generally thatthe facts mentioned therein were true to the knowledge and informa-tion of the petitioner and did not specify what he verified of his ownknowledge and what, upon information believed to be true, and did notalso state when and where it was signed and the Election Tribunalwhich was appointed by the Election Commission to hear the petition,held that though the verification was defective and section 83 of theEepresentation of the People Act, 1951, was not strictly complied with,as it had a discretion under section 90(4) of the Act, it was not bound todismiss the petition summarily on this ground, and allowed the peti-tioner to rectify the verification, and the respondents applied to theHigh Court for a writ restraining the Election Tribunal from proceedingto hear the petition on the ground that the Tribunal had no jurisdiction :

Held, (i) that section 85 did not make it imperative on the part ofthe Election Commission to dismiss an election petition for defectiveverification;

(ii) the Election Commission has inherent jurisdiction to permitthe necessary amendments in an election petition so as to make itconform to the requirements of section 83 and the power of dismissalunder section 85 is intended to be exercised only if there is failure toamend after being required so to do ;

(iii) even if it is held that the only jurisdiction which the ElectionCommission possessed under the Act for defective verification, was todismiss the petition under section 85, it could not affect the jurisdictionof the Election Tribunal to proceed with the trial:

(iv) when once the matter came before it under section 86, thepowers of the Election Tribunal were those which are conferred on itby section 90(4);

(v) under section 90(4) what is conferred on the Election Tribunalis a discretionary power to dismiss the petition for non-compliancewith section 83 and that power is "notwithstanding anything containedin section 85," and the Tribunal was therefore, not bound to dismiss thepetition for defective verification ;

(vi) apart from the wider question whether an Election Tribunalhas jurisdiction to order amendment of election petitions, as the

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fi. L. R.j A. S. SUBBA RAJ V. M. MUTHtAH 21

[MADRAS HIGH COURT.]

A. S. SUBBA RAJv.

M. MUTHIAH AND OTHERS.VENKATARAMA AYYAR, J.

March 13, 1953.Election petition—Verification—Power of Election Commission and

Election Tribunal to alloiu amendments—Jurisdiction of Tribunal—" Shall dismiss ", meaning of—Representation of the People Act, 1951,ss. 83, 85, 90(4).

Where the verification of an election petition stated generally thatthe facts mentioned therein were true to the knowledge and informa-tion of the petitioner and did not specify what he verified of his ownknowledge and what, upon information believed to be true, and did notalso state when and where it was signed and the Election Tribunalwhich was appointed by the Election Commission to hear the petition,held that though the verification was defective and section 83 of theEepresentation of the People Act, 1951, was not strictly complied with,as it had a discretion under section 90(4) of the Act, it was not bound todismiss the petition summarily on this ground, and allowed the peti-tioner to rectify the verification, and the respondents applied to theHigh Court for a writ restraining the Election Tribunal from proceedingto hear the petition on the ground that the Tribunal had no jurisdiction :

Held, (i) that section 85 did not make it imperative on the part ofthe Election Commission to dismiss an election petition for defectiveverification;

(ii) the Election Commission has inherent jurisdiction to permitthe necessary amendments in an election petition so as to make itconform to the requirements of section 83 and the power of dismissalunder section 85 is intended to be exercised only if there is failure toamend after being required so to do ;

(iii) even if it is held that the only jurisdiction which the ElectionCommission possessed under the Act for defective verification, was todismiss the petition under section 85, it could not affect the jurisdictionof the Election Tribunal to proceed with the trial:

(iv) when once the matter came before it under section 86, thepowers of the Election Tribunal were those which are conferred on itby section 90(4);

(v) under section 90(4) what is conferred on the Election Tribunalis a discretionary power to dismiss the petition for non-compliancewith section 83 and that power is "notwithstanding anything containedin section 85," and the Tribunal was therefore, not bound to dismiss thepetition for defective verification ;

(vi) apart from the wider question whether an Election Tribunalhas jurisdiction to order amendment of election petitions, as the

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amendments ordered in this case were of a formal character and as everyTribunal has inherent jurisdiction to permit clerical and formal amend-ments, the Election Tribunal had exercised a sound discretion in per-mitting the verification to be amended as required by Order VI, rule 15,C.P.C., and its order was eminently reasonable and just, and a writ ofprohibition cannot be issued.

Cases referred to :—Jones v. Bobson ("[1901] 1 Q.B. 673), King v.Lincolnshire Appeal Tribunal; Stubbins, ex parte ([1917] 1 K.B. 1),Chinnappa Beddi v. Thomasu Beddi (A.I,E. 1928 Mad. 265), Martin v.Mackonochie ([1878] 3 Q.B.D. 730), Mackonochie v. Penzance ([1881] 6App. Cas. 424), Worthington v. Jaffries ([1878] L.E. 10 C.P. 379), Far-quharson v. Morgan ([1894] 1 Q. B. 552), Bex v. North; Ex parte Oakey([1927] 1 K.B. 491), Be London Scottish Permanent Building Society([1893] 63 L.J.Q.B. 112), Madangopal v. Bhagwandas ( l l All. 304),Pandurang v. Bamachandra (A.I.E. 1930 Bom. 554), Julius v. Bishop ofOxford ([1880] 5 A.C. 214), Bajitram v. Katesivarnath (18 All. 396),Basdeo v. John Smidt (22 All. 55), Piarelal v. Bagivandas (A.I.E.1933 All. 295), Ma Yon v. MaSaive Thin (A.I.E. 1933 Bang. 410), Bishan-lal v. Kisan Vithoba (A.I.E. 1937 Nag. 108), Lahore City case (l Ham-mond's E.P. 148) and Amritsar City case (2 Hammond's E.P. 26).

Petition under articles 226 and 227 of the Constitution ofIndia, praying that in the circumstances stated in theaffidavit filed therewith the High Court may be pleased toquash the reference made by the Election Commission tothe Election Tribunal, Tirunelveli at Madurai, and to issuea writ of prohibition directing the Election Tribunal toforbear from proceeding with the trial of Election PetitionNo. 71 of 1952, on its file and to call for the records in thesame and to quash the proceedings so far taken therein.

K. V. Venkatasubramania Iyer, A. V. NarayanaswamiIyer and R. Venkatachallam, for the petitioner.

B. V. Subramaniam, V. V. Krishnamurihy, K. Krishna-murthy, R. Chockalingam and M. S. Appa Rao, for therespondents.

N. S. Srinivasan, for the Government Peader, for theState.

ORDER.

This is an application for the issue of a writ of prohi-bition directing the Election Tribunal, Tirunelveli, not toproceed with the hearing of Election Petition No. 71 of1952. At an election held on 16th January, 1952, thepetitioner, A. S. Subba Raj, was returned to the LegislativeAssembly, Madras, from the Uttamapalayam Constituency.

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B. L. R.] A. S. SUBBA BAJ V. M. MUTHIAH 23

The first respondent Muthiah, who was one of the threeunsuccessful candidates for the seat, filed on 27th March,1952, a petition under section 81 of the Representation ofthe People Act, hereinafter referred to as the Act, forsetting aside the election. The Election Commission towhich it was presented appointed under section 86 of theAct, an Election Tribunal for the hearing of this petition.Notice of the same was served on the petitioner on 28thSeptember, 1952. On 22nd October, 1952, when the peti-tion came up for hearing before the Election Tribunal thepetitioner raised a preliminary objection to its maintain-ability on the ground that it was not duly verified asrequired by section 83 of the Representation of the PeopleAct, 1950, and was, therefore liable to be rejected in limineunder section 85 of the Act. Section 83 (1) of the Act, runsas follows :

" An election petition shall contain a concise statementof the material facts on which the petitioner relies andshall be signed by the petitioner and verified in the mannerlaid down in the Code of Civil Procedure, 1908 (Act V of1908), for the verification of pleadings. "

The provision of the Civil Procedure Code relating toverification is Order VI, and rule 15, which is as follows :

(1) Save as otherwise provided by any law for the timebeing in force, every pleading shall be verified at the footby the party or by one of the parties pleading or by someother person proved to the satisfaction of the Court to beacquainted with the facts of the case.

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

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

In the present case the petition was verified. But theverification stated generally that the facts mentionedtherein were true to the knowledge and information of thepetitioner. It did not specify what he verified of his ownknowledge and what, upon information received andbelieved to be true. Nor did the verification state whenand where it was signed. It did not, therefore, comply

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with the prescriptions laid down in Order VI, rule 15,of the Civil Procedure Code. Section 85 of the Actprovides that:

" if the provisions of section 81, section 83, or sec-tion 117 are not complied with, the Election Commissionshall dismiss the petition. "

Basing himself on the language of sections 83 and 85 ofthe Act, the petitioner herein urged before the ElectionTribunal that the election petition was liable to bedismissed in limine for failure to comply with the require-ments of Order VI, rule 15, and that there was no jurisdictionin the Tribunal to hear the petition. To meet this objection,the respondent Muthiah, filed on 3rd November, 1952, anapplication for permission to amend the verification so asto bring it in conformity with the prescriptions laid downin Order VI, rule 15. That was C.M.P. No. 1 of 1952. Itwas opposed by the petitioner herein on the ground thatthe Tribunal had no power to direct amendment of thepetition and that under section 90 (4) of the Act, it had nooption but to dismiss it. Both these contentions wereoverruled by the Election Tribunal which held that sec-tion 90 (4) gave it a discretion in the matter of dismissingthe election petition for non-compliance with section 83,and that it had also the power to permit-amendment of thepetition. It is against this order that the present applica-tion for the issue of a writ of prohibition has been filed.*

In this Court the argument for the petitioner proceededon somewhat different lines. The contention that wasmainly pressed by Mr. K. V. Venkatasubramania Aiyar,was that section 85 cast a duty on the Election Com-mission to dismiss the petition on the ground that it wasnot in accordance with section 83, that its order undersection 86 appointing an Election Tribunal for trial of thepetition was in violation of the statutory duty cast on itunder section 85, that in consequence it had no legal opera-tion and conferred no jurisdiction on the Election Tribunalto try the petition and that this Court should accordinglyissue a writ of prohibition directing the Election Tribunalnot to proceed with the trial. It will be seen that this inits substance is directed not against the order in C.M.P.

* The order is reported as M, Muthiah V. A. S. Subba RajOthers. (2 E.L.R. 109).

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1. L. B.] A. S. SUBBA RAJ V. M. MUTHIAH 25

No. 1 of 1952, but against the action of the Election Com-mission in not having passed an order of dismissal undersection 85, and in having appointed an Election Tribunaland transferred the petition to it for trial. The questionis whether that can be permitted to be done in theseproceedings. This is not an application for the issue of amandamus to the Election Commission to dismiss the elec-tion petition, nor for the issue of a writ of certiorari orother appropriate writ for quashing the order undersection 86, directing the trial of the'petition by the Tribunal;and even if any such writ had been applied for, this Courtwould have had no jurisdiction to issue it against theElection Commission which is at Delhi. On behalf of thepetitioner it is argued that, though no relief is soughtagainst the Election Commission in this petition, neverthe-less if, as he contends, the Election Tribunal is not properlyseized of the cause and has no jurisdiction to hear it, he isentitled to a writ of prohibition as a matter of right,ex debito justitiae and he quoted the decisions in Martin v.Mackonochiei1), Mackonochie v. Penzance^), Worthington v.Jaffries{3), Farquharson v. Morgan^), and Rex v. North :ex parte Okey^), in support of this contention. It isunnecessary to discuss these decisions in detail because theposition is well settled and is thus summed up in Halsbury'sLaws of England, volume 9, page 919, paragraph 1396.

" With certain exceptions, the issue of the writ ofprohibition, though not, of course, is of right, and notdiscretionary and the superior Court cannot refuse toenforce public order in the administration of the law by thedenial of a grant of the writ. Smallness of the matter indispute and delay on the part of the applicant are notthemselves grounds for refusal. "

The decision in In re London Scottish Building Society^),was particularly relied on as apposite to this case. There,in the course of winding up of a building society a share-holder who had withdrawn his membership applied for therefund of his share money. The Judge referred the claimto the determination of an arbitrator in spite of the opposi-tion of all the parties concerned. One of the questionsraised in the case was whether a writ of prohibition could

(1) [1878] L.R. 3 Q.B.D. 730. (4) [1894] L.R. 1 Q.B. 552.(2) [1881] L.R. 6 A.C. 424. (5) [1927] L.R. 1 K.B. 491.(3) [1875] L.R. 10 C.P. 379. (6) 63 L.J. (Q.B.) 112 atpp. 114-li5, • '

EL—4

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be issued in respect of this matter. In holding that therewas nn excess of jurisdiction and the writ should accord-ingly issue, Charles, J., observed :

' ' I t is extremely difficult to distinguish sometimesbetween what is excess of jurisdiction and what is mereirregularity of procedure. Clearly prohibition will not liefor mere irregularity of procedure ; that is the whole pur-port of Lord Justice Thesiger's judgment on that point.But where a Tribunal contrary to law is constituted by aJudge—where he confers on another without statutoryauthority the right to deal with a subject-matter, thoughin his (the Judge's) jurisdiction, I am of opinion that thatis acting in excess of, and absolutely without, jurisdiction,and is therefore a ground for prohibition. "

The argument of Mr. K. V. Venkatasubramania Aiyar,for the petitioner is that in the same manner if the ElectionCommission was under a duty to dismiss the petition undersection 85 of the Act, the constitution of a Tribunal andthe transfer of the petition for trial to it under section 86,would be in excess of its jurisdiction and that a writ ofprohibition should issue against the hearing of the petitionby the Election Tribunal.

This contention should, in my opinion, fail, firstly because,on its true construction section 85, does not make it imper-ative on the part of the Election Commission to dismissthe election petition for defective verification, and secondly,whatever might be the powers of the Election Commissionunder section 85, when once the matter came before theTribunal it is thereafter governed by section 90 (4), andunder this section the Tribunal has a discretion in thematter of dismissing the petition for non-compliance withthe requirements of section 83. On the first question thepetitioner strongly relies on the language of section 85,that the "Election Commission shall dismiss the petition. "These words are in form undoubtedly mandatory. But, itis well settled that though the words in a statute should beconstrued in their ordinary natural sense, nevertheless areading of the enactment as a whole might indicate thatthat sense was not what was intended by the Legislature.Halsbury states the position thus :

" Upon the principle that the ordinary sense of enact-ing words is primarily to be adhered to, provisions which

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B. L. R.] A. S. StTBBA RAJ V. M. MtTTHlAH 27

appear on the face of them to be imperative cannot with-out strong reason be held to be directoryBroadly speaking, it may be said that powers confer-ring jurisdiction on a judicial body, provisions as totime in regard to procedure, and generally in public statutes,enacting words where the thing to be done is for the publicbenefit or in advancement of public justice, must be takento have a compulsory force. On the other hand, statutesconferring private rights, or prescribing that certain thingsare to be done within a certain time, time not being of theessence, or in a certain manner, or by those whose actionthe person invoking the aid of the statutes is unable tocontrol, are usually directory only." (Volume 31, para-garaph 529-530, paragraph 692).

Thus in Jones v. JRobsoni1), section 6 of the Coal MinesRegulation Act, 1896, provided that a Secretary of Statemay by order prohibit the use of explosives and noticethereof shall be given in such manner as he may direct.The order was passed but no notice was given. It was heldthat the provision as to notice was only directory and didnot affect the validity of the order. In The King v.Lincolnshire Appeal Tribunal, Stubbins ex parte(2), it washeld that the requirements of the statute as to the form ofthe notice of appeal were not mandatory, even though thestatute provided that such notice shall be served on theopposite side. In Chinnappa Reddy v. Thomasu Reddy(s),where the question was whether the word 'shall' insection 43 of the Provincial Insolvency Act, was manda-tory or directory, Kumaraswami Sastri, J., observed asfollows:

"The word 'shall' in its ordinary signification ismandatory, though there may be considerations whichinfluence the Court in holding that the intention of theLegislature was to give a discretion. "

In Madan Oopal v. Bhagwan Das^), the word 'shall' insection 64 (b) of the Civil Procedure Code was construedas directory and not as mandatory. In Pandurang v. Rama-chandra Rao(5), a provision that a notice of 14 days shall be

(1) L.R. [1901] 1 Q.B. 673.(2) L.R. [1917] 1 K.B. 1.(3) [1927] 54 M.L.J. 344; I.L.R, 51 Mad. 839.(4) [1888] I.L.R. 11 All. 304.(5) [1930] I.L.R. 54 Bom. 902; A.I.R. 1930 Bora. 554.

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given for a meeting was held to be directory rather thanmandatory. It must, therefore, be taken that the use of theword 'shall' is not conclusive and that the intention of theLegislature must be gathered on a reading of the enact-ment as a whole. Now, there are three provisions in thestatute which are material as reflecting the legislativemind. They are the proviso to section 85, section 83(3)and section 90(4). The proviso to section 85 is as follows:

" Provided that, if a person making the petition satisfiesthe Election Commission that sufficient cause existed forhis failure to present the petition within the period pres-cribed therefor, the Election Commission may, in its dis-cretion, condone such failure. "

Under the proviso the Election Commission would haveacted within its powers if it had received a new petitionduly verified and excused the delay in presentation on theground that a petition, though defective in form had beenpresented in time. Taking the matter one step further,the Election Commission could have permitted the verifi-cation to be amended and treated the petition as presentedon the day of amendment and excused the delay in presen-tation. If even a delay in presentation can be excusedunder the proviso, it is difficult to believe that theLegislature intended that a defective verification should befatal to the life of the election petition. Coming next tosection 83 (3) it is as follows :

" The Tribunal may, upon such terms as to costs andotherwise as it may direct at any time, allow the parti-culars included in the said list to be amended or othersuch further and better particulars in regard to any matterreferred to therein to be furnished as may in its opinion,be necessary for the purpose of ensuring a fair and effec-tual trial of the petition."

This provision comes into operation after the petitioncomes up before the Election Tribunal by transfer undersection 86. It will be noticed that under section 83(2) theelection petition should be accompanied by a list givingfull particulars and signed and verified in the manner laiddown in the Civil Procedure Code. If that is not done, thepetition is liable to be dismissed under section 85. Theparticulars in the list are of the very essence of an ElectionPetition; they furnish the real ground for attack on > the

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merits and they are also required to be verified like aplaint. If the Legislature considered that even particularscould be amended, it is difficult to believe that they re-garded a defective verification as incurable and fatal to themaintenance of the application. Then comes section 90(4)which is as follows :

" Notwithstanding anything contained in section 85, theTribunal may dismiss an election petition which does notcomply with the provisions of section 81, section 83, orsection 117. "

The language of this provision is clearly directory ; itdoes not impose a duty on the Election Tribunal to dismissthe petition; it confers on it a power to dismiss it at itsdiscretion. If it is mandatory with the Election Commissionto dismiss the petition under section 85 for defectiveverification, section 90(4) should consistently have enactedthat the Election Tribunal should do what the ElectionCommission was under a duty to do and dismiss the appli-cation. But the fact that the Tribunal is given a discretionin the matter goes far to support the view that section 85should not be construed as mandatory.

It is argued for the petitioner on the basis of the well-known observations of Earl Cairns, L.C., Lord Penzanceand Lord Blackburn in Julius v. Bishop of Oxford^), thatin certain circumstances the word 'may' can be construedas meaning 'shall' and that having regard to the use of theword 'shall' in section 85, the word 'may' in section 90(4)which deals with the same subject-matter should also beconstrued as meaning 'shall.' This argument ignores thewords 'notwithstanding anything contained in section 85'which clearly show that 'may' in section 90(4) means only'may.' The importance of this provision consists in thisthat the Legislature contemplates that petitions which areliable to be dismissed on the strict wording of section 85might not be so dismissed and might come up before theTribunal and what is enacted is that at the stage the peti-tion should be not liable to be dismissed as a matter ofcourse. This affords a complete answer to the contentionof the petitioner that if a petition does not comply with therequirements of section 83, the Election Commission has nooption but to dismiss it and that an order passed under

(1) (1880) L.K. 5A.C. 214.

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30 A. S. StTBBA RAJ V. M. MUTHlAH [VOL. V

section 86 appointing an Election Tribunal and transferringthe petition to it for trial cannot give life to the petitionor confer jurisdiction on the Tribunal to try it. Thecumulative effect of the three provisions section 85,proviso; section 83(3) and section 90 (4) is to iead to theconclusion that it is not mandatory on the part of theElection Commission to dismiss the petition and that thewords 'shall dismiss' should be construed as meaning 'shallhave the power to dismiss.'

This conclusion is in accordance with the authorities underOrder 6, rule 15, of the Civil Procedure Code—which byforce of section 83(1) has been made applicable to electionpetitions—that defective verification is a mere irregularityand does not affect the jurisdiction of the Court to enter-tain the suit, notwithstanding that the rule provides thatthe verification shall be in the manner prescribed therein.In Rajit Ram v. Katesar Nath^), the Full Bench of theAllahabad High Court observed as follows:

" I t would be difficult to imagine any case in which a.defective verification of a plaint could affect the merits ofthe case or the jurisdiction of the Court."

In Basdeo v. John SmidtC*), the learned Judges quotedwith approval the following passage from Mr. Vanfleet'sLaw of Collateral Attack on Judicial Proceedings :

" The statutes require many kinds of petitions to beverified. This includes generally all complaints and peti-tions in special proceedings, the bill in equity, the libel inadmiralty, and in some states, the complaint or petition inall cases. Such verification adds no allegation to thepleading and tenders no issue. Its only object is to showthe good faith of the petitioner Like any otherformal matter its absence is waived by a failure to object.And if its entire absence does not affect the jurisdiction, ofcourse, mere defects in it cannot. "

The decisions under Order 33, rules 2 and 5, are evenmore directly applicable to the present case. Order 33,rule 2, provides that every application for permission tosue in forma pauperis shall be signed and verified in themanner prescribed for the signing and verification ofpleadings and Order 33, rule 5, provides that the Courtshall reject an application for permission to sue as a

(1) (1896) I.L.R. 18 All. 396 (F.B.). (2) (1899) I.L.R. 22 All. 55 at 61.

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pauper when it is not framed in the manner prescribed byrule 2. These provisions thus correspond to section 83 (1)and section 85 of the Act. The authorities on Order 33,rules 2 and 5, clearly establish that before exercising thepower of dismissal under Order 33, rule 5, the Court shouldgive an opportunity to the party to amend the petitionand that the order of dismissal should follow only whenthere is thereafter a failure to amend. Vide Piare Lai v.Bhagwan Das{1), Ma Yon v. Ma Sawe Thin(*) and Bishanlalv. Kisan Vithoba(3). It is true that there is no expressprovision in the Act conferring any power on the ElectionCommission to permit amendment. But such a power isinherent in all bodies exercising judicial functions. Thatamendments can be allowed by Courts under their inherentpowers when there is no express statutory provision pro-viding for it has been recognised in a number of decisionsunder section 151 of the Civil Procedure Code. It will beconsistent with these authorities to hold that the ElectionCommission has inherent jurisdiction to permit the neces-sary amendments in the election petition so as to make itconform to the requirements of section 83 and that thepower of dismissal under section 85, is intended to beexercised only if there is failure to amend after beingrequired so to do. In that view, the failure of the Com-mission to get the verification formally amended is a mereirregularity and does not affect either its power to appointan Election Tribunal under section 86 and transfer thepetition to it for trial or the jurisdiction of the ElectionTribunal to hear it. In this view, no writ of prohibitioncan issue.

Even if I agree with the contention of the petitioner thatthe only jurisdiction which the Election Commissionpossessed under the Act was to dismiss this petition undersection 85, I. should still hold that it did not affect the juris-diction of the Election Tribunal to proceed with the trial.When once the matter comes before it under section 86,thereafter the powers of the Election Tribunal are thosewhich are conferred on it by the statute and such powersare not controlled by the limitations on the power ofthe Election Commission under the Act. The Election

(1) (1932) I.L.R. 55 All. 216. (3) I.L.R, (1938) Nag. 245.• (2) i(1933) I.L.R. 11 Rang. 414,

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Tribunal is in no sense a body subordinate to the ElectionCommission; it is no doubt nominated by the ElectionCommission under section 86, but it does not derive itspowers from the Election Commission but from the statutewhich defines the authority of both the Election Commis-sion and the Election Tribunal. Both are two independentbodies operating in the same field but at different stagesand with different powers. It has been already seen thatunder section 90(4) what is conferred on the Election Tri-bunal is a discretionary power to dismiss the petition fornon-compliance with section 83 and that that power is'notwithstanding anything contained in section 85.' It isimpossible to contend in the face of this provision that theElection Tribunal had no jurisdiction to hear the petition,assuming that the petition was one which was bound tohave been dismissed by the Election Commission. I am,therefore, of opinion that the Election Tribunal has juris-diction to try the election petition, even though the verifi-cation was defective and that in consequence no writ ofprohibition can be issued.

It was next argued that even if the Election Tribunalhad jurisdiction to entertain the petition, it had no juris-diction to order an amendment and that in the absence ofan amendment, the only order that could be passed undersection 90(4) was one of dismissal. The relevant provisionsbearing on this question are section 90(2) and section 92.Section 90(2) enacts that

" Subject to the provisions of this Act and of any rulesmade thereunder, every election petition shall be tried bythe Tribunal, as nearly as may be, in accordance with theprocedure applicable under the Code of Civil Procedure,1908 (Act V of 1908), to the trial of suits:"

and section 92 enacts that" the Tribunal shall have the powers which are vested

in a court under the Code of Civil Procedure, 1908 (Act Vof 1908) when trying a suit in respect of the followingmatters : "and those matters are enumerated. The contention onbehalf of the petitioner is that the word 'trial' in section92 will be inapplicable to amendment of the petition andthat the only provisions of Civil Procedure Code which areapplicable to the proceedings before the Tribunal are those

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specifically mentioned in section 92; and as Order VI,rule 17, providing for amendment is not one of them, theTribunal had no power to order an amendment. Theanswer of the respondent to this contention is that though'trial' might be understood as meaning only the actualhearing of the petition, that was not the sense in which itwas used in the Act; that section 90(2) finds a place inChapter III, Part VI, which is headed 'trial of electionpetitions'; that the enumeration of certain powers in sec-tion 92 is illustrative and not exhaustive and that the Tri-bunal had, therefore all the powers which a Court has toorder amendment. The question whether Order VI, rule17, is as such applicable to proceedings before the ElectionTribunal is not free from doubt. It will be noticed thatsection 83(3) permits only amendments of particularsincluded in the list or the inclusion of better particularsin regard to any matters referred to in the list and thatwould seem to negative a general power of amendmentwhich the civil courts possess under Order VI, rule 17. Inthe Lahore City case (x) it was held that Order VI, rule 17,was applicable, but that related only to amendment ofparticulars. In the Amritsar City case (2) it was held thatthere was no general power of amendment under Order VI,rule 17. It is unnecessary to go into this question as theamendments ordered in this case are of a formal characterand as already stated every Tribunal has inherent jurisdic-tion to permit clerical and formal amendments. TheElection Tribunal has exercised a sound discretion inpermitting the verification to be amended as required byOrder VI, rule 15, and its order is eminently reasonable andjust.

There are no grounds for issuing a writ of prohibitionand this application must be dismissed with costs of thefirst respondent. Advocate's fee Rs. 250.

Application dismissed.

(1) 1 Hammond's I. E. P. 148.(2) 2 Hammond's I. E. P. 26.

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34 KRISHNAJI BHIMARAO V. SHANKAR SHANTARAM [VOL. V

[ELECTION TRIBUNAL, POONA.]

KRISHNAJI BHIMARAO ANTROLIKARv.

SHANKAR SHANTARAM MORE AND OTHERS.PRAMOD C. BHAT (Chairman),

Y. K. GHASKADBI and S. B. JATHAR (Members).March 12, 1953.

Election petition—Limitation—Condonation of delay by ElectionCommission—Power of Election Tribunal to interfere—Verification —Irregularities—Effect of—Representation of the People Act, 1951, ss. 81,83, 85—Representation of the People Rules, 1951, r. 119.

Irregularities in the signing and verification of an election petitionor list which do not affect the merits of the case or prejudice the otheraide are not grounds on which an election petition could be dismissed inlimine. The Tribunal has ample power to allow them to be amendedso as to bring them into conformity with the requirements of the law.

Where an attestation to a verification merely stated that it wasdeclared on a certain date and at a certain place, but it did not statethe place at which or the date on which it was signed: Held, thatthis was only a technical defect not of a substantial character.

The point of view from which the Election Commission has toconsider the condonation of delay in the presentation of an electionpetition and the point of view from which an Election Tribunal has toconsider the question whether it should dismiss an election petition fordelay in presentation in spite of the condonation of such delay by theElection Commission, are entirely different. The Election Tribunal canonly inquire whether the Election Commission had not properly exer-cised its discretion. It cannot go into the question whether there wassufficient cause for condoning the delay.

ELECTION PETITION NO. 97 of 1952.

ORDER.

It was decided that issues Nos. 13,14,15 and 20 be heardas preliminary issues. We propose to dispose of the lastissue, viz., issue No. 20 first.

2. Issue No. 20.—This issue relates to the propersigning and verification of the petition and list of corruptand illegal practices as required by section 83 of the Re-presentation of the People Act, 1951. Section 83 of thesaid Act, so far as we are concerned, enacts that " Anelection petition shall be signed by the petitioner andverified in the manner laid down in the Code of Civil Pro-cedure 1908, for the verification of pleadings." The petition

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as well as the list have both been signed and verified by thepetitioner himself. It is, however, argued by the learnedadvocate for respondent No. 1, that they are neithersigned nor verified as required by the Code of Civil Proced-ure. We will, therefore, have to turn to the provisions ofthe Code of Civil Procedure relating to the verification ofpleadings. Order VI, rule 15, of that Code requires that "(1)Every pleading shall be verified at the foot by the party...pleading...proved to the satisfaction of the court to be ac-quainted with the facts of the case. (2) The person veri-fying shall specify, by reference to the numbered para-graphs of the pleading, what he verifies of his ownknowledge and what be verifies upon information receivedand believed by him to be true, and (3) The verificationshall be signed by the person making it and shall state thedate on which and the place at which it was signed. "These arje the requirements of the verification so far as weare concerned in this case. The verification both on thepetition itself and the list of corrupt and illegal practicescomplies with the first requirement, viz., that it should beverified at the foot by the party acquainted with the factsof the case. This matter is not even in dispute. It is,therefore, unnecessary to comment on or enter into adiscussion about the same. Regarding the second requisiteviz., specifying by reference to the numbered paragraphswhat the person verifying verifiies of his own knowledgeand what he does upon information, the verification doesnot specifically refer to the various paragraphs by theirnumbers. However, in this particular case, the petitionerwho has verified this petition states that what he hasstated in the (foregoing) petition and in the (foregoing) listis true to his knowledge. In our opinion, reference to thenumbered paragraphs is redundant, for according to theverification all that is stated both in the petition as well asin the list is a matter of his knowledge and not informa-tion. We may also state that this was not a contentionspecifically taken by the respondents. If necessary, how-ever, we will hold that both the first and the secondrequisites are properly complied with. The real disputecentres round the third requisite, viz., the statement of dateand place at which it is signed. It is true, as contended bythe learned advocates for the respondents, that in the actual

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body of the verification the date on which and the place atwhich it was signed has not been mentioned. Below theverification is the signature of the petitioner and oppositeto the signature on the left-hand side it stated " Solemnlydeclared at Bombay aforesaid this 4th day of April, 1952."And then below this the first Assistant Master, High Court,Bombay has attested the declaration. Although it has beenstated that the petition and the list were declared atBombay on 4th day of April, 1952, there is nothing to showthat they were signed on that date and in Bombay. It hasnot been suggested on behalf of the respondents how anirregularity in verifying the petition and the list, strictly inaccordance with the letter of the law, has prejudiced them.In our opinion, both the petition and the list have been insubstance signed and verified as required by law. How-ever, even on the assumption that there was some irregula-rity in the same, we do not see how the respondents are orcan be prejudiced by such an irregularity. If necessary,the petitioner will be allowed to amend the pleadings so asto comply with the requirements of law. The learnedadvocate for respondent No. 1 argued that section 80 ofthe Act enjoins that no election can be called in questionexcept by an election petition presented precisely in ac-cordance with the provisions of Part VI of the Act. Heargued on the strength of this section that unless thepetition was signed and verified precisely as required bythe Code of Civil Procedure, the petition must be thrownoff. We are afraid, we cannot see eye to eye with thelearned advocate in this reasoning of his. After all, thesigning and verification of the petition and the list aremore or less matters of formality and an irregularity there-in which does not affect the merits of the case or in anyway prejudice the respondents, cannot be held to be suffi-cient ground for refusal to consider the case on merits, ordenial of justice to the petitioner and dismissal of thepetition. It is argued by the learned advocate for res-pondent No. 1, that the provisions regarding amendmentof pleadings do not apply to this case. According to him,the Code of Civil Procedure applies only in so far as theactual trial of the petition in concerned. In other words,he argues that the Code applies only so far as the actualhearing of the petition is concerned. In our opinion, how-

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ever, trial of a suit commences as soon as the plaint in thesuit is filed and hearing is only part of the trial. There isnothing in the Act or the rules which negatives the appli-cation of provisions of the Civil Procedure Code regardingamendments of pleadings. At least none has been pointedout to us. The learned advocate for respondent No. 1,however, pointed out to us some judgments of other Elec-tion Tribunals in support of his argument. With theutmost deference to those Tribunals, however, we cannotagree with the view taken by them. There is no defect inthe signing of the petition. The petitioner has also prayedby an application, Ex. 62, for permission to amend thepetition and the list by properly signing and verifying thesame in accordance with law. We, therefore, allow thepetition and the list to be so signed and verified as to ac-cord with the provisions of the Act.

3. Besides, section 85 of the Act enacts that "if theprovisions of. ..section 83...are not complied with, the Elec-tion Commission shall dismiss the petition..." Thus prima-rily the power to dismiss a petition for non-compliancewith the provisions of section 83 vests with the ElectionCommission. If it did not think proper to dismiss it onthat ground, 'we doubt very much whether we can do sounless we go to the length of holding that the ElectionCommission improperly exercised its discretion which weare not prepared to do. In the circumstances, therefore,we decide both the parts of this issue in the affirmative.

4. Issues Nos. 13, 14 and 15.—All these three issues insubstance relate to the delay in presenting the petition.Section 81 of the Act requires the presentation of the peti-tion calling in question any election within such time butnot earlier than the date of publication of the name ornames of the returned candidates, as may be pres-cribed. Rule 119 prescribes the time limit within whichsuch election petition should be presented. Accordingto rule 119 (a) an election petition calling in questionan election may, in the case where such petition isagainst a returned candidate (as in this case), bepresented under section 81 at any time after the date ofthe publication of the name of such candidate under sec-tion 67 but not later than fourteen days from the date ofpublication of the notice in the Official Gazette under rule

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113 that the return of election expenses of such candidateand the declaration made in respect thereof have beenlodged with the Returning Officer. That is the time limitwithin which the election petition should be filed. In thepresent case the names of the successful candidates werepublished in the Gazette of India under section 67 of theAct on January 25, 1951, and the return of election expensesand declaration of the successful candidate, viz., respondentNo. 1, was filed on and under date March 7, 1952, Ex. 57,and that of respondent No. 2 on and under date February29, 1952, Ex. 55 and the same was published in the Gazetteof India dated March 17, 1952. The election petition hasbeen directed against the first respondent as prayer (b) ofthe petition will show. Admittedly, the time for filingthe petition calculated from the date of the said gazetteexpired on March 31, 1952, that being the last day for filingthe petition. This is a fact which is admitted on all hands.The petition, however, appears to have been posted onApril 4, 1952. It appears from the order of the ChiefElection Commissioner that the petition actually reachedthe Election Commission on April 5, 1952. The questionnow is whether the petition not having been presentedwithin the time limit prescribed, should be dismissed. Sec-tion 81 of the Act, as we have already stated, requires thatthe petition should be filed within the time prescribed.Section 85 deals with the consequences of the failure tocomply with the provisions of the said section amongothers. It enacts so far as we are concerned that " If theprovisions of section 81...are not complied with, the Elec-tion Commission shall dismiss the petition." There is alsoa proviso to this section which is: "provided that if aperson making the petition satisfies the Election Commis-sion that sufficient cause had existed for his failure topresent the petition within the period prescribed therefor,the Election Commission may in its discretion condone suchfailure." There is another provision in the Act also whichdeals with this matter, viz., section 90, sub-section (4). Itenacts so far as we are concerned that " Notwithstandinganything contained in section 85* the Tribunal maydismiss an election petition which does not complywith the provisions of section 81... ". Thus primarilyit is for the Election Commission to dismiss the petition

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for non-compliance of the provisions of section 81. Itobviously is a matter within its discretion. This Tribunal,however, is invested with power to dismiss the petition.These provisions would seem to suggest that the Tribunalhas a sort of revisional power over the condonation ofdelay by the Election Commission. The point of view fromwhich the matter must, therefore, be looked at is whetherthe discretion vested in the Election Commission has beenimproperly exercised and not whether a sufficient cause fordelay has been made out or not. In our opinion, the pointof view from which the Election Commission has to con-sider the condonation of delay and the point of view fromwhich the Tribunal has to consider the question whether itshould dismiss the petition in spite of the condonationof delay by the Election Commission, are entirely different.The Election Commissioner has on May 23, 1952, exercisedhis discretion and being satisfied with the sufficiency of thecauses for delay, passed an order condoning the delay offive days. A petitioner calling in question an election isentitled to dispute it even on the ground of election expen-ses improperly incurred, and is, therefore, naturallyentitled to know and scrutinise the return of election ex-penses. These were published in the Gazette of Indiaunder rule 113 in Gazette dated March 17, 1952, butaccording to the petitioner such Gazette was not availablein Sholapur till the 30th March, and he came to knowabout it for the first time in Bombay on or after that date.The Election Commissioner states in his order that " It isnotorious that the Official Gazette often takes time to reachout-stations and the petitioner appears to have lost no timeafter coming to know about the publication of the noticein the gazette," and on this ground he was pleased tocondone the delay. As stated by him in his order, thepetitioner is entitled to wait till the publication of thenotice of return of election expenses and declaration. Ifthat notice is not available to him till a certain date andthereafter he has been diligent in taking steps to file thepetition, it will be difficult to hold that the condonation ofdelay by the Election Commissioner is an improper exer-cise of his discretion. It also appears from the evidenceof the petitioner and his witnesses that he was constantlyinquiring about the gazette. The clerk from the Collector's

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Office (Ex. 53) states in his evidence that the gazette datedthe March 17, 1952, containing a notice of the return ofexpenses of respondent No. 1 was sent to his office alongwith a letter dated March 29, 1952, and both reached theoffice on April 2, 1952. It is thus clear that the gazettewas not available even to the Collector and ReturningOfficer till the April 2,< 1952 at Sholapur. The evidence ofShri Doshit, the petitioner's solicitor, also supports thelatter's case regarding his diligence in taking immediatesteps for filing the petition and we accept Mr. Doshit'sevidence.

5. Some stress was laid on the delay in making thedeposit of Rs. 1,000 by the petitioner. But there is nosubstance in this contention in view of the fact that thedeposit was attempted to be made even when the petitionchallenging the election was in preparation, but for unfor-seen reasons could not be made on April 2, 1953. Thuswe are of the opinion that the petitioner has, in anycase, acted with due diligence in filing the petition. Inthe circumstances, we do not think it proper to interferewith the discretion vested in and exercised by the ElectionCommission. We, therefore, decide issues Nos. 13 and14 in the affirmative and issue No. 15 in the negative.

6. The hearing of the election petition to proceed.Issues decided accordingly.

[PATNA HIGH COURT.]

AMIN AHMADv.

NAND LAL SINHA.

RAMASWAMI and JAMTJAR JJ.

March 16, 1953.Election Commission—Power to regulate its own procedure—Power to

authorise officer to sign on behalf of Commission—High Court—Power toissue writ against Election Commission—Representation of the PeopleAct, 1951, ss, 39{2) 150, 151—Constitution, art. 329 (b).

The Election Commission can regulate its own procedure and canauthorise one of its officers to authenticate and sign notificationsissued in the name of the Election Commission under sections 39(2) and151 of the Bepresentation of the People Act, 1951,

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The issue of notifications under sections 39(2) and 151 of the Acfcis a part of the process of the election within the meaning of article329(b) of the Constitution, and the said article 329 (b) excludes thejurisdiction' of the High Court to issue a writ under article 226 to res-train the Election Commission from issuing auch notifications.

Local Government Board v. Arlidge ([1915] A.C. 120), ShankariPrasad Singh Deo v. Union of India (A.I.R, 1951 S.C. 458), N. P.Ponnuswami v. Returning Officer, Namakhal (A.I.R. 1952 S.C. 64), The-berge v.. Laudry ([1875] 2 A.C. 102) and Suhar Gope v. State of Bihar1 E.L.R. 68) referred to.

Application under art. 226 of the Constitution of Indiafor a writ against the Chief Electoral Officer, Bihar :Miscellaneous Judicial Case No. 87 of 1953.

B. C. Ghosh and Arun Chandra Mitra, for the peti-tioner.

Advocate-General and Bhagwat Prasad, for the oppositeparty.

ORDER.

RAMASWAMI J.—In this case the petitioner, SaiyidAmin Ahmad, has obtained a rule calling upon the ChiefElectoral Officer, Bihar, to show cause why a writ in thenature of certiorari or prohibition ought not to be issuedcommanding the latter not to hold a poll for election oftwenty four persons to the Bihar Legislative Council onFebruary 19,1953. Cause was shown against the rule by theAdvocate-General on behalf of the Chief Electoral Officer,Bihar, to whom notice of the rule was directed to be given.

The petitioner, Saiyid Amin Ahmad, was a member of theBihar Legislative Council till February 19, 1953. On thatdate the Election Tribunal declared that the entire electionfrom the Bihar Legislative Assembly to the Bihar Legisla-tive Council was null and void and as a result Saiyid AminAhmad and twenty three other persons of the Bihar Legis-lative Council ceased to hold their seats. On March 2, 1953,a notification was issued in the Bihar Gazette extraordinaryon behalf of the Election Commission calling upon themembers of the Bihar Legislative Assembly to elect twentyfour persons to the Bihar Legislative Council beforeMarch 27,1953. The notification was issued by the ElectionCommission by virtue of the power conferred by sec-tion 151, Representation of the People Act, 1951. On thesame date there was another notification by the Election

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Commission appointing the Chief Electoral Officer, Bihar,to be the Returning Officer for the bye-election to the BiharLegislative Council. There was also a third notificationunder section 39(2), Representation of the People Act, 1951,fixing the dates for the nomination and for taking of thepoll. It is alleged on behalf of the petitioner that thenotifications under sections 39(2) and 151 were illegaland without jurisdiction since they were not issued by Mr.Sukumar Sen who was the Chief Election Commissioner onthat date, but by Mr. P. S. Subramanian who has designat-ed himself as an officer on special duty. The submissionof the petitioner is that Sri Nand Lai Sinha, the Chief Elec-toral Officer, has illegally assumed jurisdiction on thebasis of these notifications and that a writ of certiorari orprohibition should be issued restraining the Chief Elec-toral Officer from further proceeding in the matter of thebye-election.

An affidavit was filed on behalf of the respondent tothe effect that the Election Commission had approved thegazette notifications and had authorised Mr. P. S. Subra-manian to sign and authenticate the gazette notificationson its behalf. It was stated that a telegram was receivedfrom the Election Commission to the respondent to thateffect.

The first question which arises is whether the notifi-cations issued by the Election Commission under sections 151and 39(2), Representation of the People Act, are void andillegal.

The argument presented on behalf of the petitioneris that the Election Commission had no authority to dele-gate to Mr. P. S. Subramanian the duty of signing andauthenticating the notifications. Mr. B. C. Ghosh pointedout that under section 169, Representation of the PeopleAct, the Central Government has, after consulting theElection Commission framed rules for carrying out thethe purposes of the Act. Learned counsel referred torule 7 which states that the Secretary to the ElectionCommission shall sign the certificates issued by the Elec-tion Commission under section 8(3) or under section 33(3)or under section 39(4).

The submission of the petitioner is that there is norule which permits the Election Commission to delegate to

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the special officer the duty of signing and authenticatingthe notifications issued under sections 39(2) and 151. Inmy opinion the argument of the learned counsel is notsound.

Parliament enacted the Representation of the PeopleAct by virtue of the legislative authority conferred byarticle 327 of the Constitution. Article 327 is however,made expressly subject to " other provisions of the Consti-tution." In this connection article 324 is important.Article 324(1) states that

" the superintendence, direction and control of thepreparation of the electoral rolls for, and the conduct of,all elections to Parliament and to the Legislature of everyState including the appointment of election tribunals forthe decision of doubts and disputes arising out of or inconnection with elections to Parliament and to the Legis-latures of States shall be vested in the Election Com-mission."

Article 324, therefore, confers executive authority onthe Election Commission to superintend, direct and controlall elections to Parliament and to the Legislatures of everyState.

The executive authority of the Election Commissionunder article 324 cannot be limited by any law passed bythe Parliament under the provisions of article 327. It wasrightly pointed out by Mr. B. C. Ghosh that the Represen-tation of the People Act does not provide as to how theElection Commission is to sign and authenticate the noti-fications issued under sections 39(2) and 151. There isalso no provision in any article of the Constitution as to themanner in which the Election Commission would exerciseits authority under article 324.

But this does not mean that the Election Commis-sion cannot regulate its own procedure or that it is power-less to authorise the officer on special duty to authenticateand sign the notifications issued in the name of the Elec-tion Commission. In the absence of any provision of theConstitution it must be taken that the Constitution-makersintended that the Election Commission should follow theprocedure laid down by itself and considered necessaryfor the proper and efficient performance of its duties.

It is a matter of internal arrangement over whichthe Election Tribunal has full competence and control.

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44 AMIN AHMAD V. NAND LAL SlNHA [VOL. V

The principle is enunciated by the House of Lordsin Local Government Board v. Arlidge ('). Rejecting thecontention that the Local Government Board conducting astatutory enquiry should have been guided by the procedureof a Court of Justice, Lord Haldane observed :

" Its (the Board's) character is that of an organisationwith executive functions. In this it resembles other greatdepartments of the State. When therefore, Parliamententrusts it with judicial duties, Parliament must be taken,in the absence of any declaration to the contrary, to haveintended to follow the procedure which is its own and isnecessary if it is to be capable of doing its work effi-ciently."

This passage was expressly approved by the SupremeCourt in ShanJcari Prasad Singh Deo v. Union of India (a).In that case the question that arose for decision waswhether the Constitution (First Amendment) Act, 1951,which had inserted articles 31A and 31B in the Constitu-tion of India was ultra vires and unconstitutional. It wasargued for the appellant that article 368 was a completecode in itself and did not provide for any amendment beingmade in the bill after it had been introduced in the House.The bill in question was admittedly amended in severalparticulars during its passage through the House and itwas hence submitted that the Amendment Act could notbe said to have been passed in conformity with the proce-dure prescribed in article 368. The argument was reject-ed by the Supreme Court on the ground that in the absenceof any special provision in the Constitution there was noreason why Parliament should not adopt in a case underarticle 368 its own normal procedure so far as that proce-dure could be followed consistently with the statutoryrequirements. At page 462 the Chief Justice of India states:

" Having provided for the constitution of a Parliamentand prescribed for the conduct of its ordinary legislativebusiness to be supplemented by rules made by each House(article 118) the makers of the Constitution must be takento have intended Parliament to follow that procedure, sofar as it may be applicable, consistently with the expressprovisions of article 368 when they entrusted to it thepower of amending the Constitution."

(1) [1915] A,C, 120, (3) [1952] S.C.R, §9; A I.R, 1951 S.C. 458,

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fi. L. B. j AMIN AHMAD V. NAND LAL SINHA 45

Applying the principle to the present case it is clear thatthe Election Commission has in the absence of any specificprovision in the Constitution authority to regulate its ownprocedure for issue and authentication of the notificationsunder sections 39 (2) and 151 of the Representation of thePeople Act.

Mr. B. C. Ghosh submitted that a notification undersection 17 was usually signed by the Chief Secretary of theState acting under the authority of the Governor of theState. Learned counsel referred to articles 123(1) and243(2) of the Constitution and stated that the Presidenthimself signed the notifications issued under these articles.There is, however, no analogy between authority of thePresident or the Governor on the one hand and the autho-rity of the Election Commission on the other hand. Article77 (2) provides that Orders and other Instruments madeand executed in the name of the President shall be authen-ticated in such manner as may be specified in rules to bemade by the President. Article 166 similarly provides thatOrders and other Instruments made and executed in thethe name of the Governor shall be authenticated in suchmanner as may be specified in rules to be made by theGovernor.

In the case of the Election Commission the Consti-tution does not provide in what manner the orders madeand executed in the name of Election Commission shall beauthenticated. Articles 77 and 166 show by contrast theposition of the Election Commission in the constitutionalscheme.

The absence of any specific constitutional provisionwould suggest that the Constitution-makers intended thatthe Election Commission should have unfettered authorityto regulate its domestic procedure. For the reasons alreadystated I think that the Election Commission could validlyauthorise Mr. P. S. Subramanian, to authenticate andissue the notifications under sections 39(2) and 151 in thename of the Election Commission. The argument ofMr. B. C. Ghosh, on this part of the case must, there-fore fail.

I turn to the next question whether article 329 isa bar to the jurisdiction of the High Court under article 226of the Constitution. It was argued by the Advocate-General

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46 AMlN AHMAD V. NAND LAk SIN&A f>OL. V

that the High Court has no jurisdiction to issue a writ inthis case in view of the provisions of article 329 (b) of theConstitution. The mainstay of the argument of theAdvocate-General is the decision of the Supreme Court inN. P. Ponnuswami v. Returning Officer, Namakkal^). Thequestion at issue in that case was whether the High Courthad jurisdiction to interfere with the order of the Re-turning Officer rejecting the nomination paper of acandidate for the election to the Legislative Assembly ofthe State. It was held by the Supreme Court that theHigh Court had no jurisdiction to issue a writ and that theword 'election' in article 329 (b) must be interpreted in awide sense so as to connote the entire process culminatingin a candidate being declared elected. The argument ofthe Advocate-General on this point is well founded and inview of the Supreme Court decision it must be held thatarticle 329 (b) excludes the jurisdiction of the High Courtto issue a writ in the present case. The ratio decidendiof the Supreme Court decision was that the questioning ofthe rejection of a nomination paper was the questioning ofthe election within the meaning of article 329 (b) of theConstitution and that the word 'election' has been used inPart XV of the Constitution in a wide sense, that is to say,to connote the entire procedure to be gone through to returnthe candidate to the Legislature.

The decision proceeded on the principle that it was amatter of first importance that the elections to the Legis-lature should be concluded as early as possible accordingto the time schedule and that controversial matters shouldbe postponed till after the election is over. The SupremeCourt also proceeded on the other principle that it was thesole right of the Legislature to examine and determine allmatters relating to the election of its own members and ifthe Legislature took it out of its own hands and vestedin a special Tribunal, an entirely new and unknown juris-diction, that jurisdiction should be exercised in accordancewith the law which created it. On this point the SupremeCourt quoted with approval the following passage from thejudgment of Lord Cairns in Theberge v. Laudry^).

" These two Acts of Parliament, the Acts of 1872 and1875, are Acts peculiar in their character. They are not Acts

(1) [1&52] S.C.R. 218 ; A.I.R. 1952 S.C 64. (2) [1876] 2 A.C. 102,

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E. L. R.] AMIN AHMAD V. NAND LAL SINHA 47

constituting or providing for the decision of mere ordinarycivil rights; they are Acts creating an entirely new, andup to that time unknown, jurisdiction in a particularCourt for the purpose of taking out, with its ownconsent, of the Legislative Assembly, and vesting in thatCourt, that very peculiar jurisdiction which, up to thattime, had existed in the Legislative Assembly of decidingelection petitions, and determining the status of those whoclaimed to be members of the Legislative Assembly.A jurisdiction of that kind is extremely special, and one ofthe obvious incidents or consequences of such a jurisdictionmust be that the jurisdiction, by whomsoever it is to beexercised, should be exercised in a way that should as soonas possible become conclusive, and enable the Constitutionof the Legislative Assembly to be distinctly and speedilyknown. "

In the course of his argument Mr. B. C. Ghosh,referred to the decision of the Patna High Court in 8ukarGope v. State of Bihar•('). Mr. Ghosh, referred to page 154of the report where the Chief Justice interprets the word'election' to mean

" all the different stages of the election commencingafter the appointment of dates as provided in section 30 ofthe Representation of the People Act, "

and states that" the Returning Officer commences his election activi-

ties as soon as any person is nominated as a candidate forelection and the nomination paper is delivered to him in theprescribed manner."

Learned counsel placed much stress on this passage ofthe judgment. But the view of the law laid down by theDivision Bench is not consistent with the decision of theSupreme Court which has given a much wider interpret-ation of the word ' election' in article 329 (b) of theConstitution. The view of the Division Bench cannot,therefore, be held to be authoritative and the principle laiddown by the Supreme Court must take precedence overthe view of the Division Bench. Applying the principlelaid down by the Supreme Court it is manifest that theissue of notifications under sections 151 and 39 (2) of the

(1) 1 E.L.R. 68; A.I.R. 1953 Pat. 47,

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48 BRINDABAN PRASAD TIWARIV. SITA RAM [VOL. V

Representation of the People Act, is a part of the processof 'election' within the meaning of article 329 (b) of theConstitution and that the jurisdiction of the High Court toissue a prerogative writ is barred.

For the reasons which I have expressed I think thatthe application of the petitioner under article 226 failsand must be dismissed with costs: hearing fee five goldmohars.

JAMTTAR, J.—I agree.Application dismissed.

[ELECTION TRIBUNAL, MADHYA BHARAT.]

BRINDABAN PRASAD TIWARIv.

SITA RAM AND OTHERS.AMAR NATH SEGAL (Chairman),

R. N. SHINGAL and M. B. REGE (Members).

March 14, 1953.Disqualification of candidates—Office of profit—Zamindari Aboli-

tion—Zamindars appointed as patels—Injunction by Court againsttaking possession of Zamindaris—Whether appointee disqualified^Be&ignation after nomination but before scrutiny, effect of—Acceptanceof office after rejection of nomination—Whether result of election can beaffected—Representation of the People Act, 1951, ss. 7(d), 100 (l) (c)—Madhya Bharat Abolition of Zainindaries Act, 1951.

On the promulgation of the Madhya Bharat Zamindari AbolitionAct, the Government of Madhya Bharat fixed a date for the vesting ofthe villages, but before that date, on a petition for alwrit of mandamus, theHigh Court of Madhya Bharat issued an injunction ad interim restrain-ing the Government from taking possession of the Zamindari lands.During the interval between the promulgation of the Act and theinterim injunction, the Government had notified the appointment of theerst-while Zamindars including the petitioner as the Patels of thevillages previously held by them as Zamindars, but by reason of theinjunction the operation of the Act was suspended and the Governmentissued instruction to the Collectors directing, that notwithstanding thenotification of appointment the nominees should not do the work ofPateli :

Held, that under the circumstances the petitioner did not holdthe office of a Patel under the Government during the period when theinjunction was in force,

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E. L. B.] BRINDABAN PRASAD TIWARI V. SITA RAM 49

The material date for consideration of the validity of the nomina-tion paper is that of the nomination, and not of the scrutiny, there-fore, if a candidate held the office of Patel on the date of nomination,his subsequent resignation before the date of scrutiny will not validatethe nomination.

. The plea that the result of the election has been materially affectedby the improper acceptance or rejection of any nomination could beraised by any petitioner, whether he is a candidate or not.

The material date for the determination of the question whether anomination has been improperly rejected is that of the nominationitself and if a nomination paper is improperly rejected, subsequentacceptance of an office of profit by the candidate is not a ground forholding that the result of the election has not been materially affectedby the improper rejection.

The improper rejection of a nomination renders the election void.(Case law referred to).

ELECTION PETITION NO. 92 of 1952.

ORDER.

Shri Sitaram Vishwanath Tatke was elected from Cons-tituency Guna No. 59 of the Madhya Bharat LegislativeAssembly, by a margin of 14 votes over the petitionerBrindaban Prasad Tiwari. The election is challenged bythe petitioner on the ground that Shri Tatke was on thedate of his nomination holding an office of profit under theGovernment as a Patel of the village Vinayak Khedi, andwas therefore, disqualified from being validly nominated.It is further alleged, that he had obtained, by impersona-tion of voters with his knowledge and connivance, a largenumber of votes; that some voters who purported to havecast their votes for him, were not living on the date of thepoll, and others were not at the polling station. It is alsoalleged, that material prejudice had been caused to thepetitioner by tendered votes having been left out ofaccount. It was alleged in the alternative, that if ShriTatke was held to have not been a Patel at the date of thenomination, the same considerations applied in the case ofone Daulatram, a candidate whose nomination paper hadbeen rejected, and that by reason of the improper rejectionof Daulatram's nomination the election was prejudiced andtherefore, void. The petitioner further alleged, that ShriTatke had employed Patels who were holding offices ofprofit under the Madhya Bharat Government as his pollingagents, and that the voters' list of village Chak Bhora was

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50 BRINDABAN PRASAD TIWARI V. S11A RAM [VOL. V

not available at the Colony Polling Station and about 50voters of the said village had thus been deprived of theirlegitimate voting right.

It is common ground that Shri Tatke was at one time theZamindar of Vinayak Khadi. On the promulgation of the %Zamindari Abolition Act, the Government of MadhyaBharat fixed the 2nd of October, 1951, as the date for thevesting of the village, but on a petition for a writ ofmandamus the High Court of Madhya Bharat issued aninjunction ad interim restraining the Government fromtaking possession of the Zamindari lands. During theinterval between the promulgation of the Act and theinterim injunction, the Government had notified theappointment of the erst-while Zamindars as the Patels ofthe villages previously held by them as Zamindars, but byreason of the injunction the operation of the Act wassuspended and the position was that the Zamindars becamePatels designate, but not Patels holding the office, in fact.Shri Tatke on these facts contended, that he was not aPatel; and that even were he one, he had before thescrutiny of his nomination papers actually tendered hisresignation to the Collector who forthwith accepted it, and,therefore, there was no force in the contention of the peti-tioner that the acceptance of his nomination was improper.He denied the allegations of impersonation and prejudice tothe petitioner by reason of the tendered votes not beingtaken into account. In para eleven of his statement he ques-tioned the competence of the petitioner making a grievanceof the rejection of the nomination form of Daulatram,since Daulatram himself had not raised that question.

The following issues* were framed for trial :—1. Was respondent No. 1 not a Patel on 20th Novem-

ber, 1951, the date of nomination ? (In view of the admis-sion that he resigned on 22nd November, 1951, the burdenof proof was placed on the respondent).

2. If he was, was he holding an office of profit underthe Government of Madhya Bharat and therefore, disquali-fied for being elected to the Legislative Assembly ?

3. Whether the relevant date for consideration of thedisqualification is that on which the nomination paper ispresented or the date of scrutiny ?

* Qnly those issues which are material for this report are printed here,

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E. L.B.] BRINDABAN fRASAD TlWARI 1). SITA RAM 51

4. Has the result of the election been materially affect-ed by the improper acceptance of the nomination paper ofrespondent No. 1 ?

5 and 6. [Omitted].7. Whether the petitioner has in fact received a

majority of valid votes and is on that ground entitled to bedeclared elected ?

8. Whether the petitioner is not entitled to raise thequestion of the improper rejection of the nomination paperof Daulatram ?

9. Whether the rejection of the nomination paper ofDaulatram was improper ? and if so, has it caused preju-dice to the petitioner ?

On an application of the respondent Shri Tatke, dated28th October, 1952, the issues were reconsidered, andissues Nos. 6 and 10 were struck off, issue No. 5 wasamended in the present form by our order, dated 29thOctober, 1952, (copy attached herewith).

Evidence has been recorded in the case in detail, thepetitioner having taken on himself the burden of proof ofthe question regarding personation the absence of the listof Chak Bhora's and the rejection of Daulatram's nomina-tion. It was assumed by the parties, as issues Nos. 1and 2 will indicate, that prima facie the burden of pro-ving that Shri Tatke was not a Patel, was on Shri Tatkehimself, and that the petitioner should lead evidence in thefirst instance. It is unfortunate that by reason of thisaspect of the burden of proof a mass of evidence has comeon the record, on the other issues, which in the view thatwe take on the question of Pateli could have been avoided.

The contention of Shri Tatke in para. 3 of his writtenstatement was that although he had been appointed asPatel, he was not in fact the Patel, because the interiminjunction issued by the Madhya Bharat High Court, beforethe vesting of the village in the Government under theMadhya Bharat Abolition of Zamindaris Act, obstructed histaking the office and that in any case he had resigned priorto the scrutiny. It will be, therefore, relevant to considerthe several dates material to determine the effect of theinterim injunction by the High Court, and the effect of theresignation. The date of nomination in this case was 20thNovember, 1951. Shri Tatke's resignation was admittedly

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52 BRINDABAN PRASAD T1WARI V. SITA RAM [VOL. V

tendered on the 22nd, that is, after the nomination, butbefore the scrutiny. We have held in case of Chain Singhv. Pratapsingh, Election Petition No. 93/1952, that thematerial date for consideration of the validity of the nomi-nation paper is that of the nomination, and not of thescrutiny. And, therefore, if Shri Tatke is held to havebeen holding the office of Patel on the 20th of November, hissubsequent resignation on the 22nd will not affect the issue.

The Zamindari Abolition Act came into force on the 25thof June, 1951, and the rules under the Act were promulga-ted on the 28th of July, 1951. The notification of theappointment of Patels, including Shri Tatke was made on22nd September, 1951 and Exs. P-61 and 62, showthe acceptance of the appointment by Shri Tatke. A notifi-cation, dated September, 1951, fixed the 2nd of October,1951, as the date of vesting under section 3 of theZamindari Abolition Act; but on a petition for a writ ofmandamus the High Court passed an interim injunction on1st October, 1951, restricting the operation of the Act. Itis clear therefore that there was no vesting and there couldbe none in the face of the injunction. In fact the Govern-ment issued instruction to the Collectors directing thatnotwithstanding the notification of appointment, thenominees should not do the work of Pateli.

We are, therefore, constrained to hold, that since therewas no office of Pateli under the Government on the 2ndof October, 1951, which Shri Tatke could hold, he was nota Patel on the date of the nomination, when admittedlythe injunction was still in force.

But this takes us to the other question, namely, the effectthe rejection of the nomination paper of Shri Daulatram,who was Zamindar like Shri Tatke, and had been notifiedin the list of Patels designate. It is conceded, that thesame consideration would apply in both cases, namely,of Shri Tatke and Shri Daulatram in determining whetherthey were holding the office of Patel. And for reasons dis-cussed we must hold that Daulatram too did not hold theoffice of Patel at the date of his nomination and, therefore,the rejection of his nomination paper was invalid. Section100, clause (c), of the Representation of the People Actprovides that an election would be void if the nominationpaper of a candidate is improperly rejected.

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fi. L. U.] BRINDABAN PRASAD TlWARl V. SITA RAM 53

I t has been consistently held by Election Tribunals thatthe improper rejection of a nomination paper renders thewhole election void. We would refer in this connection toParker's Election Agent and Returning Officer, 5th Edition,page 141, referring to Davies v. Lord Kensington (*) and thecases reported in Thakur Udaya Vir Singh v. Raj KumarSingh (2), Sardar Ourbahsh Singh v. Sardar Baldeo Singh (3),Ramchandra Annaji Khevgikar v. Shiv Vishal Singh HarpalSingh (4), Sardarni Prakash Kaur v. Raj Bahadur BasakhaSingh (5), Sardar Harcharan Singh v. Sardar NarottamSingh (6), Sardar Basant Singh v. Sardar Rattan Singh (7),Amir Mohammad Khan v. Atta Mohammad Khan (8),Mahadev Parashram Diwan v. Vinayak Pahdhari NathThorat{9), Few v. Gibbon (10), Lewis v. Gibbon (1]), AbdulHay at Khan Ghoudhari v. Zahur Ahmad Choudhari (12),Jagganath Prasad v. Maheswar Dayal Seth (l3), ZainulabdinShah v. Mohammed Amin(u), Bashir Ahmad v. AkhtarHusain Khan (15). This Tribunal has also held that viewin the case of Anandrao Rege v. Kailash Chandra Giri (l6),Election Petition No. 41 of 1952.

It was contended for Shri Tatke, that since Daulatramhimself had not raised the question of the improper rejec-tion of his nomination paper, it was not open, to thepetitioner to make such rejection a ground of attack. Weare clearly of the view that this contention has no force.It is well established that an election is not a matter interpartes and especially in the framework of the Constitution,it is the right of every voter, to cast his vote in favour ofa person of his choice. The improper rejection of a nomi-nation paper therefore prejudicially affects the electors'right. Section 100 of the Representation of the PeopleAct, clause (c), provides without reservation, that one of thegrounds for declaring election to be void, is that the resultof the election has been materially affected by the impro-per acceptance or rejection of any nomination, and we areof the view that such a plea, could be raised by anypetitioner, whether he is a candidate or not. As stated above

(1) L.R. 9 C.P. 720. (7) 1 Doabia 80. (13) 2 Doabia 217.(2) Hammond 56. (8) 1 Doabia 98.' (14) 2 Doabia 302.(3) 1 Doabia 13. (9) 1 Doabia 137. (15) 2 Doabia 341.(4) 1 Doabia 211. (10) 1 Doabia 247. (16) 1 E.L.R. 211.(5) 1 Doabia 332. (11) 1 Doabia 259.(6) 1 Doabia 77. (12) 2 Doabia 10.

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the difference between the votes cast for Shri Tatke andthe petitioner is only 14, and in the absence of very strongand conclusive evidence that this small margin could nothave been wiped out if Daulatram's nomination paper hadbeen accepted, the finding must be that the election wasprejudiced by Daulatram's nomination paper being rejected.There is not even a remote suggestion that this would nothave been the case.

But it was suggested that Daulatram had virtuallywithdrawn from the contest, since after the rejection ofhis nomination, he accepted the office of Patel and that inany case at the date of polling he did not remain a candi-date for whom a vote could be cast. This contention mustbe repelled for the simple reason, that the material date forthe determination of the question is that of the nominationand if a nomination paper is improperly rejected and thusright to stand for election is denied to any candidate, thesubsequent acceptance of an office would not affect theissue. It is the denial of the right that gives the cause forgrievance. The status of the candidate and his eligibilitymust be considered with reference to that date, and not toevents thereafter. It is open to a candidate whose nomi-nation paper is rejected to say that, but for the rejection,he would have had no occasion to accept the office whichhe subsequently did. We hold that Daulatram's nomina-tion paper was improperly rejected, and that thesubsequent acceptance of the office of Patel by him, doesnot affect the decision of this case.

We hold that by reason of the illegal rejection of thenomination of Daulatram, there has been prejudice vitiat-ing the election. We, therefore, allow the petition anddeclare the election of Shri Tatke void. Considering thatthere has been undue expense in calling witnesses whoseevidence in the circumstances stated above was unneces-sary, the petitioner shall get 50 per cent, of the costsincurred. Pleader's fees Rs. 250.

Election declared void.

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E. L. B.J SHIVA DUTT V. BANSIDAS DHANGAR 5 5

[ELECTION TRIBUNAL, FAIZABAD.]

SHIVA DUTT AND OTHERSv.

BANSIDAS DHANGAR AND OTHERS.D. N. Roy (Chairman),

A. SANYAL and M. U. FARTTQI (Members).

March 17, 1953.

Election petition—Verification—List of corrupt practices not verified—Power to accept verified list after limitation—Representation of thePeople Act, 1951, ss. 83, 85, 90 (4).

Where an election petition which contained full particulars of thecorrupt practices alleged, was duly signed and verified but the listof corrupt practices filed with it was not verified and on this defect inthe list being brought to the notice of the petitioner by the ElectionCommission, the petitioner filed a duly verified list, but the period oflimitation for filing the petition had expired when this verified list wasfiled :

Held, per A. SANYAL and M.U. FAEUQI (D.N. BOY dissenting) (i) thatas the election petition contained.full particulars of the corrupt practices,and this was duly verified, omission to verify the list was not a defectfor which the petition could be dismissed summarily further, as the listforms part of the petition it should also be deemed to have been verified;(ii) that, as the Election Commission had called for a verified list andsuch a list had been filed and the Election Commission had the powerto condone delay in the filing of a petition, the defect in the presenta-tion of the original petition was cured by the filing of the second veri-fied list.

D. N. EOY (contra).—The principle to be applied to cases ofdefective verification is that if the defect is trivial it will be condonedbut if it is serious the election petition must be dismissed. The totalomission to verify the list of corrupt practices is a substantial defectand this defect cannot be cured by the subsequent filing of a duly veri-fied list after the period of limitation has expired.

Khan Bahadur Shah Muhammad Yahya v. Ghoudhry MuhammadNazirul Hasan (Sen and Poddar 549), T. Prakasam v. U. Krishna Rao andOthers (2 E.L.B. 54), Khilumal and Another v. Arjun Das and Others(1 E.L.E. 497), Bhola Nath v. Krishna Chandra Gupta and Others(3 E.L.E. 288), Bajit Bam v. Kateshar Nath (I.L.E. 18 Allahabad 396),Lancaster Case (5 O'M. and H. 41), Kalyan Chandra Mohile v. Bisham-bhar Nath Pandey and Others (3 B-L.E. 125), Ramachandran Nair v.Ramachandra Das and Others (1 E.L.E. 442), North Meath Case (4 O'Mand H. 185), Bijay Singh v. Narbada Gharan Lai (2 E.L.E. 426),Sadanand Pyne v. Harinam Sha (A.I.B. 1950 Calcuttal79), Purshottam-das Banchoddas Patel v. Shantilal Girdharilal Parekh (1 E.L.E. 223),

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56 SHIVA: DUTT V. BANSIDAS DHANGAR [VOL. V

Kanaiyalal Durllabhram Bhansali v. Popatlal Mulshankar Joshi andOthers (l B.L.B. 244), Debi Prasad v. Mohammad Naseer and Others (3E.L.E. 137) and Muhti Nath Bai v. Uma Shankar Misra and Others(3 E.L.E. 109) referred to.

ELECTION PETITION NO. 282 of 1952.

ORDER.

D. N. ROY (Chairman).—The petitioners, claiming tobe registered voters on the electoral roll of Karhal Westcum Shikohabad East Constituency of the Uttar PradeshLegislative Assembly, made this election petition againstSri Bansidas Dhangar, the returned candidate who is res-pondent No. 1 and against 9 others, who were also the dulynominated candidates for election to that constituency,praying that the election be declared wholly void, or at anyrate, the election of respondent No. 1 be declared void andbe set aside and fresh election be ordered.

Respondent No. 1 stood on the K. M. P. Party ticket,respondents Nos. 2 and 9 on the Congress ticket, respon-dents Nos. 3, 4, 7 and 10 on the Independent ticket; respon-dent No. 5 on the Socialist Party ticket, respondent No. 6on the Socialist Revolutionary party ticket, and respondentNo. 8 on the Jan Sangh Party ticket. Out of the respondentsreferred to above, respondents Nos. 9 and 10 withdrewtheir candidatures within the time allowed by law, andrespondent No. 7 withdrew in favour of respondent No. 4after the expiry of the period provided for the withdrawalof candidatures. The election was held on January 22,1952. The counting of votes took place on February 3,and 4, 1952. And, as a result of the counting, respon-dent No. 1 was declared duly elected by the ReturningOfficer. Respondent No. 1 lodged his return of electionexpenses which was published in the U. P. Gazette of the3rd of May, 1952. The petitioners made the petition beforethe Election Commission of India on May 17, 1952. Theelection was challenged on a variety of grounds inclusive ofalleged corrupt and illegal practices and irregularities.The petition was signed by all the petitioners and wasverified by Shri Shiva Dutt, petitioner No. 1, in the follow-ing terms:—

" I, Shiva Dutt, one of the petitioners, verify the con-tents of paras. 1 to 14 of the petition partly by personal

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E.L.R.] SHIVA DTTTT V. BANSIDAS DHANGAR 57

knowledge and partly by information received andbelieved to be true.—Verified on May 14, 1952, atMainpuri."

Along with the petition, seven lists were appended, alleg-ed to be lists of particulars. These lists were referred to incertain paragraphs of the petition. The lists were signedby Shri Shiva Dutt but were not verified by him at theirfoot. On June 21, 1952, the Secretary of the ElectionCommission of India, drew the attention of Shri ShivaDutt by a letter to the provisions of section 83(2) of theRepresentation of the People Act, 1951, and told him thatthe lists submitted along with the petition had not beenverified as required by that section, and he requested SriShiva Dutt to make good the deficiency within a period of15 days from that date, "failing which the petition will bedismissed under section 85 of the Act for non-complianceof the provisions of section 83". In the same letter, theSecretary of the Election Commission further stated thatthis letter was to be read as without prejudice to the provi-sions of law applicable to the case. In reply, the peti-tioners sent a letter to the Election Commission of India onJuly 2,1952, saying that the particulars of the corrupt andillegal practices accompanying the original petition con-tained in lists I to VII were referred to in the petition andshould therefore be treated as signed and verified, but sincethe Commission required that they should be separatelysigned and verified, the direction was being complied with.In that letter, the original lists were verbatim copied outand at the foot thereof Sri Shiva Dutt appended the follow-ing verification clause signed by him :—

" I, Shiva Dutt, one of the petitioners verify thecontents of the lists I to VII accompanying the petitionand given above, partly true to my personal know-ledge and partly on information received and believed tobe true.

Verified at Mainpuri on June 30, 1952."Sri Shiva Dutt in addition to what has been stated

above, noted on that application below his signaturesthe date, 2nd July, 1952.

The Election Commission of India after receipt of thereply, did not dismiss the petition under section 85 of theRepresentation of the People Act, 1951. The Commission,

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acting under section 86 of that Act, appointed this Tribunalfor the trial of the petition. The petition has been resist-ed before this Tribunal only by respondent No. 1, inter alia,on the ground that it is not framed, signed and verified inaccordance with the provisions of section 83(1) of the Act;that it is not accompanied by any list signed and verifiedand setting forth full particulars of the corrupt and illegalpractices as required by section 83(2) of the Act; that theElection Commission acted illegally and without jurisdic-tion in calling upon the petitioners that since the listsaccompanying the petition were not verified they shouldcure tht defect, that fresh lists submitted by the petitionerwere also not signed and verified according to the provi-sions of the Act, that the alleged verification of June 30,1952, was beyond the time prescribed for the presentationof the petition, that in view of these facts, the petitionercontravened the mandatory provisions of section 83 of theAct with the result that the allegations regarding corruptand illegal practices are liable to be struck out, and thatthe allegations of the corrupt and illegal practices have infact no foundation whatsoever. The other respondentsdid not at all enter appearance in the case.

Eleven issues were settled in the case, of which prelimi-nary issues Nos. 1 to 4 which are as follows have beenheard by the Tribunal:—

(1) Are the original election petition and the list dulysigned and verified according to law ? if not, its effect ?

(2) Is the subsequent list reaching the Election Com-mission of India on July 3, 1952, duly signed and verifiedaccording to law ? If not, its effect.

(3) Is the subsequent list reaching the Election Com-mission of India on July 3, 1952, time barred ? If so, itseffect ?

(4) Is the election petition liable to be dismissed fornot being accompanied by any valid list ?

These issues are so interlaced that they may be dealtwith together. The contention of the respondent that theoriginal petition was not properly signed does not appear tobe acceptable. The grievance of the respondent on thispoint is based entirely upon surmises. The petition iscontained on several sheets of paper, the last one of whichis white paper and the others are blue papers. The

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last sheet is signed by all the petitioners inclusive of SriShiva Dutt petitioner No. 1 and the earlier sheets aresigned by Sri Shiva Dutt alone. It is not necessary thatall the sheets should have been signed by all the peti-tioners. The contention of respondent No. 1 to the effectthat the signatures on the last sheet were made by thepetitioners when the paper was blank and that the matterwas typed out later on, is in the absence of any evidence,based entirely on surmises. In my opinion, the originalelection petition and the lists appended to the same wereduly signed, and I would hold accordingly.

The question next arises whether the original petitionand the lists were duly verified. In this connection,reference is to be made to section 83 of the Represen-tation of the People Act, 1951, which lays down asfollows:—

"83. Contents of petition: (1) An election petitionshall contain a concise statement of the material facts onwhich the petitioner relies and shall be signed by the peti-tioner and verified in the manner laid down in the Code ofCivil Procedure, 1908 (Act V of 1908) for the verificationof the pleadings.

(1) The petition shall be accompanied by a list signedand verified in like manner setting forth full particulars ofany corrupt or illegal practice which the petitioner alleges,including as full a statement as possible as to the names ofthe parties alleged to have committed such corrupt orillegal practice and the date and place of the commission ofeach such practice.

(3) The Tribunal may upon such terms as to costsand otherwise as it may direct at any time allow the parti-culars included in the said list to be amended or order suchfurther and better particulars in regard to any matterreferred to therein to be furnished as may in its opinion benecessary for the purpose of ensuring a fair and effectualtrial of the petition."

It will be obvious from the provisions of this sectionthat an election petition is to contain a concise statementof the material facts on which the petitioner relies andshall be signed by the petitioner and verified in the mannerlaid down in the Code of Civil Procedure for verification ofthe pleadings. Sub-section (2) of section 83 lays down

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that the petition shall be accompanied by a list signed andverified in like manner setting forth full particulars of anycorrupt or illegal practice, which the petitioner alleges, in-cluding as full a statement as possible as to the names ofthe parties alleged to have committed such corrupt orillegal practice and the date and place of commission ofeach such practice. It would thus be obvious that theverification is of essential importance. If we look into theverification of the original petition, we would find that theperson verifying did not specify with reference to thenumbered paragraphs of the petition what he verified ofhis own knowledge, and what he verified upon informationreceived and believed to be true. Consequently, there canbe no doubt whatsoever that the verification of the originalpetition was not in accordance with rule 15 of Order VI ofthe Code of Civil Procedure. It appears that the listsappended to the original petition containing the particularsof the alleged corrupt and illegal practices were not verifiedat all. The question would be whether non-compliancewith these provisions would render the petition liable to berejected.

As has been held by this very Tribunal in Election Peti-tion No. 267 of 1952, Bhola Nath v. Krishna ChandraGupta and Others i1), the powers of the Election Tribunalunder the Representation of the People Act, 1951, are notco-extensive with the powers of a court under the Code ofCivil Procedure in all respects. An election petition call-ing in question an election has to be presented within thelimited time prescribed in rule 119 of the Representationof the People (Conduct of Elections and Election Petitions)Rules, 1951. The election petition has to be presented tothe Election Commission under section 81 of the Represent-ation of the People Act, 1951. Section 83 of the Act, whichhas already been quoted above, lays down what the electionpetition should contain, and what the lists accompanyingthe petition setting forth full particulars of any corrupt orillegal practices should contain. It further lays down thatboth the petition and the list should be separately signedand verified in accordance with law. Section 85 of the Actsays that if the provisions of section 81, section 83 or sec-tion 117 are not complied with the Election Commissionshall dismiss the petition, provided that if a person making

(D3E.L.R. 288.

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the petition satisfied the Election Commission that suffici-ent cause existed for his failure to present the petitionwithin the period prescribed therefor, the Election Com-mission may in its discretion condone such failure. Section90(4) of the Representation of the People Act, 1951, saysthat notwithstanding anything contained in section 85, theTribunal may dismiss an election petition with does notcomply with the provisions of section 81, section 83 orsection 117.

In the Full Bench decision of Rajit Ram v. KatesharNath (x) the verification of the plaint was in this form :—" The contents of the petition of the plaint are true toto the best of my knowledge and belief", and it was heldthat this form of verification, though not free from ambi-guity, was in substantial compliance with the provisions ofsection 52 of the Code of Civil Procedure. That viewwas followed in Election Petition No. 267 of 1952,Bhola Nath v. Krishna Chandra Gupta and Others (2), andthere we held that although the verification of the peti-tion is somewhat defective, there was substantial compli-ance with Order VI, rule 15, of the Code of Civil Procedureand section 83 of the Representation of the People Act, 1951.In my view, the same principle would apply to the verifica-tion of the petition in the present case. The test to be appliedwill be this that if the defect is trivial, it will be condonedand if the defect is serious, the election petition will bedismissed.

It admits of no doubt whatsoever that the lists appendedto the original petition which purported to contain instancesand particulars were not verified at all. That defect wasnoticed by the Election Commission itself when the Com-mission by its letter dated 21st of June, 1952, called uponthe petitioner to remedy the defect within 15 days ofthat date " without prejudice to the provisions of lawapplicable to the case". The petitioners by their sub-sequent letter dated the 2nd of July, 1952, referred to theabove contention that since the lists were referred to in thepetition, they should be deemed to have been verified bythe petition itself. They further contended that since theCommission required that they should be separately signedand verified, they were complying with that direction. It

(1) I.L.K. 18 All. 396. (2) 3 E.L.R. 288.

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has been urged on the one side that the procedure was notjustified on the part of the Commission and that it shouldnot be deduced that the Commission condoned any delay.On the other hand, it has been contended that since theCommission required that defect to be remedied, (if it wasa defect at all), and the defect was actually remedied withinthe time given, and the Commission, instead of dismissingthe petition under section 85 of the Act, referred it to thisTribunal after appointing the Tribunal under section 86,it means that there has been a condonation of delay. Itcannot be doubted that if the subsequently verified listswhich reached the Election Commission on the 3rd of July,1952, were to cure the limitation in the case, these listsreached the Commission after the period prescribed by lawand, consequently, the petition would be time barred. Thequestion would therefore be, whether there was any condon-ation of delay, and whether under the circumstances ofthe case, the petition merits dismissal or whether it shouldbe proceeded with, and the allegations investigated.

It has been urged on behalf of the petitioners that weshould not take too technical a view of the matter, andthat we should be guided by broad principles of justice,equity and good conscience, just in the same manner as incivil cases between a party and a party, and that we shouldnot strictly construe the provisions of section 83 of theRepresentation of the People Act, 1951. Charges in an elec-tion petition are of a very serious nature and should not bedealt with in the same way as particulars in a civil case.This was the view taken by Bruce J. in the Lancaster case(1).A passage in Halsbury's Laws of England, Volume 12, page413, lends support to the same view. Considerations which,therefore, govern the trial of civil disputes between a partyand a party will not exactly be the considerations which willdetermine the hearing of an election petition. It cannot fora moment be doubted that the election law is technicalin its formation and it should be strictly construed. TheAllahabad Tribunal in deciding Election Petition No. 28of 1952, Kalyan Chandra Mohile v. Bishambhar NathPandey and Others (z), held in considering the provisionsof section 37 of the Representation of the People Act,that the provisions must be strictly construed and that

(1) 5 O'M. & H. 41. (2) 3 E.L.R. 125.

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the notice of withdrawal was neither legal, nor effectiveand that the presentation was not proper. In determiningthat point, the Tribunal was not swayed by the considera-tion that technicalities should be brushed aside and thatthe Tribunal should proceed upon a broad view of thecircumstances in order to do justice between a part}? and aparty. The case furnishes an instance of the propositionthat election law is technical in its effect.

It is necessary to observe, as was also observed, in Elec-tion Petition No. 33 of 1952, Ramachandran Nair v.Ramachandra Das and Others (*), that an election petitionand its trial are not on all fours with a plaint in a civil suitand its trial. In the latter, the proceeding is between partyand party whereas in the former the whole constituency is, ina sense, involved in the trial. An election petition cannotordinarily be dismissed for default, or brought to an endat the will of the parties, or by the death of any oneof them, without giving an opportunity to the others, whomight have been petitioners. Elaborate provisions havebeen de dsed in the Representation of the People Act inthe event of abatement of election petitions, and for thedisposal of applications for their withdrawal. They havebeen enacted, to quote the words of Andrew J. in the NorthMeath Case{*) to "render it impossible for the Court tosanction any concession which may have the effect of ex-cluding that full disclosure of facts which was one of theobjects of the Statute to provide for, or of preventing thatthorough investigation which the Court is bound to makeof all the charges relied upon by the petitioner."

With this background, it cannot for a moment be con-tended that the law relating to elections and election peti-tions is not technical, or that the same considerationsshould be brought to bear upon the trial of an electionpetition as in a trial in a civil suit. As has been held inElection Petition No. 133 of 1952, Bejoy Singh v. NarbadaCharan Lal(3), before the Election Tribunal, Bhopal,the language of the section is so clear that we cannotpossibly indulge in the intention of the Legislature. Inthis connection we cannot forget the duties enjoinedupon us by the law as a Court. The function of the

(1) 1 E.L.R. 442. (3) 2 E, L, R. 426,(2) 4 O'M. and H, I85 at p, 187,

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Court is merely to interpretIt is not the province of a

the language of a statute.Court to scan its wisdom or

policy. Its duty is not to make the law reasonable but toexpound it as it stands. A court is not concerned with thedesirability, utility or reasonableness of a particular provi-sion of law, if the language is plain. We are to give effectto it as we find it, irrespective of the consequence it mayentail. In Sadanand Pyne v. Harinam Sha (*), it wasobserved by Das Gupta and Guha JJ., that " Courts mustresist the temptation to change the law under cover ofinterpretation of law. If they use the power to interpretlaw, to alter laws which they may not like, and to makenew laws which they think should be made, that would bea corrupt use of their power. And I for my partwill avoid the sin so ably condemned in the aboveobservation.

An analogous case like the present'one is to be found inElection Petition No. 83 of 1952, Purshottamdas Ranchhod-das Patel v. Shanti Lai Girdharlal Parikh (a) decided by theBombay Tribunal. There the Election Commission invit-ed the attention of the petitioner to the fact that the verifi-cation made by him at the foot of the list referred to theparagraphs of the pleadings contained in the petition andnot to the paragraphs of the list of corrupt or illegal practi-ces as required by section 83(2) of the Act. The petitioner inhis reply thanked the Commission for pointing out themistake and sent a fresh list along with letter which,according to him was duly verified. It was held that the listgiven in the original petition was not a verified list accord-ing to the manner provided in the Code of Civil Procedureand the petition was therefore not accompanied by avalid list, and therefore, there was non-compliance of sec-tion 83(2) with regard to the requirement that a verifiedlist should accompany the petition. It was further heldthat the defect of not filing the list of corrupt and illegalpractices as required by section 83(2) along with the peti-tion cannot be allowed to be cured by the petitionersforwarding another list subsequently to the ElectionCommission.

In a decision by the Election Tribunal of Madrasin Election Petition No. 144 of 1952, T. Prakasam v.

(1) A.I.R. 1950 Cal, 179, (2) 1 E.L.R. 223.

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Dr. U. Krishna Rao and Others^) it was held that the powerof the Election Commission to condone is confined to thedelay in presentation and does not extend to failure tocomply with the other requirements, and that the orderof the Election Commission cannot be construed to dealwith the failure to comply with section 83(2) in regard tothe list of the particulars.

In a decision of the Election Tribunal of Ajmer in Elec-tion Petition No. 298 of 1952, Khilumal and Another v.Arjundas and Others (2), it was observed that the ElectionCommission did not pass any order condoning the delay inthe presentation of the petition, and that from the merefact that the Election Commission did not dismiss the peti-tion under section 85, but chose to appoint a Tribunalunder section 86, it did not follow that it condoned thedelay.

The argument advanced on behalf of the petitioners thatsince the lists appended to the original petition which,though not verified, were referred to in the petition whichwas verified, it should be construed that the lists were alsoby implication or by reference verified in the petition itselfdoes not appear to me to be a sound argument. A similarpoint arose in a Gujarat case in Election Petition No. 77of 1952, Kanhaiyalal Durllabhram Bhansali v. PopatlalMulshanicer Joshi and Others (3). There it was observed thatthere is no provision of law to file a fresh list and that theprovision of section 83(2) and the filing of duly verifiedlists of particulars accompanying the petition were manda-tory and, if these provisions are not observed, the petitionmerited dismissal. In that case the petitioner had filedExs. A, B and C with the petition. Paragraph 3 of thepetition had reference to Ex. A. Paragraph 6 had refer-ence to Ex. B, while paragraph 11 had reference to Ex. C.The contention of the petitioner was that the paragraphsof the petition read with those exhibits which were refer-red to in the petition would be sufficient compliance withthe provisions of section 83(2) of the Act. The Tribunaldid not accept that contention and held that the petitionwas not accompanied by a list of corrupt or illegal practicesas required by section 83(2) of the petition and was liableto be dismissed under section 90(4) of the Representation of

(1) 2 E.L.R. 54. (2) 1 E.L.R. 497. (3) 1 E.L.R. 244,

EL—9

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the People Act. The Tribunal further held that even ifthe averment in the petition itself as amplified by Exs. A,B and C was to be considered, they too did not satisfy therequirements of section 83(2). That case in my opinionstands on all fours with the present case.

I would in this connection refer to two other decisions ofthe Gorakhpur Tribunal, one in Election Petition No.269 of 1952, Debi Prasad v. Mohammad Naseer andOthers (J) and the other in Election Petition No. 199 of1952, Mukti Nath Rai v. Uma Shanker Misra and Others^).In the first of these two cases, the petitioner had filed thelist along with the petition in which some details ofcorrupt and illegal practices alleged to have been com-mitted by respondent No. 1 or his agents had beenmentioned, but those lists were not verified in the mannerlaid down in the Code of Civil Procedure for the veri-fication of the pleadings. The petitioner had sent anapplication to the Election Commission later on, and alongwith that application he had submitted the lists with neces-sary verification on each page and details. It was heldthat the petitioner failed to furnish the details of the parti-culars of corrupt and illegal practices by means of a list asrequired by section 83, sub-section (2), of the Representa-tion of the People Act within the period of limitation andthat, as verification cannot be allowed at the late stage, thepetition was liable to be dismissed, even though the petitionitself was properly verified. In Election Petition No. 199 of1952 decided by the Gorakhpur Tribunal (2) as stated abovea similar question arose and it was held that the list ofparticulars filed by the petitioner was liable to be rejected,as it was filed after the period of limitation had expired.The Tribunal held that since the election petition containedallegations of corrupt and illegal practices which shouldhave been accompanied by a list duly signed and verifiedas contemplated under section 83(2) of the Act, and sincethose provisions were not complied with, there was noproper petition under section 80 of the Act, which could beinquired into.

If we apply the preponderance of opinion on this pointto the facts of the present case, I have not the least doubtin my mind that the election petition in the present case

(1) 3E.L.R. 137. . (2) 3 E.L.R. 109,

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was not in accordance with law; that the lists accompany-ing the petition were not at all verified and that the defectcould not be cured by submission of a subsequently signedand verified list before the Election Commission on the 3rdof July 1952, after the period of limitation had expiredand that consequently under section 90(4) of theRepresentation of the People Act, the petition meritsdismissal.

It is important to note in the present case that the peti-tion has been made not by any of the duly nominated candi-dates for the election, who were set up on various partytickets, but by others who claim to be registered voters onthe electoral roll. The candidates of the conflicting politi-cal parties who contested the election have not come for-ward to make the petition against the election of thereturned candidate, viz., respondent No. 1. This is a factwhich cannot be lost sight of. It is true that in section 90sub-clause (4) of the Representation of the People Act, theword used is "may" ; and the section lays down that theTribunal "may dismiss" the election petition which doesnot comply with the provision of section 83. The use ofthe word "may" would imply that the Tribunal has thepower not to dismiss a petition in a case where the provi-sions of section 83 have been substantially complied with.However in this particular case, I am of opinion that thepetitioners have failed to comply with a mandatory provi-sion and have not even substantially complied with theprovision of section 83(2) of the Act. When evidence withregard to an alleged corrupt or illegal practice is to be led,the petitioners would be allowed to lead evidence only withregard to the corrupt or illegal practices in respect of whichthey have given sufficient particulars as required by section83(2). And when no such particulars are given either inthe petition or in a duly verified list accompanying thepetition, the averment would have to be ignored and noevidence would be allowed to be led. Thus when sufficientparticulars about none of the corrupt or illegal practiceshas been given, there remains nothing with respect towhich the petition could come to trial, and the Tribunalwould have no option but to dismiss the petition. Theseare my findings on issues Nos. 1 to 4.

As my conclusions on these issues are different from theconclusion of my learned brothers with whom, I regret, I

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cannot agree, their view, which is the majority view, shallprevail in this case.

A. SANYAL and M. U. FARUQI.—This petition was pre-sented by voters of Karhal West cum Shikohabad EastConstituency of Uttar Pradesh Legislative Assembly.Respondents Nos. 1 to 10 were the duly nominatedcandidates for the election, out of whom respondentsNos. 9 and 10 withdrew their candidatures within thetime allowed by law, and respondent No. 7 withdrew infavour of respondent No. 4, after the expiry of theperiod provided for the withdrawal of the candidature.The election was held on 22nd January,, 1952. Countingtook place on 3rd and 4th February, 1952, and as aresult of counting respondent No. 1 was declared dulyelected by the Returning Officer. The return of elec-tion expenses was lodged with the Returning Officeralong with the requisite declaration, and the notificationregarding the lodging of the return of expenses waspublished in the Official Gazette on 3rd May, 1952. Thispetition was filed on 17th May, 1952. The petition pur-ports to have been signed by all the seven petitioners butby an authority given by six of the petitioners, petitionerNo. 1, i.e., Sri Shiva Dutt, verified the petition accordingto law. There are 14 paragraphs in the petition, and in allthe relevant paragraphs in which concise statements ofthe allegations are contained, reference is made to the listsin which detailed particulars of the allegations made in thepetition are contained. Along with the petition seven listsembodying the particulars were filed. These lists weresigned by Shiva Dutt, but were not verified by him in themanner provided in the Civil Procedure Code, as laid downin section 83, sub-section (2), of the Representation of thePeople Act, 1951, hereafter called the Act. On 21st June,1952, the Secretary of the Election Commission sent aletter to Shiva Dutt, informing him that the lists filed byhim along with the petition were not verified in the mannerprovided in the Civil Procedure Code as required undersub-section (2) of section 83 of the Act. He asked thepetitioner to make good the deficiency within the period of15 days from the date of the letter, failing which, the letterproceeded, the petition would be dismissed under section 85of the Act for non-compliance of the provisions of

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section 83, sub-section (2). At the end of the letter, it wassaid that the letter was to be read as without prejudice tothe provisions of law applicable to the case. In answer tothis letter of the Secretary of the Election Commission,Shiva Dutt and others sent a reply, dated 2nd July, 1952,which was received by the Commission on 3rd July, 1952.In that letter, they stated that the contents of the petition,which included the particulars of the corrupt and illegalpractices accompanying the petition contained in lists I toVII, were referred to in the petition, and were thus signedand verified. They however, stated that as the Commissionasked them to file separately signed and verified lists, theywere doing so. Then followed in the letter, lists which areexactly the same as were filed along with the petition. Thesubsequent lists were duly verified by Shiva Dutt, and weresigned by all the petitioners. The Commission, after receiptof the reply, did not dismiss the petition under section 85of the Act but acting under section 86, appointed thisTribunal for the trial of the petition. On receipt of thepetition, this Tribunal issued notices to the respondentsand only respondent No. 1, Sri Bansidas Dangar, appearedto contest the petition. Rest of the respondents did notappear despite service. Contention of the respondent No. 1,inter alia, was that the petition was not properly signedand verified according to law ; that the list accompanyingthe petition was not verified as required under section 83,sub-section (2), of the Act; that the subsequent list filed bythe petitioner before the Election Commission on 3rd July,1952, could not be taken into consideration because it wasfiled beyond time ; and also because it was not duly signedand verified according to law. It was further pleaded thatbecause of the non-compliance with the provisions of sub-section (2) of section 83 of the Act the petition was liableto be dismissed under section 90, sub-section (4), of the Act.There were other allegations as well but we are not con-cerned with them at present. Several issues were framedby the Tribunal, out of which issues 1 to 4, are on prelimi-nary points, and parties agreed that findings on theseissues should be given prior to the decision of the petitionon merits. Parties, however, did not adduce any oralevidence regarding the first four issues.

The first four issues are as follows:—

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(1) Are the original election petition and lists dulysigned and verified according to law ? If not, its effect ?

(2) Is the subsequent list reaching the Election Com-mission of India on 3rd July, 1952, duly signed and verifiedaccording to law ? If not, its effect ?

(3) Is the subsequent list reaching the ElectionCommission of India on 3rd July, 1952, time-barred ? If so,its effect ?

(4) Is the election petition liable to be dismissed fornot being accompanied by any valid list ?

Issue No. 1.—The petition covers several leaves, all theleaves are of blue paper excepting the last one which is ofwhite paper. Contention of, respondent's learned counselwas that the signatures of the petitioners were taken on awhite paper, while it was blank and that the petition wasdrawn up and typed subsequently meaning thereby, thatthe petition was not properly signed by the petitionersafter knowing and understanding the contents thereof.During the course of arguments our attention was alsodrawn to the fact that the names of the petitioners weretyped at the end of the petition but signatures of the peti-tioners did not appear against the typed names. The sameappeared at the right hand bottom corner of the paper,below the place where the names were given in type. Fromthis also learned counsel for respondents want us to inferthat the petition was drawn up after the signatures of thepetitioners had been taken on a blank paper. The wholeargument is based on surmises. It is impossible for us tohold that the petition was drawn up on a paper whichalready contained the signatures of the petitioners. Norare we prepared to hold that the petitioners did not under-stand and know contents of the petition at the time whenthey made their signatures. From the subsequent conductof the petitioners when they sent the letter to the ElectionCommission it is quite manifest that they fully endorsedthe contents of the petition and of the lists attachedwith it. Therefore it would be wrong to conclude from thefacts pointed out by the learned counsel for the respondentsthat the petition was drawn up after the signatures of thepetitioners had been taken on a blank paper.

So far as the verification of the petition is concerned,that too in our judgment is in accordance with law. It is

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clear that substantial compliance of the provisions of lawhas been made and the verification is not such as mightresult in the dismissal of the petition on that score.

As regards verification of the lists which are attachedwith the petition, they are not verified separately, butare signed by Shiva Dutt, the main petitioner, who wasauthorized on behalf of the other petitioners to verify thepetition.

The main contention of the respondent's side was thatsub-section (2) of section 83, enjoined that the lists shouldalso be filed along with the petition. As the lists filed withthe petition in this case are not verified, it was argued,there was no compliance of the provisions of law and there-fore it was liable to be dismissed under section 90, sub-section (4), of the Act withoxit entering into the merits ofthe case. There is also no doubt about the fact that thesection referred to above enjoins that the lists containingparticulars of corrupt and illegal practices should be verifiedaccording to law. But in this case the lists, as appearsfrom the contents of the petition, form part of the petitionitself. Therefore verification of the petition must beconstrued as verification of the lists as well. Though thetechnical defect still remains, it is not such as mightmake us throw out the petition on that ground. The objectof giving particulars in a list and the object of the verifi-cation of the lists is to inform the respondent about theallegations that were being made against him regardingillegal and-corrupt practices and also to pin down the peti-tioner to certain definite allegations. Verification is alsoenjoined in order to pin down the petitioner to certainspecific facts and circumstances and also in order to makehim responsible under law for the allegations made therein.That object is fully served if the particulars are made partof the petition which is duly verified according to law.

The question which we have to decide is whether thepetition should be dismissed for non-compliance of theprovision of section 83 of the Act. If we read the sectionin a strict and narrow sense it means that a petitionershould draft his petition so as to give a "concise statement"of the material facts and this should be accompanied by alist setting forth full particulars of corrupt or illegal prac-tices. The argument of the counsel for the respondent is

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72 SHIVA DUTT v. BAN SID AS DHANGAR [VOL. V

that in the present petition a list is given but as it is notverified separately the petition does not conform with thestrict rule as given in section 83(2) and must be thrownout. There are cases to be cited presently, in which variousTribunals have held that if the particulars are embodied inthe petition and no separate list is filed there is substantialcompliance with the provisions of the Act and the petitionshould not be thrown out. In the present case there is alist and the various kinds of corrupt or illegal practices aredetailed therein. In order to make the petition concise, thepetitioners have not detailed the particulars of corrupt orillegal practices in the paragraphs themselves and havemade reference to the various lists of particulars in thesaid paragraphs. The paragraphs of the petition have beenverified and thus the particulars have also been verified. Isit such a departure from the form that we must dismiss thepetition ? We should not make a fetish of the form andrefuse to look at the substance. It has been argued thatthe law relating to elections is technical and should bestrictly followed. The law is no doubt technical but weshould not make it more technical at the cost of substan-tial justice.

In this case what the petitioners did was that they filedthe lists and made them part of the petition by makingreference thereof in different paragraphs of the petition.Therefore, the only thing that can be said is that they didnot file any separate list containing particulars of theallegations of corrupt and illegal practices as is requiredunder section 83 sub-section (2). But as pointed out above,substantial compliance of law has been made when thelists are made part of the petition itself. Therefore tothrow out the petition only on the ground that separatelist duly verified has not been filed would be to interpretthe law too strictly which, under the circumstances ofthis case is not called for. In Khan Bahadur ShahMuhammad Yahaya v. Choudhry Muhammad NazirulHasani1), a similar point arose for decision. It may benoted that in that case the question of interpretation ofrule 108(2) of Bihar Legislative Assembly Electoral (Elec-tions and Election Petitions) Rules of 1936 arose. Thatrule was substantially the same as sub-section (2) of sec-

(1) Sen and Podd^r 549,

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tion 83 of the Act. The petition in that case contained thelist of particulars and the petition at the end was dulyverified according to law. Contention of the respondent'sside in that case was that as no separate list was filed alongwith the petition as was required under sub-rule (2) ofrule 108, the petition was liable to be thrown out. TheCommissioners held that there was substantial com-pliance with the requirements of rule and that technicalnon-compliance with it would not be fatal. They re-marked :—

" If the election petition contains all the particularsrequired in sub-rule (2) as in the present case, it is im-material that a separate list with the requisite full parti-culars is not annexed. " And further on,

" Where the whole aim and object of the legislaturewould be plainly defeated if the command to do a thingin a particular manner, did not imply prohibition, no doubtcan be entertained as to the intention, namely, that thedirection is to be taken as imperative. All that is requiredby the present rule is that there must be a clear un-equivocal notice to the other side of the details of acorrupt practice. If the same is given in the petition itself,why would the absence of a separate list nonsuit thepetitioner ?"

We are in full accord with the view taken in thiscase.

The other case recently decided which can usefully bereferred to is T. Prakasam v. Dr. U. Krishna Rao andOthers^1). In this case the details of corrupt and illegalpractices were embodied in the petition itself. The questionarose as to whether the details given in the petition shouldbe taken as substitute for the lists that the petitionershould have filed along with the petition under section 83(2)of the Act. The observation made by the Tribunal isas follows:—

" No new allegations have been made. How far thoseallegations amount to allegations of corrupt and illegalpractices is a matter which has not been argued and weare not dealing with it at present. All that could be saidis that these allegations were not put in the form of a

(1) 2 E.L.R.54.

EL—10

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separate list. To dismiss the petition on the ground thatthese allegations do not appear in the form of a list, thoughthey do find a place in the petition would be a too narrowand technical view of section 83(2) insisting on the formrather than on the substance. We do not mean to saythat a failure to comply with the requirements of section83(2) which is wilful and deliberate should be excused.But the circumstances of this case are peculiar. The'Jistssubsequently filed set forth only the same allegations asare found in the petition regarding corrupt and illegalpractices and the petitioner seems to have been under thehona fide belief that a separate list was not necessary. We,therefore, hold that the petition is not liable to be dis-missed on this ground."

In this case before us, the same thing happened under ahona fide belief. The petitioners made the details of corruptand illegal practices part of the petition and by doing sothey thought that they were complying with the require-ments of law. That they acted under a bona fide belief isapparent from their subsequent conduct. When the Com-mission called upon them to verify the list, the petitionersanswered that they had complied with the requirements oflaw by making the lists part of the petition itself whichwas duly verified. The lists filed by the petitioners alongwith the petition are not a separate document but bymaking reference of the lists in the petition, the petitionersmade the lists part of the petition. When once it is foundthat the details of corrupt and illegal practices are em-bodied in the petition itself, it is manifest that, when thepetition has been verified, the details aforesaid are alsoverified along with different paragraphs of the petition.This being so, it is clear that the requirements of law havebeen complied with in substance. To insist that it wasincumbent upon the petitioners to file a separate list,which should have been duly verified, would be to makethe provisions of section 83(2) too narrow. Our finding,therefore, is that the petition does not suffer from thedefects pointed out from the side of the respondent andthat it is not liable to be dismissed.

Before closing this part of the order, we may refer tosome of the cases cited from the side of the respondent.Two cases of the State of Bombay decided by the same

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Tribunal were cited. They are Purshottaindas RanchoddasPatel v. 8hantil%l Oirdharlal Parikh and Others (') andKanaiyalal Darlabbhram Bansati v. Popatlal Mul ShankarJoshi and Others^). Both these cases are distinguishable fromthe case before us. In these cases, the Tribunal after con-sidering the details given by the petitioner in the petition orin the list came to the conclusion that the details were toovague and indefinite. They found that the details given didnot fulfil the requirements of sub-section (3) of section 83 ofthe Act. Being of this view, the Tribunal in each casedismissed the petition. Paragraph 9 of the judgment inBhansalVs case clearly shows that out of the three listsA, B and C, list B was not considered in the judgementbecause, under some previous order contents of which arenot made part of the judgment, that list was out of con-sideration. Lists A and C were duly verified. Hence thesame could not be thrown out. Those lists were notconsidered to be lists within the meaning of sub-section (2)of section 83 because the Tribunal held that the same did notcontain full particulars. In other words, the Tribunal foundthem too vague and indefinite to be considered on merits.In the case before us, the only question for decision is, as towhether if the details which should have been in a sepa-rate list, are given in the petition itself, it would be suffi-cient compliance of the law. This point was not consi-dered by the two cases referred to above. We were alsoreferred to a case of Gorakhpur Tribunal, Debi Pra^ad v.Mohammed Nasir and Others^). That case is also disting-uishable from the present case because in the present case thelists form part of the petition and are, therefore, properlyverified within the provisions of law. But in the casereferred to above, the list was not verified. Therefore theTribunal held that provisions of section 83(2) were not dulycomplied with and in the result it dismissed the petitionon that ground.

Hence, in view of what is stated above, we find thatthe original election petition is duly signed and verifiedand as the lists form part of the petition, the same shouldalso be deemed to have been duly verified along with thepetition.

(1) 1 E.L.R. 223, (2) 1 E.L.R. 244. (3) 3 E.L.R. 137.

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Issues Nos. 2 and 3.—Regarding the list of particularssent to the Election Commission in reply to their letter,dated June 21, 1952, it is worthy of note that this listsubmitted the second time is exactly the same as the listannexed to the original petition and this list of particularshas been verified and sent to the Election Commissionwithin the time allowed by them. It was argued from theside of the respondent that this list also was not verifiedaccording to law. The main reason was said to be this,that in the typed verification June 30, 1952, was given asdate of verification whereas July 2, 1952, was given underthe signature of Shiva JDutt. It was contended that thiswas not proper verification. Fact of the matter seems tobe this, that the list was typed and was to be presented onJune 30, 1952. For some reason the list could not besigned and presented on that date. It was signed on July2, 1952. Shiva Butt wrote the date below his signaturebut being probably unacquainted with English did notchange the typed date (June 30, 1952) given in the verifi-cation. This point, therefore, has no weight at all. Ithas been argued that this list has been filed beyond limita-tion and the Election Commission has not condoned thedelay.

There is no doubt that the list sent the second time wasfiled beyond limitation but it must be held in the presentcase that the Election Commission did condone the delaythough there is no application for condonation of the delayand no specific order regarding the same. Our reasons arethese :—The Election Commission by their letter, dated 21June, 1952, drew the attention of the petitioner to theformal defect that the list was not verified and gave him15 days time to make good the deficiency. At the endof this letter there is a significant sentence. It says,"This letter is to be read as without prejudice to theprovisions of law applicable to the case." The ElectionCommission gave the petitioner the opportunity under adistinct understanding that it would be subject to their dis-cretion to condone the delay or not. The petitioners madegood the deficiency and sent a verified list which was acceptedby the Election Commission which sent on the petition fortrial before this Tribunal. There is no doubt that ordinarilyan application to condone the delay is filed and an order

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passed on the application. In the present case, the Elec-tion Commission called upon the petitioners to make goodthe deficiency and, if we may use the expression, offered toconsider the question of condonation of delay if a verifiedlist was filed. In compliance of the order of the Commis-sion the verified list was filed and accepted by the ElectionCommission. Therefore, no specific order became neces-sary. It is argued that the Tribunal can consider thequestion of the limitation again and should use its discre-tion and dismiss the petition. It is no doubt correct thatthe Tribuual can consider the question of limitation onthe merits and we have considered the merits and we areof the opinion that the present case is a fit one in whichwe should exercise our discretion in favour of the peti-tioners. The petitioners were all along of the view thatthe list annexed to the petition had been verified and weare of the opinion that they did not act negligently intaking that view. There may be an error of judgment butit was a bona fide error and it is proper in this case toaccept the list submitted the second time as within timeand treat it as part of the original petition. Thus thepetition is in proper form as required by section 83 of theAct. There is another aspect of the case which, we think,requires consideration. Section 83 of the Act is headed" Contents of petition." The Act provides that the peti-tition should be divided into two parts, namely, (1) con-cise statement and (2) list of corrupt and illegal practices.The two together make up the petition. It is wrong tosay that the list is something separate from the petition.In the present case, we may take it, that the petition wasfiled without a list and when the list was submitted thesecond time it became the complete petition and it maybe deemed in law to have been presented on 3rd July,1952, when the particulars reached the Election Commis-sion. There was thus delay in presenting the petition andit was within the competence of the Election Commissionto condone the delay in presenting the petition within theperiod prescribed therefor.

It is necessary to notice here the actual words in theproviso to section 85. It reads as follows :

" Provided that if a person making the petition satis-fies the Election Commission that sufficient cause existed

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for his failure to present the petition within the periodprescribed therefor, the Election Commission may in itsdiscretion condone such failure."

It is the delay'in presenting the petition that is condon-ed. Our attention has been drawn to some decisions ofother Election Tribunals which have held that there wasno provision in the Act to condone the delay in filing the"l is t" later on. This reasoning in our opinion, is notcorrect. Those Tribunals have, in arriving at this decision,split up the petition into two parts, (1) the petition itself,namely, the concise statement and (2) the list of corruptor illegal practices which accompanied the petition. On acorrect reading of section 83, it is not proper to split upthe petition in this way and to hold that the concisestatement is the petition and the list, which is part of thepetition, is not the petition. The two together make upthe petition, and, in the present case, the petition becamea complete petition when the list was filed the second timeand was received by the Election Commission on 3rd July,1952. There was thus delay in filing the petition and theElection Commission was empowered under the proviso tosection 85 of the Act to condone the delay and they havecondoned the delay, for sufficient cause. It is truethat the matter can be re-agitated before us. By use ofword ' may ' in section 90(4) of the Act we are vested withdiscretionary powers. It is, therefore, to be seen whetherthe circumstances of this case call for the use of our dis-cretion for the petitioners or against them. We haveexamined the circumstances of the case and we are of theopinion that the Election Commission in the present casecondoned the delay and that we too should exercise ourdiscretion in favour of the petitioners. At this stage weagain refer to the remarks made by a Madras Tribunal inthe case of T. Prakasam v. Dr. U. Krishna Rao and Others^)cited above. Reference was made from the side of the res-pondent to the case of Khilumal and Another v. Arjan DasandOthers(2). In that case the last date for filing the petitionwas May 24, 1952. The petition was sent on May 23, 1952,through registered post reaching the Election Commissionon May 26, 1952. The Commission sent the application

(1) 2 E.L.R. 54. (2) 1 E.L.R. 497,

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to the Tribunal for decision. Several points arose beforethe Tribunal for consideration which were as follows:—

(1) Is the Post Office an agent of the Election Com-mission ?

(2) Was the delay in presentation of the petition con-doned by the Election Commission ?

(3) Is there is a sufficient ground for condoning thedelay ?

The Tribunal decided the first point in the negative.Regarding the second point it found that in the absenceof any application for condoning the delay and in theabsence of any written order of the Commission it was notpossible to hold that the Commission condoned the delay.Regarding the third point the Tribunal thought that sec-tion 5 of the Limitation Act did not in terms apply toelection cases and that it was doubtful if the Tribunalhad discretion to condone the delay. It, however, re-marked,

" It can, therefore, be only on the principles of justice,equity and good conscience that the Tribunal, assumingthat it has such a discretion, may condone the delay."

The Tribunal then proceeded to consider the matteron the merits and came to the conclusion that there wasno justification for the petitioner to remain inactive for 59days out of the 60 days of limitation and on the 60th dayto send the petition by registered post.

Facts of the present case are different. In this case thepetitioners, not because of any negligence on their part,entertained bona fide belief that by making the list part ofthe petition they had substantially complied with therequirements of law. It is a matter of every day affair incivil cases that belong to the geneological tables and longlists of properties are given in the different schedules whichare made part of the plaint. The petitioners or the lawyerswho drafted the petition on their behalf acted under thesame bona fide belief that they were adopting the rightprocedure.

When the petition reached the Election Commission itcalled upon the petitioners to file a duly verified list within15 days and informed the petitioners that the order wasmade without any prejudice to the opinion that the

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80 SHIVA DUTT V. BANSIDAS DHANGAR [VOL. V

Commission might entertain after receipt of the list. The listwas received duly verified. The Commission did not rejectthe petition after receipt of the list. It, acting under section86 of the Act, constituted this Tribunal for deciding thepetition. As pointed out above, the Commission, underthe circumstances given above, must be held to have con-doned the delay. It appears that attention of the Tribu-nal which decided the afore-cited case was not drawn tosection 86 and to the implications, if the provisions of thatsection :are acted upon. The proviso of section 85 doesnot require that there should be any application for con-doning the delay nor does it lay down that there should beany order of the Commission in writing on the point. Weare, therefore, of the opinion that in the present case itfollows from the course which the events took that theCommission did condone the delay.

Condonation of the delay by the Commission, howeverdoes not fetter the powers conferred on the Tribunal undersection 90(4) of the Act.

As remarked in the case cited above our finding on thepoint should be guided by the principles of justice, equityand good conscience. Looking to the facts of this case asdiscussed above, we are definitely of opinion that the caseis a fit one in which we should exercise our discretion forthe petitioners and should hold that the duly verified listfiled for the second time on July 3, 1952, should be treatedas duly filed within the meaning of section 83 of the Act.

The passage cited above from KhilumaVs case^) showsthat the Tribunal which decided that case entertainedsome doubt as to whether it had discretionary power inthe matter. But a perusal of sub-section (4) of section 90of the Act will show that the word ' may ' used thereinclearly confers discretion and empowers the Tribunal eitherto dismiss the petition or proceed to hear it if it is barredby time. Such discretion is to be exercised judicially andthe present case is a fit one in which the discretion shouldbe exercised in favour of the petitioners.

In this view of the matter we come to the conclusionthat the list filed for the second time before the ElectionCommission on July 3, 1952, was duly signed and verifiedaccording to law, that though the same was filed beyond

(1) 1 E.L.R. 497,

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time the delay was condoned by the Election Commissionand that, under the peculiar circumstances of the casediscussed above, we exercise our discretion in favour of thepetitioners and hold that the petition should be heard onmerits.

Issue No. 4.—We have decided issue No. 1 for the peti-tioners. Issues Nos. 2 and 3 have also been similarlydecided. Therefore in the light of the findings recordedabove we hold that the petition is not liable to be dismissedand it shall be heard on merits according to law.

Issues decided accordingly.

[ELECTION TRIBUNAL, PATIALA.]

JOGINDER SINGHv.

RAGHBIR SINGH AND OTHERS.V. B. SARWATE (Chairman),

RAGHUNANDAN SARAN and E. M. JOSHI (Members).March 21, 1953.

Electoral roll—Finality—Returning Officer's jurisdiction to inquirewhether candidate was qualified to be entered as a voter—Improper rejec-tion of nomination paper—Representation of the People Act, 1950, s. 17.

An entry of a person's name in the electoral roll of a particularvillage is conclusive evidence that that person was qualified to beentered on the roll of that village as a voter and the Eeturning Officerhas no jurisdiction at the time of scrutiny of nominations to go behindthe roll and inquire whether he was qualified to be entered as a voterin the roll of that village, and reject the nomination on the groundthat he was not qualified to be entered as a voter in that roll.

Cawnpore District (N.M.R.) 1931, (Hammond 271), BhagalpurNorth (N.M.R.) 1921, (Hammond 165), Bombay Central Division (M.R.)1925 (Hammond 203), G. P. Commerce and Industry, 1927 (Hammond279), S. R. Lewis v. C. E. Gibbon (1 Doabia 259), Maulvi Tahur AhmedChoudhury v. M. Humayun Raza Choudhry (2 Doabia 17), Mills v.Walford (Sen and Poddar 75), Md. Zaman Khan v. Md. Sarwar Khan(Sen and Poddar 352), Mohan Lai Mandal v. Radhanath Das (Sen andPoddar 388), Hari Shanher Bagla v. Kishan Chand Puri (Sen andPoddar 840) and P. N. Balasubramanian v. G. R. Narasimhan andOthers (1 E.L.E. 461) referred to.

ELECTION PETITION NO. 166 of 1952,

PL—11

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OBDEB.

At the last general elections to the Pepsu LegislativeAssembly from the Patiala Sadar Constituency, the res-pondents were duly nominated candidates out of whom therespondent No. 1, Col. Raghbir Singh, was declared returned.The petitioner S. Joginder Singh had also filed his nomina-tion paper but his nomination was rejected by the Return-ing Officer on the ground that he had been nominated forthe Punjab Legislative Assembly also and that nominationhad been assented to by the petitioner, though later hewithdrew therefrom. The petitioner contends that thiswas not at all an adequate ground and the rejection ofhis nomination for Pepsu Assembly was improper. On thisground he seeks to avoid the election of respondent No. 1.An additional ground of the petitioner is that respondentNo. 1 was a Director of the Bank of Patiala, of the PatialaInsurance Corporation and of the Patiala ConstructionCompany, in which concerns the State Government hasinterest. This made the respondent No. 1 ineligible to bechosen for the Pepsu Assembly and though the respondentNo. 1 had purported to resign from these positions beforethe nomination, this resignation was a mere fake. It iscontended, therefore, that his nomination was improperlyaccepted.

2. The respondent No. 1 has opposed the petition contro-verting the allegations of the petitioner. According to himthe petitioner's nomination was properly liable to be reject-ed, though not for the reason stated by the ReturningOfficer, as he was not qualified for being registered as a voterat Talania in the Pepsu State on the basis of which elec-toral roll entry he was seeking this nomination. The otherrespondents did not enter appearance except respondentNo. 7, who, by his written statement, sought to support thepetitioner.

3. On the pleading of the parties the following issueswere fixed for trial:—

1. Did not the petitioner have the necessary qualifica-tion for being registered in the electoral roll of Bassi Cons-tituency in the State of Pepsu under section 19 of the Re-presentation of the People Act, 1950, and independently ofthe provision in section 20(7) of the Act ?

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(a) Whether the question of the validity of registra-tion of the petitioner as elector at Talania in Bassi Consti-tuency had been raised before the Returning Officer ?

(b) Could the validity of that registration be calledin question before the Returning Officer and if not, can it becalled into question before this Tribunal ?

2. Whether the fact that the petitioner was also regis-tered in the electoral roll of the Samrala Constituency inthe Punjab State renders invalid his registration in BassiConstituency in Pepsu ?

3. (a) Was the rejection of the nomination of the peti-tioner for the Patiala Sadar Constituency in Pepsu impro-per, he having already withdrawn his nomination for thePunjab Constituency ?

(b) Did the rejection of nomination for the PepsuConstituency materially affect the result of the election inthat Constituency ?

4. (a) Did the respondent No. 1 continue to hold theoffice of Director in the Bank of Patiala or the InsuranceCorporation of Patiala or in the Patiala Construction Com-pany at the time of his nomination though he had alreadysubmitted his resignation of these offices ?

(b) Were these or any of these an office of profitunder the Government of Pepsu at the time of nomina-tion ?

(c) Was respondent No. 1 not qualified for beingnominated and is his election void on that account ?

5. Was the petitioner entitled to make this petitionand has he made out a case for declaration of the electionas wholly void ?

6. What is the proper order to be made in this caseunder sections 98 and 99 of the Representation of the PeopleAct, 1951 ?

4. As soon as the hearing of this petition was concludedbefore us, the President's Proclamation under article 356of the Constitution was promulgated dissolving the presentLegislative Assembly of Pepsu and directing the generalelections to take place again for forming the next Assemb-ly. The effect of this is that the members returned in thelast elections lose their seats and cease to be membersiThe relief claimed in this petition is only a declaration thatthe election is wholly void which, if granted, would make the

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seat open for a fresh election. All the advantage whichthe petitioner wished to secure by making the petition,came automatically as a result of the proclamation. Weshould, therefore, have thought that the petitioner wouldin the circumstances, be reconciled to the position that thepetition may be treated to have become infructuous andso to have abated. For reasons which are not obvious tous, we found that neither side was willing to urge or acceptthat it had so abated. It was argued on both sides withthe same fulness and seriousness ignoring absolutely thegreat political change in the State and its repercussions onthis case. We have, therefore, to deal with and dispose ofthe petition on the merits, but in doing so we may notthink of stating the reasons for all our conclusions insuch detail as we would otherwise have felt called uponto do.

5. Mainly, we have to address ourselves to two questionsin this case, namely : (1) whether the Returning Officer hadimproperly rejected the nomination paper of the petitionerin the Patiala Sadar Constituency and (2) whether he hadimproperly accepted the nomination of respondent No. 1,Col. Raghbir Singh, which enabled him to be returned.

6. Dealing with the first of the above points, we observethat S. Joginder Singh Man, the petitioner, is a displacedperson hailing from Sheikhupura District now part of WestPakistan. In the pre-partition Punjab Legislative Assemblyhe was a member and accordingly by virtue of the IndianIndependence East Punjab Legislative Assembly Order,1948, he was accepted as a member of the LegislativeAssembly of the (East) Punjab Province in India. In thatcapacity he got allotment of a house " Murray field " inSimla. In March, 1949, he became a Minister in the PunjabGovernment and held that office till November of the year.On the qualification of such residence in Simla he wasregistered as an elector on the electoral roll of Simla city.He tells us that at his suggestion the Punjab Governmentadopted a scheme of having 'garden colonies' as part oftheir plan of rehabilitation of displaced persons in theevacuee properties and in one garden colony at Rahone inthe Samrala Constituency of the Punjab Legislative Assem-bly he got a grant of land also. Apparently on theassumption that he was thus rehabilitated in the Punjab,

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his name was put on the electoral roll of Rahone also. Allthis time he was putting forward a claim for rehabilitationin the Pepsu also and in the first instance he got a tem-porary allotment of land in Vazirnagar in the NarwanaConstituency on the basis of which he got his nameregistered on the electoral roll of Vazirnagar. Later, hesecured a permanent allotment in village Talania in theBassi Constituency and he got his name on the electoralroll of Talania village also.

7. Founding on his right as elector in Rahone in thePunjab, he sought his nomination from Shahabad Consti-tuency for the Punjab Legislative Assembly. His nominationthere was accepted but he withdrew that candidature on12th November, 1951, under section 37 of the Represen-tation of the People Act, 1951. After that he filed hisnomination papers for the Patiala Sadar Constituencywith which we are concerned here and other constituenciesin Pepsu, basing his right to such nomination on the entryof his name in the roll of Talania. The issue here is if hisname could properly have come on the electoral roll ofTalania. The petitioner does not claim that his name hadcome on the roll of Talania by the application of the provi-sion in section 20 (7) of the Representation of the PeopleAct, 1950. It could then be properly on that roll if he hadbeen ordinarily resident there for not less than 180 daysduring the qualifying period beginning on 1st April, 1947,and ending on 31st December, 1949 (vide sections 19 and 21of the Act). The respondent's contention is that the peti-tioner was never resident in Talania before June, 1950, andit was through the good offices of an obliging official con-cerned in the preparation of the electoral roll that he couldfind his name in the Supplementary roll of Talania when itwas under preparation in June, 1950.

8. Section 17 of the Representation of the People Act,1950, lays down that no person shall be entitled to beregistered in the electoral roll for more than one Consti-tuency, and according to section 5 (c) of the Act of 1951, aperson shall not be qualified to be chosen to fill a seat inthe Legislative Assembly of a State unless he is an electorfor any Assembly Constituency in that State. In view ofthese explicit provisions the Returning Officer at the PatialaSadar Constituency, when he took up the nomination

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paper of the petitioner for scrutiny, naturally felt the oddityof the spectacle of finding this enterprising gentlemanshowing himself as ordinarily resident here, there and everywhere, of the circumstances of the entry of his name in theelectoral rolls of four different constituencies in two Statesand of the fact that he was trying to take what seemed tobe an unrighteous advantage of the electoral roll entries intwo constituencies in two States by offering himself ascandidate for election to two State Legislatures in differentStates.

9. The Returning Officer referred to clause (2) of arti-cle 190 of the Constitution and properly opined that it wasa disabling provision by which if a person is chosen as amember of the Legislatures of two or more States, he couldkeep his seat in the Legislature of one State only and hewas required to resign the other seats within a prescribedtime, otherwise all the seats become vacant. He thenargued that on the analogy of that provision, if throughmistake or inadvertence a person happens to be registeredas voter in two constituencies then he should exercise hisoption where he would like his name to remain in order toexercise his right as voter. Otherwise if he votes in boththe constituencies, then as provided in section 62 (3) of theAct of 1951, his votes in both the constituencies would bevoid. He thought that the petitioner by assenting to hisnomination in Shahabad Constituency had impliedly exer-cised this option in favour of the electoral entry of hisname in Samrala Constituency and that being so, the entryof his name in the roll of Talania could not be treated asvalid and he could not use that entry as the basis for filingnomination for any constituency in Pepsu. In this viewhe rejected the petitioner's nomination.

10. We think that on a correct appraisement of theprovisions relating to the filing and scrutiny of nominationsthis view of the Returning Officer is not sustainable. Wedo not infer from the provision in article 190 (2) of theConstitution that it confers upon a person the right toclaim to stand as candidate for Legislature in two Statesand if he is chosen as member in both, then to resign fromone. For, if that were to be regarded as conferring such aright, then the provision in section 5 (c) of the Act of 1951,which would be directly in conflict with that right, would

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be rendered nugatory when taken in conjunction withsection 17 of the Act of 1950. Such conflict can only beresolved if we assume that article 190 (2) contemplates acase in which by inadvertence a person finds himself amember of the Legislatures of .two States. Since theelectorate have considered him to be a fit person to betheir representative the Constitution will not deny him theright to represent them in one place and he is thereforerequired to exercise his option. Similarly, the Legislaturecontemplates a ease in which an elector may be registered,in spite of the provisions to the contrary made in thatbehalf, in two constituencies. Here he is required to makehis choice before exercising his vote, which constituencyhe would prefer to vote in and the penalty for voting inmore than one constituency of the same class is that hisvotes in all are rendered void : [section 62 (3) of the Actof 1951].

11. It is conceivable that such option is to be exercisedby a person who offers himself as a candidate for electionand who, like the petitioner, finding himself registered aselector in two States cannot in view of section 5 (c) of theAct of 1951, be qualified to be chosen as member in theLegislatures of two States and that section 32 of that Actdoes not confer an absolute right to be nominated in twodifferent States in which he happens to be registered aselector. He has to show that he is qualified to be chosento fill that seat for which he wants to be nominated andsimultaneously he is not qualified to fill seats in twoLegislatures. But the question of option would arise wherehe is being simultaneously nominated in two States. In thepresent case the petitioner had already withdrawn hiscandidature from the Punjab State. The law did notrequire him to make an option as to where he would claimto remain registered as elector. On the registration aselector in an electoral roll, three rights are conferred on aperson : (1) right to vote, (2) right to be nominated to fill aseat in Legislature, (3) right to be a member of Legislature.The stage for indicating his option in each case is when theexercise of the right at two places would render the act inboth invalid according to law. The petitioner having with-drawn his candidature from the Punjab State ratherindicated his option that he did not want to be treated as

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qualified for filling a seat in the Legislature of that Stateand so may be regarded to have kept alive his right to benominated on the qualification of his registration as electorin Pepsu.

12. The respondent has not, therefore, supported therejection of the petitioner's nomination for the reasons givenby the Returning Officer but has contended that the nomi-nation was liable to be rejected by the Returning Officerfor another reason, namely, that the petitioner's registrationas elector in the roll of Talania was itself improper andthat entry could not be used as basis for the nomination.This raises two points for consideration, (1) whether theReturning Officer could in the scrutiny of the nominationsgo into the question of the propriety of the electoral rollentry of petitioner's name in Talania and reject his nomi-nation on being satisfied that his name could not properlyhave been entered in that roll and (2) if this Tribunal iscompetent to go into that question, even if the ReturningOfficer could not, in order to find that the rejection was notimproper.

13. According to section 32 of the Representation of thePeople Act, 1951, any person may be nominated as a candi-date for election to fill a seat in any constituency if he isqualified to be chosen to fill that seat under the provisionsof the Constitution and that Act. This means that fulfillingthe qualifications prescribed by the Constitution and bythe Representation of the People Act of 1951, are the firstrequisites for a jnomination. Article 173 of the Constitutionand section 5 of the Representation of the People Act of1951, lay down the qualifications for membership of StateLegislature and reading these provisions together thequalifications necessary for membership of the PatialaSadar seat are that the person should be a citizen of India,that he should be not less than 25 years of age and that heshould be an elector for any Assembly Constituency in Pepsu.'Elector' in relation to a constituency as is to be consideredfor qualification is defined in section 2 (1) (e) of the Actof 1951, as meaning a person whose name is for thetime being entered in the electoral roll of that constituency.According to these provisions, therefore, the fact of theentry of the petitioner's name in the electoral roll ofTalania in the Bassi Constituencv of the Pepsu Assembly

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would qualify him to seek nomination to a seat in any con-stituency of that Assembly, the other qualifications ofcitizenship of India and of being more than 25 years of agebeing unquestionably fulfilled in this case.

14. But the entire large class of persons who would fulfilthese qualifications are not allowed to be chosen to fill theseat, and both the Constitution, in article 191, and theRepresentation of the People Act of 1951, in section 7, laydown certain other matters which are regarded and termedas ' disqualifications' so that the persons who are subject tosuch disqualifications could not be entitled to be nominatedas candidates for election even though they may be foundto be fulfilling all the necessary qualifications as mentionedabove.

15. Therefore it becomes the function of the ReturningOfficer in the scrutiny of the nomination under section 36of the Act of 1951 to consider (1) if the person is qualified tobe chosen to fill the seat and (2) if he is not subject to anydisqualification. Objections may accordingly be madebefore him on such grounds to induce him to reject thenomination. Objections may be made on other groundsas well under section 36(2), but with them we are notconcerned here. Section 36 empowers the Returning Officerto make inquiry into such objections, but in sub-section (7)it is laid down that "for the purposes of this section" whichshould mean for the inquiry which he would make, theentry in the electoral roll of any constituency shall be con-clusive evidence of the right of any elector named in thatentry to stand for election, unless it is proved that thecandidate is disqualified under the Constitution or underthe Representation of the People Act of 1951. If the pro-duction of the entry is conclusive proof, the ReturningOfficer is precluded from going behind that entry and frominquiring if the qualifications (which according to lawshould be evidenced by the fact of that entry) are actuallyfulfilled or not. His function then remains only to inquireinto and determine if the person is subject to any disquali-fication due to which the right to stand for election provedby that entry may be denied to such person.

16. Going now to section 19 of the Representation ofthe People Act of 1950, it lays down two conditions ofregistration in the electoral roll of a constituency : (1) that

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the person has been ordinarily resident in the constituencyfor not less than 180 days during the qualifying period,and (2) that he was not less than 21 years of age onthe qualifying date. Under section 28 of the Act,rules have been framed—the Representation of the People(Preparation of Electoral Rolls) Rules, 1950—for pre-paration of draft electoral rolls and for their publication,for notice inviting claims and objections, for inquiryinto such claims and objections by a revising authority andamendment of the draft roll in consonance with the revis-ing authority's decision and for final publication of the rollthus amended. By section 24 of the Act of 1950 the elec-toral roll comes into force upon its final publication. Thereis a presumption that all these prescribed processes havebeen gone through before the final publication and thatthe roll has been prepared according to law. Therefore theentry in the electoral roll will be presumptive evidence ofthe person entered therein fulfilling the two conditionsrequisite for registration as set out above, and not onlythis but also it will be conclusive proof, so far as theReturning Officer is concerned, of the nominated personsatisfying the two conditions of registration specified insection 19. The right to registration conferred by thatsection is subject to absence of certain other conditionswhich are specified in section 16 as ' disqualifications forregistration', but with these we are not concerned here asthe petitioner was not subject to them.

17. The challenge to the petitioner's nomination is onlyon the ground that he did not fulfill the condition of180 days' residence in that constituency on the roll of whichhis name appears. But as to that the Returning Officer was,it seems, bound to accept the electoral roll entry as finaland conclusive, and he could not refuse to so accept itbecause of his knowledge that the petitioner was also regis-tered on similar qualifications in the roll of a constituencyin the Punjab State. This is also the view taken by theElection Tribunal in the case of Gawnpore District (N .M .R.)1931 (3). The Bhagalpur North (N. M. R.) 1921 (2),Bombay Central Division (M.R.) 1925 (3), and C.P. Com-merce and Industry, 1927 (4), are other cases reported inHammond at pages 165, 203 and 279 respectively, in which

(1) Hammond 271. (3) Hammond 203.(2) Hammond 165, (4) Hammond 279.

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also the view taken was that the electoral roll entry, afterthe roll is revised and finally published by the revisingauthority, becomes binding on the Election Courts on thequestion of the voters' qualifications for entry into the roll.In S. R. Lewis v. G.E. Gibbon, Punjab Anglo-Indian Consti-tuency Case(l), following the above mentioned three cases,it was held that the Returning Officer was bound to acceptthe electoral roll entry as conclusive evidence of the rightto stand for election.

18. Other cases to which we may refer are MoulviThakur Ahmed Choudhury v. M. Humayun Eaza Chou-dhury (2), Mills v. Walford (3), Md. Zaman Khan v. Md.Sarwar Khan (4), Mohanlal Mandal v. Eadhanath Das (5),Harishankar Bagla v. Kishen Chand Puri (c). In all thesecases the view taken consistently has been that the electoralroll is binding and conclusive on the Returning Officer aswell as the Election Tribunal in so far as it relates to quali-fications for being entered on the roll. The rules then inforce in the different Provinces as to the preparation ofelectoral rolls and to the conduct of elections were notmaterially different from the provisions now found in theConstitution and the Representation of the People Acts of1950 and 1951 and the rules thereunder, which have beenexamined by us above, and we think that the viewtaken in these cases as to the binding and conclu-sive character of the electoral roll on the questionof the qualifications of the elector to stand for ele-ction should also hold good under the law now obtaining.What the Tribunal has to find under section 100(1) (c) ofthe Representation of the People Act, 1951, is whetherthere was improper rejection or acceptance of nomination.If, being concluded by the electoral roll entry, the Return-ing Officer was bound to accept the petitioner's nomination,it cannot be permissible for this Tribunal to find that hisrejection was not improper, by going behind the entry andexamining whether the petitioner had fulfilled the requisiteresidential qualification to be entered in the roll of Talania.By section 36(7) of the Act of 1951 the entry is made con-clusive for the purpose of scrutiny of nominations by theReturning Officer, and it must be accepted as conclusive by

(1) 1 Doabia 259. i(4) Sen and Poddar 352.(2) 2 Doabia 17. (5) Sen and Poddar 38S.(3) Sen and Poddar 75. (6) Sen and Poddar 840*

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the Tribunal also to the same extent when the Tribunal isconsidering the Returning Officer's action taken under thatsection. We do not think that the scope of our inquiry onthis point is enlarged by the provision in section 100(2) (c)under which we may be required to consider " anynon-compliance with the provisions of the Constitution orof this Act or of any rules or orders made under this Actor of any other Act orrules relating to the election". It isobvious that whether there was any non-compliance asreferred to herein must be considered keeping in view theprovision in section 36 (7) that for certain purposes theelectoral roll entry has to be accepted as conclusive evenby the Tribunal.

19. The respondent's counsel relied on the decision inP.N. Balasubramanyan v. G.R. Narasimhan and Others (*).In that case the name of the petitioner was not entered inthe electoral roll on the date of nomination though therevising authority's order had been passed for its entry,and the name was actually put on the roll before the dateof scrutiny. The Returning Officer, therefore, rejectedthe nomination. The Tribunal found that the ReturningOfficer was entitled to inquire into the circumstance of theabsence of the entry in the roll on the date of nominationand that a mere production of a copy of entry subsequentto the filing of nomination would not be conclusive againstthe Returning Officer on this point. In view of the words"for the time being" occurring in the definition of 'elector'in section 2(l)(e) it was held that the name should beshown to have been on the roll on the date of the nomina-tion for the election to be validly nominated. This casedoes not therefore enunciate a different rule from the othercases above referred to which lay down that where thename of the candidate is on the electoral roll on the dateof the nomination, the entry is conclusive as to his right tostand for the election.

20. We accordingly find on Issue III that the peti-tioner's nomination should have been accepted by theReturning Officer and its rejection was improper. Wefurther find that an improper rejection of the nominationraises a presumption that the result of the election ismaterially affected and this not being shown to be a casein which the petitioner was likely to withdraw from the

(1) 1 E.L.K, 461.

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contest, no evidence could be acceptable to prove that theresult could not be materially affected in this case. Wehave given our detailed reasons for such view in the caseof Mathra Dass v. Dara Singh (*), decided on 5th March,1953, and need not repeat them here.

21. In view of the above findings it is not necessary toconsider the other parts of Issue No. I. On part (b) ofthat issue it has already been found that the validity ofthe registration of the petitioner's name in the electoralroll could not be called in question before the ReturningOfficer in the scrutiny of the nomination nor can it be call-ed in question before this Tribunal. On Issue II also forreasons already given we find that the rejection of thenomination was improper. On Issue V we must find afterthe above finding on Issue III that the election has to bedeclared to be wholly void according to section 100(1) (c)of the Representation of the People Act, 1951.

22. {Omitted].23. Issue VI.—We therefore make a declaration for what

it may be worth to the parties now, that the election inthe Patiala Sadar Constituency of the Pepsu Assemblyheld in January, 1952, was wholly void. We do not thinkthe petitioner to be entitled to any costs and order thecosts to be borne by parties as incurred.

Election declared void.

[ELECTION TRIBUNAL, FAIZABAD.]

KHUSHWAQT RAIv.

KARAN SINGH AND OTHERS.D. N. ROY (Chairman),

A. SANYAL and M. U. FARTIQI (Members).

March 21, 1953.Election petition—Corrupt practice—Particulars given in petition

—No separate list—Maintainability of petition—Respondent, whetherentitled to raise grounds not alleged in petition—Amendment—Tribunal'spower to amend—Representation of the People Act, ss. 88(2), 90(4).

In an election petition it is not open to the respondent tochallenge the validity of the election on grounds which are not raisedin th.e petition.

(1) 4 E.L.R. 441,

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Naranjan Singh v. Brisk Bhan Singh and Others (3 B. L. E. 179),Socket Singh v. Thakar Singh and Others (3 E. L. E. 102) and K. Subrak-manijam v. Abdul Hameed Khan and Others (l E. L. R. 432) followed.

Where full particulars of corrupt and illegal practices are given inthe election petition itself which is duly signed and verified, the petitioncannot be dismissed on the ground that no separate list of corrupt prac-tices has been filed along with the petition as required by section 83(2).

Purshottamdas Banchoddas Patel v. Shantilal Girdharlal Parek(1 E. L. R. 223), Kanaiyalal Durllabhram Bansali v. Popatlal Mul-shankar Joshi (1 E. L. E. 244), Debi Pra&ad v. Mohammad Nasir andOthers (3 E. L. E. 137), Mukti Nath Bai v. Uma Shankar and Others(3 E. L. E. 109) and T. Prakasatn v. Dr. U. Krishna Ban and Others(2 E. L. E. 54) followed.

The Election Tribunal has full power to allow an amendment ofthe election petition for the purpose of rectifying mistakes in theaddress of the respondents to the petition.

ELECTION PETITION NO. 319 of 1952.

ORDEK.

In this case respondent No. 9 in. his written statementcontended that respondents Nos. 1 and 2 engaged personson payment in contravention of the provisions of law andused in furtherance of their election certain posters whichdid not bear on their face the names and addresses of theprinters and publishers thereof, and they also procured theassistance of a large number of village headmen for thefurtherance of their election. He made an application tothe effect that these charges be made the subject of inquiryand additional issues be framed on them. In his applica-tion, he also contended that the nomination paper of res-pondent No. 5 was wrongly rejected, which should alsoform the subject matter of additional issues. The parti-culars of none of these charges have been given in thewritten statement or in the application of respondent No. 9except with regard to one poster.

We have heard learned counsel for the parties on thispoint and we are of opinion that this cannot be permitted.We are fortified in our opinion by certain reported decisions.In the Patiala case (Election Petition No. 104 of 1952)Naranjan Singh v.Brish Bhan and Others (J) it was heldthat it is not open to any respondent to seek to avoid anelection upon a ground not taken by the petitioner in theelection petition, and that this view would seem to followclearly from the language of section 80 and section 83 of

<I) 3EL.R. 179.

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the Representation of the People Act, 1951. In theKapurthala case (Election Petition No. 203 of 1952) SochetSingh v. Sardar Thakar Singh and Others i1), it was heldfollowing certain other decisions of different Election Tri-bunals, that it is not open to a respondent to challenge thevalidity of the election on grounds which are not raised bythe petitioner. In the Madras case, K. Subramanyam v.Abdul Hameed Khan and Others (2) a similar view was takenand it was held that it is not open to a respondent tochallenge the validity of the election on grounds which arenot raised by the petitioner. Following these decisions,we are of opinion that the grounds and instances raised byrespondent No. 9 in his written statement, which do notfind place in the averments made by the petitioner cannotbe inquired into and cannot form the subject-matter ofadditional issues.

SECOND ORDER.This is an election petition filed by Sri Khushwaqt Rai,

one of the candidates for election to the Legislative Assem-bly of Uttar Pradesh, from the Nighasan cum Lakhimpur(North) Constituency for the general election of 1951-52claiming that the election of respondents Nos. 1 and 2 bedeclared void and claiming also that the petitioner andrespondent No. 4 be declared to have been duly elected.

The respondents were duly served but only respondentsNos. 1, 2, 3, 4 and 9 entered appearance and have filedtheir written statements. Various issues were settled inthe case, of which preliminary issues Nos. 1, 2 and 8 havebeen heard.

They are as follows:—1. Is the petition liable to be rejected for non-com-

pliance with the provisions of section 83(2) of the Repre-sentation of the People Act of 1951 ?

2. Are the allegations of corrupt and illegal practicesvague and indefinite and should not be entertained for thatreason ?

8. Is the petition liable to be dismissed for non- joinderof Ram Dayal, son of Kandhai of Amethi, Tehsil Nighasan,District Lakhimpur, in view of the provisions of section 82of the Representation of the People Act ?

We shall take up issue No. 1 first. Section 83 of theRepresentation of the People Act of 1951, lays down that

(2) 3 E.L.R. 102. (3) 1 E.L.R. 432.

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an election petition shall contain a concise statement of thematerial facts on which the petitioner relies and shall besigned by the petitioner and verified in the manner laiddown in the Code of Civil Procedure for the verification ofpleadings. It further lays down that the petition shall beaccompanied by a list signed and verified in like manner,setting forth full particulars of any corrupt or illegal prac-tice, which the petitioner alleges, including as full a state-ment as possible as to the names of the parties alleged tohave committed such corrupt or illegal practice and thedate and place of the commission of each such practice.Sub-section (3) of the section lays down that the Tribunalmay, upon such terms as to costs and otherwise as it maydirect at any time, allow the particulars included in thesaid list to be amended or order such further and betterparticulars in regard to any matter referred to therein tobe furnished as may in its opinion be necessary forthe purpose of ensuring a fair and effectual trial of thepetition.

In the present case, no separate list has been given alongwith the petition. The particulars of corrupt and illegalpractices alleged to have been committed in the case aregiven in the petition itself and have been verified. Thequestion, therefore, is whether the non-compliance with theprovisions of section 83(2) of the Act should, in thecircumstances of the present case, be visited with a dismis-sal of the petition. The question has been considered indifferent ways by different Tribunals. In the Bombay caseof Purushottamdas Ranchhoddas Patel v. Shantilal Oirdhar-lal Parikh and Others i1) and in the Bombay case ofKariaiyalal Durllabhram Bhansali v. Popatlal MulshankerJoshi (2) and in the Gorakhpur case of Debt Prasad v.Mohammad Naseer and Others (3) and in another Gorakhpurcase in Muhti Nath Rai v. Sri Uma Shanker Misra andOthers^) the Tribunals held upon the circumstances of thoseparticulars cases that non-compliance with the provisions ofsection 83 (2) of the Act entailed a dismissal of the petition.In a Madras case T. Prakasam v. Dr. U. Krishna Raoand Others (•"'), the circumstances were very much similar asin the present case. There the particulars were not furnish-ed in the form of a list to the original petition, but certain

(1) 1 E.L.R. 223. (3) 3E.L.R. 137. (5) 2 E.L.R. 54,(2) 1 E.L.R. 244. (4) 3 E.L.R. 109,

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allegations had been made in the petition itself, and the listwhich the petitioner subsequently sent, contained only thoseallegations arranged in proper form and no new allegationshad been made. The Tribunal observed that to dismissthe petition on the ground that these allegations did notappear in the form of a list, though they do find a place inthe petition, would be a too narrow and technical view ofsection 83(2), insisting on the form rather than on the sub-stance. The Tribunal further observed that they did notmean to say that a failure to comply with the requirementsof section 83(2) which is wilful and deliberate should be ex-cused ; and that in the peculiar circumstances of thatparticular case, the petitioner seemed to have been underthe bona fide belief that a separate list was not necessary.Following the reasoning of that decision, we would holdthat the petition in the present case is not liable to bedismissed on that ground.

We would now come to deal with issue No. 3. It coversthe question whether the petition is liable to be dismissedfor the non-joinder of Ram Dayal son of Kandhai ofAmethi, Tehsil Nighasan, District Lakhimpur, in view ofthe provisions of section 82 of the Representation of thePeople Act. Section 82 lays down that a petitioner shalljoin as respondents to his petition all the candidates whowere duly nominated at the election other than himself ifhe was so nominated. In the petition, we find respon-dent No. 10 described as "Sri Ram Dayal (Father's namenot known) resident of Gbunsi, Tehsil Lakhimpur, DistrictKheri". In paragraph 6 of the petition, it was stated thatrespondent No. 10 was duly nominated as a candidate atthe said election, but he withdrew his name. It is admit-ted by the parties that Ram Dayal, resident of Ghunsi,Tehsil Lakhimpur, District Kheri, was a duly nominatedcandidate for election to the U. P. Legislative Assemblyfrom Lakhimpur (South) Constituency, and not for theNighasan cum Lakhimpur (North) Constituency; that thisRam Dayal had also withdrawn from election fromLakhimpur (South) Constituency, and that Ram Dayalwho was a duly nominated candidate for the constituencywhich is involved in the present case was resident ofAmethi, Tehsil Nighasan, District Kheri, who had alsowithdrawn later on from the election. It is therefore

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obvious that Sri Ram Dayal who was described as respon-dent No. 10 in the petition and who was referred to inparagraph 6 of the petition was the Ram Dayal, who wasduly nominated for the present constituency and who hadwithdrawn his candidature as such, and he is a resident ofAmethi, Tehsil Nighasan, District Kheri. What apears tohave happened is this, that although the real Ram Dayal,who is to be arrayed as a party in the present case, was des-cribed in the petition and was made a party, his address wasby some mistake given wrongly in the petition. Notice wassent to the real Ram Dayal resident of Amethi, TehsilNighasan, District Kheri. He has not come forward tocontest the petition in spite of service of notice. The cleri-cal or accidental error in the petition in regard to thismatter would not entail a dismissal of the petition in viewof the provisions of section 82 of the Act. A mistake ofthis nature can be rectified and, as has been prayed for bythe petitioner, we direct that the address of respondentNo. 10 be corrected by specifying that he is a resident ofAmethi, Tehsil Nighasan, District Kheri.

Issue No. 2.—[The Tribunal held that the allegations ofcorrupt and illegal practices contained in certain para-graphs of the petition were vague and indefinite andordered the paragraphs to be struck out.]

[ELECTION TRIBUNAL, PATNA.].

KALICHARAN SINGHv.

RAMCHARITAR RAI YADAVA AND OTHERS.BASTJ PRASAD (Chairman),

HARGOBINB PRASAD SINHA and ADITYA NARAYAN LAL

(Members).March 20, 1953.

Ballot papers—" Tendered votes "—When to be counted—Absence ofallegation of corrupt practice in petition, effect of—Bepresentation of thePeople Act, 1951, ss. 100(2)(c), 10l(a)—Bepresentation of the People(Conduct of Elections and Election Petitions) Bules, rr. 29, 47.

" Tendered votes " can be taken into account by an Election Tri-bunal if the petitioner alleges that the persons who cast their votes inthe ballot boxes were not genuine voters and that the persons whosubsequently gave the tendered votes were genuine voters, even if

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there is no allegation of any corrupt or illegal practice in the petition.Such a case comes within the purview of section 100(2J(c) and section10l(a) of the Representation of the People Act, 1951.

ELECTION PETITION NO. 30 of 1952.

Awadesh Nandan Sahay and Madan Mohan Prasad, forthe petitioner.

N. G. Ghosh and Kanhaiya Prasad Varma, for res-pondent No. 1.

ORDER.

Kalicharan Singh, one of the candidates for election tothe Bihar State Legislative Assembly from the SursandConstituency in the district of Muzaffarpur, has filedthis election petition under section 81 of the Representa-tion of the People Act, 1951, calling in question the electionof Ramcharitar Rai Yadava, respondent No. 1, andseeking a declaration that the petitioner has been dulyelected.

The petitioner states that he and the respondents hadbeen duly nominated for election; that the polling tookplace at various polling stations on several dates from the4th January till the 23rd January, 1952, that during thepolling about 38 bona fide voters were not allowed to castvotes by putting ballot papers in the ballot boxes on theground that ballot papers for persons bearing those nameshad already been issued; that these voters, therefore, gavetendered votes under rule 29 of the Representation ofthe People (Conduct of Elections and Election Petitions)Rules, 1951; that on the counting of votes it transpiredthat the respondent No. 1 had secured 7182 votes, whereasthe petitioner had polled 7180 votes, the other candidateshaving secured much lesser votes; and that, according tolaw, the tendered votes were not taken into account bythe Returning Officer.

The petitioner alleges that the tendered votes hadbeen cast by genuine and bona fide voters and if such votesbe taken into account, the petitioner will be found to havesecured a majority of valid votes.

The election petition is resisted by the returned candidate,respondent No. 1, who has filed a written statement con-tending that the election petition as framed is not main-tainable in law. He contends that, as the petitioner doesnot make any allegation of any corrupt or illegal practice

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against him (respondent No. 1), he can get no relief underthe law. He denies the petitioner's allegation that all thepersons who gave tendered votes were genuine and bonafide voters. On the contrary, he states that the personswho subsequently cast their votes in the favour of the peti-tioner were not genuine voters at all, but were false personswho personated themselves as such.

The respondent No. 4 also filed a written statement, buthe was absent at the trial.

The following issues arise for determination:1. Is the election petition as framed maintainable ?2. Has the result of the election been materially

affected by improper reception or refusal of votes or byreception of votes which are void ?

3. Has the petitioner received a majority of validvotes ?

4. Is the election of respondent No. 1 liable to be setaside ?

5. Is the petitioner entitled to a declaration that hehas been duly elected ?

Issue No. 1.—Section 81 of the Representation of thePeople Act, 1951, provides that election petition calling inquestion any election may be presented on one or more ofthe grounds specified in sub-sections (1) and (2) of section100 and section 101 of the Act. It appears that the presentelection petition calls in question the election of the return-ed candidate on the ground specified in sub-section (2)(c) ofsection 100, and a declaration that the petitioner has beenduly elected is sought under section 101(a) of the Act.Section 100(2)(c) provides, inter alia, that if the result ofthe election has been materially affected by the improperreception or refusal of a vote or by the reception of anyvote which is void, the Tribunal shall declare the electionof the returned candidate to be void. Section 101(a) laysdown that if the Tribunal finds that, in fact, the petitionerhas received a majority of the valid votes, it shall, afterdeclaring the election of the returned candidate to be voidfurther declare that the petitioner has been duly elected.

Mr. N. C.Ghosh, appearing for the respondent No. 1, hasinvited our attention to rule 29 of the Representation ofthe People (Conduct of Elections and Election Petitions)Rules, 1951, which deals with tendered votes. Paragraph(2) of the rule clearly lays down that such votes cannot

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be counted by the Returning Officer. It has been arguedby the learned advocate that there is no provision in theElection Law for dealing with tendered votes and thattendered votes cannot be taken into consideration unlessthe petitioner alleges some corrupt or illegal practice on thepart of the returned candidate, which he has not done inthe present case. It is, no doubt, true that the petitionerhas not alleged any corrupt or illegal practice on the part ofthe returned candidate (respondent No. 1). But we arenot in agreement with the contention of the respondentNo. 1 that tendered votes cannot be taken into accountby the Election Tribunal unless such corrupt or illegalpractice is alleged. The simple case of the petitioner, asstated above, is that some of the persons who cast theirvotes by putting ballot papers in the ballot boxes were notgenuine voters and that the persons who subsequently cameand gave tendered votes were genuine voters. Suchcase is clearly contemplated by section 100(2)(c) and section101(a) of the Representation of the People Act, 1951.

It has been, however, contended on behalf of the respon-dent No. 1, that section 100(2)(c) has reference to rule 47of the Representation of the People (Conduct of Electionsand Election Petitions) Rules, 1951. Rule 47 providesthat a ballot paper contained in a ballot box shall be reject-ed under certain circumstances specified in the rule. Thisrule comes into play at a later stage, namely, at the stageof counting of votes which is done under Chapter V ofPart V of the Representation of the People Act, 1951. Thequestion regarding "right to vote" is dealt with underChapter IV and refers to an earlier stage when the pollingtakes place. The expression "valid votes", referred to insection 101(a), means votes of those persons who have rightto vote within the meaning of section 62 of the Act.Corrupt and illegal practices are contemplated by section100(2)(a) and section 100(2)(b), and not by section100(2)(c) of the Act.

It, therefore, seems to us clear that the election petitionas framed is maintainable and we find accordingly.

Issues Nos. 2 and 3.—It appears that during the polling38 persons gave tendered votes at various polling sta-tions. Out of those persons, 17 have been examined aswitnesses on behalf of the petitioner and 7 as witnesses on

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behalf of the respondent No. 1. One of the persons whogave tendered vote was Mst. Surji. Two Surjis havebeen examined in this case, one on behalf of the petitionerand she is P.W. 15, and the other on behalf of the respon-dent No. 1 and she is R.W. 15. Each party claims thatthe Surji examined on its behalf is the real voter. One Mst.Sunari also gave tendered vote, but she is now dead.The respondent No. 1 has adduced some evidence regard-ing Sunari who gave tendered vote. The respondentNo. 1 filed a petition on 21st February, 1953, admittingthat three persons, * who gave " tendered votes ''were genuine voters. The Tribunal has, therefore, to con-sider whether the 28 persons referred to above, who aresaid to have given "tendered votes", were genuine andbona fide voters.

The above 28 persons can be divided into five groups.[After referring to evidence the Tribunal continued.]Summing up, it appears that there will be credit of four

tendered votes, namely, the tendered votes of *in favourof the petitioner. There will be debit of three original votes,namely, votes given in the names of.... *against thepetitioner. The petitioner, therefore, gains only one vote.

There will be credit of three tendered votes in favour ofthe respondent No. 1, namely, the tendered votes of *

The respondent No. 1 polled 7182 votes and the peti-tioner 7180 votes, as stated in the election petition. Add-ing one vote in the petitioner's account and three votes inthe respondent No. l's account, it is found that the totalnumber of valid votes secured by the respondent No. 1 is7185, whereas the total number of valid votes polled by thepetitioner is 7181. It is, therefore, clear that the respon-dent No. 1 is leading by four clear votes and we findaccordingly.

Issues Nos. 4 and 5.—In view of the above findings, theelection of the respondent No. 1 is not liable to be setaside and the petitioner is not entitled to a declarationthat he has been duly elected.

The result, therefore, is that the election petition fails.Petition dismissed,

* Names Omitted.

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E.L.R.] SHEO KUMAR V. V. G. OAK 10S

[ALLAHABAD HIGH COURT.]

SHEO KUMAR AND ANOTHERv.

V. G. OAK AND OTHERS,SAPRU and CHATURVEDI JJ.

March 19, 1953.High Court—Jurisdiction Election Tribunal—Certiorari—Errors of

law, whether ground for interference—Election -petition—Parties—-Candidates who have withdrawn—Representation of the People Act, 1951,ss. 37, 105—Constitution of India, arts. 226, 329(b).

The High Court has jurisdiction to entertain a writ petition againstan Election Tribunal.

An error of law in the decision of the preliminary issue whethera candidate who has withdrawn his candidature was a necessary partyto the election petition, is no ground for quashing the order of theTribunal in the exercise of the powers to issue a writ of certiorari tosubordinate Tribunals.

The question whether a candidate who withdrew his candidatureshould be impleaded or not is not in the nature of a collateral fact uponthe existence of which the jurisdiction of the Election Tribunal depends.

A candidate who withdraws his candidature under section 37 of theEepresentation of the People Act, 1951, cannot be regarded as a candi-date who was duly nominated ' at the election " and hence it is un-necessary to implead him as a party to an election petition.

Sitaram Hirachand v. Yograjsingh Shanlcarsingh (2 E. L. E. 283),Parry & Co., Ltd. v. Commercial Employees' Association, Madras ([1952]S. C. E. 519), Ebrdhim Aboobakar v. Custodian General of EvacueeProperty ([1952] S. C. E. 696) and B. v. Northumberland CompensationAppeal Tribunal ([1952] 1 All. E. E. 122) referred to.

CIVIL MISCELLANEOUS WRIT NO. 96 of 1953.

Application under article 226 of the Constitution ofIndia for writs of certiorari and prohibition against theorder passed by the Election Tribunal, Allahabad, in Elec-tion Petition No. 316 of 1952, dated November 13, 1952.

Gopalji Mehrotra and Kamat Nath Seth, for applicants.Oopi Nath Kunzru for opposite party.

ORDER.

SAPRU J.—This is an application under article 226 of theConstitution of India praying that this court may bepleased to issue a writ of certiorari quashing the order

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passed on November 13,1952, by opposite parties 1 to 3 anda writ of prohibition directing opposite parties 1 to 3 not toproceed with the Election Petition No. 316 of 1952.

The facts which have given rise to this petition may bestated briefly.

The first general elections under the Constitution ofIndia were held in the district of Allahabad in January,1952. The Sirathu-Manjhanpur constituency from whichthe applicants were seeking election in this district was adouble-member constituency with a seat reserved forScheduled Caste candidates. For the election there were asmany as nine candidates, viz., opposite parties 4 to 15. SriSheo Kumar Pandey and Sri Sukhi Ram Bhartiya wereamong the duly nominated candidates for the UttarPradesh Legislative Assembly. Both of them were stand-ing on the Congress tickets. Sri Salig Ram Jaiswal andShrimati Sushila Devi were set up as candidates on behalfof Kisan Mazdoor Praja Party.

Election at the aforesaid constituency was held onJanuary 28, 1952, and after the coiinting of votes petitioners1 and 2 were declared elected on February 9, 1952. There-after Salig Ram Jaiswal, opposite party 4, presented anelection petition challenging the election of the petitioners,before the Election Commission of India, New Delhi. Thatelection petition was sent for disposal to the AllahabadElection Tribunal consisting of opposite parties 1 to 3 withopposite party 1 as Chairman.

One Ganga Prasad had also filed his nomination whichwas scrutinised and accepted by the Returning Officer. He,however, withdrew his candidature subsequently and didnot contest the election. The petition filed by oppositeparty 4 was objected to by the petitioners on the ground,inter alia, that inasmuch as the petitioners had failed toimplead this Ganga Prasad as a party, the petition wasliable to be dismissed. This question was decided by theTribunal by its judgment dated November 13, 1952. TheElection Tribunal having held that it was unnecessary foropposite party 4 to implead Ganga Prasad, the petitionershave now come up to this court under article 226 of theConstitution.

Before considering the various points which have beenraised in the case, reference may be made to the fact that

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it is conceded by both the parties that the Election Tribu-nal which is functioning in Allahabad is subject to thejurisdiction of this court under article 226 of the Constitu-tion. Article 324 of the Constitution vests, inter alia, thepowers of appointing Election Tribunals for the decision ofdoubts and disputes arising out of or in connection withelections to Parliament and to the Legislatures of States, inthe Election Commission. Article 329 lays down that anelection to the Union or State Legislature can be question-ed only by an election petition presented to such authorityand in such manner as may be provided for, by or underany law made by the appropriate Legislature.

The Act has laid down the constitution of the ElectionTribunals to which petitions may be referred for disposalby the Election Commission to try the petitions. No provi-sion in the Constitution takes away the power of superin-tendence which this court exercises under article 227 or thepower of issuing writs to an Election Tribunal once it hasbeen constituted to hear a petition. It is unnecessary todilate on this point further as it is the common case ofboth the parties that this court has jurisdiction to enter-tain a writ petition against an Election Tribunal.

The case of the petitioners is that even though GangaPrasad withdrew his candidature on the date of scrutiny,he remained a duly nominated candidate and that it wasnot competent to the Election Tribunal to hear the elec-tion petition without Ganga Prasad having been impleaded.The short question, therefore, in this petition is whetherthe failure of opposite party 4 to implead Ganga Prasad isfatal to the maintainability of the election petition pre-sented by opposite party 4.

On the date of the nomination as many as nine candi-dates were nominated. Among them was one GangaPrasad. He survived his scrutiny under section 36, Re-presentation of the People Act, 1951, (hereinafter calledthe Act), but withdrew his candidature under section 37 ofthe Act on the date fixed under cl. (c) of section 30.The question that has to be considered is whether, underthese circumstances, he can be said to have remained aduly nominated candidate on the date of polling.

As much controversy has centred round section 82 ofthe Act, we consider it necessary to reproduce it. It runs#s follows:

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" Parties to the petition.—A petitioner shall join asrespondents to his petition all the candidates who wereduly nominated at the election other than himself if hewas so nominated. "

It is contended that section 82 must be read in thecontext of section 79. Both sections 79 and 82 occur inPart VI. The heading of this part is " Disputes RegardingElections " and Chapter 1 has the heading " Interpreta-tion ". It is urged that the words " at the election " insection 82 really are synonymous with " for the election "and that they are wide enough to include a candidate whowas a duly nominated candidate on the date of the nomi-nation but who ceased to be a candidate on the date whenthe polling actually took place. Section 79 is in thenature of a definition clause and defines a " candidate " asmeaning—

" A person who has been or claims to have been dulynominated as a candidate at any election, and any suchperson shall be deemed to have been a candidate as fromthe time when, with the election in prospect, he began tohold himself out as a prospective candidate. "

Clearly, a wide definition had to be given to the word" candidate " as the object appears to have been to pre-vent corrupt or improper practices. The words " at anyelection " in section 79, would in cases in which an actualelection takes place, have reference to the exact time whenthe polling takes place. It is vital to note that the defini-tions given in section 79 are subject to the context other-wise requiring. On this part of the case, we may inviteparticular attention to section 52 in Chapter III of Part Vwhich brings out the difference contemplated by the Legis-lature between the position of a candidate who withdrawshis candidature on the date of scrutiny and a candidatewho dies before the actual polling takes place.

If a duly nominated candidate dies after the date fixedfor the scrutiny of nominations and a report of his death isreceived by the Returning Officer before the commence-ment of the poll, the Returning Officer is under an obliga-tion, upon being satisfied of the fact of the death of thecandidate, to countermand the poll and report the fact tothe Election Commission In such a case all proceedingswith reference to the election have to be commenced anewin all respects as if for a new election. Even a candidate

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who has withdrawn his candidature can have himself re-nominated under those circumstances as a candidate forthe election.

A perusal of section 52 of the Act. will show that theconsequences which ensue when a duly nominated candi-date dies before the election takes place are very differentfrom those which follow the withdrawal of a duly nomi-nated candidate from the election. In the former caseproceedings have to begin afresh, while in the latter casethe candidate simply goes out of the electoral picture andthe election takes place from among the other duly nomi-nated candidates as if he had never sought election.

It has been pointed out that Part V of the Act dealswith the conduct of elections. Chapter I lays down the rulesand procedure for the nomination of candidates. Undersection 30 the Election Commission has to appoint the lastdate for making nominations, the date for the scrutiny ofnominations, the last date for the withdrawal of candi-dature and the date or dates on which a poll shall, if neces-sary, be taken. Each of these four acts has to be doneafter giving a notice of the intended election in such formand manner as may be prescribed, inviting nominations ofcandidates for the election and specifying the place atwhich the nominations are to be filed. Now, under section32 it is open to any person to have himself nominated as acandidate for election to fill a seat in any constituency ifhe is qualified to be chosen to fill that seat under theprovisions of the Constitution or this Act.

Clause (1) of section 33 lays down the manner in whicheach candidate shall, either in person or by his proposer orseconder, between the hours fixed in that section deliverto the Returning Officer at the place specified in that be-half, in the notice issued under section 31, a nominationpaper completed in the prescribed form and subscribedby the candidate himself as assenting to the nominationand by two persons referred to in sub-section (2) as pro-poser and seconder. Section 33(2) enables any personwhose name is registered in the electoral roll of the Consti-tuency and who is not subject to any disqualificationmentioned in section 16 of the Act, to subscribe as pro-poser or seconder as many nomination papers as there arevacancies to be filled but no more, subject to the provisocontained therein.

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Clause (3) of section 33 requires that the nominationpaper delivered under sub-section (1) must be accompaniedby a declaration in writing subscribed by the candidatethat the candidate has appointed as his election agent forthe election either himself or another person who is not dis-qualified under the Act for the appointment and who shallbe named in the declaration, and by such other declarations,if any, as may be prescribed. It is to be noted that underthis clause no candidate shall be deemed to be duly nomi-nated unless such declaration is, or all such declarationsare, delivered along with the nomination paper.

Sub-clause (5) makes it incumbent on the ReturningOfficer to satisfy himself that the names and electoral rollnumbers of the candidate and his proposer and seconder asentered in the nomination paper are, subject to the correc-tion of any clerical error, the same as those entered in theelectoral rolls. Clause (6) of this section enables theReturning Officer to require the person presenting thenomination papers to produce, if his name is not registeredin the electoral roll of the constituency for which he is theReturning Officer, either a copy of the electoral roll inwhich the name of the candidate is included or a certifiedcopy of the relevant entries in such roll. Section 34 laysdown that a candidate, in order to be deemed to be dulynominated, must deposit or cause to be deposited a certainsum in the Reserve Bank of India or in a GovernmentTreasury.

It will be seen that the fulfilment of these conditions isnecessary for being a duly nominated candidate. Section 35deals with notice of nominations and the time and placefor their scrutiny. Section 36 deals with the importantquestion of scrutiny of nomination papers and casts uponthe Returning Officer a duty to refuse any nomination onany of the grounds mentioned in section 36 (2), clauses (a)to (e). Section 36 enables a candidate to withdraw hiscandidature either himself by a certain date fixed underclause (c) of section 30, by a notice in writing in person orby his proposer, seconder or election agent authorised towithdraw the candidature.

It is vital to note that under sub-section (2) no person,who withdraws his candidature, is allowed to cancel thenotice of his withdrawal. It is equally vital to note thatunder sub-section (3) the Returning Officer, on receiving a

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notice of such a withdrawal, has to cause a notice of thewithdrawal to be affixed in some conspicuous place in hisoffice. Under section 38, the Returning Officer, after thescrutiny and withdrawal have taken place, has to prepareand publish a list of valid nominations in such manner asmay be prescribed.

It is clear from the scheme outlined above that it is onlyfrom among the list of duly nominated candidates who havenot withdrawn their candidature and taken back theirdeposit that the list of valid nominations can be drawn up.It will also be seen that for the purpose of the election thecandidate who allows himself to be nominated with dueformalities, who survives the scrutiny of his nominationpaper but withdraws his nomination before or on the datefixed for the withdrawal of the deposit ceases to be anykind of candidate at the election.

Now it must be noticed that what section 82 does is tolay down that a petitioner shall join as respondents to hispetition all the candidates who were duly nominated atthe election other than himself, if he is so nominated. Theright of presenting a petition on one or more of the groundsspecified in sub-sections (1) and (2) of section 100 andsection 101, to the Election Commission has been givenunder section 81 to any candidate at such election or anyelector in such form and within such time, but not earlierthan the date of publication of the name or names of thereturned candidate or candidates as such election undersection 67, as may be prescribed.

Mr. Gopalji Mehrotra's contention is that the candidatesreferred to in section 82 are the candidates who were dulynominated, regardless of the fact whether they withdrawtheir candidatures or not. He contends that notwith-standing the fact that the candidate has withdrawn hiscandidature and his name does not appear in the list ofvalid nominations, he still remains a duly nominated candi-date and therefore, must be impleaded as a necessary party.Mr. Gopalji Mehrotra, has strenuously argued that there isa distinction between a candidate who is duly nominatedand a candidate who is validly nominated. According tohim a candidate becomes a validly nominated candidateafter his name appears in the list of nominations publishedby the Returning Officer. But so far as the duly nomi-nated candidate is concerned he is merely a person whose

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nomination has been accepted as laid down in the mannerenumerated above by the law.

The argument is that the withdrawal of a duly nomi-nated candidate has no effect so far as the obligation ofthe petitioner to make him a party to the petition isconcerned. Now it strikes us that this argument ignoresthe fact that the expression used by the Legislature is not" all the candidates who were duly nominated" but "allthe candidates who were duly nominated'at the election'".Great significance has to be attached to the words " at theelection". If the object of the Legislature was that allcandidates, whose nominations had been accepted by theReturning Officer regardless of the fact whether they with-drew their nominations and contested the election or not,should be made parties to an election petition, it is hardfor us to understand why the expression " candidates whoare duly nominated " is qualified by the words "a t theelection. "

It strikes us that the distinction between a " candidatefor election" and " candidate at an election" is onewhich cannot be ignored. It is well known that long beforethe election takes place a candidate nurses his constituency.A person may be nominated, proposed and seconded, maydeposit the necessary security and yet on the date ofscrutiny, after calculating his chances, may come to theconclusion that the best thing for him to do is to withdrawhimself from the contest and not allow the electorate anyopportunity of recording votes for or against him. Duringthe period that he was holding himself out as a candidatehe was a candidate for election. But after he withdrawsfrom the contest, intimates his withdrawal and gets backthe security he cannot be said to be a candidate 'at theelection'.

The words " at the election" have reference to theactual time when the voting takes place. Assuming electionto be a continuous process with nomination as a prelimi-nary requisite for standing as a candidate, the words " atthe election" would seem, in the context in which theyare used in section 82, to refer to the period when theactual polling takes place. Incidentally we may note thatthe word "election " is defined in Murray's Dictionary inthe following manner;

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" The formal choosing of a person for an office, dignity,or position of any kind; usually by the votes of a consti-tuent body The choice by popular vote or members ofa representative body (in the United Kingdom, chiefly ofmembers of the House of Commons); the whole proceed-ings accompanying such a choice ".

We may also quote the definition of the word " election "given in the Shorter Oxford English Dictionary, Ed. 2,which is as follows :

" The choice by popular vote of members of a represen-tative Assembly, e.g., the House of Commons. The exerciseof deliberate choice ".

We may, on this part of the case, refer to the decision ofChagla, C. J. and Dixit, J., of the Bombay High Court inSitaram Hirachand v. Yograjsingh Shankarsingh(l), withwhich we are in agreement.

Now, it has been argued that the word " candidate " hasbeen denned in section 79 (b), that the definition is wideenough to include a duly nominated candidate who with-draws his candidature and that that is the interpretationwe should give to that word under section 82. Now itstrikes us that it is not until the Returning Officer publishesthe list of valid nominations under section 38 that every-body knows which among the duly nominated candidatesare the candidates " at the election ". Section 79 gives adefinition of the words " candidate " and " returned candi-date ". But there is no definition of the words "dulynominated" in section 79. That has to be gathered fromthe other sections to which reference has been made by us.On a survey of the relevant provisions the inference appearsto us to be irresistible that the words " at the election "have been used in section 82 in its popular sense.

We cannot understand how and why a person who com-pletely wipes himself off so far as the election is concerned,by withdrawing himself from the contest should be regardedas vitally interested in the election in the same manner asother duly nominated candidates who contest the election.His position cannot be higher than that of any voter at anelection. Indeed, it is possible to imaging that in the partyor groups he belongs to, some persons may have, because oftheir standing with their group or party, a more living

(1) 2 E.L.R. 283,

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interest in the election than the withdrawn candidate. Nowit is open to a voter to present an election petition, but thelaw does not make it obligatory on him to implead all thevoters to an election petition. We are totally unable tounderstand why an exception should be made in the case ofa withdrawn candidate.

Learned counsel for the opposite parties has drawn ourattention to several sections in which the distinction between" at the election " and " for the election," has not beenborne in mind and the words have been used interchangeably.We are free to say that the Act does not appear to havebeen artistically drawn up. We, however, think that theproper course for us is to give to the words "at the election"a natural meaning. It was sought to be argued that a candi-date who allowed himself to be duly nominated and there-after withdrew his candidature should be placed on a higherfooting than an average voter, inasmuch as a petition canbe filed by him even if he is not a voter in the constituency.We are unable to discover any provision in the Act whichwould enable a withdrawn candidate who is not a voter topresent such an election petition.

Reliance is placed for the above proposition uponsection 81. But here it is obvious that the words "anycandidate" are qualified by ' ' a t such election". Theycannot obviously include a person who withdrew himselffrom the contest before the election was over. Nominationmay be an essential pre-requisite to election and may bea process in election but it does not constitute the wholeprocess of election. Our interpretation of section 81 is thatthe candidate must be a person, if the polling takes place,who continues as a candidate right up to the time that theelection is held.

References were made to the decisions of certain ElectionTribunals. We allowed them to be cited before us but wedo not think it necessary to consider them at length. Weare unable to agree with the view expressed by one of thoseElection Tribunals that a duly nominated candidate whohas withdrawn himself from the contest has an interest inthe election as his withdrawal may have been due to thefact that he wanted by such withdrawal to help the candi-dature of some other candidate of his, by way of persuasion.The fact is that the withdrawn candidate is no candidate

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at all. He has simply gone out of the picture. We there-fore, think that the Tribunal has taken a correct view ofthe meaning of section 82. In our opinion, Ganga Prasad,was not a necessary party.

The question as to what the proper meaning of the words" duly nominated candidate at the election " in section 82is, is a question of law on which the Election Tribunal'sview should be regarded as final. It is well known thatcertiorari and prohibition are not granted to rectify pureerrors of law. We may refer on this part of the case to therecent case of Parry & Co., Ltd. v. Commercial Employees'1

Association Madras^), where the Supreme Court has heldthat the High Court cannot issue a writ of certiorari toquash a decision passed with jurisdiction by a LabourCommissioner under the Madras Shops and EstablishmentsAct, 1947, on the mere ground that such decision iserroneous in law.

The appellant before the Supreme Court was a limitedliability company carrying on business in Madras. Therespondent was the Association of Clerical Employees,including those under the appellant. A petition was pre-sented by the respondents before the Labour Commissioner,Madras, under section 51, Shops and Establishments Act,for a determination of certain questions relating to therights and privileges of the employees of the appellant.Notice was issued by the Commissioner calling upon theappellant to appear and answer the contention raised onbehalf of the employees. After hearing the parties andconsidering the evidence which had been adduced beforehim the Labour Commissioner made his decision on sixseparate issues, two of which are relevant for the purposesof this case. Pointed attention may be drawn to them.They were as follows :

Issue No. 5.—Whether there has been an increase inworking hours from 6 to 6J on week days from 12th Octo-ber, 1948, and the increase is permissible ?

Issue No. 6.—Whether overtime wages at twice theordinary rates should not be paid for work done by theemployees after the normal working hours ?

The view of the Labour Commissioner was that thebusiness hours of the company were six and half prior to

(1) [1952] S.C.K. 519; A.I.R. 1952 S,C, 179,

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1st April, 1948, when the Act came into force and theycontinued to be so even after the Act. As regards issueNo. 6, the finding of the Labour Commissioner was that theemployees in the company would be entitled to overtimewages only when the statutory hours were exceeded. Thefinding of the Labour Commissioner was challenged in awrit petition before the High Court. The learned Judgesof the High Court allowed the petition in part and quashedthe order of the Labour Commissioner in so far as itdecided that the employees would be entitled to overtimewages only when the statutory hours were exceeded.

This view of the Madras High Court did not find favourwith the Supreme Court. On the above facts their Lordshipsof the Supreme Court came to the conclusion that there wasno error apparent on the face of the proceedings or anyirregularity in the procedure by the Labour Commissionergoing contrary to principles of natural justice. For these rea-sons they held that there was no ground which could justify asuperior court in issuing a writ of certiorari for the removalof an order or proceeding of an inferior Tribunal vestedwith powers to exercise, judicial or quasi-judicial functions.We find it hard to distinguish that case from the presentone.

Reference may also be made to the case of EbrahimAboobakar v. Custodian General of Evacuee Property (1).In that case it was pointed out by Mahajan J. whodelivered the judgment of the Supreme Court that theLegislature had not limited the jurisdiction of the Custo-dian General by providing that such exercise would dependon the existence of any particular state of facts as he hadbeen constituted an appellate Court under section 24,Administration of Evacuee Property Act, in words of thewidest amplitude.

The law as laid down by the Supreme Court in the caseis that ordinarily a court of appeal has an inherent jurisdic-tion to determine any points raised before it in the natureof preliminary issues by the parties. Such a jurisdiction isinherent in its very constitution as a court of appeal.Whether an appeal is competent, whether a party haslocus standi to prefer it, whether the appeal in substanceis from one or another order and whether it has been pre-

(1) [1952] S.C.R. 696; A.I.R. 1952 S.£. 319.

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ferred in proper form and within the time prescribed, areall matters for the decision of the Appellate Court soconstituted.

The question whether Ganga Prasad continued to beafter his withdrawal a duly nominated candidate and forthat reason was a necessary party to the election petitionwas thus in the nature of a preliminary issue which, it wascompetent for the Election Tribunal to determine. The factthat the Tribunal was a Tribunal of restricted jurisdictionjn the sense that it had been constituted only to try elec-tion cases referred to it makes no difference so far as thegenerality of the law relating to the powers of court tointerfere in certiorari is concerned.

Reference was made by learned counsellor the applicantsto certain observations of the Court of Appeal in the caseof R. v. Northumberland Compensation Appeal Tribunal (1),where it was held that certiorari could be used to quashthe decision of a statutory Tribunal, not only where thetribunal had exceeded its jurisdiction, but also wherean error of law appeared on the face of the record.Apart from the fact that there is no error of law apparenton the face of the record and the law has, in our opinion,been correctly interpreted by the Election Tribunal, it isunnecessary to consider the full implications of this case asthis court is bound by the decisions of the Supreme Court.We have indicated clearly that an error of law in the deci-sion of the preliminary issue which an Election Tribunalwas competent to determine is, according to the law laiddown by the Supreme Court, no ground for quashing theorder of the Tribunal in the exercise of our powers of issu-ing a writ of certiorari.

It was strenuously contended by Mr. Gopalji Mehrotrathat the question of impleading Ganga Prasad was in thenature of a collateral fact upon the existence of which thejurisdiction of the court to hear the election petitiondepended. We are satisfied that there is no substance inthis argument. The question whether Ganga Prasad shouldbe impleaded or not, was not in the nature of a collateralfact upon the existence of which the jurisdiction of thecourt to hear the election petition depended, but was apreliminary issue which the court was competent to deter-

(l) 1952 1 All. E.R. 122,

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mine and that being so, even on the assumption that theTribunal has taken a wrong view—and we have indicatedthat it has not—the view of the Tribunal must be held tobe final. For this reason alone, apart from the other reasonsto which we have invited attention, this application mustfail.

We accordingly dismiss this application with costs whichwe assess at Rs. 300.

Application dismissed.

[ELECTION TRIBUNAL, FAIZABAD.]

RATAN SHUKLAv.

BRIJENDRA SWARUP AND OTHERS.D. N. ROY (Chairman),

A. SANYAL and M. U. FARUQI (Members).March 20, 1953.

Election petition—Amendment of pleading—Tribunal's power toallow amendments—Parties—Candidates who have withdrawn—Repre-sentation of the People Act, 1951, ss. 82, 83, 90(4), 92.

Where, through a clerical mistake the respondent's name in anelection petition was wrongly typed as " Saraswati Parsad " instead of" Sheo Parsad " : Held, that it was perfectly competent to the Tribunalto permit an amendment of the petition to correct this mistake.

The view that an Election Tribunal has no power at all to allow anamendment of the petition under any circumstances is erroneous.

Candidates who have withdrawn their candidature under section37 of the Representation of the People Act, 1951, are not necessaryparties to an election petition.

Pritam Singh v. Char an Singh and Others (2 E. L. E. 276) dissentedfrom; Dr. K. N. Gairola v. Gangadhar Maithani and Others (3 E. L. B.162) and Sitarain Hirachand Birla v. Yograjsingh Shankarsingh(2 E. L. E. 283) followed.

ELECTION PETITION NO. 330 of 1952.

ORDER.

Sri Ratan Shukla, the petitioner, was a candidate whocontested the election to U.P. Legislative Council from theU. P. Graduates' Constituency (West) along with ten otherswho have been impleaded as respondents.

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Out of the ten respondents, written statements havebeen filed by respondents Nos. 1 to 4 and 10. The rest didnot put in their appearance.

The first three, who were the returned candidates, andthe last, who was one of the defeated candidates, opposedthe petition but the respondent No. 4, who was also one ofthe defeated candidates, supported it.

The main prayer of the petitioner is that the electionshould be declared wholly void. He does not claim, it maybe noted, a seat for himself.

Out of the four respondents, who opposed the petition,two, i.e., respondents Nos. 1 and 10, raised the plea of non-joinder. They pleaded that Sheo Parsad, who had con-tested the election but was defeated, and Jwala Parshadand Mathura Parsad who had withdrawn their candida-ture, were necessary parties under section 82 of the Re-presentation of the People Act, 1951, (hereafter called theAct) but were not impleaded. This omission, according tothem, was fatal.

As regards Sheo Parsad, answer of the petitioner wasthat he was impleaded as respondent No. 7, but that bymistake the typist had typed ' Saraswati Parshad' in placeof 'Sheo Parshad'. The petitioner gave an application forthe correction of the typing mistake. The aforesaidrespondents opposed the application on the ground thatthe correction sought for amounted to amendment of thepetition, which, under the law, the Tribunal was not em-powered to order.

As regards Jwala Parshad and Mathura Parshad, thepetitioner admitted that they were nominated but thatthey had withdrawn from candidature according to law.He, however, added that they were not necessary partieswho should be impleaded under section 82 of the Act. Onthese pleadings three issues were framed and it was agreedthat before framing other issues and before dealing withthe petition on merits, findings might be given on thesepreliminary points. The three issues are as follows :—

1. Whether Sri Jwala Parshad, Sri Mathura Parshad,and Sri Sheo Parshad are necessary parties to thispetition ?

2. If so, whether the petition is maintainable in theirabsence ?

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3. Whether the name of Sri Sheo Parshad can now besubstituted in place of respondent No. 7 ?

Parties adduced no oral evidence on these preliminaryissues but arguments from both sides were heard at consi-derable length.

We propose first to take up the case of Sheo Parshad.Two points arise in this connection :—first, whetherSaraswati Parshad has, in fact, been mistyped in place ofSheo Parshad. If the answer is in the affirmative, then,secondly, whether the Tribunal is not empowered to ordercorrection of this clerical mistake.

It was agreed that neither anyone of the name of Saras-wati Parshad was proposed for nomination nor was anyoneof that name actually nominated for election to the afore-said constituency. It is clear from the record that thepetitioner summoned "Saraswati Parshad" giving the verysame address as was admittedly the address of Sheo Par-shad. There is no difference in parentage as well. Fromthese facts it is quite manifest that " Saraswati Parshad "as respondent No. 7, is mistyped in the petition in place ofSheo Parshad. It is also clear that the petitioner intendedto implead Sheo Parshad as respondent in the petition butthat the typist through mistake typed the first part of thename wrongly.

There is no denying the fact that such a clerical mistakecould be corrected by any court of law under its inherentpowers. It does not require citation of authorities or cita-tion of the provisions of the Civil Procedure Code to showthat the court's powers of amendment are very wide asregards subject-matter and also as regards time. It washowever, contended that amendment of the petition by theTribunal was not permissible under the Act. It was arguedthat section 83(3) of the Act, while permitting amendmentunder certain restrictions, of the particulars of list ac-companying the petition, did not mention amendment ofthe petition. Powers of the Tribunal about the applicationof the provisions of the Civil Procedure Code given insection 92 of the Act were said to be exhaustive and it wascontended that no more powers conferred on courts underthe Civil Procedure Code could be exercised by the Tribu-nal, including of course, powers of amendment of thepetition. We may at once say tha,t we wholly disagree

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with this line of argument. We are definitely of opinionthat the provisions of section 92 are not exhaustive. Hadthe Legislature so intended it would have added a prohibit-ory clause saying that no other powers given to courtsunder the Civil Procedure Code would be exercised by theTribunal. In our view, the only restriction placed by theAct is that given in sub-section (2) of section 90 of the

, Act. So, when there is a conflict in the procedure laid downin the Civil Procedure Code and that laid down in the Act,or in the rules made thereunder, the latter shall prevail.Contention of the respondents' side was that sub-section (3)of section 83 of the Act provided for the amendment of thelist but not of the petition. Hence, it was argued, the neces-sary inference was that the Act, prohibited amendment ofthe petition. In our view, however, no such inference canlegitimately be drawn. We are definite that no prohibitionabout amendment of petition is contained either expresslyor by necessary implication in the aforesaid provisions. Ifthe argument of respondents' side were to be accepted thesame will be in conflict with the well-known legal maximthat prohibition cannot be presumed. After due consider-ation of the relevant provisions we are definitely of opinionthat it cannot be laid down as a general rule that contentsof a petition cannot be amended by the Tribunal underany circumstance. There being no prohibition containedeither in the Act or in the rules, provisions of the CivilProcedure Code must apply and an amendment must beallowed even of the petition by the Tribunal, if it is to bemade to meet the ends of justice and fair trial. Of course,to allow amendment or to reject it will always depend onthe facts of each case. The present case is a good illustra-tion in which it is found as a fact that " Saraswati " wastyped by mistake in place of "Sheo". It would be simplyridiculous to argue that the Tribunal was powerless toorder the correction sought for.

In this connection it would be interesting to note thatdifferent Tribunals while deciding the pre-1951 casesapplied even such provisions of the Civil Procedure Codeto the facts of the cases before them as were not specifi-cally mentioned in the Election Act that was in force atthat time-

Section 92 of the Act is a verbatim reproduction ofsection 5 of Part II of the Election Offences and Inquiries

ELI 6

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Act (XXXIX of 1920). It is, therefore, clear that the lawas to the applicability of the provisions of the Civil Proced-ure Code was the same in the past as it is at present.In spite of that, as noted above, the Tribunals, under thepeculiar circumstances of the case before them, had to fallback upon even such of the provisions of the Civil Proced-ure Code as were not specifically mentioned. Fact of thematter is that procedural law is only a means to do justice.and to decide cases fairly and justly. It is not an end initself. Numerous matters can arise in the course of trialof election cases in which courts of law have no alternativebut to invoke inherent powers or to take the help of theprovisions of the Civil Procedure Code.

We take the following cases from Sen and Poddar'sIndian Election Cases, 1951 Edition:—

In Amritsar (Sikh) Central 1937(l), it was held that powerof reviewing its own order was inherent in the ElectionTribunal and that such power was controlled by the limita-tions of rule 1 of Order XLVII of the Civil Procedure Code.

In Batala Sikh 1937 (2), it was held that Order XVII,rule 3, of the Civil Procedure Code applied to a case ofparty's default to produce evidence on the date of hearingafter adjournment had been taken for the purpose.

In Bulandshahr Dist. (M.R.) 1940(3), petitioner's counselwas examined under Order X of the Civil Procedure Code.

In Feni (M.R.) 1937 (% it was held that the petitioner'sfailure to furnish additional security as directed by theTribunal rendered the petition liable to dismissal and thatin such cases, provisions of rule 2, Order XXV, and rule 3,Order XVII, of the Civil Procedure Code were applicable.

In Nawabshah South (M.R.) 1937 (5), it was held thatOrder IX, rule 8, Civil Procedure Code, applied to the caseof petitioner's absence at the hearing.

It is, therefore, clear that in the aforesaid cases theTribunals, in spite of the existence of provisions exactly thesame as those given in section 92 of the Act, had to applyand did apply other provisions of the Civil Procedure Code.

As regards the interpretation of section 92 of theAct, recently the Bareilly Tribunal in Election Petition

(1) Sen and Poddar 15. (4) Sen and Poddar 310.(2) Ibid 115. (5) Ibid 620.(3) Ibid 241,

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No. 276 of 1952, Dr. K. N. Gairola v. Ganga DharMaithani and Others^) by its order, dated January 15,1953, made on application No. 38-B held that in spite ofsection 92 of the Act, the Tribunals, being courts of law,were possessed of inherent powers to amend the petition.

In this connection a very important and instructivejudgment of the Bombay High Court Yograj SinghShankar Singh v. Sitaram Hirachand Birla(2), may bereferred to. It is judgment in Special Civil ApplicationNo. 2017 of 1952, dated December 14, 1952, delivered byChagla C. J. and Dixit J. The facts were that in an elec-tion case the Tribunal ordered amendment of the petitionand the impleading of a withdrawn candidate as respond-ent who was not originally impleaded. Being dissatisfiedwith this order, the respondent moved this writ petitionbefore the High Court. The writ petition was dismissed.Their Lordships held that in proper cases the ElectionTribunals were empowered to amend the petition. It wasalso held that section 92 was not exhaustive.

Therefore, in view of what is discussed above, we haveno hesitation in holding that in proper cases election peti-tions can be amended.

Furthermore, even if it be granted that section 83 madethe election petitions unamendable by the Tribunals, itmay be noted that the names of the respondents are in-corporated in the petitions not because of any directionscontained in section 83 but because of the provisions ofsection 82 which precedes section 83. Thus, it is clear thatnames of the respondents do not form part of the petitionfor the purposes of the application of section 83. It followsthat if there is any mistake in the typing of the name ofany respondent, it can be amended without infringing anyof the directions or restrictions contained in section 83 ofthe Act.

Our conclusion, therefore, is that it was through clericalmistake that " Saraswati " was typed in place of " Sheo "in the name of respondent No. 7 given in the petition andthat the Tribunal is perfectly competent to order correc-tion of this clerical mistake. We shall pass orders accord-ingly on the amendment application given by the peti-tioner overruling the objection of the respondents madeagainst that application.

(1) 3 E.L.R. 162. (2) 2 E.L.R. 283.

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Next comes the question of non-joinder of JwalaParshadand Mathura Parshad who were nominated but who with-drew from candidature within the time prescribed by law.

According to respondent, all the candidates who wereduly nominated at the election must be joined as respond-ents as laid down in section 82 of the Act. If any of thecandidates duly nominated at the election is not impleaded,it amounts to breach of the provisions of section 82. Sec-tion 80, lays down :

" No election shall be called in question except by anelection petition presented in accordance with the provi-sions of this Part. "

Section 80 and 82 both are in Part VI of the Act. Ifthere is breach of the provisions of section 82, the petitionmust be deemed to have been presented not in accordancewith the provisions of Part VI and therefore, was liable todismissal.

It was argued that " all the candidates duly nominatedat the election " occurring in section 82 included eventhose candidates who withdrew from contesting the elec-tion within the prescribed time such as Jwala Parshadand Mathura Parshad of the present case. The phrase" duly nominated " has not been defined in the Act. Tobuild arguments on the lines given above, help was takenby the respondents' learned counsel, of the rules for theinterpretation of the Act.

In clause (f) of sub-rule (1) of rule 2 of the Represent-ation of the People (Conduct of Elections and ElectionPetitions) Rules, 1951, (hereafter called the rules) a "validlynominated candidate" has been defined as :

" a candidate who has been duly nominated and has notwithdrawn his candidature in the manner and within thetime specified in sub-section (1) of section 37 or in thatsub-section read with sub-section (4) of section 39, as thecase may be. "

It was argued that the candidates who were left in thefield after withdrawal were validly nominated candidates,that 'duly nominated' was a general term as distinguishedfrom 'validly nominated' which term applied to a parti-cular class and that even the withdrawn candidates mustbe considered as duly nominated in the light of the abovedefinition. Words used in section 82 were "duly nominated

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at the election." It was argued with the help of the defini-tion cited above that it was incumbent on the part of thepetitioner to implead even those who had withdrawnbecause they were duly nominated candidates in spite ofwithdrawal. As this was not done in the case of MathuraParshad and J wala Parshad, the argument proceeded, thepetition was not in accordance with the provisions ofPart VI and, therefore, was liable to be dismissed as it wasno petition within the meaning of section 80.

Contention of the petitioner's learned counsel was that thephrase "all the candidates duly nominated at the election"occurring in section 82 should be given its ordinary plainmeaning and that there being no ambiguity in the phraseand there being no difficulty in its interpretation, it wasnot right to hunt out the rules for giving special meaningto the phrase. According to petitioner the phrase meantall those candidates who remained in the field to contestthe election and whose names were published in the Gazetteunder section 38 of the Act.

The point in controversy is, therefore, much narroweddown. It revolves round the interpretation of the phrase" all the candidates who were duly nominated at theelection " used in section 82.

It is a cardinal rule of construction of statutes in generalthat the intention of an enactment should be gathered fromthe language employed by it, and that where words usedare clear and unambiguous, it is the duty of the court togive effect to them according to their plain meaning. Plainand ordinary meaning of ' duly nominated at the election 'is properly nominated or nominated according to law forthe purpose of contesting the election. There is no ambi-guity whatsoever.

Some controversy raged, during arguments, on the mean-ing of words ' duly ' and ' validly '. In fact, the ordinarydictionary meaning of the two words is the same. One canbe used for the other. In the well-known treatise on theLaw of Election in Great Britain by Parker (5th Edition)at page 141 the marginal note is ' nominated means dulynominated' and in the body under this marginal note thefollowing passage occurs:

" The Returning Officer must remember that 'nominated'means validly nominated, and that no candidate should

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be declared elected, or allowed to go to the poll who is notvalidly nominated."

It is clear that the two aforesaid words are used to con-vey the very same meaning. If the Act itself is perused itwould be found that the phrase 'validly nominated' as suchnowhere occurs in it. However, the word ' valid ' is foundused in section 33 conveying the same meaning as ' due '.Heading of that section is 'presentation of nominationpaper and requirements for a valid nomination'. Here ' validnomination' means 'due or proper nomination or nominationaccording to law or according to prescribed procedure'. Nospecial or technical meaning is given to this word. In thebody of that section ' duly nominated ' has been used attwo places—once in sub-section (3) and again in the secondproviso to that sub-section. At both these places thephrase is interchangeable with ' validly nominated'. It isthus quite manifest that the Act did not draw any distinc-tion between the two words or phrases. Had the Legis-lature intended so, the two words or phrases would nothave been used in the same section carrying exactly thesame meaning.

If the Legislature had intended to draw any distinctionin the Act between the two phrases, it would have doneso by giving definitions of each. The Act is not want-ing in instances where some special meaning was given toany particular word.

There are four sections in the Act containing definitions,namely, sections 2, 9, 19 and 79. The definitions given insection 2 are for the whole Act while those in other sectionsare for that part of the Act in which any particular sectionoccurs.

Take for instance the word 'candidate'. It has beencopiously used in the Act. It is used in the general andordinary sense in the beginning of the Act. However, in aparticular part of the Act the Legislature intended to givethe word a special meaning. Hence it defined the word insection 79 and laid down that the definition was for PartsVI to VIII of the Act.

Similarly, if the Legislature had intended to give anyspecial meaning to 'duly nominated at the election' it wouldhave defined the phrase at the proper place just as it wasdone in case of the word ' candidate '.

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Therefore, in view of what is discussed above, our con-clusion is that the Act does not make any distinction bet-ween the two phrases given above.

The phrase ' at the election ' in section 82 was also thesubject of comment from both sides. Argument of one sidewas that use of this phrase was not indicative of any timeor of any particular stage in the process of nomination.The other side laid emphasis on the preposition ' a t ' andalso on the definite article ' the ' and explained that ' atthe election ' meant ' for the purpose of contesting the elec-tion '. Looking to the context in which the phrase is used,it is impossible to give it any meaning other than that givenfrom the side of the petitioner. Every word or phrase usedin an enactment is used for some purpose. No word orphrase can be said to be redundant. If the Legislaturehad intended that all the nominated candidates includingthe withdrawn ones should be impleaded as respondents, itwas wholly unnecessary to add words 'at the election'.This phrase was added with some purpose. It cannot besaid to be superfluous. By using that phrase the Legisla-ture intended that only those candidates should beimpleaded as respondents who remained in the field for thepurpose of contesting the election. For the view that wehave taken we find support from the Bombay case citedabove in which their Lordships remarked :—

" 'At the election' emphasises the point of time whenthe election takes place. It emphasises the fact that youare a contestant at the election and that the voters have aright to vote for that candidate. It also emphasises thefact that the candidate has not withdrawn and has no rightto withdraw and in law he must be considered to be a personwho is contesting the election along with other candidates."

It is, therefore, clear that the plain and ordinary meaningof the phrase in controversy is that only those candidatesare to be impleaded as respondents who had actuallycontested the election.

The same result is reached in another way. As pointedout above ' duly nominated candidate' has not beendefined in the Act. The first chapter of Part V relates to' nomination of candidates'. The chapter consists of sec-tions 30 to 39. The whole procedure of the process ofnomination is described in this chapter, a perusal of which

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section by section will show that it is impossible to pointout the stage at which a candidate could be called ' dulynominated at the election' except the stage of section 38.It is there that, after nomination, acceptance of nomina-tion, scrutiny of nomination, deposit of security and with-drawal, some persons remain in the field whose names arepublished in the Gazette. They are the persons who areduly nominated candidates left for contesting the election.It is only the stage of publication of the names of thosewho finally emerged to contest the seat at the electionwhere we can pause to find out that the nomination wascomplete in all respects. This stage is reached after elimi-nation of the withdrawn candidates.

There is some difference in the old law on the point andthe present law. Under the old, ordinarily, only the returnedcandidates were to be impleaded as respondents, but " if apetitioner, in addition to calling in question the election ofthe returned candidate, claims a declaration that he himselfhas been duly elected, he shall join as respondent to his peti-tion all other candidates who were nominated at theelection."

It is significant to note that the word 'duly' was not usedbefore ' nominated' as it is used in the Act. It appearsthat there was some controversy in the past on the questionas to whether the withdrawn candidates should be implead-ed as respondents. Different Tribunals had to decide thispoint. In a number of cases (as for instance cases Nos. II,XXVII, LXI, LXVIII and C reported in Sen and Poddar)*it was decided that withdrawn candidates should havebeen impleaded and their non-joinder was fatal. But thepetition was in no case thrown out on that score. Onlythe relief of the petitioner claiming seat for himself wasstruck off. However, some of the Tribunals held even inthe past that the non-joinder was not fatal even in case ofprayer of the petitioner claiming seat for himself (as forinstance cases Nos. CX and CXLI of Sen and Poddar)!.It appears that in order to set the controversy at rest theword 'duly' was added before 'nominated' and the uniform

• See Ambala and Simla M., 1937 (p. 6), Behar and Orissa Landholder's 1945(p. 129), Burdwan Central G. R., 1937 (p. 249), Dhera Ghazi Khan North M 1939(p. 275), Manshera North M.R., 1946 (p. 1017).

t See Nawabshab South M. R., 1937 (p. 620), Tangail South M. R 1949(p. 1043),

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procedure of impleading all those who remained in the fieldto contest the election was introduced, whether the peti-tioner claimed or did not claim a seat for himself.

Apart from what is said above, if the matter is looked atfrom a practical point of view, it may be noted that in thecase before us the petitioner does not claim a seat for him-self. His only prayer is for the avoidance of the election.In such a case it is wholly unnecessary to implead thewithdrawn candidates who left the field for good of theirown choice, and whose position is no better than that ofan ordinary voter.

Reference was made from the side of the respondent to thecase of Pritam Singh v. Charan Singh and Others^), recentlydecided by the Lucknow Tribunal. In that case help ofclause (f) of sub-rule (1) of rule 2 of the Representation ofthe People (Conduct of Elections and Election Petitions)Rules, 1951, was taken for finding out as to what the phrase'duly nominated' meant. In the aforesaid clause 'validlynominated candidate' is defined as that duly nominatedcandidate who did not withdraw. It was inferred from thisdefinition that ' duly nominated candidate ' included eventhose candidates who had withdrawn. We may point outthat the Act is to be interpreted independently of the rules.Meaning of the disputed phrase in the Act is quite clearand unambiguous. This being so, it is not at all necessaryto import in the Act, with the help of rules, a meaningwhich is different from the plain meaning of the phrase. Itmay also be noted that as pointed out above the scheme ofthe Act shows that it defines certain words and phrases foronly particular part of the Act. Definition given for onepart cannot be utilised for the interpretation of that partfor which the definition was not meant. The preamble ofrule 2 cited above is "In these rules, unless the contextotherwise requires " It is clear that the defini-tions that follow this preamble are meant for the rules.The same cannot be utilised for the interpretation of theAct. Further, it appears from the judgment of the Luck-now case cited above that attention of the Tribunal was notdrawn to the significance of words 'at the election ' whichqualify 'duly nominated' in section 82. One of the reasonsgiven by the Tribunal for holding that even the withdrawn

(1) 2E.L.R. 276.

EL-17

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candidates were necessary parties was that the petitionerhad applied for addition of their names among respondentsand by doing so the petitioner accepted the view that evenwithdrawn candidates were necessary parties. In the casebefore us the petitioner did not make any such applicationand did not accept the contention that even the withdrawncandidates were necessary 'parties. Another reason whichweighed with the Lucknow Tribunal was that a candidatemight have withdrawn finding that the opponent wieldedgreater influence and was, therefore, likely to succeed. Itwas remarked that the Legislature made the withdrawncandidate a necessary party. But the scheme of the Actshows that a withdrawn candidate goes out of the pictureafter withdrawal. Such a candidate like others has,however, been given an opportunity of becoming a respond-ent if he so choses under the provisions of sub-section(l)of section 90 of the Act. In this case this opportunity wasnot availed of by Mathura Parshad and Jwala Parshad.Moreover, as pointed out above, the only prayer being forthe avoidance of the whole election, it is immaterial whetherwithdrawn candidates have or have not been made parties.With great respect we are unable to accept the view takenby the Lucknow Tribunal.

Besides the case of the Bombay High Court cited abovewhich was decided one day subsequent to the decision ofthe Lucknow Tribunal, other Tribunals have also come tothe conclusion at which we have arrived. One of such casesis cited in the judgment of the Lucknow Tribunal. We couldnot have the advantage of perusing the judgment of thatcase. However, we may refer to the order of the AllahabadTribunal dated November 11, 1952, made in the case ofElection Petition No. 316 of 1952 : (Salig Ram Jaiswal v.8.K. Pnnde and Others). In that case the Tribunal heldthat the withdrawn candidates were not at all necessaryparties to an election petition and that the phrase " all thecandidates who were duly nominated at an election" occur-ring in section 82 referred only to those candidates whoactually contested the election.

Therefore in view of what is said above our definite find-ing is that Jwala Parshad and Mathura Parshad being with-drawn candidates were not necessary parties within themeaning of section 82 of the Act. We hold accordingly

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E. L. K.] PANDIT HARISH CHANDRA V. RAJA MAN SINGH i 2 9

and we reject the objection of the respondents which wasto the effect that non-joinder of the aforesaid persons wasfatal.

Preliminary issues decided.

[ELECTION TRIBUNAL, JAIPUR.]

PANDIT HARISH CHANDRAv.

RAJA MAN SINGH AND OTHERS.MR. JUSTICE K. K. SHARMA (Chairman),

A. N. KAUL and P. L. SHOME (Members).March 24, 1953.

Disqualification of candidates— Interest in contract to supplygoods to State"—License-holder for supply to ration shops—Whether dis-qualified—" Office of profit "—Member of ruling family of State gettingallowance and liable to render services—Improper rejection of nomination—Presumption that election is affected—Whether irrebuttable—Evidenceto rebut—Representation of the People Act, 1951, ss. 7{d), {e), 100(l){c)—Constitution, art. 191.

A person holding a licence from the Government for the supply ofsugar to ration-card holders under the Sugar and Gur Control Order,1950, is not a person " interested in a contract for the supply of goodsto, or the performance of any services by, the Government " withinthe meaning of section 7, clause (d), of the Representation of the PeopleAct, 1951, and is not disqualified to stand as a candidate for electionunder the said clause.

Gian Chand v. Sri Bam Bansal and Others (2 E.L.R. 136) followed-Dr. Kannabhiran v. A. J. Arunachalam and Others (2 E. L. R. 167)distinguished.

Where a nomination has been improperly rejected there is a strongpresumption that the result of the election must be materially affected,but this presumption is a rebuttable one. The view that the words" the result of the election has been materially affected " in section100(1 )(c) relate only to acceptance" of a nomination and not to" rejection " and in the case of an improper rejection the election mustin all cases beset aside, is not correct. The difficulty of proving thatthe election has not been materially affected, in the case of an improperrejection, is no reason to ignore the clear words used in section 100(l)(c) and their plain meaning.

Where the contesting respondent, a member of the Bharatpur rulingfamily who stood as an Independent candidate, secured 24,752 votes outof a total of 32,690 votes polled, (the total being 44,000) and respondentNo. 3", who stood with the petitioner for the Kisan party and for whomthe petitioner was only a covering candidate, got only 2,093 votes,

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and there was evidence to show that the petitioner had agreed to with-draw if both the petitioner and respondent No. 3 were nominated forthe Kisan party : Held, that this was a case in which the Tribunalcould hold that the result of the election was not materially affected bythe rejection of the petitioner's nomination.

The mere fact that a junior member of a royal family of a Statereceived a substantial monthly allowance from the State and, under therules all allowance holders are bound, under certain contingencies, torender certain services to the State, will not render him the ' holderof an office of profit under the Government" within the meaning ofarticle 191 of the Constitution.

Obiter: If the intention of the legislature was that the improperrejection of a nomination paper by itself rendered the election void,section 100 (l)(c) should have been split into two parts as follows, viz.," (i) that any nomination has been improperly rejected, (ii) that theresult of the election is likely to have been materially affected by animproper acceptance of any nomination." Even if that is not theintention, it would be very advisable that this clause is so split becausethere can be no doubt that it is very difficult to prove that the impro-per rejection of a nomination paper had not materially affected theresult of the election, as the electorate had no chance in such a case tovote for the rejected candidate.

Ferozpore East (Sikh) Rural Constituency ; Sardar Basant Singh v.Sardar Rattan Singh (1 Doabia 80), Punjab Anglo-Indian Constituency{No. l) : E. Few v. C. E. Gibbon (1 Doabia 247), Punjab Anglo-IndianConstituency (No. 2): S, R. Lewis v. C. E. Gibbon (l Doabia 259),Amritsar Central {Sikh) Constituency : Sardarni Prakash Kaur v. RaiBahadur Basakha Singh (l Doabia 332), Multan Division Towns (Moham-madan) Constituency {No. 2): Syed Zain-ul-Abdin Shah v. Khan SahibSheik Muhammad Amin (2 Doabia 302), Moradabad District (North-West) Mohammadan Rural Constituency: Bashir Ahmed v. AkhtarHussain Khan (2 Doabia 341), Basti District {North-East) General RuralOonstituency: Kalapraj v. Pt. Bishambhar Nath Tripathi {'2 Doabia 355),Sitapur District {East) General Rural Constituency : Babu Tagan NathPrasad v. Raja Maheswar Dayal Seth (2 Doabia 217), Brij NareshSingh v. Thakur Hukum Singh and Others (2 B. L. E. 266), Prem Nathv. Ram Kishan (1 E. L. R. 27l), Vijaya Mohan Reddy v. Paga PullaReddy and Others (2 E. L. R. 414), Chander Nath v. Kunwar JaswantSingh and Others (3 E. L. R. 147) and Gokaldas Hirjee v. Zaveri Val-labhdas Valji and Others (2 E. L. R. 234) referred to.

ELECTION PETITION NO. 6 of 1952. ' •-•')

Brij Sunder Sharma, for the petitioner.Shavma Ramesh Chandra, for respondent No. 1.

ORDER.

By this election petition Pandit Harish Chandra of villageInduka, Kumher Constituency, in Bharatpur district,

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challenges the election of Raja Man Singh, respondentNo. 1 (hereinafter to be referred to as the contesting res-pondent), on the ground that the nomination paper of thepetitioner was improperly rejected by the Returning Officerand that the nomination paper of the contesting respond-ent was improperly accepted, and that the rejection of thepetitioner's nomination paper and acceptance of the nomi-nation paper of the contesting respondent materiallyaffected the result of the election.

At the last general elections in January, 1952, the peti-tioner filed his nomination paper before the ReturningOfficer, Bharatpur, to stand as a candidate to the Rajas-than Legislative Assembly from Kumher Constituency onbehalf of the Kisan Sabha party. The contesting respondentalso filed his nomination paper for the same seat as anIndependent candidate. Respondent No. 2, Shri VeerendraSingh, and respondent No. 4, Shri Jeewa Ram, both filedtheir nomination papers for the same seat on behalf of theCongress party. Thakur Desraj, respondent No. 3, alsofiled his nomination paper for the said seat on behalf of theKisan Sabha party. Respondent No. 5, Shri Hoti Lai, saysthat he filed his nomination paper for the same seat on behalfof the Kisan Sabha, but only as a covering candidate forthe contesting respondent. Thus, there were six nomina-tion papers in all, out of which the nomination paper of thepetitioner was rejected on the ground that he was a licence-holder of sugar from the Government, and was, therefore,disqualified under section 7(d) of the Representation of thePeople Act, (hereinafter to be referred to as the Act). Thenomination papers of the remaining five candidates wereaccepted, but later on, Shri Jeewa Ram, respondent No. 4,and Shri Hoti Lai, respondent No. 5, withdrew from thecontest, and only the contesting respondent and ShriVeerendra Singh, respondent No. 2, and Thakur Desraj,respondent No. 3, remained in the field to contest theelection. As a result of;the poll, the contesting respond-ent came out successful, and the other two candidateswere defeated. The petitioner filed the present petitionunder section 81 of the Act, and it has been referred to thisTribunal for decision.

The grounds on which the petitioner challenges the ejec-tion of the contesting respondent are as follows:—

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1. A licence-holder of sugar is neither a holder of anoffice of profit under the Government of India or of Rajas-than, nor is he disqualified under any other law fromstanding as a candidate for the membership of the StateAssembly.

2. The contesting respondent is the holder of an officeof profit under the Government of Rajasthan, as he receivesRs. 2,200 per month as allowance along with free residen-tial palace from the said Government, and under theBharatpur State Khanpan Rules, 1934, the State of Rajas-than has a right to exact service from the contesting res-pondent from time to time.

3. The result of election has been materially affectedby the improper rejection of the petitioner's nominationpaper as well as by the improper acceptance of the contest-ing respondent's nomination paper.

In response to the notices issued by this Tribunal, thecontesting respondent and the respondent No. 5 only putin their written statements. Other respondents, thoughserved, did not iile any written statement. RespondentsNos. 2 and 3 did not appear and the case proceededex parts against them. Respondent No. 4, Shri JeewaRam, appeared before the Tribunal on the 10th of Decem-ber, 1952, but said that he did not want to file any writtenstatement. He too did not take any further part in thecase. In his written statement, respondent No. 5 hassimply supported the contesting respondent and hasopposed the petition. The contesting respondent is, there-fore, the only respondent who seriously contested thepetition. His objections to the petition are:—

1. The nomination paper of the petitioner was properlyrejected, as he himself admitted before the ReturningOfficer that he was a licensed dealer of sugar of the Rajas-than Government, Supply Department, and was gettingcommission for the services rendered by him. He wasdisqualified under the Constitution to be a member of theRajasthan Legislative Assembly, as a sugar dealer appoint-ed by the Government of Rajasthan has an interest in thecontract for the performance of services undertaken bythe Government within the meaning of section 7(d) of theAct.

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2. The contesting respondent does not hold any officeof profit under the Rajasthan Government. The KhanpanRules of the Bharatpur State have neither any force of lawnor are they applicable to the. contesting respondent, andthe Rajasthan Government has no right to exact anyservice from him, nor is he liable to render any service toany Government. The monthly allowance which he getsis only a maintenance allowance, which he is entitled to geton account of his birth in the Bharatpur Raj family.

3. The petitioner and Th. Desraj, respondent No. 3,were of the same group, and Th. Desraj was to stand forthe election while the petitioner was to withdraw in hisfavour, in case the nomination papers of both were accept-ed. The petitioner was, therefore, only a covering candi-date for Th. Desraj, and he canvassed with full force andexercised his influence throughout the election forTh. Desraj.

4. The rejection of the nomination paper of the peti-tioner did not materially affect the result of the election,as out of the total votes polled, that is 32,690, hepolled, 24,752 votes, whereas the other two candidates,who contested the election got only 5,845 and 2,093respectively.

On a perusal of the petition and the two written state-ments, as well as the statements of the petitioner and thecounsel for the contesting respondent recorded underOrder X, rule 1, of the Code of Civil Procedure, the follow-ing issues were framed :-•••

1. Whether the petitioner was wrongly and impro-perly held to be a licence-holder of sugar by the ReturningOfficer ?

2. Whether, if he is a licence-holder of sugar, hisnomination paper was improperly rejected by the ReturningOfficer?

3. Whether the result of the election has beenmaterially affected by the rejection of the petitioner's nomi-nation paper ?

4. Whether the respondent No. 1 is a holder of anoffice of profit within the meaning of article 191 of theConstitution of India by virtue of his getting a monthlyallowance from the Government, and if so, whether hisnomination paper was improperly accepted ?

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5. If the answer to issue No. 4, is in the affirmativedid the acceptance of respondent No. l's nomination papermaterially affect the result of election ?

6. Whether it is open to the petitioner to challengethe respondent No. l's election on the ground that he holdsan office of profit, when he did not take this ground beforethe Returning Officer?

At the time of hearing, the learned counsel for the con-testing respondent withdrew his objection which gave riseto issue No. 6. This issue is, therefore, decided against thecontesting respondent and in favour of the petitioner.

It remains now to decide only the first five issues.Issue No. 1.—The petitioner does not say in his petition

that he was not a licence-holder of sugar. Bather in para. 6of his petition he says that a licence-holder for the pur-poses of selling sugar does not hold an office of profit underthe Government which implies that he admits being alicence-holder, but contests that a licence-holder for sugaris not a holder of an office of profit under Government. Inhis statement under Order X, rule 1, however, he took upthe position that he was not a licenced dealer, and did notget any commission from the Government, but that thecommission was realised from the consumers. It has, how-ever, been proved by very satisfactory oral and document-ary evidence that the petitioner was a licence-holder fordistributing sugar to ration-card holders. There is a peti-tion of the petitioner dated 18th March, 1950, Ex. R-l(l),wherein he prayed that he be allotted a sugar retail dealer'sshop, which had fallen vacant, and that he be allowed todeposit the licence fee and security money. After certainreports, an order was made by the District Supply Officeron the 21st of March, 1950, that the petitioner be given alicence for selling sugar, and he should deposit the securitymoney. This order is Ex. R-l(4). In pursuance of thisorder the petitioner deposited Rs. 200 as security money,and executed a security deed, Ex. R-l(2), wherein he hassaid that he had been duly appointed by the District SupplyOfficer, Bharatpur, as sugar retail dealer for villages ofTehsil Bharatpur zone and he would sell sugar at the ratesfixed by the Rajasthan Government, and would render aproper and faithful account of all such sales every monthto the Tehsildar, Bharatpur. He also undertook certain

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duties by this security deed, and agreed that the securitymight be forfeited in whole or in such portion as the Com-missioner might deem reasonable in case of any breach ofthe orders of the authorities. Thus, it is quite clearthat the petitioner took a licence from the Governmentfor supplying sugar, and the answer to this issuemust be in the affirmative. This issue is decidedagainst the petitioner and in favour of the contestingrespondent.

Issue No. 2.—This issue raises an important question oflaw. A candidate can be disqualified for the member-ship of a State Legislature under article 191 of the Con-stitution of India on the following grounds :—

(a) if he holds any office of profit under the Govern-ment of India or the Government of any State specified inthe First Schedule, other than an office declared by theLegislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared bya competent court;

(c) if he is an undischarged insolvent;(d) if he is not a citizen of India or has voluntarily

acquired the citizenship of a foreign State, or is under anyacknowledgment of allegiance or adherence to a foreignState;

(e) if he is so disqualified by or under any law madeby Parliament.

Learned counsel for the contesting respondent reliedupon clauses (a) and (e) of article 191 of the Constitution toshow that the petitioner was disqualified for membership.He argued that as a licence-holder entitled to commissionthe petitioner held an office of profit. His next argument isthat under section 7(d) of the Act as well, which waspassed by the Parliament, the petitioner was disqualified,because he was a licence-holder of sugar from the Govern-ment of liajasthan, and consequently had an interest in acontract for the performance of services undertaken by theGovernment of Rajasthan. So far as the first contentionis concerned, we have no hesitation in repelling it. Alicence-holder for a particular purpose from the Governmentcannot, in our opinion, be said to be a holder of an office.Of course, he derives some profit from his being a licence-holder, as he receives commission, but the question is not

EL—18

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only that he derives profit, but he must be a holder of anoffice as well. A licence-holder, such as the petitioner is,in our opinion, does not hold any office. This brings us tothe consideration of the second contention of the learnedcounsel for the contesting respondent.

Two facts have to be established in order to show thatthe petitioner was disqualified under section 7(d) of theAct, namely : (1) the Rajasthan Government, which was theappropriate Government within the meaning of section 2(b)of the Act, had undertaken the performance of any servicein relation to the supply or distribution of sugar ; (2) thepetitioner had a share or interest' in a contract for theperformance of such services. We take up the secondpoint first.

It was argued on behalf of the contesting respondentthat the petitioner being a licence-holder, was in a contractwith the Government of Rajasthan to distribute sugar tothe ration-card holders. Learned counsel for the peti-tioner contended that by holding a licence for supplyingsugar to ration-card holders the petitioner did not enterinto any contract with the Government of Rajasthan. Thelicence, which had been given to him, did not amount to acontract. The learned counsel argued that under the Sugarand Gur Control Order, 1950, made by the Government ofIndia in the exercise of the powers conferred by section 3of the Essential Supplies (Temporary Powers) Act, 1946,the Central Government had power, from time to time, byorder to allot quota of sugar or gur to any specified Stateor area and to issue directions to any producer or dealer tosupply sugar or gur of such type or grade, in such quanti-ties to such areas or markets or to such persons or organi-sations and at such price as may be specified in the order.Reference was made to section 7(i) and (ii). The learnedcounsel proceeded that the Order was made to regulatemovement of sugar and to ensure that it was properlydistributed at a reasonable price. Under these powers ofregulation the petitioner was given the licence but therewas no contract with him for the performance of any serviceundertaken by the Government. Reliance was placed upon arecent decision of the Election Tribunal, Patiala, in thecase of Gianchand v. Sri Earn Bansal and Others (l)

(1) 2E. L. R, 136.

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(Election Petition No. 4 of 1952). Learned counsel for thecontesting respondent relied upon a decision of the Elec-tion Tribunal, Vellore, in the case of Dr. Kannabhiran v.A. J. Arunachalam and Others (x) (Election Petition No.109 of 1952).

We have considered the arguments of both the learnedcounsel. To our mind the licence which was given to thepetitioner cannot be said to be a contract for the perform-ance of service undertaken by the Rajasthan Government.In a contract there should be mutuality between the par-ties. In the present case there was no such mutuality. TheGovernment had given a licence to the petitioner to distri-bute sugar to ration card holders according to law, and inorder to see that he properly distributed sugar certain under-takings were taken from him, which find place in thesecurity bond, Ex. R. 1/2. The Government of Rajasthanundertook no duty towards the petitioner. In 17 RulingCase Law, page 474, article 2, a licence has been defined asfollows : " A licence is in the nature of a special privilege,and not a right common to all; and it is often required asa condition precedent to the right to carry on business orto hold certain classes of property within the jurisdictionand it is not a property right, or a contract. " Again, atpage 476, it has been stated that, " a licence is not a con-tract between the State and the licensee and is not propertyin any constitutional sense. Nor can it be said that thegrant of a licence to conduct a business and the lease ofmunicipal property in consideration of the payment of arent is a contract to secure the licensee against unlicensedcompetition." Further on, it is stated that " Followingthe general principle that a licence is not a contract, it isclear that it does not in itself create any vested right, orpermanent right, and that free latitude is reserved by theLegislature to impose new or additional burden on thelicensee or to alter the licence or to revoke or annul it. "

In the case of Gian Chand v. Sri Earn Bansal and Others^1),referred to above, the petitioner was a grain depot licenseeunder an order issued under the Essential Supplies (Tempor-ary Powers) Act, 1946. It was argued on behalf of the res-pondent in that case that under the scheme of rationing andprocurement of foodgrains in Pepsu the holder of the licence

(1) 2E. L. R. 167. (2) 2 E, L. R, 136.

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for the foodgrains depot was under a contract with theGovernment to perform the services of supplying and distri-buting grain on behalf of the Government. This contentionwas repelled and it was held that the holder of a graindepot was under no contract with the Government to per-form the service of supplying grain to consumers. It wasobserved that the position was that nobody could sellfoodgrains without a licence and the depot holder wasmerely given a licence or a permit by the Government tosell foodgrains. There was no question of any contractbetween him and the Government for the supply of food-grains to anyone on Government's behalf. We are inagreement with the view of the Patiala Tribunal and donot find any distinction between the present case and thatbefore the learned Tribunal at Patiala, excepting that in thepresent case the licence is for the distribution of sugarwhereas in the said case the licence was for foodgrains,which, in our opinion, is not material.

In the case decided by the Vellore Tribunal (1), cited bythe learned counsel for the contesting respondent, the factswere different from the facts of the present case. There thepetitioner, who was a State nominee of yarn, was not heldto be a licensee only, but it was held that he was in contractwith the Government of the State of Madras for the per-formance of services undertaken by the State Government.It was found that the document, which was relied upon asa contract between the Government of Madras and theState nominee, was described as an agreement and it wasrecited therein that it was made between His Excellency theGovernor of Madras on the one part and Shri A. J. Aruna-chala Mudaliar (the first respondent) on the other part.There was a mutuality in the agreement inasmuch as whilethe Government laid down certain duties on the nominee,it also undertook upon itself certain duties. It was providedin the agreement that it could be cancelled on a certainnotice by either of the parties. In the special circum-stances of that case it was held that the deed evidenced acontract between the State of Madras on the one hand andthe respondent nominee on the other. In the present casethe security bond, Ex. R. 1/2, which has been mainly reliedupon in order to show that there was a contractual relation-

ID 2 E. L. R. 3.67.

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ship between the State of Rajasthan on the one part andthe petitioner on the other is a unilateral document executedby the petitioner alone. It does not mention that anycontract had been made between His Highness theRajprarnukh of Rajasthan and the petitioner, nor does itpurport to be executed on behalf of His Highness theRajpramukh of Rajasthan. The Rajasthan State had noduty under the security bond and it was only the petitionerwho had undertaken certain obligations. The petitionercannot, therefore, be said to have acquired any interest orshare in a contract for the performance of any servicesundertaken by the Government of Rajasthan. It may beargued why the Legislature should not debar a licence-holderfrom standing as a candidate to the Legislature while it haddebarred a contractor. It may be contended that theprinciple underlying the imposition of disqualification on acontractor is that he may be amenable to Governmentinfluence and may not, therefore, act freely and indepen-dently inside the Legislature. The same considerationsmay prevail in the case of a licence-holder, rather withgreater force. Our plain duty, however, is to interpret thelaw, as it stands, and. if it disqualifies only a contractor andnot a licensee we cannot add the word licensee if theLegislature either deliberately or even by oversight omittedthe word while framing section 7 (d) of the Act. Sufficeit to say that section 7 (d) imposes a disqualification on acontractor and not on a licensee. We cannot, therefore,hold that a licensee, as the petitioner is, was disqualified tostand as a candidate to the Rajasthan Legislative Assemblysimply because the same reasons may, with greater force,make it desirable to disqualify a licence-holder as acontractor.

Our finding, therefore, is that the petitioner is not hit bythe provisions of section 7 (d) of the Act, and therefore hisnomination paper was improperly rejected. In view of ourfinding that there was no contract of the petitioner withthe Rajasthan Government, it is not necessary for us todecide whether the Rajasthan Government had undertakenthe performance of the services of supplying or distributingsugar to consumers, within the meaning of section 7 (d).

Issue No. 3.—Having held that the nomination paper ofthe petitioner was improperly rejected, we have got to find

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whether the result of election has been materially affectedby this improper rejection. Under section 100 (1) (c) of theAct, the Tribunal shall declare the election to be whollyvoid in case it is of opinion that the result of the electionhas been materially affected by the improper acceptance orrejection of any nomination. It was argued by the learnedcounsel for the petitioner that once it is held that thenomination paper was improperly rejected, it would haveto be held that the result of the election was materiallyaffected, as by the improper rejection of the petitioner'snomination paper, the whole electorate was deprived ofhaving a chance to vote for the petitioner. It was arguedthat there was overwhelming authority in favour of thisproposition. There is no doubt that both under the presentAct as well as the Legislative Assembly Electoral Rules ofvarious provinces under the Government of India Act,1935, which also made a similar provision as has been madein section 100 (1) (c) of the Act, it has been held that thepresumption in case of improper rejection of a nominationpaper would be that the result of the election has beenmaterially affected. There are a large number of cases onthis point under the old Electoral Rules, but it is not neces-sary to refer to all of them. It may be said by way ofexample, however, that in the following cases reported inVolume 1 of Doabia's Election Cases (1935 to 1950), viz.,Ferozpore East (Sikh) Rural Constituency : Sardar BasantSingh v. Sardar Rattan Singh{1), Punjab Anglo-IndianConstituency (No. 1): E. Few v. Mr. C. E. Gibbon (*),Punjab Anglo-Indian Constituency (No. 2): 8. R. Lewisv. Mr. C. E. Gibbon(6), Amritsar Central (Sikh) Constituency:Sardarni Prakash Kaur v. Rai Bahadur Basakha Singh^),it was held that the improper rejection of a candidate'snomination paper raises a presumption that the result ofthe election was materially affected and this has to berebutted by a very strong and convincing evidence. Asimilar view was held in Multan Division Towns (Moham-madan) Constituency (No. 2): Syed Zain-ul-Abdin Shah v.Khan Sahib Sheikh Muhammad Amin^), Moradabad District(North West) Mohammadan Rural Constituency: BashirAhmed v. Akhtar Hussain Khan(6), Basti District (NorthEast)General Rural Constituency, Kalapraj v. Pt. Bishambhar Nath

(1) 1 Doabia 80. (3) 1 Doabia 259. (5) 2 Doabia 302.(2) 1 Doabia 247. (4) 1 Doabia 332. (6) 2 Doabia 341,

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TripathiQ), Sitapur District (East) General Rural Consti-tuency : Babu Jagan Nath Prasad v. Raja Maheshwar DayalSeth(2). It may be mentioned that in all these evidence wasgone into, but it was considered to be insufficient to rebut thepresumption raised in favour of the petitioner by the impro-per rejection of the nomination paper. Out of the casescited above, in the Ferozpore East (Sikh) Rural Constituencycase(s), there was no evidence to rebut the presumption.In the two Punjab Anglo-Indian Constituency cases, onlytwo candidates filed nomination papers, out of which onewas rejected, and the other candidate remained the solecandidate, and was returned unopposed without anypolling. In the Amritsar Central (Sikh) Constituency case^),the competition between the successful candidate andthe defeated one was very close, and the defeatedcandidate deposed that he would have withdrawn, if thepetitioner's nomination paper had been accepted. In theMultan Division Towns (Mohammadan) Constituency (r>),there was not an iota of evidence to rebut the presump-tion. In the Moradabad District (North West) Mohamma-dan Rural Constituency (6), the evidence of the petitionershowed that he had been touring the constituency whichcontained a large number of voters of his biradari. Inthe Basti District (North East) General Rural Constituencycase ('), the petitioner was a Congress candidate, andit was found that in three other General Rural Cons-tituencies of that district, Congress candidates hadsucceeded. In Sitapur District (East) General Rural Cons-tituency case(8), there was no polling, as the respondentwas the only candidate left in the field after the rejectionof the petitioner's nomination paper. The circumstancesof those cases were taken into consideration by the learnedCommissioners who decided them, and it was held that thepresumption was not rebutted. In none of these cases theview was taken that the presumption was altogetherirrebuttable, and the relevant rule should be read as if thewords " the result of the election has been materiallyaffected " had no relation to the word '' rejection ".

Now, coming to the cases under the Act, we find thatexcepting the case decided by the Lucknow Tribunal,

(1) 2 Doabia 355. (4) 1 Doabia 332. (7) 2 Doabia 355.(2) 2 Doabia 217. (5) 2 Doabia 302. (8) 2 Doabia 217.(3) 1 Doabia 80. (6) 2 Doabia 341.

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viz., Brij Naresh Singh v. Thahur Hukum Singh andOthersi1), in all other cases the view taken was that the pre-sumption in favour of the result of election having beenmaterially affected was strong but was rebuttable. In theLucknow case, however, it was held that the presumptionwas incapable of rebuttal, and any attempt to rebut itwould only lead to nothing but speculation. The learnedmembers of the Tribunal read section 100(1) (c) of the Act asif the words " the result of the election has been materiallyaffected" had no relation to the words "rejection" ofany nomination paper. We have very carefully read thewordings of section 100(1) (c). It cannot be disputed thaton a pure grammatical and literal construction of this pro-vision of law, the words " the result of the election hasbeen materially affected " have to be read as much withthe words " improper acceptance" as with the words" improper rejection ", and cannot be dissociated from theword " rejection ". The learned Tribunal at Lucknowitself observes that, " the plain meaning of this clause isthat before an improper acceptance or rejection of anynomination can be a ground for setting aside an election,the Tribunal must form an opinion that in fact the resultof the election has thereby been materially affected and notmerely that it is likely to have been materially affected.We see the force of this argument and the loose wordingof the clause, which is capable of interpretation that itmust be proved that if the nomination had not beenimproperly accepted or improperly rejected, the candidatewho was declared successful would not have been elected."

It was, however, found towards the end that it wasimpossible to adduce any evidence to show that the resultof the election was not materially affected by the improperrejection of the nomination paper, and, therefore, it washeld that on the principle of lex non cogit fid impossibility(the law does not compel a man to do that which hecannot possibly perform) the clause should be so read as ifthe words " the result of the election has been materiallyaffected " were superfluous in connection with the word" rejection", and proposed an amendment of the saidclause by splitting up into the following two clauses :

" (c) that any nomination has been improperlyrejected,

(1) 2 E.L.R. 266,

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(d) that the result of the election is likely to havebeen materially affected by an improper acceptance of anynomination. "

It is true that if the intention of the Legislature wasthat the improper rejection of a nomination paper by itselfrendered the election void, the clause should have beensplit into two parts as suggested by the Lucknow Tribunal.Even if that is not the intention, it would be very advis-able, if this clause is split into two clauses as suggested bythat Tribunal, because there can be no doubt that it isvery difficult to prove that the improper rejection of anomination paper did not materially affect the result ofthe election, as the electorate had no chance in such a caseto vote for the rejected candidate. But so long as theclause is worded as it is at present, it is the duty of theTribunal to give full effect to all the words that find placein it. It is a cardinal principle of interpretation of statutesthat the phrases and sentences are to be construed accord-ing to the rules of grammar : (Maxwell on the Interpreta-tion of Statutes, 8th Edition, page 2). Again at page 6 thelearned author says, " When the words admit of but onemeaning, a court is not at liberty to speculate on the inten-tion of the Legislature, and to construe them according toits own notions of what ought to have been enacted." Onpage 7, he says, "The court could not assume a mistake inan Act of Parliament", and on page 12 he says, " It is buta corollary to the general rule in question, that nothing isto be added to or to be taken from a statute, unless thereare adequate grounds to justify the inference that theLegislature intended something which it omitted . to ex-press. It is a strong thing to read into an Act of Parlia-ment words which are not there, and, in the absence ofclear necessity, it is a wrong thing to do." On page 177,he says that a sense of the possible injustice of an inter-pretation ought not to induce Judges to do violence towell-settled rules of construction, but it may properly leadto the selection of one rather than the other of two reason-able interpretations. It cannot be denied that the word-ings of section 100(1) (c) admit of only one meaning. Thereis, therefore, no scope for bringing any extrinsic consider-ations to our aid. This is why some of the recent decisionsof the Tribunals under the Act are to the, effect that the

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words " the result of the election has been materiallyaffected " are not to be considered as superfluous in thecontext of the word "rejection". In the case of PremNath v. Ram Kishani1), (Election Petition No. 232 of1952), it is observed in the majority decision of theChairman and one of the two members of the JullundurTribunal that,

" Every word in a statute must be given its naturalmeaning, as far as it is possible and superfluity cannotgenerally be attributed to Legislative enactments. Itseems to us therefore that a Tribunal can only declare anelection void if in the opinion of the Tribunal the result ofthe election has been materially affected in consequence ofan improper rejection of nomination. "

Even the third member, Mr. M. S. Pannun, who took adifferent view of the evidence produced in rebuttal has nottaken the view that these words are superfluous in thecontext of the word " rejection ". The Election Tribunal,Secunderabad, Deccan, in the case of Vijaya Mohan Reddyv. Paga Pulla Reddy and Others^), have observed :

" We cannot and do not wish to lay down as aninvariable rule, admitting of no exception that whenever anomination paper is improperly rejected the electionshould be wholly set aside and it should be presumed thatthis event has materially affected its result. This will becontrary to what appears to be the intention of the legisla-ture as it appears in section 100 (1) (c). There would havebeen no need for providing that the Tribunal should formits opinion regarding this question."

In the case of Chander Nath v. Kunwar Jaswantsinghand Others(3), (Election Petition No. 226 of 1952), the Elec-tion Tribunal, Rajasthan, Bikaner, on a consideration ofthe judgment of the Lucknow Tribunal have dissentedfrom the view of that Tribunal. They observe on page 157as follows :—

" It follows from the trend of the judgments of thevarious Tribunals, which we have had the advantage to gothrough very carefully, that it becomes a question of factin each case depending upon the evidence led by theparties, whether this presumption has been rebutted or

(I) 1 E. L. R. 271, (2) 2 E. L, R. 414. (3) 3 E. L, R. 147,

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not. To hold otherwise would be to replace the provisionsof section 100(1) (c) of the Representation of the PeopleAct, 1951, with our own, which the Legislature neverintended. A contrary view appears to have been taken bythe Lucknow Tribunal in the case of Brij Naresh Singh v.Thakur Hukum Singh and Others^) which has cometo a conclusion that in the case of improper rejection of anomination paper, it is impossible to prove that the resultof the election has or has not been materially affected.It has further held that the condition precedent to thedeclaration of the election as void, mentioned in clause (c)of sub-section (1) of section 100 of the Representation ofthe People Act, 1951, is not only superfluous, but is incap-able of fulfilment, and as such an improper rejection of anomination paper wholly avoids the election. In view ofthe interpretation put by this Tribunal, it has been suggest-ed that the Legislature should take an early opportunityto remove all doubts by amending section 100(1) (c) of theAct. With all due respect, we are unable to agree withthis view as the words of section 100(1) (c) do not go so faras to convey this idea."

We are in complete agreement with the views of theBikaner Tribunal on this point. As a matter of fact, on aplain reading of section 100 (1) (c), it is difficult to makeany difference between the case of acceptance and that ofrejection of a nomination paper. If it is necessary to provein the case of improper acceptance that the result of" theelection was materially affected, it is equally necessary toprove it in the case of an improper rejection. However,there is a consensus of opinion of the various Tribunals andElection Commissions right from the year 1921 up to thepresent day that the improper rejection of a nominationpaper raises an initial presumption that the result of theelection has been materially affected. We would, on theprinciple of stare decisis, not like to go against this view.We are, therefore, prepared to go so far that there is suchan initial presumption, and it requires strong and convinc-ing evidence to rebut it, but no further.

The learned members of the Lucknow Tribunal in thecase of Brij Naresh Singh v. Thakur Hukum SinghQ), seemto be of opinion that it is the result of loose drafting that

(1) 2 E.L.R. 266.

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the words " the result of the election has been materiallyaffected" have been used in the context of the words"rejection" also, and probably it is an accidental mistakeon the part of the Legislature. Apart from the fact thatthe Tribunal cannot assume a mistake in an Act of theLegislature, there are grounds for believing that it is notdue to any mistake or loose drafting that the said wordshave been used in connection with the acceptance as wellas the rejection of a nomination paper. The Legislaturemust have been fully conscious of the various decisions ofthe Election Commissioners under the old law that it hadbeen consistently held that it was very difficult to prove inthe case of improper rejection that the result of theelection had not been materially affected. In spite of this,they thought it proper to retain the words in question inthe context of "rejection" as well. Moreover, it appearsto be the anxiety of the Legislature that an election shouldnot be lightly set aside on any technical grounds. Thesetting aside of an election is a very serious matter, as agood deal of time and money, which is spent, is spent invain. The Legislature therefore thought that unless by anytechnical irregularity or illegality the result of the electionhas been materially affected, the election should not bedeclared to be void. This appears from the fact that thewords "materially affected" do not occur only in section 100(1) (c) but also in clauses (a) and (c)of sub-section (2) of thesaid section. We are, therefore, of opinion that simply thedifficulty of proving that the election has not beenmaterially affected by the improper rejection of a nomina-tion paper should be no reason to wipe off the clear wordswhich occur in the clause in question.

Before we discuss the evidence in this case on this point,we may mention that we are conscious of the fact thatwith the exception of the two recent judgments—one ofJullundur Tribunal and the other of Bikaner Tribunal—referred to above, in all other cases the evidence in rebuttalwas found to be insufficient; but that is a different matter,because every case depends upon its own facts.

Coming to the evidence in the case, we may say at theoutset that the contesting respondent, although an interest-ed party, by his demeanour in the witness box, impressedus to be a perfectly honest and straightforward witness.

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He did not make any statement before the Tribunal in hisfavour unless he was sure of its truth. He felt quite atease while answering questions in examination-in-chief aswell as cross-examination, and his manner was not that ofan uneasy and fidgety witness who is conscious that he isnot giving out the truth. We have, therefore, felt it safe toact upon his solitary statement alone in one or two matterswhere it was uncon trover ted, although rebuttal was withinthe reach of the petitioner.

From the evidence of Shri Ratan Singh, R. 1/W. 4, whowas a Secretary of the Rajasthan Kisan Sabha and a memberof the Executive Committee of Bharatpur Kisan Sabha atthe time of the general elections, it comes out that at firstThakur Desraj and the petitioner stood as candidates forthe Rajasthan State Assembly from Kumher Constituencyon behalf of Kisan Sabha. The contesting respondent hadorginally stood as an Independent candidate, but at therequest of some Kisan Sabha leaders, including the saidRatan Singh, he had consented to become a candidate ofKisan Sabha some time after the scrutiny was over. Italso comes out from his evidence that it was settled byKisan Sabha, Bharatpur, that if the contesting respon-dent did not adopt the symbol of Kisan Sabha, out ofThakur Desraj and the petitioner who would file nomina-tion papers on behalf of Kisan Sabha, only Thakur Desrajwould contest the election. It also comes out from hisevidence that there is a majority of Jat voters in KumherConstituency. It also comes out from his evidence thateven after the contesting respondent had been adopted asan official candidate of Kisan Sabha, the Kisan Sabhaworkers of Kumher Constituency worked for ThakurDesraj. It further comes out from his evidence that therewas greater effort put in Kumher Constituency for ThakurDesraj than in Bharatpur Constituency from which also hehad stood, because majority of voters from Kumher Con-stituency were Jats. He has also explicity said that ithad been decided by Kisan Sabha that other candidatesexcept Th. Desraj nominated on behalf of Kisan Sabhafrom Kumher Constituency would withdraw theirnomination in case the nomination paper of Th. Desrajwas accepted. He has clearly deposed that it waswrong to say that if the nomination paper of the

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petitioner had been accepted from Kumher Constituency,Th. Desraj would not have contested from the constituency.This witness is an important member of the BharatpurKisan Sabha and Secretary of Rajasthan Kisan Sabha, andwas a co-worker of Th. Desraj and the petitioner. Thereis no reason to disbelieve his statement. It is also provedfrom the evidence of Shri Hoti Lai (R. 1/W. 8,) who is apleader, that at first the contesting respondent stood as anIndependent candidate; but even before he filed his nomi-nation paper the workers and leaders of Kisan Sabha hadbeen entreating him to stand on behalf of Kisan Sabhafrom Kumher Constituency. He has said that the KisanSabha had to entreat the contesting respondent becauseit was felt that no candidate could succeed against him. Hehas also said that after the contesting respondent was adopt-ed by Kisan Sabha, Th. Desraj and the petitioner formeda separate group of Kisan Sabha, and Th. Desraj tried withall his might for his own election from Kumher Consti-tuency, and the petitioner canvassed for Th. Desraj, in thatconstituency. He has also said that even if the petitioner'snomination paper had been accepted, he would have with-drawn his candidature in favour of Th. Desraj, in case thelatter's nomination paper was also accepted. It is alsoproved from his evidence as well as that of the contestingrespondent that propaganda was carried on in support ofthe Congress candidate from that constituency by the topleaders of the Congress Organisation, including the PrimeMinister of India as well as his sister, Shrimati VijayaLakshmi Pandit. Propaganda was carried on in this con-stituency by these important personalities in favour of ShriRaj Bahadur also, who is an important Congressman ofBharatpur, and was the then Deputy Minister of theGovernment of India, and had stood as a candidate for a seatin the House of the People from the constituency of whichKumher Constituency of Rajasthan Legislative Assemblyformed a part. Propaganda was also carried on by ChobeyJugal Kishore, the then Minister of Rajasthan, Shri AmritLai Yadav, the then Deputy Minister of Rajasthan, andalso among others by Master Adityendra, an importantCongress leader of Rajasthan. It has also been proved bythe evidence of the contesting respondent as well as admit-ted by the petitioner that the younger brother of thecontesting respondent, Raja Girraj Saran Singh alias

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Bachchu Singh, contested the parliamentary seat from theconstituency against Shri Raj Bahadur, and came out suc-cessful by a majority of about 20,000 votes. It is admit-ted by the petitioner himself in his statement under OrderX, Rule 1, of the Code of Civil Procedure that the contest-ing respondent got 24,752 votes out of the total votes viz.,32,690, polled. It is proved by the uncontradicted testi-mony of the contesting respondent, which could be easilycontradicted by the electoral roll or by the evidence of thepetitioner, but was not done, that the total number ofvotes in the constituency was approximately 44,000, andthat out of it the Congress candidate, Shri VeerendraSingh, got only 5,845, and Thakur Desraj only 2,093, withthe result that his security was forfeited. It is also provedby his uncontradicted evidence that Shri Raj Bahadurpolled only about 5,000 votes for the parliamentary seatfrom the constituency, whereas his younger brother RajaGirraj Saran Singh polled 24,838 votes from the same con-stituency. It is admitted by the petitioner and also provedby the evidence of the contesting respondent that thecontesting respondent is the younger brother of HisHighness the Maharaja of Bharatpur, and the onlyreasons for the success of the contesting respondentgiven by the petitioner in his own statement arethat there was a split in the Kisan Sabha, as a result ofwhich it broke into two groups, and there was influence ofthe contesting respondent's brother His Highness theMaharaja of Bharatpur. From this evidence, to our mind,the following facts are fully established :—

1. The petitioner and the respondent No. 3, Th. Desraj,had both filed their nomination papers from KumherConstituency on behalf of Kisan Sabha.

2. Of the two Kisan Sabha candidates, Th. Desraj,was a more important personality and more importantmember of Kisan Sabha, and was one of its leaders.

3. Out of the two candidates who stood on behalf ofKisan Sabha, from this constituency, it was settled thatthe petitioner would withdraw in favour of Th. Desraj, incase the nomination papers of both were accepted.

4. Even after the acceptance of Kisan Sabha symbolby the contesting respondent, Th. Desraj contested theelection with all his might, and the petitioner canvassedfor him.

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5. In spite of the vigorous propaganda of a wellorganised party like the Congress, the contesting respond-ent's younger brother Raja Girraj Saran Singh, wonagainst Shri Raj Bahadur, an important leader of Congressand the then Communication Minister, by a majority of24,838 votes to 5,000 votes.

6. There was a majority of Jat voters in KumherConstituency, and even the Congress thought it proper toput up two Jats as both its candidates, viz., Shri VeerendraSingh and Shri Jeewa Ram. The contesting respondent isnot only a Jat but is a younger brother of His Highnessthe Maharaja of Bharatpur. The petitioner is not a Jatand Thakur Desraj, who though a Jat, was badly defeatedby the contesting respondent.

7. The petitioner, apart from his membership of KisanSabha, does not hold any position in the constituency inhis individual capacity.

8. The Kisan Sabha had been wooing the contestingrespondent from the very start, even before the nominationpapers were filed, to stand as a candidate on behalf ofKisan Sabha, as in its opinion nobody else could succeedagainst the contesting respondent.

9. The contesting respondent secured 24,752 votes outof the total votes 32,690 polled, and 44,000 the total num-ber of votes. Shri Veerendra Singh, who was a Congresscandidate and was also a Jat, got only 5,845 votes, whereasrespondent No. 3, Th. Desraj, also a Jat, got 2,093 votesonly, with the result that his security was forfeited.

Taking all the facts and circumstances enumerated aboveinto consideration, it would not be unreasonable to holdthat in the present case the initial presumption of the resultof the election having been materially affected by theimproper rejection of the nomination paper has beenrebutted. In practice, circumstances stronger than thosemade out in this case can scarcely be conceived. It iscertainly impossible to prove in such a case how many votesa rejected candidate would have got, if his nominationpaper had not been rejected. To say, however, that in theabsence of any such evidence the presumption cannot berebutted by any circumstantial evidence howsoever strongwill be a counsel of despair. According to the definitionpf "proved" in section 3 of the Indian Evidence Act:

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" A fact is said to be proved when, after considering thematters before it, the court either believes it to exist, orconsiders its existence so probable that a prudent manought, under the circumstances of the particular case, toact upon the supposition that it exists." It is difficult inhuman affairs to say anything with perfect certainty orwith mathematical exactness. The evidence is to be viewedin the light of probabilities, and if the probabilities are sogreat that a prudent man ought, under the circumstancesof the particular case, to act upon them, it cannot be saidthat the decision arrived at is simply on surmises andconjectures. It is not possible to get at direct evidence inevery case, and the court has to act upon circumstantialevidence in such cases, when direct evidence is impossibleof procurement. Even in criminal cases conviction can befounded upon circumstantial evidence alone, although thestandard of proof required in such cases is much higherthan that in civil cases. An election case like the presentis in the nature of a civil case and we would not beunjustified if we examine the evidence in the manner it isdone in civil cases. In a civil case a mere preponderanceof probability is a sufficient basis for decision. Wills in hisCircumstantial Evidence, 7th Edition, page 8, says," probability is the term generally used to express the pre-ponderance of the evidence or arguments, in favour of theexistence or non-existence of a particular event or proposi-tion ; and sometimes as assertive of the abstract andintrinsic credibility of a fact or event. " If, therefore, thecircumstances established in this case can satisfy us asreasonable men that there was a preponderance of proba-bility of the contesting respondent having been elected,even though the petitioner's nomination paper had not beenrejected, we would be justified in holding that the result ofthe election has not been materially affected by the impro-per rejection of his nomination paper. The fact that out ofthe total votes of about 44,000, 32,690 votes were cast, thatis 76 per cent, of the total votes, shows that here was asufficiently heavy polling, and in a constituency likeKumher, it would be extremely improbable, that pollingwould have been heavier simply by the addition of -thepetitioner in the arena. The contesting respondent securedabout 75 per cent, of the votes polled and about 55 per cent.

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of the total votes. He, therefore, got the absolute majorityby about 5 per cent. Even if we assume, for the sake ofargument, that about 12,000 voters who did not exercisetheir franchise had come to the polling booth, if thepetitioner were contesting, it is hardly probable that allthose votes would have been cast in favour of thepetitioner. .But even if they were so cast, he would havegot only 12,000 votes. If we assume that the votes whichwent in favour of Th. Desraj, would all have come to thepetitioner, if he were in the fight, he could have polledabout 14,000 votes. It would be extremely absurd to holdthat all the votes which were cast in favour of the Congresscandidate, would have been transferred to the petitioner,had he been in the field. It is also extremely improbablethat any substantial number of votes out of the votes castin favour of the contesting respondent would have beentransferred to the petitioner, in case he was allowed to con-test the election. Of course, for argument's sake anythingmay be said. It might even be argued that all the voteswhich went in favour of the contesting respondent mighthave gone in favour of the petitioner, if he were contesting.But we, as reasonable men, have to see the probabilitiesconsidering the fact that the contesting respondent was aJat candidate and a very important Jat, at that. Hiselder brother, His Highness the Maharaja of Bharatpur, hadruled the erstwhile Bharatpur State, of which KumherConstituency, formed a part only till the other day. Hisyoungest brother, Raja Girraj Saran Singh, could secureabout 24,800 votes as against 5,000 votes of Shri RajBahadur, in spite of the propaganda of eminent menlike the Prime Minister of India, Shrimati Vijaya LakshmiPandit, and other important Congress leaders and Ministersof Rajasthan. It is extremely improbable that the peti-tioner would have been able to get any noticeable numberof votes out of the votes cast in favour of the contestingrespondent. The petitioner was only a covering candidatefor Th. Desraj and the evidence of the Kisan Sabha leadersand office bearers examined in this case shows that it hadbeen settled that the petitioner would withdraw in favourof Th. Desraj in case the nomination papers of the peti-tioner and Th. Desraj were accepted. The petitionerworked for Th. Desraj with all his might, with the result

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that Th. Desraj could secure only about 2,000 votes, andhis security was forfeited. The probabilities are altogetheragainst the petitioner's success in the election, even if hehad remained in the field. In the case decided by theBikaner Tribunal, quoted above, only some of the circum-stances which exist in the present case were present, andthe difference in the votes of the successful candidate andthat of the defeated candidate was not as great as in thethe present case. Even then, considering the ;number ofvotes obtained by the successful candidate in that casealong with some other factors, not so strong as the circum-stances in the present case, it was held that the presumptionwas rebutted. In the case of Thahar Gohaldas Hirjee v.Zaveri Vallabhdas Valji and Others^), the Election Tribunal,Saurashtra, considered the evidence produced in rebuttalof the presumption, though it considered it insufficient,because only 35 per cent, of the total votes were cast. TheTribunal, however, observed that if the successful candi-date had been able to secure 51 per cent, of the totalnumber of votes, it would have been possible to say withsome certainty that the result of the election would nothave been materially affected, if the petitioner had beenallowed to contest, although it was further added thateven in that case the petitioner might have argued thatsome of the votes cast in favour of the successful candidatemight have gone in his favour, if he were to contest. Theobservation, however, shows that if the successful candi-date had obtained 51 per cent, of the total number of votes,it would have been considered to be a very strong factor infavour of the successful candidate by that Tribunal. Inthe present case, as has been shown above, the contestingrespondent got 5 times as many votes as the Congresscandidate, and about 12 times as many votes as Th. Desraj.The contesting respondent got not only a majority of thevotes polled, but an absolute majority of about 5 percent, of the total number of votes. Could there beany possibility of the success of the petitioner, who is anon-Jat, in a constituency having the majority of Jatvoters, against a formidable Jat of the contesting res-pondent's position, who was constantly wooed even bythe Kisan Sabha to accept its symbol so that it might

(1) 2E.L.R. 234.

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flaunt its triumph. To our mind the probabilities of thepetitioner's winning against the contesting respondent werealmost nil and we hold that by the improper rejection ofthe petitioner's nomination paper, the result of the electionhas not been materially affected.

Before parting with this issue, we may take note of oneargument of the learned counsel for the petitioner, whichappeared to us to be devoid of any force whatsoever. Heargued that even if the petitioner might not have got morevotes than the contesting respondent, it is possible that byhis coming in, the other defeated candidates might havefilched a large number of votes out of the votes cast infavour of the contesting respondent. We confess to saythat we are unable to appreciate this argument. Howcould the coming in of the petitioner in the arena transferany votes cast in favour of the contesting respondent toany of the two defeated candidates ?

The issue is decided in favour of the contesting respond-ent and against the petitioner.

Issue No. 4.—It was argued by the learned cotmsel forthe petitioner that the contesting respondent held an officeof profit within the meaning of article 191 of the Constitu-tion of India, as he got a monthly allowance from theGovernment. The only thing that he has been able toshow is that the contesting respondent gets a monthlyallowance and certain other easements on account of hisbeing a member of the Raj family of Bharatpur. Reliancewas placed on rule 241 of the Bharatpur State Civil ServiceRegulations, which were framed in the year 1934 duringthe minority administration of Bharatpur. It was contend-ed by the learned counsel for the contesting respondentthat they were not enforceable as it was only the Ruler whocould frame rules in respect of Khanpan etc. It wasfurther argued that these rules, even if they had any forcein Bharatpur State, ceased to have any effect after themerger of Bharatpur State, first in the Matsya Union andthereafter in the present Rajasthan State. This is, how-ever, a very controversial matter, and we need not go intoit in this case, as, to our mind, even if the rules be taken tohave the force of law and to be enforceable even after themerger of Bharatpur State in the bigger State of Rajasthanthere is nothing in them which shows that the contesting

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respondent, who is getting allowance by way of maintenanceand has got a bungalow to live in and some other ease-ments, was a holder of an office under the erstwhile Stateof Bharatpur or thereafter under Matsya, Rajasthan orIndian Government. Reliance was placed on the wordingsof rule 241 that it is a recognised principle that the Statehad a right to exact service from all Khanpanis andallowance-holders. It may be that the State had a rightto exact service from all Khanpanis, but the question iswhether until any such services were given, they would bedeemed to be holding an office under the Government.The liability to exact service is different from confermentof office. Until the office is conferred, it cannot be saidthat the person who has the liability to serve holds an"office". "Office" in the Law Lexicon of British India byP. Ramanatha Iyer, 1940 Edition, page 901, is defined as"that function by virtue whereof a man hath someemployment in the affairs of another, as of the King, or ofanother person". Again, it is said to be "the right to exer-cise a public or private employment, and take the fees andemoluments thereunto belonging, whether public, as thoseof magistrates, or private, as of bailiffs, receivers", etc."Office" denotes a duty in the office-holder to be discharg-ed by him as such. It consists in a right and correspond-ing duty, to execute a public or private duty and to takethe emoluments belonging to it. In Wharton's LawLexicon, 13th Edition, page 608, "office" has been definedas ''an employment, either judicial, municipal, civil, mili-tary, or ecclesiastical." Can it be said that the contestingrespondent is holding any such office ? Has the contestingrespondent any function by virtue whereof he has someemployment in the affairs of the State, or has he the rightto exercise public or private employment ? The reply tothese is bound to be in the negative. We are, therefore,unable to hold that the contesting respondent held an officeof profit under the Government of India or under theGovernment of Rajasthan at the time of filing his nomina-tion paper. Of course, he gets a substantial allowance, andit may be said that he derives a profit from the Govern-ment, but mere getting allowance without holding anyoffice does not disqualify a person to stand as a candidatefor the Rajasthan Legislative Assembly, who is otherwisequalified to stand for it,

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The answer to this issue is in favour of the contestingrespondent and against the petitioner.

. Issue No. 5.—In view of our finding on issue No. 4, it isnot necessary to decide this issue.

The application, in pur opinion, has no force, and mustbe dismissed. In view of the fact that our finding is thatthe nomination paper of the petitioner was improperlyrejected, the parties shall bear their own costs-

Application dismissed.

[ELECTION TRIBUNAL, VELLORE.]

KANDASAMI KANDARv.

SUBRAMANIA GOUNDAR AND OTHERS.*M. ANANTANARAYANAN (Chairman),

P. RAMAKRISHNAN and B. V. VISWANATHA IYER(Members).

March 23, 1953.Polling—Omission to give 8 hours per day—Whether vitiates election

—Burden of proof that result of election has been affected—Nature ofproof required—Value of statistical calculations—Representation of thePeople Act, 1951, ss. 56, 57, 100{2){c).

The provision in section 56 of the Representation of the PeopleAct, 1951, that the total period allotted on any one day for pollingat an election in a constituency shall not be less than 8 hours is not amerely directory provision and omission to give 8 hours is a non-com-pliance of the rules for which the election of the returned candidatecould be declared void under section 100(2)(c) if it has materially affect-ed the result of the election.

"Under the Indian law the burden of proving that the result of theelection has been materially affected by non-compliance with the rulesis on the petitioner.

This burden can be discharged only by establishing circumstancesand facts justifying the probability or inference that the balance might

*The 1st respondent Subramania Goundar applied to the MadrasHigh Court under article 226 of the Constitution for a writ to quashthe order of the Tribunal in this case but the High Court (SUBBARAO J.) dismissed this petition (Writ Petition No. 334 of 1953) onAugust 13, 1953. The judgment of the High Court will be reportedin due course.

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well have been tilted. I t would be very unsafe to work out the pro-bability upon any statistical technique such as taking an average inthe light of the proportion of votes cast for each candidate. On theother hand, it should be assumed that the votes not recorded mighthave been oast in favour of the petitioner.

If the position of the parties was such that, even taking intoaccount the votes not recorded, as votes cast for the petitioner, theresult of the election would not be affected, the election should notbe declared void. But where the number of voters left out is so largethat if the whole or a substantial portion thereof could have tilted theresult of the election if the same were taken into account in favour ofthe petitioner, it would be right and proper to set aside the electionrather than embark upon an unsafe enquiry largely based on guess-work as to the probable trends of voting.

Bulandshahr case (l Hammond 85) and Ram J away a Kapur v.Ganga Saran and Others (2 Doabia 226) dissented from.

Hackney case (2 0 ' M. & H. 77), Ahamad Thambi Maracayar v. BasavaMaracayar (I. L. E. 46 Mad. 123), Shy am Chandra Basak v. Chairman,Dacca Municipality (I. L. E. 47 Cal. 524) and Islington case (5 O'M. &H. 120) referred to.

ELECTION PETITION NO. 8 of 1952.

V. Nageswara Iyer and 8. Krishnasivdmi lyengar,for the petitioner.

N. Rajagopala lyengar, M. N. Rangachariar andV. C. Sada^sivan, for the 1st respondent.

N. K. Vijiaraghavan, for the State.

ORDER.

The petitioner, Sri M. Kandasami Kandar, seeks in thispetition to set aside the election of the 1st respondent, SriK. S. Subramania Goundar, who was declared elected tothe Madras State Assembly from the Mecheri Constituencyof Salem District in the last general elections. The 1strespondent secured 15,345 votes as against 14,036 votessecured by the petitioner, who got the next largest numberof votes, and the former succeeded by a majority of 1,309votes. The main grounds urged by the petitioner are: (i)that in the polling station bearing No. 94, namely,Kanjanaickampatti, comprising six booths, the pollingcommenced only at 1-40 p.m., that the polling was stoppedat 5 p.m., and that he was prejudiced by the conduct ofthe authorities in delaying the polling time; (ii) that inpolling station No. 92, comprising two booths, at the Board

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Girls' School, Mecheri, although separate arrangementswere made for the voting by women voters, the pollingstaff allowed both men and women voters to enter intothe booths indiscriminately, that owing to the resultingconfusion a large body of women voters went away withoutexercising their votes and the petitioner was prejudiced onthis account; and (iii) that the 1st respondent, who was thePresident of the District Board of ISalem, during the monthof December, 1951, gave appointments to the sons ofcertain very influential persons of the locality and with thehelp of such gratification he influenced them to induce thevoters to vote for him. The 1st respondent in his rejoinderstates that polling commenced at 1 p.m., instead of at7 a.m., at Kanjanaickampatti, that this was acquiesced inand consented to by the representatives of all the candi-dates, and further that the result of the election was notaffected in any manner thereby. The 1st respondent statesthat under the circumstances the petitioner was estoppedfrom complaining of the breach of the rule as regards thecommencement of the polling. He further avers that thepolling went' on till 9 p.m., when the last voter presentcast his vote and that there was not a single voter waiting.With regard to the averment that separate booths werenot provided for women and men voters in polling stationNo. 92, the 1st respondent denies the charge and statesthat there was no failure to comply with rule 18 of theElection Rules, and that the petitioner was not prejudicedas a result thereof. As regards the third charge, namely,the appointment of teachers in schools the 1st respondentstates that the appointments were made bona fide, and inthe course of official routine and that thev were not theresult of a gratification offered by him and that no sort ofcoercion or undue influence was practised upon the votersin the matter of securing votes. Respondents 2 to 5 whowere the other duly nominated candidates have not filedstatements.

2. The following issues were framed :—(1) Are the allegations in paragraphs 7 (a) and 7 (b) of

the petition true, and if so, do they constitute any illegal-ity or irregularity within the meaning of section 100(2) (c)of Act XLIII of 1951, rendering the election thereby liableto be set aside ?

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(2) Are the allegations in paragraph 7 (c) of the petitiontrue, and if so, do they constitute 'corrupt practice' withinthe meaning of section 100 (2) {d) of the Act, therebyrendering the election liable to be set aside ?

(3) Whether the result of the election has been materi-ally affected by any irregularity or illegality or corruptpractice set forth under issues 1 and 2 ?

3. Issue No. 2.—In polling station No. 92, Board Girls'School, Mecheri, there were two booths, one for voting bywomen voters and the other for voting by the men voters.The petitioner relies upon the evidence of P.Ws. 3 and 4 forshowing that the polling staff in charge of these two boothsallowed both the men and women voters to enter into thebooths indiscriminately, that, as a result thereof a largebody of women voters including these two witnesses foundthemselves unable to get in because of the crowd and thattherefore they went home without voting. Rule 18(2) ofthe Representation of the People Rules, 1951, providesthat the Returning Officer may provide separate pollingbooths for men and women electors of any specified pollingarea. This rule is intended to provide special facilities forwomen electors in polling stations and generally it isincumbent on the Returning Officer to see that adequatesafeguards are provided with a view to prevent indiscrimi-nate rush by men electors in the polling booth set apartfor women electors. It is likely that in this polling stationthere was some little confusion in the polling booth allottedto the women electors as a result of men electors gettingin. But it is difficult to believe that men electors them-selves could have taken any part in voting at the pollingbooth reserved for women, because they could not havegot their voting papers there. P.W. 4 states that three orfour women went away with her without voting, andP.W. 3 says that she went back without voting. The evi-dence adduced on this point falls far short of proving thatthere was any general confusion or that the women as suchwere scared away from exercising their votes in the parti-cular polling booth. The few voters who went away mightprobably have gone away because they had to wait to gettheir voting papers. In fact, the petitioner's counsel at alater stage stated that he could not adduce any substantialevidence on this point. We therefore find that this charge

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is not made out and the issue is answered against thepetitioner.

4. Issues Nos. 1 and 3.—The next charge levelled againstthe 1st respondent is with reference to the appointment ofteachers made by him shortly before the election. P.Ws.1, 2 and 5 have been examined by the petitioner withreference to this charge. The suggestion is that appoint-ments were made so that the father of the appointee couldwork in support of the 1st respondent's candidature. It issuggested that such persons wielded considerable influenceeither as head of the community or as being the karnam ofthe village. It is a little difficult to understand the exactcharge made by the petitioner under this head. At onestage he sought to prove that it was some kind of coercionor undue influence while at another stage he suggested thatit amounted to bribery by means of gratification. In anyview, the evidence adduced is neither clear nor consistent.In fact, the petitioner's counsel candidly admitted at thelater stage of the enquiry that he was not pressing thispoint and therefore the 1st respondent did not adduce anyevidence in rebuttal. It is, therefore, unnecessary to discussthis part of the issue in greater detail. We hold that thecharge levelled against the 1st respondent as stated inparagraph 7 (c) of the petition is not made out and weanswer this portion of the issue against the petitioner.

5. The main and substantial charge levelled by the peti-tioner relates to the late commencement of polling inpolling station No. 94, Kanjanaickampatti. On this aspectof the case, the facts themselves are not in dispute. SriLoganatha Iyer, who was the Presiding Officer of thepolling station has been examined as a court witness. Hestates that he reached the polling station on the morningof the 10th of January, to check up if the materials wereall available for the polling, that he found during thecourse of the day that the bull symbols were not availableand he therefore sent a report Ex. C-l to the Tahsildar at3-30 p.m., that day. He states that he received the replyat 8-30 p.m., whereby he was informed that the Tahsildarof Omalur who was camping eight miles away would bringthe symbols to the station. At 8-30 p.m., he wrote out atelegram to the Returning Officer and also sent a letterEx. C-2 to the Tahsildar. A reply was received the next

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day at 7-30 a.m., to the effect that the Tahsildar wasarriving with the symbols. Inasmuch as the Tahsildar didnot arrive on the morning of the 1 lth, he sent a telegram tothe Returning Officer stating his inability to commencepolling because of the non-arrival of the symbols. He alsosent an urgent letter to the Tahsildar, Omalur, Ex. C-3,stating that the symbols had not been received and thatthe commencement of polling was delayed on that account.No reply was received to either of these communications.At 10-30 a.m. that day the Presiding Officer addressedanother urgent letter to the Returning Officer, Ex. c-4,wherein he sets out the course of events since he assumedcharge the previous day. He states that polling had notcommenced as the Congress symbol labels had not beensupplied and the Tahsildar did not turn up. He added " Ialso request to be instructed whether I can commencepolling on receipt of the labels from you irrespective of thetime at which it is received here." The Tahsildar arrivedat the polling station with the symbols at about 1 p.m. andpolling commenced thereafter. The witness also states thatafter 10 a.m., there was a crowd of nearly 200 personswaiting at each booth to register their votes and that hetold the people who were asking him whether the pollingwould be held that day or not, that it will commence aftersymbols were received. He states that just before the com-mencement of the polling he took a letter signed bythe agents of the candidates agreeing that the poll mightcommence, but that the letter was mislaid and could notbe traced. The Returning Officer himself came to thepolling booths at 1-30 p.m., when he was appraised of thefacts and there was no talk at all about the adjournmentof the polling then. With reference to the closing of thepoll the witness states that voting went on till 5 p.m., atwhich hour he asked all people waiting to register theirvotes to come into the enclosure and those persons wereallowed to vote.

6. From the foregoing evidence it is clear, and this is notdisputed by the parties, that polling commenced at 1o' clock, and that it was closed at 5 p.m., although such per-sons as had been wraiting inside the enclosure were allowedto record their votes later. The question that arises forconsideration is whether the late commencement of the poll

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constituted an illegality so as to vitiate the election. Sec-tion 56 of the Representation of the People Act, 1951,provides as follows:

" The appropriate authority shall fix the hours duringwhich the poll will be taken; and the hours so fixed shallbe published in such manner as may be prescribed :

Provided that the total period allotted on any one dayfor polling at an election in a constituency shall not be lessthan eight hours."

Rule 16 of the Representation of the People Rules providesfor the publication of the hours fixed for polling, and it isnot in dispute that the prescribed hours were 7 a.m. to5 p.m. with an interval of two hours. Counsel for the 1strespondent submitted with reference to the proviso tosection 56, first, that although it was incumbent on theReturning Officer to allot eight hours for polling, the votersthemselves were not guaranteed the right to exercise theirfranchise during that time and that the omission to rendereight hours poll available to the voters was not one whichcould vitiate the election. We find it difficult to acceptthis argument in its entirety. As Grove, J., observes in theHackney GaseC),

" Among the principles of the Act is one that thereshould be districts arranged for the convenience of theelectors, at which they might have at the polling day suit-able machinery for giving their votes to the candidate towhom they chose at the last moment to give their vote,..... .there should be means fairly taken to give to the electorsthe opportunity of voting with as little trouble aspossible."

The provision as regards eight hours poll is based uponthe principle that the electors should have a fair opportu-nity of recording their votes. To say that the ReturningOfficer is under an obligation to allot eight hours poll butthat he is not bound to ensure its actual working or thatthe voters themselves do not have such a right vouchsafedto them is to ignore the policy underlying the rule and toreally whittle down its provisions. In this connection sec-tion 56 has to be read along with section 57 of the Act,which provides for the adjournment of poll in case of anemergency. Clause (1) provides that if the proceedings at

(1) 2 O'M. & H. 77 at S3,

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any polling station are interrupted or obstructed by anyriot or open violence and it is not possible to take the pollon account of any natural calamity or any other sufficientcause, the Presiding Officer or the Returning Officer shallannounce an adjournment of the poll to a date to be noti-fied later. Although eight hours poll is not specificallyreferred to in this clause, it is clear that the PresidingOfficer as well as the Returning Officer have the power toadjourn the poll if in a given case it is not possible to en-sure for the voters eight hours poll. We are therefore ofthe opinion that the omission to secure for the voters ofKanjanaickampatti an eight hours poll is an infringementof the statutory requirement provided under section 56 ofthe Act.

7. The further question that arises is whether tbe non-observance of the foregoing rule vitiates the election, inother words, whether the election is liable to be set asideunder section 100(2) (c) on the ground that the result "hasbeen materially affected by the improper reception or refusalof a vote...or by any non-compliance with the provisions ofthe Constitution or of this Act or of any rules or ordersmade under this Act " The decision of this question hasgiven us the greatest anxiety. The language of the sectionextracted above is a departure from the English law asset out in the 13th section of the Ballot Act, 1872, as wellas the corresponding section in later English enactments,which provides that no election should be declared invalidby reason of a non-compliance with the rules contained inthe Act if it appears to the Tribunal that the election wasconducted in accordance with the principles laid down inthe body of the Act, and that such non-compliance or mis-take did not affect the result of the election. Consequently,in England, the general rule has been that the party whomaintains the validity of the election notwithstanding theinfringement of the rule has to satisfy the court that theresult of the election has not been affected by the irregular-ity. On the language of clause (c) of section 100(2)extracted above however, it would really be incumbent onthe person assailing the election to establish that theirregularity had materially affected the result of the elec-tion. In Ahamad Thambi Maracayar v. Basava Maracayar(l),

(1) I.L.R, 46 Mad, 123.

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Wallace J., while considering similar language under theMadras District Municipalities Act, held that the burden ofproof was on the petitioner in such cases to establish thatthe non-compliance with the Act materially affected theresult of the election.

8. But, the further question is how exactly the burden ofproof is to be discharged by the petitioner ? In a case ofthis kind one method of such proof will be to have all theelectors of the particular polling station who did not voteexamined with a view to ascertain how exactly they mighthave wished to vote had they had the opportunity of doingso, and what in that event would have been the result of theelection. As Grove J. observed in the Hackney caseC) sucha course would be simple impossibility and would furtherviolate the rule as regards secrecy of the ballot. Withoutlaying undue stress on the question of burden of proof, itwould be better to apply the test laid down by Grove J.in the above case in the following words—

" an election is not to be upset for an informalityor for a triviality ; it is notxto be upset because the clerkof one of the polling stations was five minutes too late, orbecause some of the polling papers were not delivered in aproper manner, or were not marked in a proper way. Theobjection must be something substantial, something calcu-lated really to affect the result of the election Thejudge has to look to the substance of the case to see whe-ther the informality is of a such a nature as to be fairlycalculated in a reasonable mind to produce a substantialeffect upon the election. "

In the Kanjanaickampatti polling station there were onthe whole 4194 voters, of whom only less than a thirdnamely, 1385 voters, recorded their votes. That the votingin this area was very poor is borne out by a scrutiny of thedetails as to voting in the other polling stations in theconstituency. The average of the total votes polled in allthe stations is about 52 per cent, while the highest pollingwas around 70 per cent. Counsel for the 1st respondenturged that we could assume that the average rate of votingin all the polling stations put together or in the adjoiningpolling stations, namely, polling stations bearing Nos. 93,97, 95 and 88 could be adopted as the basis for determining

(1) 2 O'M, &H. 77,

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how many would have voted in station No. 94. He furtherstates that if the average votes recorded in those stationsbe taken as the guide in determining how many voterswould have voted in this polling booth we should furtherhold that those persons would have voted in the same pro-portion in which the votes were recorded in the particularstation, namely, polling station No. 94. It appears the 1strespondent secured 431 votes, while the petitioner secured591 votes in the particular polling station. We have beencalled upon to adopt a statistical formula on the abovebasis and to hold that if the voting had gone on on thatbasis the petitioner would not have got such a large num-ber of votes as to tilt the election in his favour.

9. In this connection we think that it would be desirableto state the case for the 1st respondent in the form inwhich it was stressed before us by his learned counsel, withparticular reference to the Bulandshahr casei1), which thelearned counsel desires to rely upon as his main source ofauthority, and which seems to have been followed in alater decision also, Ram Jawaya Kapur v. Ganga Saran andOthers (z). It is all the more necessary that we shoulddwell upon this, both to do justice to the argument itself,and as we dissent from the reasoning in the Bulandshahrcase{1) and the mode in which certain principles were appliedto the facts of that particular case. The argument is thatdue allowance must be made for the 'inertia' of the elec-tors as a statistical analysis of the cross-section of thefranchise in this particular area shows that the proportionof those who actually voted to the voters' constituencyvaries from about 18 per cent to 70 per cent. Learned coun-sel for the 1st respondent has prepared and made availableto us a tabular statement in this respect, and shown that,in no case, is the 'inertia' totally absent. He, therefore, con-tends that some kind of statistical average should be taken,and he has attempted different bases affording averagesbetween 50 and 55 per cent. In the Bulandshahr coise(l) whichrelated to an election under the United Provinces Muni-cipal Act, the Polling Officer was compelled owing todisturbance to stop the poll at one of the polling stationsearlier than the time prescribed. A statistical estimatewas worked out by the Tribunal upon the basis of the

(1) 1 Hammond 85, (2) 2 Poabia 226,

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speed of the poll previously recorded. Upon this aspect,we desire to stress that no kind of statistical method of thisdescription may be really satisfactory. As we haveemphasised elsewhere, the matter may be different wherethe balance is not tilted, even assuming that every one ofthe voters prevented from voting by the non-observance ofthe hours of poll, did actually vote, and did vote in favourof the petitioner. But where the majority is not largeenough for this, as in the present case, it is obvious thatgreat caution should be exercised before we arrive at anyparticular conclusion that only 50 per cent, or 55 per cent.,of the voters who failed to poll would have voted, basingthis opinion upon any law of averages. Actually, if morethan 62 per cent, of the voters had voted, and voted infavour of the petitioner, this is sufficient to tilt the balance,and this has been conceded. We must point out that inquite a few booths the voting has been as high as 66 percent, or 70 per cent, of the total poll. Under those circum-stances, we think it would be most unsafe to assume thatmore than 55 per cent, of the remaining voters would nothave voted in this particular polling station, had theproper and full hours been maintained. We must pointout, in addition, that this is a polling station of more thanaverage size, and that the proportion seems to have beenfairly high in several such stations where the total numberof voters exceeds 3,000.

10. As regards the other principle, namely, the proportionin which these votes would have been polled, we prefer tobase the decision entirely upon the criteria and consider-ations expressed by Mr. Justice Grove in the Hackney case^1).We are quite unable to see how any law of averages, or anyworking out of the theory of probability, can furnish a safeguide in this respect, or the foundation of a judicial prin-ciple. It is evident that such a technique can be appliedwith safety only where the range of facts permits theapplication of an 'actuarial' method, and not otherwise.But it is of the very essence of the democratic system ofvoting, that 'imponderables' might influence the situation.It is perfectly conceivable that all the rest of the unpolledvotes, if polled, might have been in favour of the petition-er, and that is the only foundation for the application of ajudicial principle. It is, of course, quite probable and

(1) 2 O'M, & H. 77,

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even very likely, that the petitioner would not have polledall the votes. But here we can only reiterate the dicta ofGrove J., that courts of justice cannot act upon a princi-ple which, in essence, involves the impossible or impractica-ble, namely, the prediction of a situation or result which itis not possible to foresee. We would here like to quote onepassage from the Bulandshahr case^) already referred to—

" Of the 877 votes actually polled, 341 were cast forAmar Singh and 247 for Nanak Chand. There is no evidenceto show that this proportion would not have been main-tained after 2-30 p.m."

With great respect, we must entirely differ from thismode of reasoning, and even from the principle uponwhich it proceeds. In our view, the onus of proving thatthe result of the election would have been materially affect-ed is upon the petitioner, but that onus could be discharg-ed, and a judicial tribunal could expect it to be dischargedonly by establishing circumstances and facts justifying theprobability or inference that the balance might well havebeen tilted. If that is to be established as a certainty, weare asking for the impossible. Again, the court would notbe justified in adopting any purely statistical technique,in assessing such a probability, for the weighty reasonswhich we have already referred to.

11. While we therefore agree that before setting aside anelection it is necessary to establish in a given case that theresult of the election was materially affected by non-com-pliance with the rules, we are unable to adopt the calcu-lations based upon possible trends in voting given effect toin the above case. In this connection the Hackney case(2) hasa direct bearing. In that case, as here, there was a partialfailure to deliver the requisite ballot boxes, papers andother materials. In two polling places no polling at alltook place and in three other polling stations the polling didnot commence at the proper hour, with the result that alarge number of people were prevented from voting. Itwas contended on behalf of the successful candidate that,had the polling stations in question been opened, the resultwould in no way have been affected, as he had an establish-ed majority in that constituency. Grove J. rejected thecontention in the following words—

(1) 1 Hammond 85. (2\ 2 O'M, & H. 77,

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" It seems to me to be a problem which the humanmind has not yet been able to solve, namely, if things hadbeen different at a certain period, what would have beenthe result of the concatenation of events upon that suppos-ed change of circumstances. I am unable at all events toexpress an opinion upon what would have been the result,that is to say, who would have been elected, provided cer-tain matters had been complied with "

The election in the above case was set aside for thereason that several thousands of electors had impedimentspresented to their voting, namely, by the delay in the open-ing of the polling stations and by the closing of some of theother stations.

12. In Shyam Chand Basak v. Chairman, Dacca Munici-pality^-) the question arose whether the alteration of thehours of polling contrary to rule 17, under the BengalMunicipal Act, vitiated the election. In that case it wascontended that there was a violation of the rules but thatthe election was not vitiated thereby. In holding the elec-tion to be void it was held that the non-compliance withthe rule had materially affected the result of the election.On the question of burden of proof the learned Judgeswould seem to follow the English decisions and hold thatthe party who maintains the validity of the election not-withstanding the infringement of the rule must satisfy thecourt that the result of the election was not affected by theerror or irregularity. This was rightly dissented fromby Wallace J. in Ahamad Thambi Maracayar v. BasavaMaracayar(*). But, as pointed out earlier, the question doesnot turn on the burden of proof but is really one to beanswered on the facts of the case. In the course of thejudgment, the learned Judges, after referring to certainAmerican cases, state the law in the following terms—

" where the law fixes the opening and closingof the polls at sunrise and sunset, the election should notbe invalidated, merely because the polls were closed a fewminutes before or were kept open a few minutes aftersun-down, not thereby affecting the result in any manner.But this rule is applied only to what are called unsubstan-tial departures from the law. Where polls were openedfrom 1 p.m. until 6 p.m., instead of from one hour after

(1) I.L.R, 47 Cal. 524, (2) I.L.R, 46 Mad, 123.

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sunrise to sunset, as required by law, the election was heldinvalid : Tebbe v. Smith (*) and Ooree v. Cahill (2) ".

13. The only other decision which calls for reference inthis connection is the Islington case{3). In that ease the pollwas continued after the prescribed hour although there wasno provision in the Ballot Act, for such a procedure.Fourteen persons were shown to have recorded their votesin this manner. It was held that those votes were invalid.On the further question whether the election was renderedinvalid by reason of such votes being taken into account,the court observed as follows :

" Even if all those improperly received votes arecounted as votes which were given for the respondentLough and in justice to the petitioner it must be so assumed

there remains a clear majority of five votes for him."This is valuable authority for the position that in decid-

ing about the disposal of the invalid votes the court is notcalled upon to enter into an arithmetical analysis of thetrend of voting but rather that it would be entitled toassume that the invalid votes should really have gone infavour of the person whose election was disputed. In theconverse case the court is entitled to assume where thereis a vital irregularity of procedure, that but for the irregu-larity the votes which could have been cast might havebeen cast in favour of the person disputing the election.As already observed, we are unable to find any rationalprinciple involved in assuming that voting would follow aparticular pattern or that the general voting in the wholeconstituency could be a complete or safe guide for decidinghow the voters in a particular station would have behaved.No doubt, if the position of the parties was such that eventaking into account the votes not recorded, as votes castfor the petitioner, the result of the election would not beaffected, the election should not be declared void. Butwhere, as in this case, the number of voters left out is solarge that if the whole or a substantial portion thereofcould have tilted the result of the election, if the samewere taken into account in favour of the petitioner, itwould be right and proper to set aside the election ratherthan embark upon an unsafe enquiry largely based onguess work as to the probable trends of voting such as was

(1) (1895) 49 Am. St. Rep. 68. (3) 5 O'M. & H. 120.(2) Ann. Cas. 1914 D. 549.

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adopted in the Bulandshahr case^). It may be, as statedabove, that latitude may have to be given for the inertia ofthe voters and it will be too much to say that every one ofthe voters in the polling station would have cast his votes.It may even be that the votes might be split between thecandidates although the proportion itself cannot be fixed.But it is an extremely hazardous task to apportion thevotes between the contending parties especially in a casewhere the difference is narrow and the number of personswho had not voted is considerable. In this case the differ-ence of votes is 1309 and the persons who did not exercisetheir votes numbered more than twice that figure. Onbehalf of the petitioner a number of witnesses have beenexamined for the purpose of showing that those personswere waiting at the polling booth at Kanjanaickampatti onthe day of the election till mid-day and that a large num-ber of voters who had gathered there since that morningwent away, and that they had no opportunity of record-ing their votes. A feeble attempt was made in cross-examination to establish that emissaries were sent outto several villages after the polling commenced to get backthe voters with a view to have a full poll. The petitioner'switnesses have denied this suggestion and the 1st respond-ent has not adduced any evidence on this point. It cannotbe denied that the late opening of the poll should havecaused extreme discomfort to the voters. One should haveexpected them to assemble in large numbers that morningand that is what the petitioner's witnesses state and manyof them should have come from villages situated a few milesoff as is evident from the plan filed. It would be casting aneedless burden on such voters to wait the whole day onthe off-chance of the poll commencing at some later time,especially when there were no facilities for refreshment orfood at that place. We can well assume that quite anumber of voters should have returned home without votingand should not have thought of coming back even if theyhad known that polling had commenced late in the day. Itis impossible to establish how many such voters returnedwithout exercising their votes because of the late polling.The point remains that polling in fact was far below thenormal level and there is considerable force in the statementof the petitioner as P.W. 11, that this polling station was

(1) 1 Hammond 85,

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his stronghold and that the lead which he had in that stationwould have been considerably augmented so as to tilt theelection in his favour if really the poll had been held at theregular prescribed hours. The petitioner sent a telegramEx. A-l to the Election Commissioner on the 16th referringto the delay in polling and in his petition Ex. A-2 he statesthat several thousands of voters who had turned up to votefor the petitioner had to wait indefinitely and finally return,confused and disappointed, as no indication whatever wasgiven as to when the polling would actually commence.The suggestion made on behalf of the 1st respondent thatthe delay in polling was made by the extended hours ofpolling is not borne out by the evidence. The PresidingOfficer states that polling closed at 5 p.m. and thereafteronly such persons who had got into the enclosure wereallowed to exercise their votes. This is quite different fromextension of the polling hours. Further, it is worthy ofnote that on the date of the election the Presiding Officerhad no power to extend the hour of poll and the notifi-cation empowering such officer to extend the time of poll infact came into effect only subsequent to the election. Theplea of estoppel raised on behalf of the respondent has littlesubstance as there is no reliable evidence to show that thecandidates consented to the poll commencing at the latehour. The statement alleged to have been taken from theagents in token of their consent to this course has not beenforthcoming. Even if such consent should have beengiven, it is difficult to see how the candidates will be boundthereby.

14. In view of the foregoing, we are of the opinion thatthere was a serious irregularity in the matter of polling inthe Kanjanaickampatti polling station, that the voters didnot have eight hours poll, and that, as a result thereof, theresult of the election was materially affected. We thereforedeclare the election to be wholly void in terms of sec-tion 98 (d) of the Representation of the People Act, 1951.

15. Before we part with the case we desire to point out thatthe conduct of the Tahsildar and the Returning Officer inrespect of the conduct of the polling in this village wasblamew*orthy. Repeated and pressing requests were madeby the Presiding Officer for despatch of the symbols sincethe day previous to the election. It should have been

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172 KANDASAMl K.ANDAR V. SUBRAMANIA GOUNDAR [VOL. V

obvious that the polling could not commence without thesymbols being available at the polling station. There isnothing on record to show why neither the Tahisldar nor theReturning Officer took any steps to send the symbols intime. It is even more significant that neither of themwent to the polling station till 1 p.m., although the Tahsildarwas camping a few miles away and the Returning Officerwas urgently and repeatedly informed about the state ofaffairs in that polling station. At any rate, after theTahsildar and the Returning Officer came up on the sceneit should have been easy for them to notice that it was aproper case for adjournment of the poll in terms of sec-tion 57 (1) of the Act. They did not do so. On the otherhand, they seem to have gone on as though nothing hadhappened, oblivious of the fact that the bulk of the voterswere not given a fair opportunity to vote. We wish tofurther add that in prescribing forms it would be better toinsert a provision whereby the Presiding Officer shouldstate the exact hour at which the polling commenced andthe time at which it closed. It should not be a matter ofcontroversy or for evidence as to when exactly the pollingcommenced or closed.

16. It is not without regret that we have to declare thiselection to be wholly void because the 1st respondent him-self was quite innocent and was free from blame in respectof the delayed polling. The proper procedure was notadopted either in the matter of holding the poll accordingto the prescribed time or having the poll adjourned inrespect of the particular polling station because of a lack ofimagination and responsibility on the part of the ReturningOfficer and the Tahsildar, who were in charge of the electionand to whom the Presiding Officer looked for guidance.The law as stated above renders it necessary for us todeclare that the late holding of the election in theKanjanaickampatti polling station had materially affectedthe result of the election and we have therefore no otheralternative except to declare the election to be wholly void.We direct in the circumstances that each party should bearhis own costs, and the Government Pleader should #get hiscosts from the Government and not from the party.

Election declared void.

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E. L.R.] BAMAKEISHNA REDDY V. KAMALA-VDEVI 1 7 3

[ELECTION TRIBUNAL, SECTTNDEBABAD.]

RAMAKRISHNA REDDYv.

KAMALA DEVIS. TAKI BILGRAMI (Chairman),

N. KXJMARAYYA and SBINIVASA RAGHAVACHAB

(Members).March 24, 1953.

Nomination of candidates—Inclusion of name of candidate inelectoral roll on day of nomination—Nomination without stating roll andnumber in roll—Validity—Presumption that name was included beforeexpiry of time for nomination—Bule allowing Election Commission toinclude names—Whether ultra vires—Election petition—Parties—Candi-dates who have withdrawn—Representation of the People Act, 1950,s. 28—Preparation of Electoral Bolls Rules, 1950, r. 20(3)—Representa-tion of the People Act, 1951, ss. 36 (4), 82.

Candidates who have withdrawn their candidature are not neces-sary parties to an election petition.

Where information that a candidate's name was included in acertain electoral roll by the Election Commission under rule 20(3) of theRepresentation of the People (Preparation of Electoral Eolls) Eules,1950, was received only on the day on which the nomination papers werefiled: Held, that the nomination of the candidate could not be rejectedmerely on the ground that columns 7 and 8 thereof were left blank inthe nomination paper.

Provisions with regard to the filling up of nomination papers arenot mandatory and need not be fulfilled exactly ; substantial complianceis enough.

Rule 20 of the Representation of the People (Preparation ofElectoral Rolls) Rules, 1950, is not ultra vires. The Central Govern-ment has ample power to make such a rule under section 28 of theRepresentation of the People Act of 1950.

Where the direction for the inclusion of a candidate's name in theelectoral roll was issued by the Election Commission on the date onwhich nomination papers had to be filed and there was no evidence asto the exact time at which the direction was issued on that day : Held,that the direction must be presumed to have been issued at a time whenthe order would be effective, that is to say, before the expiry of thetime fixed for filing nominations on that day.

ELECTION PETITION NO. 3 of 1952.

B. V. Subbarayudu, for the petitioner.Saxena, for the respondent.

OBDEB.

The petitioner, Kancherla Ramakrishna Reddy, was oneof the candidates for membership to the Hyderabad

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174 RAMAKRISHNA REDDY V. KAMALA DEVI [VOL. V

Legislative Assembly from the Alir Constituency. He wasdefeated by the respondent, Arutla Kamala Devi, a candi-date of the People's Democratic Front. In his petition heseeks to have the latter's election declared void and praysthat he be declared duly elected. The ground on whichhe bases his petition is that the respondent was not anelector and her name was not on the electoral roll at thetime fixed for submitting nomination papers; that nodirection was issued by the revising authorities till thenand if issued it cannot be deemed that her name was on theroll from the time of the issue of this direction because rule20(3) which provides for this is void and ultra vires, beingcontrary to the provisions of section 25 of the Represent-ation of the People Act of 1950. The nomination paperwas defective as the serial number in the column concernedwas left blank. The respondent's inability to duly fill inthe said column cannot be a good ground for condoning thisdefect. The nomination paper ought to have been rejectedfor these defects and the respondent ought not to havebeen allowed to contest the election.

2. The respondent's contention is that she had applied forthe inclusion of her name in the electoral roll in good timein accordance with the provisions of law and the ElectionCommission had validly issued direction to include hername on 15th November, 1951. This direction is tanta-mount to the amendment of the roll and consequently shewas an elector on 15th November, 1951, and entitled tostand as candidate for election. No doubt she had left theserial number blank. But she could not fill it up under thecircumstances. At the worst this was a technical defectwhich was rightly ignored by the Returning Officer, therespondent having furnished necessary particulars beforethe time for scrutiny. The respondent's further conten-tion is that the petitioner has not joined as parties all theduly nominated candidates in contravention of the manda-tary provisions of section 82 of the Representation of thePeople Act and hence this petition should be rejectedwithout further inquiry on that account.

3. The following issues were framed :—(1) Were the candidates who were duly nominated

but who withdrew later, necessary parties and the petitionshould be rejected for their non-joinder ?

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B. L. B.] RAMAKRISHNA REDDY V. KAMALA DEVI 175

(2) Were the nomination papers filed for the respond-ent defective because of non-mention of the details requir-ed in columns 7 and 8 of these nomination papers andfor this reason they were invalid and should have beenrejected ?

(3) Was the name of the respondent on the electoralroll on the date and time fixed for submitting nominationpapers and what is the effect if the name was not there ?

(4) Were directions for inclusion of the name of therespondent issued before the date and time fixed for sub-mitting the nomination papers and whether this is suffi-cient ?

(5) Is the petition time-barred ?(6) Whether the order and direction of the Election

Commission, India, purporting to include the name ofthe respondent in the electoral roll under rule 20(2) of theRepresentation of the People (Preparation of ElectoralRolls) Rules, 1950, is not void, not being in conformity withthe provisions of section 25 of the Representation of thePeople Act, 1950 ?

(6a) Whether rule 20 of the said rules under which adirection purports to be given is not ultra vires of thepower of the rule-making body in view of the provisionsof section 25 of the Representation of the People Act,1950?

(7) Whether the improper acceptance of nominationhas materially affected the result of the election ?

4. Issue No. 1.—Admittedly there were two candidates,Laxmi Narayan and Chandra Gupta, whose nominationpapers were accepted by the Returning Officer but who hadwithdrawn thereafter within the prescribed time. Thepoint for consideration therefore is whether these candi-dates are necessary parties to the petition. Section 82of the Representation of the People Act in this regardruns thus:—

" A petitioner shall join as respondents to his petitionall the candidates who were duly nominated at the electionother than himself if he was so nominated."

This section enjoins that all the duly nominated candi-dates at the election except the petitioner himself shouldbe made respondents to the petition. The term " dulynominated" is not defined either in the Act or the rules. We

EL—23

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176 BAMAKRISHNA BEDDY V. KAMALA DEVI [VOL. V

find in the Act the terms "nominated", "duly nominated"and " validly nominated." The term " validly nominatedcandidate " is defined in the Representation of the People(Conduct of Elections and Election Petitions) Rules, 1951,section 2(f) as " a candidate who has been duly nominatedand has not withdrawn his candidature in the manner andwithin the time specified in sub-section (1) of section 37or in that sub-section read with sub-section (4) of section 39,as the case may be." By this it is clear that the term"duly nominated candidate" is not a synonym of "validlynominated candidate " and can include candidates whohave withdrawn. It is clear that if in section 82 of theRepresentation of the People Act only the words " dulynominated" wer.e used, candidates who have withdrawnwould have been necessary parties. But the term is quali-fied by the words " at the election." The question is,do these words affect the position in this regard. Thelearned counsel for the respondent relies on certain obser-vations made in N. P. Ponnuswami v. The ReturningOfficer (') and in an election case, Maharaja ManindraChandra Nandi v. Pravesh Chandra Mitter (2) and also inan English case reported in 2 Power Rodewell in whichelection has been defined as a continuous process start-ing with the nomination and ending in election. Thismay be, but it does not throw any light on the expres-sion "at the election" with which we are concerned.The word " a t " can! only be used with referenceto a certain stage, or moment, and, having regard to thecontext in section 82, can only mean the stage of polls.Attaching the meaning suggested by the respondent'scounsel to these qualifying words will mean that they areredundant. That the words "duly nominated" wouldhave served the purpose as well and that the term " dulynominated" and "duly nominated at the election " aresynonymous. Now, no rule of interpretation is betterestablished, than the one which lays down that no wordsused in a statute can be taken as redundant or superfluous.It is argued that if this term is taken to mean candidatescontesting the election, it will be synonymous with theterm " validly nominated candidate" as defined in therule, and the same objection will apply. We do not agree.

(1)1 E.L.R, 133 (S,C), (2) Hammond 545,

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A validly nominated candidate is defined as one who doesnot withdraw within the time fixed; it is not necessary thathe should contest the election. Circumstances are conceiv-able and possible in which a candidate who does not with-draw within the time fixed, may fail to go, or may be pre-vented from going to the polls. The legislature, when it usedthe expression " duly nominated at the election " and not" validly nominated candidate" evidently wanted to makeit quite clear that only candidates actually contesting theelection after due nomination are to be necessary parties,and not merely those who have not withdrawn. Some elec-tion cases of Uttar Pradesh and Punjab like Benares-cum-Mirzapur Cities (*), Ambala and Simla, 1937 (2), HoshiarpurWest, 1937 (3), and Karnal South, 1937 (4), are relied upon inwhich it was laid down that failure, to implead all the nomi-nated candidates is fatal to a petition in which a seat is claim-ed. These cases were decided under rule 11 in Punjab, andrulel21 in Uttar Pradesh, of the then existing Electoral Rulesthere, which made it necessary to join all the nominatedcandidates, when a seat was claimed by the petitioner. InBihar a different view was taken in Shahabad M.R., 1946 (5).The above Uttar Pradesh cases were distinguished on the'ground that under Uttar Pradesh Rules the list of nomi-nated candidates is prepared before the period of with-drawal, whereas in Bihar after that period is over. Underthe present rules with which we are concerned, the list ispublished after such period is over. If at all we can followthese cases under the old rules, we should follow the Biharcase(5). Our view is supported by a recent decision of theBombay High Court, Sitaram Hirachand Birla v. YograjSingh Shankar Singh Parihar (6) in which a division benchof that High Court, consisting of Chagla C. J. andDixit J.,have held, inter alia, that a candidate who has withdrawnis not a necessary party. We, therefore, overrule thisobjection, and decide this issue in favour of the petitioner.In our opinion it is not necessary to join a candidate whohas withdrawn.

5. Issue, No. 2.—It is objected by the petitioner thatserial number in columns 7 and 8 of the nomination form as

(1) Sen and Poddar 166, (4) Sen and Poddar 438.(2) Sen and Poddar 6. (5) Sen and Poddar 746.(3) Sen and Poddar 395. (6) 2 E. L. R. 283.

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178 RAMAKRISHNA REDDV V. KAMALA DEVI [VOL. V

required by rule 4 and the form in Schedule II is not men-tioned, and therefore the nomination paper of the respond-ent was invalid. We do not agree. The intimation that therespondent's name may be included in the electoral rollwas received on the day the nomination paper was filed.There was no serial number given to her till then. Insist-ence on serial number being given in such cases willdefeat the object of rule 20(3) which provides that the rollwill be deemed to have been revised when order for itsrevision is issued by the Election Commission. Apartfrom that, as it has been held in so many cases the objectof details to be mentioned in nomination papers is to ensurethe identity and eligibility of the candidate; omissions,discrepancies, and irregularities, which do not affect this, donot matter. See Anglo-Indian Constituency, Punjab, 1946 ('),and also Anglo-Indian Constituency, Punjab, 1947 (2). In thislatter case it was held that omission to describe sub-divisionnot is fatal to a nomination paper. A similar view was taken inWasawa Singh v. Wary am Singh and Others(3) and GurbakshSingh v. Baldeo Singh^). It is well settled that the provisionsrelating to filling up of nomination papers are not absoluteand need not therefore, be fulfilled exactly. They aremerely directory and it is sufficient if they are complied*with substantially. The criterion of substantial complianceis the establishment of the eligibility and identity of thecandidates to the satisfaction of the Returning Officer. Inthe present case there can be no doubts regarding that.We think, therefore, that the Returning Officer was right inrefusing to reject the respondent's nomination on thisground, and decide this issue in favour of the respondent.

6. Issues Nos. 3 and 4 being issues of fact, we shall decidethem last.

7. Issue No. 5.—[Not pressed.]8. Issues Nos. 6 and 6 a.—The petitioner's pleader relies on

the following words of section 25 (a) of the Representationof the People Act, 1950: "and when a list containing anyadditions to, omissions from, or alterations in the electoralroll as a result of such revision has been finally publishedin the prescribed manner, the electoral roll shall be deemedto have been revised accordingly", and argues that

(1) Sen and Poddar 66 at p. 68 et seq. (3) 2 Doabia 263.(2) Sen and Poddar 883 at p. 887. (4) 1 Doabia 13 at p. 18.

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fi. L. R.] RAMAKBISHNA RBDDY V. KAMAL.A DEVI 179

rule 20 (3) of the Representation of the People Rules of1950, which provides that the electoral roll shall bedeemed to have been revised when the direction is issuedby the Election Commission, is void, being contrary tothe provisions of the above section of the Act. Therecan be no doubt that rules framed under an Act, if theycontravene the provisions of the Act or go beyond the scopepermitted; are void and ultra vires. The question is, do theprovisions of the above rule do so. The earlier portion ofsection 25 (a) gives power to the Election Commission " todirect the revision "in the prescribed manner". The term" prescribed " has been defined in section 2 (h) " as pres-cribed by the rules under this Act". It is permitted, there-fore, to the Commission to prescribe the manner of revision.Section 28 (1) of the Representation of the People Act,1950, provides that the Central Government may, afterconsulting the Election Commission, by notification in theOfficial Gazette, make rules to carry out the purposes of thisAct. Section 28(2) of the Representation of the People Act,1950, lays down that " such rules may provide for all orany of the following matters" among which is the finalpublication of the electoral roll in clause (g) and in clause (h)revision or correction of the electoral roll under section 25"and the final publication of the list referred to in that section".In view of these provisions it is certainly within the powersconferred by this section on the Central Government, toframe a rule to the effect that the issue of an order of revi-sion by the Election Commission will have the effect ofrevision and final publication. The Central Government ishere providing a mode of revision and publication for whichit has been expressly empowered, and this rule does notpurport to lay down as contended that the final publicationas provided for under section 25 is not necessary. We,therefore, decide both these issues against the petitioner.

9. Issues Nos. 2 and 3.—It will be convenient to decidethese two issues together as their subject-matter is the same.So far as issue No. 3 is concerned it is clear from theevidence of the Chief Electoral Officer, P.W. 2, that thewire for including the name of the respondent did notarrive till late at night on 15th November, 1951, and itfollows that the name was not actually on the roll at thetime fixed for filing the nomination papers, viz., 3 p.m.

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The first portion of issue No. 3, therefore, is decided infavour of the petitioner. What will be the effect of thatwill depend on the decision of issue No. 4. We shall nowproceed to consider that issue. The legal position is quiteclear. Rule 20 (2) of the Representation of the People Rulesof 1950, provides that the Election Commission can amendthe electoral roll and order inclusion of the name of anyperson found entitled thereto. Sub-rule (3) provides that theelectoral roll will be deemed to have been revised when anydirection is issued under sub-rule (2). If it is found there-fore, in this case, that the direction for the inclusion of therespondent's name by the Election Commission was issuedbefore 3 p.m. on loth November, 1951, the respondent atthat time will be deemed to be an elector, and her nomi-nation will be valid; if not the acceptance of the nominationpaper will be deemed improper.

10. \The Tribunal referred to the evidence and continued :].After going carefully through the evidence, we find thatthe time of the issue of the order is uncertain. It is notpossible by looking into the statement of any of thesewitnesses to say with any degree of certainty, as to whe-ther these orders were passed before 3 p.m. on 15thNovember, 1951, or not. The question is, in such acase what is the legal presumption. We think that thepresumption under section 114 (e) of the Evidence Act willbe in favour of the regularity of the official acts and orders,and it will be presumed that all the things that were neces-sary for making the order valid were done, and it waspassed at a time when it would be effective. See in thisregard Ishwari Singh v. Province of Bihari1), in which theorder in question was a Government order which the peti-tioner was seeking to impeach on the ground that it wasnot properly authenticated. It was held that it will bepresumed under section 114 (e) of the Evidence Act thatthe order was properly authenticated and was issued by theorder of the Governor, and all the formalities necessary formaking that order valid were complied with, and that it layon the party who wanted to impeach that order on theground of any irregularity, to prove it. In another caseEmperor v. Savalaram Kasinath^), it was held that in thecase of a warrant issued under the Bombay Prevention of

(1) A.I.R. 1949 Pat. 369. (2) A.I.R. 1948 Bom. 156.

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E. L. B.] RAMAKR1SHNA RBDDY V. KAMALA DEVI 181

Gambling Act it will be presumed under section 114 (e) thatthe officer issuing the warrant had performed his dutycorrectly, and if this presumption is not rebutted thewarrant cannot be held to be invalid. See also Raj Bahadurv. Emperor^), in which it was held that the manner of publi-cation of an order in the Official Gazette should be presumedto have been considered as sufficient by the authorities con-cerned though there may be no proof regarding that on therecord. It was for the party who wished to get this orderdeclared invalid to prove that the necessary formalitieswere not complied with. Another case in point is MahadevPrashad v. Emperor^), in which it was held that when anorder passed by the Central or Provincial Government ispublished in the Official Gazette, it must be presumed thatthe authorities, while publishing the order, complied with allthe necessary formalities for making it valid, and that theywere aware of all the provisions of law which lay downwhat such necessary formalities were. See also President,Union Board, Alandur v. Balahrishna Reddiar(3), in whicha similar view was held regarding the publication of anorder by the Municipal Board. See also Apurba Krishna v.Emperor^). In the present case the presumption will bethat the Chief Election Commissioner and the authoritiesissuing the order knew at what time the order had to beissued to render it valid and effective and they issued itbefore such time. The Chief Election Commissioner himselfsays that the respondent became an elector on the datefixed for the filing of the nomination paper, and that he wasaware at the time of passing the order what was the datefixed. It is not fair to allow any party to impeach this orderafter a considerable length of time and permit him to takeadvantage of the fact that the authorities passing theorder do not remember the exact time at which they did so.If the petitioner wants to set aside the election on the groundthat the order was ineffective, because it was not passed intime, he must, by some definite evidence prove his allega-tion, which in this case he has failed to do. Mr. Subba-rayudu, for the petitioner, says that the issue framed is suchthat the burden of proof is thrown on the respondent, andtherefore, the burden lay on her, and if she has failed to prove

(lj A.T.R. 1947 All. 105, (3) A.I.R. 1932 Mad. 508.(21 223 I.C, 263, (4) I.L.R. 35 Cal. 141,

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182 RAMAKRISHNA REDDY V. KAMALA DEVI [VOL. V

that the order was passed in time it must be held that hernomination Avas invalid. We do not agree. Much importancecannot be attached to the question of burden of proof oncethe evidence has been led by both the parties. All that wehave got to see now is the evidence on record, and to drawa proper inference therefrom. See in this regard Seturat-nam Aiyar v. Venkatachala Ooundar (J) and A.I.R. 1932P.C. 228. Even if the burden was thrown wrongly on therespondent, she is entitled to say that she relies on this pre-sumption and does not want to produce any evidence, whichshe actually did. It does not appear nor is it contended onbehalf of the petitioner that he was misled by the issue, anddid not produce all the evidence he would otherwise havedone, and thereby his case was prejudiced. Ample opportu-nity was given to him and he produced the best evidencepossible under the circumstances. But unfortunately it isuncertain from this evidence as to whether the order was notpassed before 3 p.m. on 15th November, 1951, with theresult that the presumption under section 114(e) of the Evi-dence Act will prevail and it will be presumed that it waspassed before 3 p.m. on that date, and the acceptance of thenomination papers was valid, and that the respondentShrimati Arutala Kamala Devi, was on that date an elector.It must be remembered also that as a general rule it is theduty of the courts to uphold the law by sustainingelections thereunder that have resulted in full and fairexpression of the public will. All provisions of electionlaw are mandatory if enforcement is sought before theelection in a direct proceeding for that purpose; but afterelection, should be held directory only in support of theresult. An election should only be set aside if a strong andclear case is made out against it and not otherwise. In thisregard an irregular acceptance of nomination papers standson a different footing from an irregular rejection. A strictview should be taken in the latter case and a more lenientone in the former. We, therefore, decide this issue alsoin favour of the respondent as a result of which thepetition fails.

11. As the petitioner was not aware of the time at whichthe order was issued, and the matter was doubtful, and hehad a fairly reasonable ground for filing the petition, we do

(1) I.L.R. 43 Mad. 567,

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E. L. R.] SUJANIRAM V. LAL SHY AM SHAH 183

not think that it will be fair to burden him with costs. Asit was held in Monghyr North M. R. 1937{l), that whenthere are reasonable grounds for filing a petition the peti-tioner should not be made to pay the costs even if thepetition is dismissed.

12. In conclusion we dismiss this petition, and declare thatthe election of the respondent, Shrima,ti Arutala KamalaDevi, was valid. The parties to bear their own costs.

Petition dismissed.

[NAGPITR HIGH COURT.]

SUJANIRAMv.

LAL SHYAM SHAH AND OTHERS.V. R. SEN and P. P. DEO JJ.

February 4, 1953.Nomination of candidates—Scheduled Tribes candidate—Declaration

before Additional Sessions Judge—Validity—' Magistrate", meaning of—Election Tribunal—Question whether result of election has been mate-rially affected—Exclusive jurisdiction of Tribunal to decide—Interferenceby High Court—Representation of the People Act, 1951, ss. 33(3), 100(1)(c)—Representation of the People Rules, 1951, r. 6— Constitution ofIndia, art. 226—General Clauses Act, 1897, s. 3(32)—Criminal Pro-cedure Code, 1898, s. 12.

As the word " magistrate " is not defined in the Eepresentation ofthe People Act, 1951, or the rules made thereunder, it has to be inter-preted in the light of the definition contained in section 3(32) of theGeneral Clauses Act, and not in the sense in which that word is usedin the Criminal Procedure Code, and since this definition in the GeneralClauses Act is not exhaustive (the words used in the definition being" shall include " and not " means") the word "magistrate" in section33 (3) of the Eepresentation of the People Act must be given itsordinary dictionary meaning of " a civil officer charged with the admi-nistration of laws."

An Additional Sessions Judge is therefore a magistrate within themeaning of section 33(3) of the Eepresentation of trie People Act andcan validly attest a declaration made under that section.

A Subordinate Judge who has been invested with the powers of aMagistrate under section 12 of the Criminal Procedure Oode does notcease to be a '" magistrate " when he is appointed as an AdditionalSessions Judge.

The question whether the result of an election has been materiallyaffected by the improper rejection of a nomination within the meaning

(1) Sen and Poddar 549 at 563,F.L—2+

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184 SUJANIBAM V. LAL SHYAM SHAH [VOL. V

of section 100(l)(c) is a tiuesfcion of fact which the Election Tribunalhas exclusive jurisdiction to decide and the High Court will not inter-fore with the folding of a Tribunal on this question.

MISCELLANEOUS PETITION N O . 305 of 1952.

Application for a writ, order or direction under article226 of the Constitution of India for quashing the order ofthe Election Tribunal, Rajnandgaon, in Election PetitionNo. 49 of 1952 decided on November 15, 1952, and for awrit prohibiting the Election Commission of India fromholding a fresh election for the constituency. The orderof the Tribunal is reported as liamlal v. Sujaniram andOthers (2 E. L. R. 27).

R. M. Hazarnavis, for the petitioner.M. N. Phadke, for the respondent.

ORDER.This is an application by Sujaniram under article 226 of

the Constitution for a writ, order or direction quashing theorder, dated the 15th November, 1952, passed by theElection Tribunal, Rajnandgaon (respondent No. 4), andfor a writ prohibiting the Election Commission of India,New Delhi (respondent No. 5) from holding a fresh election.

2. Chauki Constituency in the district of Durg has oneseat reserved for the Scheduled Tribes. The candidates forelection in 1951 were the petitioner Sujaniram, LalShyam-Shah (respondent No. 1) and Prayagsingh (respondent No.2). They are members of the Scheduled Tribes.

3. A nomination paper of a candidate for the reservedseat has to be accompanied by a declaration that he is amember of the Scheduled Tribes for which the seat hasbeen reserved. He has also to specify the particular tribeof which he is a member and also the area in relation towhich such tribe is one of the Scheduled Tribes. Thedeclaration has to be verified by a magistrate under rule 6of the Representation of the People (Conduct of Electionsand Election Petitions) Rules, 1951 (hereafter called therules).

4. The candidates filed their nomination papers beforethe Returning Officer, Durg, on 15-11-1951. The declara-tion of Prayagsingh was verified by Shri Kashiram whodescribed himself as an Additional District and SessionsJudge. It bore the seal of the Court of the AdditionalSessions Judge. The scrutiny of these nomination papers

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K. L. K.J SUJANIKAM '«. LAL SHY AM SHAH 185

of Prayagsingh was rejected on the ground that the declara-tion was not verified by a Magistrate. The ReturningOfficer held that Shri Kashiram was not a ' magistrate 'within the meaning of rule 6.

5. The election of the Chauki Constituency took placeon 2-12 1951. The petitioner was declared elected. Thevotes polled by the petitioner and Lai Shyamshah were10,717 and 10,592 respectively.

6. Ramlal (respondent No. 3), who is a voter in theChauki Constituency, filed a petition on 11-3-1952 challeng-ing the election of Sujaniram and asked for a declarationthat the election from the Chauki Constituency for theLegislative Assembly, Madhya Pradesh, was wholly void.The main ground of attack was that the Returning Officerhas illegally rejected the nomination paper of Prayagsinghand that the declaration made by the latter was inaccordance with rule 6 of the Rules. Shri Kashiram wasa magistrate within the meaning of that rule. The peti-tion was opposed by Sujaniram. He urged that thenomination paper of Prayagsingh was defective in threeparticulars and was rightly rejected, that the result of theelection was not materially affected by the rejection of thenomination paper and that Prayagsingh was an alter-native candidate for Lai Shyamshah and had worked forhim.

7. The Election Tribunal accepted the contention ofRamlal and held that the declaration was valid and thatShri Kashiram was a magistrate at the time he verifiedthe declaration. The majority view of the Tribunal wasthat the illegal rejection of the nomination paper of Prayag-singh by the Returning Officer had materially affected theelection. The Chairman took a contrary view regardingthe effect of the rejection of the nomination paper. Theelection of the Chauki Constituency was declard to be voidby the Tribunal.

8. Shri R. M. Hazarnavis, learned counsel for Sujaniram(petitioner) contends that the Election Tribunal was mani-festly wrong in holding that Shri Kashiram was a magis-trate and that the declaration was valid. He also contendsthat the burden of establishing that the rejection hadmaterially affected the election was on Ramlal and thatburden he failed to discharge. There was no basis for the

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186 STTJANIRAM V. LAL SHYAM SHAfi [VOL. V

conclusion reached by he two members of the Tribunal.He does not press his objection contained in para. 4(b) and(c) of the application. He refers to section 100(1) (c) of theAct of 1951 which is in the following terms :—

"If the Tribunal is of opinion—(c) that the result of the election has been materially

affected by the improper acceptance or rejection of anynomination, the Tribunal shall declare the election to bewholly void."

It is not sufficient, according to him, to establish thatthe rejection was improper. The order of the Tribunal iswithout jurisdiction.

9. Shri M. N. Phadke raised a preliminary objectionregarding the maintainability of the application. Hisfirst ground is based on article 329(b) of the Constitutionwhich is in the following terms :

"Notwithstanding anything in this Constitution—(b) no election to either House of Parliament or to the

House or either House of the Legislature of a State shall becalled in question except by an election petition present-ed to such authority and in such manner as may be provid-ed for by or under any law made by the appropriateLegislature."

His second ground is that the powers under article 226cannot be exercised as no legal right has been infringed.The right to vote, according to him, is not a civil right.It is a special right and the remedy must be regulated bythe law dealing with elections. He strongly relies on adecision of the Supreme Court in N. P. Ponnuswami v.Returning Officer, Namakkal Constituency (1). That decisionsays:

" The right to vote or stand as a candidate forelection is not a civil right but is a creature of statuteor special law and must be subject to the limitations im-posed by it. Strictly speaking, it is the sole right ofthe legislature to examine and determine all mattersrelating to the election of its own members and if thelegislature takes it out of its own hands and vests in aspecial Tribunal an entirely new and unknown jurisdiction,that special jurisdiction should be exercised in accordancewith the law which creates it ".

(1) 1 E.L.R. 133, 144 (S.C.).

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E. L. R.] StTJANlRAM V. LAL SHYAM SHAH 18?

"Where a right or liability is created by a statute whichgives a special remedy for enforcing it, the remedy providedby that statute only must be availed of."

He also refers to the observation in The State of Orissav. Madan Gopal Rungta (*):

". The language of the article shows that the issuingof writs or directions by the court is not founded only onits decision that a right of the aggrieved party under PartIII of the Constitution (Fundamental Rights) has beeninfringed. It can also issue writs or give similar directionsfor any other purpose. The concluding words of article226 have to be read in the context of what precedesthe same. Therefore the existence of the right is thefoundation of the exercise of jurisdiction of the courtunder this article."

On merits, he urges that the decision of the Tribunalregarding the interpretation of the term 'magistrate' iscorrect and that the illegal rejection of the nominationpaper had materially affected the election.

10. We do not consider it necessary to decide theobjections raised by Shri Phadke in view of our conclusionthat the application must fail on merits. It is notnecessary to examine the scope of article 329(b) and theeffect of the decisions of the Supreme Court. We willassume for the purpose of this application that this courthas power under article 226 to question the order of theElection Tribunal dismissing or allowing an electionpetition.

11. The proviso to sub-section (3) of section 33 of theAct requires a candidate to file his nomination paperaccompanied by a declaration duly verified by a magistrate.A nomination paper is liable to be rejected if there hasbeen a failure to comply with any of the provisions ofsection 33 : [see section 36(d)]. The material portion ofrule 6 runs as follows:—

" In a constituency where any seat is reserved for theScheduled Tribes the declaration referred to in thefirst or the second proviso, as the case may be, to sub-section (3) of section 33 shall be verified by the candidateon oath or solemn affirmation before a magistrate."

The verification by a magistrate is to be made in thefollowing terms:—

(1) [1952] S.C.R. 28 at p. 33.

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188 SUJANIRAM V. LAL SHYAM SHAH LVOL- V

" Solemnly affirmed before me by who is personallyknown to me (or who has been identified to my satisfac-tion by) (Name) (Address).

Signature of MagistrateFull designationDate "

12. The term 'magistrate' has not been defined eitherin the Act or in the Rules. Rule 2(6), however, saysthat the General Clauses Act, 1897 (X of 1897), shall applyfor the interpretation of these rules as it applies for theinterpretation of an Act of Parliament. The definitiongiven in section 3(32) of the General Clauses Act is asfollows:—" ' Magistrate' shall include every person exercis-ing all or any of the powers of a magistrate under theCode of Criminal Procedure for the time being in force."

The argument of Shri Hazarnavis is that Shri Kashiramis not a 'magistrate' within the meaning of this definitionas he did not exercise all or any of the powers of amagistrate under the Code of Criminal Procedure. Hepoints out that the State Government has power to appointpersons to be magistrates of either first, second or thirdclass under section 12 of the Code. The definition in theGeneral Clauses Act applies to persons so appointed by theState Government. He says that the Code of CriminalProcedure recognises three classes of courts, High Court,Courts of Session and the Courts of Magistrates. In theabsence of an appointment under section 12, a SessionsJudge or an Additional Sessions Judge cannot be regardedas a magistrate. The fact that while disposing of an appeal,the Court of Session is limited to the powers of punishmentexercisable by the magistrate at the trial does not makethe person exercising such powers a magistrate.

13. Shri Kashiram, when he verified the declaration, wasa magistrate under the Code of Criminal Procedure. AllSubordinate Judges were invested with the powers of amagistrate of the first class by the Provincial Governmenton confirmation. The relevant notification No. 2704-122XIX, dated the 12th December, 1944, issued by theGovernment is as follows :—

"In exercise of the powers conferred by sub-section (1)of section 12 read with section 39 of the Code of Criminal

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E. L. R.] SUJANIRAM V. LAL SHYAM SHAH 189

took place on 17-11-1951 at Durg. The nomination paperProcedure, 1898 (V of 1898), the Provincial Government ispleased to direct that aE Subordinate Judges shall on con-firmation, stand invested with the powers of a magistrateof the first class."

Shri Kashiram was a confirmed Subordinate Judge onthe date of the notification. The Subordinate Judges arenow described as Civil Judges. Shri Kashiram is now aCivil Judge. By virtue of the notification, he continues tobe a magistrate of the first class. His powers as a Magis-trate of the first class have not been withdrawn by the StateGovernment under section 41 of the Code. Shri Kashiramwas first invested with the powers to try sessions cases inJune, 1950, and was appointed as an Additional Judge ofthe Court of Session in the Chhindwara sessions divisionby Government notification No. 1576-1579/XVIII-B-J.,dated the 16th June, 1950, which is as follows:—

" In exercise of the powers conferred by article 233 ofthe Constitution of India, the Governor of Madhya Pra-desh is pleased to appoint Shri Kashiram, Civil Judge,Chhindwara, to be an Additional Judge of the DistrictCourt in the Chhindwara Civil District and AdditionalJudge of the Court of Session in the Chhindwara Sessionsdivision with effect from the date on which he takes overcharge of his duties."

Later, he was transferred to Durg. A notification insimilar terms was issued appointing him as an AdditionalJudge of the District Court in the Durg civil district andAdditional Judge of the Court of Session in the DurgSession division. The notification No. 2133-2187/XVII-B,dated the 30th August, 1951, is as follows:—

" In exercise of the powers conferred by article 233 ofthe Constitution of India, the Governor of Madhya Pradeshis pleased to appoint Shri Kashiram, Civil Judge, Durg, tobe an Additional Judge of the District Court in the Durgcivil district and Additional Judge of the Court of Sessionin the Durg sessions division with effect from the date onwhich he takes over charge of his duties."

It will be noticed that the notifications appointing himas Additional Judge of the District Court and AdditionalJudge of the Court of Session did not cancel his powers of amagistrate of the first class. The fact that he is now invest-ed, with higher powers does not divest him of the powers

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190 SUJANIRAM V. LAL SHYAM SHAH [VOL. V

conferred on him by the notification No. 2704-122-XIX,dated the 12th December, 1944. He is competentto exercise the sessions powers as also the powers of amagistrate of the first class. The doctrine of mergerdoes not apply. In fact, section 40 of the Code contemplatesthat a person may have two sets of powers. That sectionis as follows:—

" Whenever any person holding an office in the serviceof Government who has been invested with any powersunder this Code throughout any local area is appointed toan equal or higher office of the same nature, within a likelocal area under the same Provincial Government, he shall,unless the Provincial Government otherwise directs, or hasotherwise directed, exercise the same powers in the localarea in which he is so appointed."

We hold that Shri Kashiram was a magistrate and wascompetent to verify the declaration made by Prayagsinghas a magistrate.

14. Assuming that Shri Kashiram ceased to be a magis-trate on his appointment as Additional Sessions Judge,the question is whether he is not a magistrate as definedin section 3(32) of the General Clauses Act. It will benoticed that the words "shall include" and not " shallmean " have been used in the definition. It is thus aninclusive definition. In Dilworih v. Commissioner ofStamps (l) it is laid down that the expression "include" or" shall be deemed to include " is very generally used ininterpretation clauses in order to enlarge the meaning ofwords or phrases occuring in the body of the statute, orwhere it is intended that while the term defined shouldretain its ordinary meaning its scope should be widened byspecific enumeration of certain matters which its ordinarymeaning may or may not comprise so as to make the defi-nition enumerative and not exhaustive, and when it is soused, these words or phrases must be considered as com-prehending not only such things as they signify accordingto their natural import, but also those things which theinterpretation clause declares that they shall include. InBapu Vithal Rajput v. Secretary of State (2) a DivisionBench held:

" Where a term is interpreted in a statute as including,the comprehensive sense is not to be taken strictly defining

(1) [1899] A. C. 99. (2) A. I. R. 1932 Bora. 370.

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E. L. B.] SUJANIRAM i\ LAL SHYAM SHAH 191

what the meaning of the word must be under all circum-stances but merely as declaring what things may be com-prehended within the term where the circumstances requirethat they should."

In In re Strauss & Co., Ltd. (2) it was held:" The word ' include ' in the interpretation clause is

intended to be enumerative and not exhaustive. It has anextending force and it does not limit the meaning of theterm to the substance of the definition. When it is intend-ed to exhaust the signification of the word interpreted,the word ' means ' is used."

In In re Panchanathan Pillai (2) it was held that thedefinition of ' Magistrate ' in the General Clauses Act isnot confined to magistrates exercising jurisdiction underthe Criminal Procedure Code. It merely includes them.

15. When a definition is intended to be exhaustive, theLegislature, as a rule, uses the word ' means ' and not theword ' includes.' In Maha Ram and Others v. Emperor (3)it was held that the M'ord ' Christian ' in section 3 of theChristian Marriage Act was defined to mean persons pro-fessing the Christian religion and that the word ' means'was an inclusive term and therefore no one except aperson who professed the Christian religion came withinit.

16. As the term ' Magistrate ' in the definition given inthe General Clauses Act is not limited to magistratesappointed under the Code, it is permissible to find out itsmeaning in the ordinary sense. In Camden (-Marquis) v.Inland- Revenue Commissioners (') Cozens-Hardy M. R. said :

"It is for the court to interpret the statute as bestthey can. In so doing the court may no doubt assistthemselves in the discharge of their duty by any literaryhelp which they can find, including of course the consult-ation of standard authors and reference to well-known andauthoritative dictionaries "

The definition of ' part ' in the Oxford English Diction-ary has been approved and adopted by the Court in ReRipon Housing Order(5). In recent times, dictionarieshave been freely made use of by courts in determining the

(1) A. I. R. 1937 Bom. 16. (4) [1914] 1 K. B. 641 at p. 647.(2) I. L. R. 52 Mad. 529. (5) [1939] 2 K.B. 838,(3) A. I. R. 1918 All. 168.

EL—25

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192 SUJANIKAM V. LAL SHYAM SHAH [VOL. V

meaning of various words occurring in statutes: see Waman-rao Deorao v. Shrikumar Jailcumar and Another (1), BeoharSingh Raghubir Singh v. Commissioner of Income-tax (2),Nisha Kanto Roy Chowdhury v. Smt. Saroj Bashini Goho (3),and Harish Chandra v. Rex (4). In the Oxford EnglishDictionary, the meaning given is that a magistrate is a civilofficer charged with the administration of the laws. In theWebster's International Dictionary, one of the meaningsassigned to the expression 'magistrate' is that he is a per-son clothed with powers as a public or civil officer. Accord-ing to the Chamber's Twentieth Century Dictionary amagistrate is a person entrusted with the power of put-ting the laws into force. Shri Kashiram, as an AdditionalSessions Judge, was undoubtedly administering and enforc-ing law. He is a civil officer of the State and is empoweredto administer oath or affirmation to persons under theIndian Oaths Act. He is, therefore, a magistrate withinthe meaning given in the dictionary. Further, when an Addi-tional Sessions Judge or a Sessions Judge hears an appealfrom the decision of a magistrate of the first class, hispowers of administering punishments are circumscribed bythat of the trial magistrate. He is then exercising thepowers of a magistrate in respect of punishment. The casecited by Shri Hazarnavis reported in Ethperor v. Ali (3),in support of the contention that a Sessions Judge is not amagistrate empowered under section 190 is not applicableto the present case. There the Sessions Judge passed anorder "I direct the police to make further enquiry into hisconduct under section 156, Criminal Procedure Code". Insection 156 of the Code, the term magistrate alone is used.The Sessions Judge was manifestly in error as it is only amagistrate empowered under section 190 who may orderan investigation under that section. Whenever the expres-sion 'Magistrate' is used in any particular section of theCode, the reference is to a magistrate appointed under sec-tion 12 of the Code. Here we are not dealing with anyprovision of the Code but with the definition given in theGeneral Clauses Act. In this view, it is not necessary to

(1) A.I.K. 1946 Nagpur 42. (4) A.I.R. 1949 All. 15.(2) A.I.K. 1948 Nagpur 228. (5) 5 I. C. 915.(3) A.I.R. 194S Calcutta 294,

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E. L. K.] SUJANIRAM V. LAL SHYAM SHAH 193

examine the argument of Shri Hazarnavis that an Addi-tional Sessions Judge or a Sessions Judge is not a justice ofthe peace, as held by the majority of the Tribunal. We aresatisfied that the declaration was verified in accordancewith rule 6 and that the rejection of the nomination paperwas illegal,

17. The next question is whether the result of the elec-tion was materially affected by the illegal rejection of thenomination paper. We have perused the written state-ment of Prayagsingh as also his evidence and that of thewitnesses of Sujaniram. Prayagsingh was anxious to con-test the election and believed that he had a fair chance ofsuccess. In his evidence he says :—

"I would have contested the election as a candidate ifmy nomination paper had not been rejected by the Return-ing Officer I have studied up to the B.A. class. Iimagined that as I was better educated than the othercandidates, I had a good chance of being elected as amember of the Assembly."

After the rejection of his nomination paper, he made apetition under article 226 of the Constitution to this court.It is only after it was dismissed that he worked forLai Shyamshah. Prayagsingh was a candidate from theparty known as Ramrajya Party, while Lai Shyamshahstood as an Independent candidate. Sujaniram was acandidate of the Congress Party. Ramlal in his evidencesays:

" I filed this election petition because I desired that aneducated man like Prayagsingh should have been returnedas a candidate in the Assembly from our constituencywhich is predominatly populated by the Scheduled Tribes

I imagine that if Prayagsingh had also been a candi-date, he would have been elected."

It appears to us that if Prayagsingh had contested theelection the voting would have been affected materially.We do not agree with the Chairman that the votes cast forLai Shyamshah would have been cast for him. One can-not predicate with certainty that some of the persons whovoted for Sujaniram would not have voted for Prayagsinghif the latter had contested the election. Their votes mighthave been cast in his favour in preference to Sujaniram.The fact that Prayagsingh was at one time in the service of

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194 R. OHOUDHURl V. S. TKIPATHY (No. 2) [.VOL. V

Lai Shyamshah or that Ramlal is an employee are notrelevant considerations. There is evidence to sustain theconclusion of the majority view of the Tribunal. We donot accept the contention of Shri Hazarnavis that there isno legal evidence for the finding. Under section 100(l)(c)if the Tribunal is of opinion that the result of the electionhas been materially affected by the improper acceptance orrejection of anjr nomination, the Tribunal shall declare theelection to be wholly void. The question whether theresult is materially affected falls within their exclusivejurisdiction and is one of fact. In exercise of the poAversunder article 226, this court does not function as a court ofappeal on questions of fact. As the finding is not vitiatedby any error of law, the petition fails.

18. The application is dismissed with costs. Counsel'sfee Rs. 100.

Application dismissed.

[ELECTION TRIBUNAL, NAYAGARH.J

RAMACHANDRA CHOUDHURIv.

SADASIVA TRIPATHY AND OTHERS (No. 2).D. N. DAS (Chairman),

G. K. MuiiTi and R. K. RATHO (Members).March 25, 1953.

Election Tribunal—Constitution—Subordinate Judges who have,merely officiated as District Judges and retired District Judges—Whetherqualified for appoinment as members—Representation of the People Act,1951, s. 86(2) (a).

The expression ' persons who are or have been District Judges " insection 86(2) (a) of the Eepresentation of the People Act, 1951, is wideenough to include persons who have officiated as District Judges eventhough their substantive post was that of a Subordinate Judge, and alsoretired District Judges.

ELECTION PETITION NO. 116 of 1952.J. Gh. Patra, for the petitioner.0. Narayanamurti and M. Sitaramayya, for respond-

ents Nos. 1 and 2.P. V. Kameswara Rao, for respondent No. 6.

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B.L. B.j it. UHODUHUKl P. S. TRIPATHY (No. 2) 195

PRELIMINARY ORDER.

At the outset of the trial of this petition, the petitionerhas filed this petition questioning the constitution of thisTribunal on two points, viz., (1) that Sri G. Krishnamurti,a member of this Tribunal, though retired as a DistrictJudge, did not hold the substantive post of a DistrictJudge but only officiated as such for a very short periodand his substantive post was that of a Subordinate Judgeand as such he is not fit to be appointed a member of theTribunal; and (2) that the said member is short of properhearing and as such there is reasonable apprehension of hisnot following the proceedings and that a clerk of the courtwas being appointed to interpret the proceedings to him.

The contesting respondent files counter disputing thecorrectness of the personal allegations made against themember and further contending that the constitution ofthe Tribunal as made is not in any way irregular, parti-cularly after interlocutory orders arising out of the petitionhave been passed on full hearing of the parties.

Ground No. 1.—Clause (2), sub-clause (a), of section 86 ofthe Representation of the People Act, 1951, says that " forthe purpose of constituting such Tribunals, the ElectionCommission shall obtain from the High Court of each Statea list of persons who are or have been District Judges in theState and who are in the opinion of the High Court fit to beappointed as members of the Election Tribunal." Lookinginto the above provision of the section, it would appearthat all that it says is " persons who are or have beenDistrict Judges in the State. " This seems to include notonly confirmed or permanent District Judges but alsopersons who have officiated as District Judges. SriG. Krishnamurti, though a substantive Subordinate Judgeof the Madras State, was officiating as a District Judgewhen he retired. Further, the list of District Judges whoare competent to serve as members of a Tribunal as calledfor by the Election Commission included the name of SriG. Krishnamurti (as asserted by the member himself).

It is next urged that the expression 'Judicial Service'under article 236(b) of the Constitution read with the ex-pression " have been " used in section 86(2) (a) of the Re-presentation of the People Act only means sitting District

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196 R. CHOTTDHUBI V. S. TfUPATHY (No. 2) [VOL. V

Judges or District Judges whose services have been lent toother departments and not retired District Judges to whichcategory Sri Murti belongs. The Select Committee's obser-vation under section 86 of the Representation of the PeopleAct shows that retired District Judges were sought to beincluded among persons who have been District Judges. Insection 86(2) (a) of the Representation of the People Actthe expression " are or have been " is used as already said.It appears that " are " refers to persons who are actuallyworking as District Judges at the time of appointment.The expression " have been " seems to refer to personswho have served as District Judges and includes those whohave retired as District Judges.

Taking the facts on this point into consideration and onthe construction of the relevant provisions of the Act, wehold that the appointment of Sri G. Krishnamurti wasproper.

Ground No. 2.—The next point urged is that SriG. Krishnamurti is hard of proper hearing and that theparties might be prejudiced thereby. Sri G. Krishnamurtiis using an ear-phone. It is also true that the statement ofwitnesses speaking in Oriya is being interpreted to the saidmember by a clerk of the court, he being unable to followOriya. But it is not correct to say that either the learnedmember does not follow the proceedings of the court orthat the clerk whispers into his ears what a particular wit-ness states in the box. The day-to-day proceedings of thecourt are recorded by all the three members, and therecording of the evidence done by the Chairman is readover to the witness and his signature is obtained thereto.Thus the second point too does not carry any force.

Accordingly, we reject the petition. No costs.

Order accordingly.

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E. L. R.] MAHARAJA ANAND CHAND, In re. 197

[ELECTION COMMISSION OF INDIA.]

MAHARAJA AN AND CHAND, In reK . V K . SlTNDARAM

(Chief Election Commissioner).March 27, 1953.

Disqualification of members—Disqualification which arose beforeelection—Jurisdiction of Election Commission to enquire—Reference byPresident on representation made by third person—Withdrawal of repre-sentation—Procedure—Constitution of India, arts. 101(3), 102, 103—•Representation of the People Act, 1951, s. 7(c).

If a question whether a member has, or has not, become subject toa disqualification properly arises under article 103 of the Constitutionand, on the representation of any person that question is referred bythe President to the Election Commission for its opinion, the fact thatthe person who raised the question and made the representation to thePresident does not wish to proceed with the matter and asks for permis-sion to withdraw his petition, is not a sufficient ground for the ElectionCommission to desist from giving its opinion on the reference.

Articles 101(3) and 103(1) of the Constitution are applicable only todisqualifications to which a member of a House of the Legislaturebecomes subject after he is elected as such member, and neither theGovernor nor the Election Commission has jurisdiction to enquire intoa disqualification which arose before the member's election.

Election Commission v. Saka Venkata Rao (2 E.L.E. 499) followed.

REFERENCE made by the President under article 103 ofthe Constitution of India. *

ORDER.

Shri Daulat Ram, an elector in the Parliamentary cons-tituency of Bilaspur State, submitted to the President onthe 3rd October, 1952, a petition purporting to be underarticles 102 and 103 of the Constitution, against MaharajaAnand Chand who was declared elected to the House ofthe People by that constituency at the general election.In the petition it is alleged, firstly, that the member wasand is a director of the Bank of Bilaspur Ltd., in whichthe Government of India has a financial interest, and assuch he was and is disqualified for membership of Parlia-ment under section 7(e) of the Representation of the PeopleAct, 1951, and, secondly, that the member was and is theRaja of Bilaspur and by virtue of that office entitled toreceive every year from the revenues of the State the sum

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198 MAHARAJA ANAND CHAND, In TB. [VOL. V

of Us. 70,000 free of taxes for his privy purse, and conse-quently he holds an office of profit under the Government.This petition has been forwarded to the Election Commis-sion in pursuance of article 103(2) of the Constitution, forobtaining its opinion on the question whether MaharajaAnand Chand has become subject to a disqualificationmentioned in article 102(1).

2. The Election Commission fixed 18th March, 1953,as the date for hearing the petitioner in regard to hispetition and informed him of it. On the 15th March, 1953,the petitioner sent a letter stating that he did not wish toproceed in the matter and the petition submitted by himto the President regarding the disqualification of MaharajaAnand Chand might be considered as withdrawn. A copyof this letter is attached.

3. If a question properly arises under article 103 as towhether the member has, or has not, become subject to adisqualification, the fact that the person who originallyraised the question does not wish to proceed with thematter and asks for permission to withdraw his petition,will not be sufficient for the Election Commission to desistfrom giving an opinion on the reference of the President.Furthermore, in this particular case, it is clear that boththe disqualifications alleged by the petitioner were existingwhen the member stood for election as a candidate andwhen he was declared duly elected. The Supreme Court hasheld in the case of Election Commission v. Saka VenkataRaoi1), that articles 190(3) and 192(1) (which correspond toarticles 101(3) and 103(1)) are applicable only to disqualifi-cations to which a member of a House of the Legislature ofa State becomes subject after he is elected as suchmember and that neither the Governor nor the ElectionCommission has jurisdiction to inquire into a disqualificationwhich arose long before the member's election.

4. The Election Commission is accordingly of the opinionthat, even if the allegations'made in the petition are factu-ally correct, no question arises in terms of articles 101(3)(a)and 103(1) as to whether Maharaja Anand Chand hasbecome subject to any disqualification after his election asmember of Parliament, and the petition should be rejected.

(1) 2 E.L.R. 499.

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B. L. B.] UDAINATH SINGH V. JAGAT BAHADUR (NO. 2) 199

[ELECTION TRIBUNAL, RBWA.]

UDAINATH SINGHv.

JAGAT BAHADUR SINGH AND OTHERS (No. 2.)E. MUKHARJI (Chairman),

G. L. SRIVASTAVA and U. S. PRASAD (Members).March 26, 1953.

Election petition—Improper acceptance of nomination—Effect—Burden of proving that result of election has been materially affected—Proportionate distribution of votes cast for 'unqualified candidate—Legal-ity—Theory of "votes thrown away"—'"Materially affected" and -"resultof election", meanings of—Parties—Candidates who have withdrawn —Whether necessary parties—Representation of the People Act, 1951, ss.82, 100(l)(c).

The result of an election cannot be materially affected" by animproper acceptance of a nomination, within the meaning of section100(l)(c)of the Representation of the People Act, 1951, unless theimproper acceptance has actually turned the scale i-n favour of the returned candidate.

Consequently, an election of a candidate cannot be declared voidon the ground of improper acceptance of the nomination of another candi-date unless it is proved that the returned candidate would not havesucceeded in the election if the nomination of the latter had been reject-ed. If the evidence on both sides is useless and the petitioner cannotdischarge his omis in a legal way, the election cannot be set aside ;merely because it i3 difficult or even impossible for the petitioner todischarge this onus, he cannot be deemed to have discharged it.

Patna West N.M.B. (Hammond 533), Bengal Legislative CouncilCase : Sinha v. B. A. Boy (2 Doabia 368) and Hoshiarpur West GeneralConstituency Case 1946 (Sen and Poddar 945) followed.

Bellary M.B. (1 Doabia 169) disapproved.Lakhan Lai Mishra v. Tribeni Kumar and Others (3E.L.R. 423)

dissented from.The usual manner of distributing the votes in the case of an impro-

per acceptance of a nomination is to act on the percentage of votesobtained by the other candidates.

The theory of "votes thrown away" cannot be applied except wherethe disqualification of the candidate for whom the votes were cast hadwide publicity or notoriety or the voter had knowledge of the disquali-fication.

In any event this theory is not applicable for determining whetherthe result of an election has been materially affected.

BeresfordHopev. Lady Sandhurst [1889] 23 Q.B.D. 79 distinguished.Seld also, per MUKHAEJI and U.S. PEASAD (SEIVASTAVA dissenting)

—^Candidates who have withdrawn their candidatures are not necessaryEL—26

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200 UDA1NATH SINGH! V. JAGAT BAHADUR (No. 2) [VOL. V

parties to an election petition within the meaning of section 82 of thethe Eepresentation of the People Act, 1951.*

ELECTION PETITION NO. 4 of 164 of 1952.

Our Prasanna Singh and Debi Prasad, for the peti-tioner.

Satish Chandra, Sriniwas Tewari, Jagdish ChandraJoshi and Sheo Kumar Sharma, for respondent No. 1.

ORDER.1. The petitioner in this case is an elector enrolled at No.

366 of village Darhia, in the Sidhi-Gopadbanas sub-divisionof the electoral roll relating to Churhat Constituency, for theLegislative Assembly of Vindhya Pradesh. At the lastelection, held in January, 1952, the respondents, all ofwhom were candidates at the election, polled the followingnumber of votes :—

Respondent No. 1 (Jagat Bahadur Singh) ... 6,137Respondent No. 2 (Sheo Bahadur Singh) ... 4,317Respondent No. 3 (Krishna Pratap Singh) ... 3,888Respondent No. 4 (Keshau Singh) ... 1,196

2. Respondent No. 1 was, therefore, declared elected andthe notification regarding such election was published in theGazette of India, dated 15th February, 1952.

3. The petitioner, who is an elector in the constituency,as stated above, and who worked during the election as apolling agent of respondent No. 3 (Shri Krishna PratapSingh) has filed this petition, asking for a declaration thatthe election in which respondent No. 1 was returned as thesuccessful candidate, is wholly void, because respondentNo. 2 (Raja Sheo Bahadur Singh) was disqualified for beinga candidate for the Legislative Assembly of VindhyaPradesh, on the ground that he had been convictedon 10th March, 1951, by an order of the Judicial Commis-sioner, Vindhya Pradesh, at Rewa, under sections 161and 120-B, Indian Penal Code, and sentenced to threeyears rigorous imprisonment and a fine of Rs. 2,000.The petitioner, therefore, contends that the nomina-tion paper of respondent No. 2 was wrongly acceptedby the Returning Officer, and such wrongful acceptance

* The conilict of opinion on this point Las been set at rest by thedecision of the Supreme Court in Jagannath v. Jaswant Singh and Others((Jivil Appeal No. 100 of 1952 decided on Jan. 20, 1954).

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has materially affected the result of the election. His con-tention is that the votes polled for respondent No. 2 would.have gone to respondent No. 3 and he would have thussecured the highest number of votes.

4. The petition has been contested by Shri Jagat Baha-dur Singh, respondent No. 1, who pleads that the nomina-tion paper of respondent No. 2 was properly accepted andthe result of the election has not been affected at all bysuch acceptance. He also pleads that respondent No. 2,having filed an appeal against the judgment of the Judi-cial Commissioner before the Supreme Court of India, thewhole case is sub judice and hence no disqualification wasincurred by such respondent. He has raised another plearegarding the non-joinder of certain "duly nominated can-didates", namely, Abhairaj Singh, Ram Pratap Singh andothers, who had withdrawn their candidature, but whoaccording to this respondent, were necessary parties to thepetition.

5. Respondents Nes. 2 and 3 put in their written state-ments but did not subsequently appear to contest thepetition.

6. In the written statement of respondent No. 2 he deni-ed his disqualification on the ground that his appeal ispending before the Supreme Court of India.

7. Respondent No. 3 admitted all the contentions raisedin the petition.

8. Arising out of the pleas of parties, the following issueswere framed :—

I. Was respondent No. 2, Raja Sheo Bahadur Singh,disqualified from being a candidate for the State LegislativeAssembly of Vindbya Pradesh, on the ground that he wasconvicted on 10th March, 1951, under sections 161 and120-B, I.P.C., and sentenced to 3 years rigorous imprison-ment and a fine of Rs. 2,000 ?

II. Has the result of the election been materially affect-ed by the acceptance of the nomination paper of respond-ent No. 2?

III. If so, what is the effect ?IV. (a) Were Shri Abhairaj Singh, Ram Pratap Singh

and others who were nominated and who are alleged tohave withdrawn, necessary parties to this petition 1

(b) If so, what is the effect ?

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9. Issue No. IV.—This issue was disposed of by ourorder dated 26th November, 1952 (Annexure A)(l). It wasfound by us in this order, that the non-joinder of suchcandidates who had withdrawn their candidature, is notfatal to the maintenance of this petition.

10. Issue No. I.—This issue was heard and decided byour order dated 8th January, 1953, (Annexure B). By thisorder we found that respondent No. 2 was disqualified forbeing nominated as a candidate for election to the VindhyaPradesh Legislative Assembly and therefore his nominationpaper was improperly accepted. [This order has beenreported as 3 E.L.R. 26].

11. Issues Nos. II and III.—We have found above thatrespondent No. 2 (Raja Sheo Bahadur Singh) was disquali-fied for being nominated as a candidate for election to theLegislative Assembly of Vindhya Pradesh, and hence hisnomination paper was improperly accepted.

12. We have now to consider, under Issues Nos. 11 andIII whether the result of the election has been materiallyaffected by such wrongful acceptance of the nominationpaper of respondent No. 2.

13. As will be noticed, these issues are based on theprovisions of law contained in section 100 (1) (c) of theRepresentation of the People Act, 1951. This sub-sectionreads as follows:

"If the Tribunal is of opinion—(c) that the result of the election has been materially

affected by the improper acceptance or rejection of anomination.

the Tribunal shall declare the election to be whollyvoid ".

14. In this petition we are not concerned with the effectof an improper rejection of a nomination paper at all orwith the legal presumption or onus of proof connectedtherewith. The main question before us is whether theresult of this election has been materially affected by theimproper acceptance of respondent No. 2's, nominationpaper.

15. The decision of these issues would depend on theexpressions " the result " and " materially affected " usedin section 100 (1) (c) of the Act. We shall first determine

(1) See p. 211 infra.

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the meaning and signification of the words " materiallyaffected" and then consider the expression "result". Theordinary meaning of these expressions does not carry us farenough, for these words have some special or technicalmeaning in the context of this section. We, therefore,proceed to consider the interpretation put on them bycontemporaneous authorities in the trial of electionpetitions. These words in the Representation of the PeopleAct, 1951, remain the same as in the old enactments. Thepresumption is that the terms repeated in subsequentcognate enactments should be understood in the samesense: (Maxwell, Interpretation of Statutes, 9th edition,page 314).

16. InBellary 31. R-i1), the words " materially affected"were held to mean that the majority of the returned candi-dates would have been materially reduced and the "resultof the election" was interpreted to mean " the names of thecandidates in the order of the poll with the number of votespolled for each". This interpretation is too broad andseems to go beyond the terms of section 100, which we arebound to interpret according to their plain and clearmeaning. In fact, the perusal of the order of the learnedCommissioners in this case indicates that, firstly, the pointsfor determination before the learned Commissioners did notcall for the statement of this general proposition, andsecondly, the proposition itself was based on an earlierauthority dissented from in various other cases. We, there-fore, respectfully disagree and are not prepared to acceptthis proposition which goes too far. The actual decision inthis case was that the improper acceptance of some voteswas held not to have materially affected the result of theelection and the nomination paper was held to be validdespite some technical shortcomings described as "purilities"in the order.

17. In Patna West N. M. i2.(2), it was held that the resultof the election cannot be said to be materially affectedunless the irregularities actually turned the scale in favourof the returned candidate. In England it was once held onthe authority of Hackney case(d), that the result of theelection should be held to be materially affected for thesame reasons as have been referred to in the Bellary

(1) 1 Doabia 169. (2) Hammond 533. (3) 2 O'M, & H. 77.

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M. R-i1), case already adverted to. But later this viewwas dissented from.

18. In Bengal Legislative Council Case(E. B. S. N. Sinhav. B. A. Roy and Others^), the view referred to in PatnaWest Case(% finds full support. At pages 378 and 379 ofthis report the English law on the subject has been amplyreferred to and a difference between the Ballot Act, 1872,and Indian enactments has been clearly pointed out. Thisdifference seems to have been overlooked in some earlierIndian decisions regarding the onus of proof in such cases.We are in respectful agreement with the opinion expressedin this case regarding the interpretation of the expressions"result" of election and "materially affected", as alsowith the observations on the subject in Hoshiarpur WestGeneral Constituency Case 1946(4).

19. We are, therefore, of the opinion that the petitionermust prove in this case that the respondent No. 1 wouldnot have succeeded in the election if Raja Sheo BahadurSingh, the disqualified candidate, respondent No. 2, wasnot in the field. In other words, if this is not proved bylegal materials on the record and due consideration ofrelevant circumstances, we would be unable to hold thatthe result of the election was materially affected in thiscase on the ground of the improper acceptance of thenomination paper of respondent No. 2. We shall now pro-ceed to consider the evidence adduced by the parties inthis case. The learned counsel for the petitioner candidlyagreed that the oral evidence of both parties was based onsurmise and conjecture and therefore could not afford muchassistance in the decision of this issue. We are not goingto base our conclusion on this candid submission but thesubmission seems to have considerable force. It may bethat this opinion was urged without full consideration ofthe question of the onus of proof in such cases. For, if theevidence for both sides is really useless and the petitionercannot sustain the onus in other legal ways, who loses thecase ? It is inevitable in such a case that the result of theelection will be deemed not to have been materially affected.

20. We may note that evidence of speculative naturecannot be helpful in the decision of this case. Much of the

(1) X Doabia 169. (3) Hammond 533.(2) 2 Doabia 368. (4) Sen and Podder 945.

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evidence in this case, however, is of this nature. We needhardly add that an Election Tribunal can arrive at itsconclusions and form a judicial opinion upon legal proofof the matters in issue. Conjecture cannot be a substitutefor legal proof. The provisions of the Indian Evidence Actapply in all respects to the trial of an election petition subjectto the provisions of the Representation of the People Act,1951. The standard of proof cannot be slackened in favourof the party because the matters required to be provedhappen to be very difficult to be proved. We shall certainlytake into account all surrounding circumstances and formour opinion on legal evidence without being oblivious of theimponderables implicit in such matters, but respectfullywe have no hesitation in saying that we are not prepared togo so far as the Bhagalpur Tribunal suggests in LakhanlalMishra's Case^1). According to this decision, because it is im-possible for a petitioner to discharge the onus placed uponhim, it should be deemed to have been discharged, for thelaw cannot expect the performance of the impossible.Firstly, it cannot be postulated that such task was impossi-ble. Secondly, howsoever difficult it may be, a matter has tobe proved legally in a court of law by such direct or circum-stantial evidence as may be available.

21. Apart from the speculative or conjectural nature ofevidence of the parties in this case, most of the witnessesexamined by the petitioner are partisan witnesses. We arerather in respectful agreement with the opinion expressedin Maldah North M. R. Constituency Case 1937(2), that" clear evidence shall be forthcoming to show that the resultof the election has been materially affected ".

22. We notice that the petitioner was not a candidate atthe election. He worked as a polling agent of respondentNo. 3, and his object in filing this petition is, on the face ofit, to help the cause of respondent No. 3, because he says inparagraph 8 of the petition that " the votes polled byrespondent No. 2 would have gone to respondent No. 3

". The total number of votes for respondentsNos. 2 and 3, exceed the number of votes polled forrespondent No. 1.

23. Another point that is worthy of consideration is thatrespondent No. 2 (Raja Sheo Bahadur Singh), who is an

(1) 3 E.L.R. 423. (2) Sen and Podder 542.

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ex-Minister of the State and who was convicted by the courtof Judicial Commissioner, Rewa, on 10th March, 1951, undersections 161 andl20-B, I. P. C, and sentenced to rigorousimprisonment for three years and a fine of Rs. 2,000 andwhose appeal is pending in the Supreme Court of India, isnow supporting the petitioner's case, but in his statementas P.W. 21 he seems to blow hot and cold in the same breath.There is no doubt that he is a leading Illakadar of the local-ity and it appears that he got some support during theelection on the basis of such influence in the Illaka. He stoodas a Congress candidate at the election, but later his candi-dature was repudiated by the President of the Congress,Pandit Jawaharlal Nehru. Thereafter he became anIndependent candidate, though retaining the Congresssymbol already allotted. There were two other candidates,his brother Ram Pratap Singh and SheomangalSingh. Therespondent No. 2, states that the two last mentioned candi-dates were dummy candidates and that Ram Pratap Singh,withdrew in his favour. Raja Sheo Bahadur Singh was thePresident of the Sidhi District Congress Committee. In onepart of his statement he says that if he had not stood as acandidate, he would have supported his brother RamPratap Singh, because of his being a Congress candidate.He adds that he could have never supported a Jan Sangh,candidate because the party is a communalist party, norcould he have supported the Socialists, but in this case heseems to be supporting the petitioner who has evidentlybeen put up by respondent No. 3, who is a Jan Sangh,candidate.

24. Respondent No. 2, has stated that if he hadnot stood as a candidate, his votes would have gone torespondent No. 3, although we know that respondentNo. 3, stood as a Jan Sangh candidate. It is an admittedfact on the record that there was an old standingenmity between Raja Sheo Bahadur Singh and ShriKrishna Pratap Singh (respondents Nos. 2 and 3 respec-tively). This enmity is admitted by respondent No. 3 whoappeared as P. W. 22. He states that the relations becamecordial four or five generations ago, but during the electionthe old enmity revived between him and respondent No. 2 aswell as between their cultivators. This would account forthe alignment of some of the witnesses of both parties.

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Certain workers and agents of respondent No. 2 haveappeared as witnesses for respondent No. 1 because of theharassment alleged to have been practised by respondentNo. 3 on his tenants, whereas respondent No. 1 seems tohave secured a large majority of votes on the basis of hisservices to such harassed tenants. It is also apparent fromthe petition that respondent No. 1 was able to defeat bylarge majority, both the Illakadars and Maliks, viz., RajaSheo Bahadur Singh, and Shri Krishna Pratap Singh (res-pondents Nos. 2 and 3 respectively). It may, therefore, besafely inferred that in the absence of respondent No. 2, hisvotes would not have gone on en bloc to respondent No. 3,but would certainly have been divided among the othercandidates. The usual manner of distributing such votesis to act on the percentage of the votes obtained by suchcandidates. We find that respondent No. 1 got 39 percent of total votes polled, whereas the percentage in thecases of other candidates is as follows :—

Respondent No. 2 ... 28 percent.Respondent No. 3 ...' 25 per cent.Respondent No. 4 ... 8 per cent.

If we distribute the votes of respondent No. 2 according tothis percentage, the result would be as follows :—

Respondent No. 1 ... 7,821.Respondent No. 3 ... 4,867.Respondent No. 4 ... 1,451.

Thus we find that respondent No. l's majority wouldrather be increased and the result would not be materiallyaffected.

25. There is mention in the statement of Raja SheoBahadur Singh that, if he had not stood as a candidate, hisbrother Shri Ram Pratap Singh would have contested theelection as a Congress candidate. On the basis of suchstatement, it would be very improper to base our conclu-sion on mere conjectures, and to surmise what would bethe chances of Ram Pratap Singh as a Congress candidateespecially, we may well presume that his influence was cer-tainly less than that of his elder brother (respondent No. 2).To say that he would have been able to defeat respondentNo. 1, would be a bare conjecture, without justifyingreasons.

EL—27

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26. It appears from the evidence on record that res-pondent No. 1 is also a co-sharer Malik in the village,and, as stated by P. W. 1, he is a closer agnate of res-pondent No. 2 than respondent No. 3. We have mentionedthis point to show that there seems to be no reason why,in the absence of respondent No. 2, his votes, as Malikand Illakadar, must necessarily have all gone to respondentNo. 3. On the other hand, P. W. 23 Harbhusan has ad-mitted that the electors of the area were mostly in favourof Socialist Party. They supported respondent No. 2, whowas a Congress candidate and Illakadar. In his absencethey would have supported respondent No. 1. He is stat-ing from his experience obtained during the canvassing ofabout 5 or 6 hundred voters.

27. Another point worth mentioning is that, in the areain which this constituency was situated the trend of theelectorate appears to have been towards Socialist candi-dates who have been able to capture 6 out of 7 seats in theSidhi District and the 7th seat has gone either to a RamRajya Parishad or Jan Sangh candidate: (see statement ofrespondent No. 1 as P. W. 29). This would account forthe fact that, in this constituency, respondent No. 1 who isa Socialist candidate, was able to defeat by a largemajority, both the Illakadars and maliks of Churhat andRampur Naikin. It stands to reason that in the presenceof one of the Illakadars, the position of respondent No. 1certainly would not have been worsened.

28. It will be noticed that we have referred above tothose portions of evidence which cannot be characterisedas conjectural or speculative. We find from the facts andcircumstances appearing in the evidence of both the partiesthat nothing has been brought out on record which enablesus to find it ' proved' that the result of the election hasbeen materially affected by the improper acceptance of thenomination paper of respondent No. 2. In other words leav-ing aside the conjectural evidence, there is no legal proofthat such material effect may be held as proved onthe facts on record, or that its existence may be consideredso probable that a prudent man would act on the supposi-tion that the result of the election has been materiallyaffected in this case by the improper acceptance of thenomination paper of respondent No. 2.

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30. We need not go into the oral evidence in detail hav-ing regard to the fact that most of it is of speculativenature. We have merely deduced certain facts and cir-cumstances mentioned above from the evidence of both theparties, which we consider to have a material bearing onthe matter before us.

31. We, therefore, find that the petitioner has failed todischarge the onus placed on him of proving that the resultof the election has been materially affected by the impro-per acceptance of the nomination paper of respondentNo. 2.

32. Lastly, an argument has been advanced before usby the learned counsel of respondent No. 1, based on thetheory of "votes thrown away." His contention is thatall the votes cast for respondent No. 2 who was a disquali-fied candidate, must be considered to have been thrownaway. WTe do not consider that this principle of law canbe applied to the facts of this case for the followingreasons :—

There is no satisfactory evidence to show that the elec-torate, who are very backward in this area, had widenotice of the fact that respondent No. 2 who was a leadingand influential man of the Illaka had been convicted andsentenced to 3 years rigorous imprisonment and fined.Even the knowledge of a conviction alone would not beproof of disqualification, as the law requires that suchconviction must not be for less than two years (see section 7of the Representation of the People Act, 1951). Man Baha-dur Singh, P. W. 14, has deposed that he had knowledgeof the conviction and sentence, but there is no other satis-factory evidence to show that all or majority of the elec-tors had notice of this conviction or that wide publicitywas given to it. We can well imagine that the agents ofthe rival candidates must have made capital out of thisconviction of respondent No. 2, but in the absence of anydirect proof to that effect, such supposition cannot be thebasis of our findings.

According to the English rulings quoted by the learnedcounsel for respondent No. 1, the necessary ingredients ofthe principle of the "votes being thrown away " are widepublicity or notoriety. For, instance in Schofield's Parlia-mentary Elections at pages 316 to 318 it is stated that

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votes given for a disqualified candidate after notice, arethrown away. Similarly in Rogers on Elections, volume II,at page 82, it is stated that an elector who, with actualknowledge, though without express notice of the fact ofdisqualification, votes for a disqualified candidate, throwsaway his votes. Reference has been made to the judg-ment of Lord Denman C. J., in Gosling v. Veley(l) where itis stated that " where the disqualification is of a sortof which notice is to be presumed, none need expresslybe given "

33. In the present case we find that there is an absenceof proof of publicity or of knowledge of disqualification andthe period of sentence, without which no question of dis-qualification would arise. The case of Beresford Hope v.Lady Sandhurst (2) is easily distinguishable, because the dis-qualification in that case was that the person elected was awoman, instead of a man, and this matter was necessarilyknown to every one.

34. We may also mention that this plea of " votesthrown away" was never raised in the pleadings. Onthe other hand, in the written statement of respondentNo. 1, the fact of this disqualification was denied (seepara. 6).

35. For these reasons we find that the contention of" votes thrown away " now raised by the learned counselfor respondent No. 1, cannot be sustained. Really, apartfrom the question of publicity or notoriety this doctrinedoes not seem to have a tangible bearing on the issue beforeus. This principle may be applicable to cases where acandidate, other than the returned candidate, may bedeclared elected under section 101 of the Representation ofthe People Act, 1951. No authority has been cited to showthat this theory has been applied for the determination ofthe question of " material effect" on the result of theelection.

36. The result of our findings above is that the petitionmust fail and we accordingly dismiss it.

37. The improper acceptance of the nomination paper ofrespondent No. 2 by the Returning Officer was largely res-ponsible for these proceedings, and the respondent No. 1

(1) 16 L. J. Q. B. 201. (2) [1889] 23 Q. B. D. 79.

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tried to sustain this improper acceptance in his pleadings.In the circumstances of the case, we order that the partiesshall bear their own costs.

Petition dismissed.PRELIMINARY QRDER.

(November 26, 1952.)[Out of the election petitions pending before this Tribu-

nal there were 11 petitions in which written pleas had beenput in by parties and in which among other matters a pleaof non-joinder of parties had been raised, which called fordecision. The Tribunal heard all these petitions togetheron the preliminary question of non-joinder and made thefollowing order on November 26, 1952, after givinga list of the various petitions in which the question wasraised].

MUKHISRJI and U. S. PRASAD.—It is apparent, from thelist, that in two of the above petitions, namely, No. 12of 249 and 15 of 307, and partly in No. 14 of 304 the ques-tion arises wThether a candidate whose nomination paperwas rejected at the time of scrutiny is a necessary party tothese election petitions, under section 82 of the Represent-ation of the People Act, 1951, and what is the effect of hisnon-joinder.

In the other 8 cases and in the case of one person in fileNo. 14 of 304, the question is whether candidates whosenomination papers have been accepted at the time of scrutinybut who had later withdrawn their candidature within theprescribed time, were necessary parties to these petitions,under the provision of section 82 of the Representation ofthe People Act, 1951, and if so, what is the effect of theirnon-joinder.

These preliminary issues have been argued at length be-fore us by Mr. A. P. Pandey, advocate for the respondentswho had raised the plea of non-joinder, and by Mr. R. N.Basu on behalf of the petitioners, in the different cases.They have been, assisted by other lawyers representingboth the parties in all the petitions. We proceed to discussthe first question enunciated above, namely, whether acandidate whose nomination paper had been rejected, is anecessary party within the meaning of section 82 of theRepresentation of the People Act, 1951.

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On this point we have heard the rather ingenuous argu-ments advanced by Mr. A. P. Pandey. He has urgedbefore us that a candidate whose nomination paper hasbeen put in at the proper time and place, and which bearsthe signatures of a proposer and a seconder, and is accom-panied by a declaration of appointment of an election agentand also by a receipt of deposit of security, has becomeduly nominated thereby. In case the candidate is a mem-ber of a- Scheduled Tribe, a further declaration has to beattached with the nomination paper. The learned counselhas argued that, having done these things, the candidate'duly nominates himself without the intervention of anyReturning Officer. In other, words, his contentionamounts to this that, the unilateral act of the candidatein putting in his nomination paper, along with certain dec-larations and receipt, gives him the status of a "dulynominated candidate". We are unable to see the sound-ness of this proposition advanced by Mr. A. P. Pandey.According to the Law Lexicon of British India by P.P.. Aiyar(Edition of 1904) the significance of the word 'duly ' hasbeen given as something done regularly, fitly, in a mannersuitable or becoming to law or some rule of law. Thus it isclear from these interpretations that in order to become aduly nominated candidate, the nomination paper must standthe test of scrutiny provided in section 36 of the Representa-tion of the People Act, 1951. This section provides thaton a date fixed for the purpose, the Returning Officer hasto examine the qualifications of the candidate and of hisproposer and seconder, also to examine the signatures inorder to detect fraud if any and to judge whether theprovisions of sections 33 and 34 have been complied with.Unless and until the Returning Officer finds the nomina-tion paper in order and according to the requirements oflaw, it will be idle to say that the candidate has becomeduly nominated.

The learned counsel has referred to section 100 of the Re-presentation of the People Act, clause (1) (c), and has urgedthat wrongful rejection of a nomination pa*per is sufficient toavoid the whole election. This contention has, however,no bearing on the question now before us, because it is amatter which would be gone into in any case, if pleaded byeither party, even in the absence of the candidate whosenomination paper had been rejected.

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It may be mentioned here that a candidate whose nomi-nation paper had been rejected, could, if he so desired,either come in as a petitioner or as a respondent under theprovision of section 90, sub-section (1), of the Representationof the People Act, and he could also file recriminationsunder section 97 of the said Act. Hence the absence ofsuch a person from the original list of respondents cannotbe said to be prejudicial to the proper decision of the case,over and above the fact that section 82 does not make itnecessary to implead him.

The learned counsel for the respondents has not been ableto cite any previous decision in support of his proposition,namely, that a candidate whose nomination paper wasrejected is a necessary party under section 82 of the Re-presentation of the People Act.

The learned counsel for the petitioners has argued thatsections 33 to 36 of the Representation of the People Actlay down the necessary requisites which would render aperson a "duly nominated candidate". We agree thatsections 33 and 34 contain the necessary requirementswhich have to be fulfilled by a candidate when filing a •nomination paper, and section 36 lays down the provisionsfor testing the due compliance with the requirements oflaw. We consider that these different steps in the processof nomination comprise a series of acts which must be ful-filled before a person can claim to be a "duly nominatedcandidate."

For these reasons we are of the opinion that a candi-date whose nomination paper has been rejected at thetime of scrutiny cannot be called a duly nominated candi-date and hence he is not a necessary party within themeaning of section 82 of the Representation of the PeopleAct. While holding this view, we are not oblivious of theprovisions of section 100(1) (c) which provides that an elec-tion may be declared to be wholly void, if the result of theelection has been materially affected by the improperacceptance or rejection of any nomination. It was open tothe parties to an election petition to raise such plea andseek a decision thereon. It was open to a rejected candi-date as well to come forward and be joined as arespondent in compliance with section 90(1) within theprescribed period.

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We have found above that a candidate cannot beconsidered to have been duly nominated before his nomi-nation papers are scrutinised by the Returning Officerunder section 36 of the Representation of the People Actand accepted by him. The next question is whether, aftersuch scrutiny, the candidate whose nomination paper hasbeen found to be in order becomes a person who must bemade a party under the provision of section 82 of the Re-presentation of the People Act, which lays down that can-didates who were "duly nominated at the election" shallbe joined as respondents. In the cases now under consi-deration both parties admit in this connection that thecandidates whose non-joinder is in dispute, were thosewhose nomination papers had been accepted at the time ofscrutiny, but who later withdrew under section 37 of theRepresentation of the People Act.

We wish to remark at the outset that we must presumethe framers of law to have provided for results which arereasonable and effective and not such as would lead toundesirable or harmful consequences. Proceeding on thisprinciple we must assume that section 82 of the Represent-ation of the People Act, contemplates the impleading ofliving and existing persons and not of persons whose exis-tence has been terminated by act of God or by operationof law.

In the case under consideration certain candidates hadof their own choice, availed themselves of the opportunityprovided in section 37 of the Representation of the PeopleAct and "terminated their candidature", and had this factpublished in an official list (under section 38 of the Repre-sentation of the People Act) for the information of wholeelectorate. By this act of the candidates, which has beenofficially recognised and accepted, they had ceased to existin the election field. They could not even withdraw theirnotice of withdrawal once given within the prescribedperiod. By operation of election law therefore such candi-dates had ceased to exist even as candidates, what to speak of"duly nominated candidates".

We cannot conceive of any interpretation of section 82of the Representation of the People Act, which wouldcompel a petitioner to bring back to life those candidateswhose existence as such ceased after their withdrawal,

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Such candidates had publicly left the arena for good, andto drag them again by force into the later stages of theelection conflict would be, in our view, meaningless. Ofcourse, such candidates on reverting to the position ofvoters after their withdrawal, had every right as voters, tocome in either as petitioners or to apply to be joined asrespondents within the period prescribed by section 90, sub-section (1), of the Representation of the People Act, or tofile recrimination under section 97 of the Representation ofthe People Act. Not having chosen to do so, we fail to seewhat interests of justice would be served by impleadingthem at the instance of the contesting respondents; ratherthis step would impede justice by helping those respondentswho may desire to prolong the cases unnecessarily. Forthis reason we are of the opinion that such candidates,who had withdrawn under section 37 of the Represent-ation of the People Act are not necessary parties to thesepetitions within the meaning of section 82 of the Represent-ation of the People Act.

As regards the cases cited before us we may remarkgenerally that the argument in such cases decided underthe Election Rules of 1920 are of no help to us, becauseunder those laws no time limit was prescribed forwithdrawal, and the act of withdrawal was not con-sidered such a solemn and serious act of self-effacementas under the present law. We notice the trend of thechange in the law by referring to the Shahabad case (*)decided recently (1947) where it was found that non-joinderof a candidate who had withdrawn is not fatal. See alsoLudhiana Mohammadan Rural Constituency case (2).

Our view also finds support in the order passed in arecent case by the Election Tribunal at Allahabad inSaligram Jaiswal v. Sheo Kumar Pandey and Others (Elec-tion Petition 316 of 1952), in which it was found that acandidate who had withdrawn his candidature, is "no longeractually interested in the election" and is not a necessarvparty.

Mr. Pandey has also cited a Baroda case, NagjibhaiOovindbhai Arya v. M. R. Chawhan (3). In that case thepetitioner Was a candidate whose nomination paper hadbeen rejected. He alleged that the rejection was wrongful

(1) Sen and Poddar 750. (2) Sen and Poddar 970. (3) 1 E.L.R. 162.

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and improper and that the result of the election wasmaterially affected thereby. In that case there was noissue about non-joinder of candidates who might havewithdrawn their candidature. So, any remarks made bythe Tribunal on this question were in the nature of obiter.

In this view of the matter we hold that the candi-dates who withdrew their candidature under section 37 ofthe Representation of the People Act, 1951, are not neces-sary parties within the meaning of section 82 of the saidAct.

G. L. SHKIVASTAVA.— 1. Having unanimously recordedthe finding on the issue of non-joinder of a candidatewhose nomination was rejected by the Returning Officerunder section 36 of the Representation of the People Act,1951, the Tribunal has proceeded to consider and decidethe issue of non-joinder of candidates whose nominationwas accepted but who duly withdrew their candidaturewithin the time prescribed by section 37 of the Act andwho, therefore, were not included in the list of valid nomi-nations under section 38 of the said Act. This issue iscommon in the cases referred to in the findings alreadyrecorded and the finding hereinafter recorded would be thefinding on the identical issue of law in those cases andwould form part of the file of those cases.

2. This common issue of law may be stated thus. Are thecandidates whose nomination was accepted under section 36of the Representation of the People Act, 1951, but whowithdrew their candidature under section 37 of this Actnecessary parties to the Election Petitions in questionwithin the meaning of section 82 of the Act ?

3. The • decision of this issue depends on the determina-tion of the meaning and signification of the expression"duly nominated" used in section 82 of the Representationof the People Act, 1951, hereafter referred to as the Act,which provides as follows :—

" Parties to the petition.—A petitioner shall join asrespondents to his petition all the candidates who were dulynominated at the election other than himself if he was sonominated. "

4. The learned counsel for both sides argued this point atlength with ability and vigour. This expression "dulynominated" has not been defined in the Act, I have tried

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to interpret these words after a careful and integrated studyand examination of the various provisions of the Act wherethe words occur, in the light of the accepted canons of inter-pretation. With the utmost respect for my learnedcolleagues, I am constrained to say that I have not beenable to agree with the construction put by them on thisexpression used in section 82 of the Act. I therefore holdthat a candidate whose nomination was accepted undersection 36 but who withdrew his candidature under sec-tion 37 should be regarded as "duly nominated" within themeaning of section 82 of the Act. The reasons for thisopinion have been set out below.

5. " In the absence of any judicial guidance or authoritydictionaries can be consulted." (Maxwell: Interpretationof Statutes, 10th edition, page 32, where the above passagehas been reproduced from Kerr v. Kennedy^). I confessthat dictionaries which were available have not given memuch guidance in construing the expression "duly nominat-ed " used in the particular context of the Act.

6. Before calling to my aid the method of viewing thisexpression in the historical setting, i.e., in the light of its usein previous legislations and another method of ascertainingits interpretation in pari materia statutes, I would do wellto examine all the parts of this Act where this expressionis used for appreciating its true meaning. In 'The Interpre-tation of Statutes' (10th edition) Maxwell remarks at page29 on the authority of Lord Esher M. R. and Fry L. J. inthe case of Lancashire and Yorks Ry. Co. v. Knowles(%), that" such a survey is often indispensable even when the wordsare the plainest, for the true meaning of any passage isthat which (being permissible) best harmonises'with thesubject and with every other passage of the statute ". Insection 33 of the Act the words " duly nominated " havebeen used in sub-section (3) and in the second and thirdprovisos to this sub-section in connection with some de-clarations and certificate.

7. According to sub-section (3) which follows the require-ment of the filing of a duly completed nomination paper asprescribed in sub-section (1) "no candidate shall be deemedto be duly nominated" unless a declaration of appointmentof an election agent is delivered along with the nomination

[1) [1942] 1 K.B. 409. (2) 20 Q. B. D. 391.

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paper. So also " no candidate shall be deemed to be dulynominated " unless the formalities prescribed in the saidtwo provisions are complied with.

8. The relevant part of section 34(1) of the Act standsthus: "A candidate shall not be deemed to be duly nomi-nated unless he deposits or causes to be deposited in thecase of an election to Parliament (other than a primaryelection) a sum of five hundred rupees ".

9. Then follow sections 35 and 36, relating to the scrutinyof nominations. Under section 36(2) the Returning Officerhas to decide all objections and may refuse any nominationon any of the five grounds mentioned in it. Again, accord-ing to sub-section (3) of this section the nomination of. acandidate cannot be refused on the ground of irregularityin respect of a nomination paper if " the candidate hasbeen duly nominated by means of another nominationpaper in respect of which no irregularity has beencommitted ".

10. Next, section 37 refers to the withdrawal of candida-ture within the prescribed time by means of a duly com-pleted notice in writing. After some formalities the Re-turning Officer has to publish a list of valid nominationsunder section 38 in accordance with rules 10 and 11 of theRepresentation of the People (Conduct of Elections andElection Petitions) Rules, 1951. Section 39 refers to nomi-nations for the Council of State and Legislative Councilsand the aforesaid provisions have been made applicable tothese nominations. Then Chapter I (Nomination ofCandidates) of Part V ends.

11. It may be said that the method of defining the ex-pression by negative propositions is perceptible in sections33 and 34 of the Act. It seems to be abundantly clear thata candidate should be deemed to be duly nominated if hesatisfies the requirements of law and passes the test ofscrutiny.

12. Ordinarily, this class of duly nominated candidates isnarrowed down to validly nominated candidates after thewithdrawal of candidatures under section 37 and the publi-cation of the list of valid nominations under section 38 ofthe Act. The crux of the question is whether the words" duly nominated " used in section 82 of the Act includethis larger class or is to be deemed to be confined to the

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smaller class of valid nominations after the withdrawal. Inmy opinion these two classes have distinctive status andlegal character under the Act for the purposes of electionand proceedings connected with it. They have been usedin the statute in a clear and unambiguous manner and insome places in juxtaposition which leaves no doubt abouttheir distinct meaning and signification.

13. Again, in Chapter II, section 46, of the Act the follow-ing passage occurs in the beginning of the section: "Acandidate who has been duly nominated under this Actand who has not withdrawn his candidature in the mannerand within the time specified in sub-section (3) ".Here due nomination under the Act has been recognisedand the act of withdrawal is not contemplated as extingui-shing the status acquired already as a duly nominatedcandidate.

14. The Central Government has framed the rules forcarrying out the purposes of the Act under section 169thereof. These rules are described as " the Representationof the People (Conduct of Elections and Election Petitions)Rules, 1951 ". The question is whether any part of theserules can be used in construing the expression in question.According to Maxwell general rules and forms made underthe authority of an Act may be referred to for the purposeof assisting in the interpretation of the Act (page 36 of theEdition of the treatise hereinbefore adverted to). Inrule 2, clause (f) stands as follows: " Validly nominatedcandidate " means a candidate who has been duly nomi-nated and has not withdrawn his candidature in the mannerand within the time specified in sub-section (1) of section 37or in that sub-section read with sub-section (4) of section39, as the case may be. This definition confirms the viewexpressed above.

15. I am not prepared to think that if the framers of theAct intended that only validly nominated candidates, thatis, duly nominated candidates who had not withdrawntheir candidature, should be impleaded as respondents,they would not have used the words as used in section 82of the Act. The language of this section would have beendifferent if this was the object and intention. As it is, itadmits of no doubt. The language is plain and suchlanguage best declares without more, the intention of the

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lawgiver and is decisive of it. The rule of construction is" to intend the legislature to have meant what they haveactually expressed". Maxwell goes further and says " itmatters not, in such a case, what the consequences maybe ". Undoubtedly, if two meanings are possible, and oneleads to absurdity, inconsistency or injustice, the othermay be preferred. But if two meanings are not possible thetask of interpretation does not arise. In this connection itmay be safely remarked that in construing the words" duly nominated " used in section 82 of the Act as I havedone, no question of absurdity or injustice arises. The argu-ment based on absurdity or injustice has been described asa " snare " unless absurdity or injustice is extremely grossand palpable. In this matter there is no absurdity orinjustice involved in this interpretation at all. This pointwill be elucidated further hereafter.

16. The legislation repealed by section 171 of the Act,viz., the Indian Election Offences and Inquiries Act, 1920,and other laws relating to this subject may now be lookedat for the purpose of ascertaining the meaning of theexpression in question. By other laws is meant the Orderin Council known as the Government of India (ProvincialElections) Corrupt Practices and Election Petitions Order,1936, dated 3rd July, 1936, and the Acts of Provincial Legis-latures, and Rules framed to regulate the form of ElectionPetitions and the persons who are to be made parties there-to and other matters of procedure under para. 6 of Part IIIof this Order. By the authority of this para, the ProvincialGovernments could authorise the Governor to exercise hisindividual judgment to dismiss petitions for non-compli-ance with prescribed requirements. The provinces framedtheir own rules which indicate that uniformity was lacking.To illustrate the point, the case of Shaliabad MohammadanRural Constituency 1946: Mcmjoor Husain v. GholamMohiuddin (*), may be referred to. It was held in this casethat non-joinder of a nominated candidate who had with-drawn from contest was not fatal to the claim for seat andthe case of Banares-cum-Mirzaiour Cities^), was distinguish-ed on the ground that the law in U. P. and Bihar differed.

17. In Karnal South General Constituency case : Pt. MangalRam v. Chaudhari Anant Ram(d), it was held that where. (1) Sen andPoddar 746. 13) Sen and Poddar 438.

(2) Sen and Poddar 166.

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the petitioner claimed the seat for himself it was incumb-ent upon him to implead all other candidates who werenominated at the election irrespective of whether theirnomination papers were withdrawn before or after thescrutiny or were rejected as a result of the scrutiny. Onthe same ground the petitioner's claim for the seat washeld inadmissible in Ambala and Simla (Mohammada,n)Constituency case 1937(]), though the nominated candidatehad subsequently withdrawn.

18. It may be noted that the claim for seat was inter-linked with the necessity of joining all nominated candi-dates as respondents irrespective of the withdrawal ofcandidature in the laws of various provinces. These lawsdo not seem to be absurd or devoid of reason. The authorof the " Law of Elections and Election Petitions " (Nanak-chand Pandit) opines that the reasons for imposing thisduty is that each of the other candidates may have theopportunity to raise recriminations to show that the peti-tioner is not entitled to this declaration which he claims.Undoubtedly this object has been achieved under section90(1) of the Act under which any candidate can come inand be joined as respondent within fourteen days of thepublication of the petition in the official gazette. But thissection requires a candidate to take some steps to be joinedas a respondent within the prescribed time, while section 82purports to give him the right unsought and unsolicited.This privilege implies special consideration to candidateswho entered the arena for election at the first stage andran the gauntlet of scrutiny successfully but eventuallyretired from the arena for reasons of their own. Though theydid not go to the polls, the legislature seems to have thoughtthat their status as duly nominated candidates should berecognised in the contest of election petitions which maylead to unthought-of results or the transfer of seat froman elected candidate. They may join the conflict, ifthey so choose, after skulking in their tents but thereis no element of compulsion. In this view of the matterthere is no absurdity involved in the legal requirements oftheir joinder as respondents in an election petition. Lex estdictamen legis is the maxim which should normally be appli-cable. There is no reason to suppose that the aforesaid in-terpretation of section 82 proves an exception to this rule.

(1) Sen and Poddar 6,

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19. In fact section 82 of the Act has unified and rational-ised the law prevailing before the Act about the implead-ing of respondents in election petitions. A petitioner hasbeen saved the trouble of relating the joinder of parties tothe reliefs claimed. It is therefore provided that all dulynominated candidates should be joined as respondents.What was perhaps contemplated to be a simplification ofthe matter has led to controversies of vast magnitudeabout the definition of the meaning of "duly nominated can-date". I have had the advantage of reading a copy of theorder in Election Petition No. 316 of 1952 before the Elec-tion Tribunal at Allahabad, Saligrnm Jaiswal v. SheoKumar Panday and others^), in which it has been held thata candidate whose name does not appear in the list of validnominations cannot be regarded as a duly nominated can-date. With utmost respect to this Tribunal I have notbeen able to accept this interpretation for the reasonsalready mentioned. One very much wishes that the ex-pression "duly nominated candidate" used in section 82 ofthe Act was so defined or explained by the legislature as tobe beyond the range of controversy.

20. My finding, therefore, is that duly nominated candi-dates who have withdrawn their candidature under section37 of the Act should be joined as respondents in an elec-tion petition. But the majority view of my learnedcolleagues will prevail under section 104 of the Act andwould be regarded as the view of the Tribunal. In the cir-cumstances I do not feel called upon to express an opinionwhether this Tribunal is competent to order or permit thejoinder of such candidates as respondents suo motu or onthe request of the petitioners concerned.

21. The question of the effect of the non-joinder of suchrespondents does not arise for the practical purposes ofthese petitions in view of the opinion of the majority onthis matter. It may however be said to arise as a sequelto my finding on the issue of non-joinder. But I feel itwould be needless to express a definite opinion on thisquestion at this stage of the proceedings. The question ofpower or jurisdiction of Tribunals to permit amendments inelection petitions is likely to arise in some of these cases infuture and it may be embarrassing to all concerned includ-ing myself, if I arrive at or express conclusions on this

(1) Not reported,

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subject. Suffice it to say that in spite of the apparentlymandatory language of section 82, the Act has not providedfor the summary dismissal of election petitions on theground of non-joinder of parties, as it has providedfor dismissal for non-compliance with the provisions ofsection 81, section 83 or section 117 of the Act.

22. The exclusion of non-compliance with the require-ment of joinder of parties contained in section 82 from thecategory of disobedience of other mandatory provisionsreferred to above meriting dismissal of petition is signifi-cant. This exclusion seems to be based on sound reasons.On the other hand, the inclusion of non-joinder of partiesin this sternly imperative category would have wiped outthe distinction between necessary party and proper partyand would have imposed a uniform penalty regardlessof the matter and consequence of non-compliance. Instatutes sometimes an apparently mandatory provisionis regarded as really directory.

Finding of the Tribunal.—The unanimous view of the Tri-bunal is that the non-joinder of candidates whose nomina-tions had been rejected at the time of scrutiny and of thosewho withdrew their candidature is not fatal to the mainten-ance of these petitions.

The view of one of the members of this Tribunal (ShriG.L. Shrivastava) as recorded above, however, is thatcandidates whose nomination papers had been accepted atthe time of scrutiny and who withdrew under section 37 ofthe Representation of the People Act, should have beenjoined as respondents to these petitions.

Issues found accordingly.

[ELECTION TRIBUNAL, WEST BENGAL.]

BISWANATH ROYv.

TARAKDAS BANERJEE AND OTHERS.S. C. RAY CHAUDHURY (Chairman),

M. N. GAN and SUDHIR KUMAR BHOSE (Members).April 16, 1953.

Voting—Secrecy of voting—Statements volunteered by voter—Whetheradmissible in evidence—Representation of the People Act, 1951,§s. 94, 128.

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Though section 94 of the Bepresentation of the People Act, 1951,prohibits putting questions to a voter who appears as a witness as to forwhom he has voted at an election, if a voter, waiving this privilege ofsecrecy, voluntarily states that he has voted for a certain person, hisstatement need not be expunged from the record.

ELECTION PETITION NO. 329 of 1952.

J. G. Moitra, S. Gupta, R. P. Bagchi and A. K. 8PM, forthe petitioner.

Sankar Das Banerjee, Umapada Bhattacharjee a,m\JagatBandJiu Laha, for respondent No. 1.

Aswini Kumar Ghosh and Nut Behari Butt, forrespondent No. 5.

ORDER.

The election to the West Bengal Legislative Councilfrom Nadia-Murshidabad (Local Authorities) Constituencyhas been called in question by presenting an election petitionunder section 81 of the Representation of the People Act,1951. It is a double-seated constituency. The petitioner,Biswanath Roy and the respondents Nos. 1 to 5 contestedthe election. The respondent No. 6, Chattrapati Roy, wasanother duly nominated candidate who withdrew his candi-dature within the notified time. The election was held bypostal ballot between the 7th of May and the 29th of May,1952. The counting of votes took place on 30th May, theelection being conducted on the system of single transfer-able vote. The respondent No. 1, Tarakdas Banerjee, andthe respondent No. 5, Kalinarayan Sinha, who fought onthe tickets of the Indian National Congress were declared asduly elected.

The petitioner, Biswanath Roy, alleges that he obtainedsuch number of valid 1st preference votes as would havebeen sufficient to ensure his success in the election in pre-ference to respondent No. 5, Kalinarayan Sinha, as largernumbers of valid votes were cast in his favour than whatwere cast in favour of the said respondent No. 5.

The election has been challenged on the followingamongst other grounds :—

(a) There has not been a free election by reason ofcorrupt and illegal practices.

(&) The result of the election lias been materiallyaffected by improper reception of void votes cast in favourof respondents Nos, 1 and 5,

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(c) The result of the election has been materiallyaffected on account of non-compliance with the provisionsof the Constitution and of the Representation of the PeopleAct, 1951, and the rules and orders made thereunder.

Serious allegations have been made that the ballotpapers were tampered some time during the period afterthe}7 were posted and before the votes were counted withthe assistance of persons serving under the Governmentchanging the figures of the preference votes for the further-ance of the prospects of election of the respondents Nos. 1and 5. Further, allegations have been made that secrecyof voting was infringed as the result of the election wasdeclared by the agents of the respondent No. 5 prior tothe date of counting. A fresh count has been demandedtaking into account the alterations made in the figures ofpreference votes against the names of the petitioner andthe respondent No. 5. Prayer has been made for declara-tion that the petitioner, having obtained a majority of validvotes as between himself and the respondent No. 5, bedeclared as duly elected. Separate prayers have beenmade for declaring the election of respondent No. 1 andrespondent No. 5 void and for disqualifying them for aperiod of 6 years.

A list of full particulars of corrupt and illegal practicesas required under section 83(2) of the Representation ofthe People Act, 1951, has been attached to the election peti-tion, but at the commencement of the trial except the pleasof tampering of ballot papers and of violating the secrecyof votes, all other statements made therein regarding offer-ing of money to some electors, providing vehicles for theconveyance of the electors, marking of the voters in theballot papers by the respondents Nos. 1 and 5 taking thesaid ballot papers from the electors and undue influence orcoercion and intimidation interfering with free exercise ofright of franchise of the electors, have not been pressed.

The respondents Nos. 1 and 5 contest the case. Copies ofthe election petition were served on the other respondents asrequired under section 90(1) of the Representation of thePeople Act, 1951, but they have not entered appearance.The respondents Nos. 1 and 5 filed separate written state-ments traversing all the material allegations made in theelection petition regarding corrupt and illegal practices,

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improper reception of void votes, non-compliance with theprovisions of the Constitution and of the Representation ofthe People Act, 1951, and the rules and orders made there-under, tampering of ballot papers and infringement of thesecrecy of votes. Their contention is that there has beena free election and the result of the election has not beenmaterially affected as alleged and all allegations made inthe list of full particulars of corrupt and illegal practices,have been emphatically denied.

The following issues, as amended during the commence-ment of the trial arise for decision :—

1. [Expunged].2. Has the result of the election been materially affected

on account of tampering of ballot papers 7Issue No. 2.—This issue has been amended retaining it

in a general form that the result of election has beenmaterially affected on account of tampering of ballotpapers. The allegations that the tamperings were effectedby, or with the connivance of respondents Nos. 1 and 5 arenot pressed.

Prayer was made on the petitioner's side for inspectionof the ballot papers at the commencement of the trial. Itwas refused at that stage as the election petition did notdisclose details to make out a prima facie case in supportof such prayer. The petitioner thereupon after examininghimself, called the evidence of some of the voters who,he alleged, voted for him at the election, to show that infact some of the voters did record their votes in his imme-diate presence. Three of his workers were also examinedto give evidence that in their presence certain other elec-tors recorded votes for him. It has been contended thatthe scrutiny of the relevant ballot papers with reference tothe evidence adduced would show a different result. Thelearned lawyer for the respondent No. 5, Sri Nut BehariDutt, objected to the evidence of the voters and contendedthat it was inadmissible in view of the bar of section 94 ofthe Representation of the People Act, 1951. This objectionlost its practical importance in the trial, inasmuch as thewitnesses were not asked to state for whom they voted.Accordingly, the objections as to the questions put to thewitnesses were disalloHved. Out of the voters examined,

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except one, the rest stated of their own accord that theyvoted in a particular way for the petitioner. To this anotherobjection towards the close of recording the evidence on thepetitioner's side was taken on behalf of the contesting res-pondents that such evidence of the witnesses being volun-tary on the point at issue should be expunged from therecord. The question was argued at great length by thelearned lawyers for the petitioner and the respondents andthe Tribunal propose to deal with it in the judgment.

Sri Nut Behari Dutt, on behalf of the respondents, reliedon sections 94, 95 and 128 of the Representation of thePeople Act, 1951, and referred to certain observations inWoodroffe's Evidence, 9th Edition, page 977, and alsoto Jagat Narain's Law of Elections and Election Petitions inIndia and Burma, page 332. He further invited the atten-tion of the Tribunal to Schofield's Parliamentary Elections,page 537, in support of his contention that the secrecy ofthe ballot is to be maintained for ever and that the evidencewhich has been volunteered by the witnesses violating thesecrecy is to be expunged. In short, he contends that thewitnesses should not, in any event, be permitted to statefor whom they voted at the election.

In reply, Sri J. C. Moitra, the learned counsel for thepetitioner, while conceding that section 94 of the Represent-ation of the People Act, 1951, prohibits any questionrequiring a voter to state for whom he has voted at anelection, contends that the section gives a personal privilegeto the voter which he can forego and the statements of thevoter witnesses disclosing of their own accord for whomthey voted are not voluntary in the sense in which it isused in Woodroffe's book.

Section 95 of the Representation of the People Act, 1951,corresponds to section 132 of the Indian Evidence Act,with necessary modifications to grant a certificate ofindemnity. The general provision in section 95 is con-trolled by section 94, which enjoins that secrecy of votingshould not be infringed. The language of the said sectionwhich is similar to that of section 21 of the English Re-presentation of the People Act, 1949, only prohibits enquiryfrom a person for whom he has voted at an election. Theobject of this provision of law is evidently to give protectionto the voters. We may profitably quote a very valuable

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observation from American Jurisprudence, Volume 18,section 308, pages 379 to 380, which runs thus—

"The privilege of a legal voter to refuse to testify forwhom he cast his ballot is personal and can be raised andwaived by him only. If a witness voluntarily admits theillegality of his vote, he thereby waives the privilege ofrefusing to testify on the ground of self-crimination andmay be required to disclose how he voted. It seems thatlaws providing for secrecy of the ballot did not precludeenquiry into the question for whom votes were cast, . sincethe voter, if he so desires, may waive the privilege ofsecrecy. "

This observation amply supports the contention of thelearned counsel for the petitioner that section 94 is notabsolute, but a voter has the right to waive the personalprivilege given to him, if he so desires. The observationin Woodroffe's Evidence, 9th Edition, page 977, to whichreference has been made by the learned lawyer for therespondents is to the effect that a witness may not foistinto his answer in any examination statements not in answerto questions put to him. This is called " volunteeringevidence" and the pleader of the opposite party should beon his guard to check its introduction by objection. Thetrial Judge should upon motion strike out answers that arenot responsive to the questions asked, that is, those answersthat stated facts not called for by the questions, or thosewhich express an opinion as to the matter in question,unless the question calls for an opinion, as in the case ofexperts. But where only a part of the answer is notresponsive to the question, only that part will be strickenout which is objectionable for not being responsive. " Herethe question put to the witnesses was whether they didexercise their right of franchise. No enquiry was made forwhom the witnesses voted, violating the provision insection 94 of the Act. The answer given by the witnessesmentioning the fact in whose favour they did cast theirvotes cannot be said to be not responsive to the question.The privilege of maintaining secrecy which the voterwitnesses had, was waived. It has been rightly contendedby Mr. Moitra, that the answers given disclosing the namesof the candidates were neither irrelevant nor inadmissibleaccording to the provisions of the law. He has argued that

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the general principle is that in examination-in-chief thewitness should, as far as possible, be allowed to tell hisstory in his own way. Reference has in this connectionbeen made to Phipson on Evidence, 9th Edition, page 58,where it has been observed that " it is not necessary thatthe relevancy of a fact should appear at the time it isproved; the Judge will always admit evidence on theundertaking of counsel to show its bearing or admissibilityat a later stage, failing which it would be struck out. " Ithas been contended that the admissibility of the evidencehas been sufficiently established and, as such it should notbe struck out. In Jagat Narain's Law of Elections andElection Petitions in India and Burma, pages 332 to 333, towhich reference has been made on the respondent's side, ithas been laid down that " it would appear that the provi-sions of section 14 enjoin the maintaining of secrecy ofvoting. No time-limit is fixed and such secrecy is to bemaintained for ever. The section would cover the case ofa voter who has voted and also a person who has not voted.The information as to who has voted as also for whom hehas voted, and as to who has not voted, is to be keptsecret." Section 14, referred to above, corresponds tosection 128 of the Representation of the People Act, 1951,on which the learned lawyer for the respondents has alsoplaced reliance. Section 128 provides for maintenance ofsecrecy of voting by every officer, clerk, agent or otherperson who performs any duty in connection with therecording or counting of votes at an election. It does notfetter the right of the voter to divulge his secret, if he sodesires. The maintenance of secrecy by the persons men-tioned in the section is in the interest of the voters Avhoare given protection under section 94 of the Act. Theobservation in Schofield's Parliamentai'y Elections, page 557,to which reference has been made deals with the questionof personation. It has been observed that " evidence maybe called, but witnesses must not be asked for whom theyvoted, for no person who has voted at the election shall inany legal proceeding to question the election or return, berequired to state for whom he voted. There would appearto be no objection to the witness volunteering this infor-mation, particularly in a case of personation. " If suchVolunteering be permissible to prove a ease of personation,

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230 HAMIBKHA ALARKHA V. RETURNING OFFICER [VOL. V

it may equally be not objectionable to prove a case offorgery by tampering. This authority does not accord-ingly much support the contention of the respondents.Considering all these provisions of law we hold that thestatements made by the voters examined in this case,waiving the privilege of maintaining the secrecy of votes,need not be expunged.

[On a careful examination of the evidence and the resultof the scrutiny the Tribunal found that there had been notampering of any ballot paper.]

Election Petition No. 329 of 1952, calling into questionthe election to the West Bengal Legislative Council fromNadia-Murshidabad (Local Authorities) Constituency bedismissed with costs. Petitioner to pay Rs. 100, forcosts to each of the contesting respondents Nos. 1 and 5.

Petition dismissed.

[SATJRASHTRA HIGH COURT.]

HAMIRKHA ALARKHAv.

RETURNING OFFICER, JAMNAGAR CITYAND OTHERS.

SHAH C. J. and BAXI J.

March 26, 1953.High Courts—Jurisdiction over Election Tribunal—Power to issue

writs—When writs will be issued—Excess or want of jurisdiction, neces-sity of—Nomination of candidates—Election agents—Appointment ofmore than one election agent—Election Tribunal holding first nominationvalid—Form of Nomination, Footnote—Representation of the People Act,1951, ss. 33, 40, 105, 170—Constitution of India, arts. 226, 227, 329{b).

The jurisdiction of the High Court to issue writs or orders underarticles 226 and 227 of the Constitution to quash the orders of an Elec-tion Tribunal is not taken away by article 329(b) of the Constitutionor any of the provisions of the Eepresentation of the People Act, 1951,or by any other provision of law. This jurisdiction is. however, confinedto errors of jurisdiction, that is to say, where the Tribunal has acted inexcess of its jurisdiction or refused to exercise its jurisdiction, or thereis an error apparent on the face of the record.

A candidate filed two nomination papers in which different personswere appointed as election agents in contravention of the provisionscontained in sections 33 and 40 of tha Representation of the People

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Act, 1951, and the directions contained in the Form of nominationpaper, and both the nomination papers were rejected by the BeturningOfficer. The Election Tribunal held that, where different electionagents are appointed in different nomination papers, the first nomina-tion paper would not be invalid and could not be rejected, though theothers would be invalid, and set aside the election on the ground thatthe nomination of the candidate was improperly rejected by the Return-ing Officer:

Held, that the Election Tribunal had jurisdiction to decide whetherin such a case all the nomination papers would be invalid, or the firstwould be valid and the others alone would be invalid, and, as there wasno excess or want of jurisdiction, or any error apparent on the face ofthe record, the High Court would not interfere by issuing a writ underarticle 226 or 227 of the Constitution, even if the decision of the Elec-tion Tribunal was wrong.

The word "election" in article 329(b) of the Constitution does notinclude the proceedings before the Election Tribunal or the Tribunal'sverdict.

N. P. Ponnuswami v. Returning Officer, Namakkal Constituency(1 E.L.E. 133), Shankar Nana Saheb v. Returning Officer, Kolaba(1 E.L.E. 13), Dr. John Mathai, In re (l E.L.R. 1), Shanhar Rao v.State of Madhya Bharat (1 E.L.E. 34), Nrisinha Kumar v. ReturningOfficer (1 E.L.E. 23), Benares and Mirzapur Districts Mohammadan RuralConstituency, 1937 (Sen and Podder 154), Menghraj v. Bhimandas andOthers (2 E.L.E. 301), Parry & Co. Ltd. v. C. E. Association, Madras(A.I.B, 1952 S.C. 179), Board of Education v. Rice (1911) A.C. 179,Veeravpa Pillai v. Raman and Raman Ltd. "(A.I.E. 1952 S.C. 192),Ebrahim Aboobakar v. Custodian General of Evacuee Property, Neiu Delhi(A.I.E. 1952 S.C. 319), Mohsinali v. State of Bombay (A.I.E. 1951 Bom.303), Jagannath v. Mt. Puniya (A.I.E. 1952 Madh. B. 51), Bavalal v.Jivanlal (A.I.E. 1951 Sau. 43), Manmatha Nath v. Emperor (A.I.E.1933 Cal. 132J, A. R. Sarin v. B. C. Patil (A.I.E. 1951 Bom. 423JRalilal Abhechand v. Custodian General of Evacuee Property (A.I.E.1952 Sau. 112), Batuk v. Surat Municipality (A.I.E. 1953 Bom. 133) andMallikarjun v. Satyanarayan (A.I.E. L953 Bom. 207) referred to.

Civil Miscellaneous Applications (Nos. 13 and 14 of 1953)under articles 226 and 227 of the Constitution of India toquash the orders made by the Election Tribunal of Saura -shtra in Election Petitions Nos. 53 and 60 of 1952 onthe 13th December, 1952. The orders of the Tribunalare reported as Gokaldas Hirjee v. Zaveri and Others(2 E.L.R. 234) and Trambaklal Manishankar v. PrabhulalBhimji and Others (2 E.L.R. 245).

C. N. Shah, for the applicants.A. R. Bakshi {Advocate-General of Saurashtra), for res-

pondent No. 1 (Returning Officer).V. G. Hathi, for the respondent No. 2,

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ORDER.

SHAH C. J.—These are two petitions for appropriatewrits under article 226 of the Constitution and for theexercise of the High Court's power under article 227 of theConstitution. The petitioner in Civil Miscellaneous Appli-cation No. 13 of 1953 and opponents Nos. 2 to 11 stoodfor election to the Saurashtra Legislative Assembly in1952 from the Jamnagar City (East) Constituency. Oppo-nent No. 2, Thakar Gokaldas Hirjee, had filed two nomi-nation papers, in the first of which he declared one Ran-chhodji Meghji as his election agent and in the second hedeclared himself as his election agent. His nominationwas rejected by the Returning Officer on the ground thathe had appointed more than one election agent and-had thereby contravened sections 33, 36 and 40 of theRepresentation of the People Act, 1951. At the electionthat took place subsequently the petitioner HamirkhaAlarkha was declared elected by a large majority of votes.

In Civil Miscellaneous Application No. 14 of 1953, thepetitioner Fulchand Purshottam and opponents Nos. 2to 9 stood for election from the Jamnagar City (West)Constituency but the nomination of opponent No. 2, Tram-baklal Manishankar, was rejected by the Returning Officeron the same grounds, the only difference in his case beingthat he had revoked the appointment of his election agent,but that was done after filing the second nominationpaper, so that at the time when the second nominationpaper was filed, he had appointed more than one electionagent. At the election, the petitioner Fulchand wasdeclared elected by a very large majority of votes. Gokal-das Hirjee and Trambaklal Manishankar having filed elec-tion petitions calling into question the elections, the Elec-tion Tribunal held that the nomination of both thesecandidates had been improperly rejected by the ReturningOfficer and the rejection had materially affected the resultof the election. The Tribunal therefore declared the elec-tion from both the constituencies to be wholly void.

29th March, 1953, was thereafter fixed as the date for afresh election and the Returning Officer having invitednominations from the abovesaid constituencies on or beforeDecember 16, 1953, the petitioners filed the present peti-tions on grounds, inter alia, that the decision of the Tribu-

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nal that the nomination of opponent No. 2 in each of thepetitions had been wrongly rejected, was in direct contra-vention of sections 33, 36 and 40 of the Representation ofthe People Act-and the rules made thereunder, and was onthat account perverse, and that the Tribunal had therebyassumed jurisdiction to declare the election void, a juris-diction which on the facts and in law it did not have, andfurther that there was an error on the face of the recordinasmuch as the Tribunal had disregarded the specific pro-visions of the Representation of the People Act and therules made thereunder and its order was grossly erroneousfor those reasons.

The petitions are opposed by the Returning Officer andby opponent No. 2 in each of the petitions and their prin-cipal contentions are: (1) that the High Court has nojurisdiction to entertain the petition inasmuch as, underarticle 329(b) of the Constitution and under the Represent-ation of the People Act, the Election Tribunal is consti-tuted the sole forum for the trial of all matters relating toan election, that under section 105 of the Representationof the People Act the order of the Tribunal is final andconclusive and that the Civil Courts' jurisdiction wasbarred under section 170 of the said Act, and (2) that theElection Tribunal having acted in exercise of the powersvested in it and within its jurisdiction, and having had fullauthority to decide the question raised before it, the HighCourt had no power to interfere with the decision even ifthe decision might be erroneous. They denied that the orderof the Election Tribunal was perverse or that there was anerror on the face of the record.

I will deal first with the objection against the HighCourt's jurisdiction. The contention of the learned Ad-vocate-General is that under article 329 (b) no electioncan be called in question except by an election petitionpresented to the Election Tribunal appointed under theRepresentation of the People Act, and that by reason ofthe opening words of the article, viz., "notwithstandinganything in this Constitution," the interference by courtsincluding the High Court in electoral matters is not per-mitted. It is argued that the matter involved in the pre-sent petitions relates to the validity of the Returning Offi-cer's order rejecting the nomination of opponent No. 2 and,

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therefore relates to an election as contemplated by article329(b). It is urged that the expression ' election ' in thesaid article embraces the entire process beginning from thenotification inviting nominations and ending with thedeclaration of the candidates as duly elected as a result ofthe voting, and that it also includes all subsequent pro-ceedings arising out of the holding of an election. It iscontended therefore that the question raised in these peti-tions cannot be agitated before any forum except an Elec-tion Tribunal, and that the High Court's jurisdiction tointerfere in exercise of its powers under articles 226 and227 of the Constitution is barred. Mr. Chimanlal Shah forthe petitioners concedes that an 'election'—meaning there-by all that relates to the process of election—is outside thepurview of the High Court's jurisdiction by reason ofarticle 329 (b), but his basic objection is that the proceed-ings before an Election Tribunal, and at any rate the ver-dict of the Tribunal, are not part of the process of electionand that the High Court's powers under articles 226 and227 are not excluded. Now the process leading up to anelection and that relating to its progress and the finaldeclaration of the results is no doubt an election withinthe meaning of that expression under article 329(b). Thequestion of the High Court's jurisdiction to interfere .withthe rejection of a nomination paper of a candidate by theReturning Officer has been the subject of several decisionsand it has been consistently held that it being a matterrelating to an election the High Court has no jurisdictionto interfere by a writ under article 226.

In N. P. Ponnuswami v. Returning Officer, NamakkalConstituency (x), it was held that the word ' election ' hasbeen used in Part XV of the Constitution in the wide sense,that is to say, to connote the entire procedure to be gonethrough to return a candidate to the Legislature. The useof the \ expression "conduct of elections" in article 324specifically points to the wide meaning, and that meaningcan also be read consistently into the other provisionswhich occur in Part XV including article 329 (b). Theterm "election•" may- be taken to embrace the wholeprocedure which consists of several stages and embracesmany steps whereby an elected member is returned. Dealing

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with an argument that since the Representation of thePeople Act was enacted under article 327 subject to theprovisions of the Constitution, it cannot bar the jurisdic-tion of the High Court to issue writs under article 226,their Lordships held that this contention was completelyshut out by reading the Act along with article 329 (b) andthat the opening words " notwithstanding anything in thisConstitution " were quite apt to exclude the jurisdiction ofthe High Court to deal with any matter which may arisewhile the elections were in progress. In their Lordships'view, article 329 (b) must be read as complimentary toclause (a) of that article. Clause (a) bars the jurisdictionof the courts with regard to such law as may be madeunder articles 327 and 328 relating to the delimitation ofconstituencies or the allotment of the seats to such consti-tuencies. Part XV of the Constitution is a code by itself,i. e., it creates rights and provides for their enforcementby special tribunal to the exclusion of all courts, includingthe High Court and makes all the parts of the election pro-cess the subject-matter of contest before the ElectionTribunal.

In their Lordships' opinion, the more reasonable viewis that article 329 covers all " electoral matters." Rejec-tion of a nomination paper by a Returning Officer was apart of that process and the Supreme Court therefore heldthat any dispute relating to it could not be made the sub-ject matter of a contest before the High Court. TheirLordships were of the view that, having regard to the im-ant functions which the Legislature have to perform indemocratic countries, they have always recognised it to bea matter of first importance that elections should be con-cluded as early as possible according to time-schedule andall controversial matters and all disputes arising out of elec-tions should be postponed till after the elections were overso that the election proceedings may not be undulyretarded or protracted. The scheme of the election lawtherefore is that no significance should be attached toanything which did not affect the election, and if any irre-gularities were committed while the election was in pro-gress and they belonged to the category or class which, un-der the law by which the elections are governed, wouldhave the effect of vitiating the election and enable the

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236 HAMIRKHA ALARKHA V. RETURNING OFFICER [VOL. V

person affected to call it in question, they should bebrought up before a special tribunal by means of electionpetition and not be made the subject of a dispute beforeany court while the election is in progress. Strictly speak-ing, it is the sole right of the Legislature to examine anddetermine all matters relating to the election of its ownmembers, and if the Legislature takes it out of its own handsand vests in a special tribunal an entirely new and unknownjurisdiction that special jurisdiction should be exercised inaccordance with the law which creates it.

In Shankar Nana Saheb v. Returning Officer, Kolaba(l)the Bombay High Court has likewise held that the HighCourt has no jurisdiction to issue a writ under article 229of the Constitution, against an order of a Returning Officerrejecting a nomination paper of a candidate. Dealing withthe expression 'election', the learned Chief Justice held thatthat term is not merely the ultimate decision or the ulti-mate result, and that 'election' is every stage from thetime the notification is issued till the result is declared andeven perhaps if there is an election petition, till the deci-sion of the Election Tribunal, and that the only way inwhich any matter relating to or in connection with an elec-tion can be called in question is by an election petition tobe presented to the authority provided for bythe law, viz.,:the Election Tribunal. See also In re Dr. John Mathai(l),Shanker Rao v. State of Madhya Bharat(3), where the rele-vant observations are that an election commences when anomination paper of a candidate is presented to the Return-ing Officer and ends when the election officer declares thethe result of the election ; and Nrisinha Kumar v. Return-ing Officer^).

This legal position is not demurred to by Mr. ChimanlalShah, but his contention is that the election is over as soonas the results are declared by the Returning Officer andthat the subsequent proceedings before a Tribunal and theconduct of those proceedings by the Tribunal are not partof the election. What the petitioners call into question arethe proceedings before the Election Tribunal and the Tri-bunal's verdict and these, according to Mr. Shah, are notpart of an election. There is substance in this contention.The term 'election' embraces and extends to the stage the

(1) 1 EL.R.13, (Z) 1 E.L.R. 1. (3) 1 E.L.R, 34. (4) 1 E.L.R. 23.

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result of the election is declared by the Returning Officerand what follows thereafter by way of an election petitionto the Tribunal in respect of matters relating to or in con-nection with the election are not part of the election and,with respect, the observations of Chagla C. J. in ShankarNana Sahib v. Returning Officer, Kolaba{1), viz., that electionmay cover the stage of an election petition and the decisionof the Election Tribunal thereon are perhaps a little toowide. But even if the election petition to the Tribunaland the Tribunal's decision were to be taken as forming astage in the election or part of the process of election, thatstage is over and what the petitioners now dispute is theverdict of the Tribunal. So far as I can see, the wholeprocess of 'election' as that expression is used in article 329(b) terminates at the results and it does not embrace any-thing that occurs after the results are declared. Thereforewhat transpires subsequently is by no means part of theelection and article 329 (b) will not bar the High Court'sjurisdiction to issue a writ in an appropriate case underarticle 226 of the Constitution or to interfere in the exerciseof its powers of superintendence under article 227 of theConstitution.

' If, as the learned Advocate-General contends, the proceed-ings before the Tribunal and its decision were part of the'election', and on that account the High Court's jurisdic-tion becomes barred, the party will not be left with anyremedy, for instance in a case where the Election Tribunaleither assumes jurisdiction which it has not, or fails toexercise jurisdiction which it has, or even in cases wherethere may be an apparent error on the face of the record,nor again where the Tribunal acts capriciously or mala fide,a situation which surely could not have been contemplatedby the Constitution. I may refer in this connection to theobservations of Chagla C.J. in Shankar's casei1) referred toabove. Learned counsel for the petitioner of that casepointed out that in the High Court's view of the interpre-tation of article 329 (b) even if the Tribunal were to actwithout jurisdiction or were to assume jurisdiction whichit does not possess, the High Court would have no right tointerfere. Dealing with the point, the learned Chief Justicesaid :

(1) 1 E.L.R. 13.

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" That is not our interpretation of article 329 (b). Allthat we lay down is that to the extent that the merits ofan election matter are concerned our powers have beentaken away but our powers have not been taken away tocompel a Tribunal which is set up to decide those mattersacting with jurisdiction and not in excess of the powersconferred upon it by statute."

In Ponnuswami's case(l), the Supreme Court reserved itsopinion saying the question as to what the powers of theHigh Court under articles 226 and 227 and of the SupremeCourt under article 136 of the Constitution may be, is onethat will have to be decided on a proper occasion. InShankar Rao v. State of Madhya Bharat{2), the High Courtdid not express any opinion on the question and said thatthe question may have to be decided at the proper timewhen it comes before the Court.

It is under section 105, Representation of the PeopleAct, that every order of the Tribunal under the Act is finaland conclusive, and under section 170 the jurisdiction ofthe civil courts is barred as to questions relating to thelegality of any action taken or of any decision given by theReturning Officer or by any other person appointed underthis Act in connection with an election. The said Act hasbeen enacted by the Parliament in exercise of its powersunder article 327 of the Constitution and the law which theParliament is to make under the said article is subject tothe provisions of the Constitution. The provisions of theRepresentation of the People Act are thus subject to theprovisions of the Constitution and they do not override thepowers of the High Court under articles 226 and 227. Thisis made clear by a coniparison with the opening words ofarticle 329 which are " notwithstanding anything containedin the Constitution " so that if the matter falls within thescope of article 329 (b) the High Court's power underarticles 226 and 227 are ousted, but they will not be oustedby reason of anything contained in an Act of the Parlia-ment enacted under article 327. This question was incident-ally considered in Shankar Rao v. State of Madhya Bharat^),where the view taken was that sections 105 and 170 of theRepresentation of the People Act, 1951, or any other provi-sion of that Act cannot by themselves in any way affect

(1) 1 E.L.R. 133. (2) 1 E.L.R, 34.

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the jurisdiction of the High Court to issue writs underarticle 226 of the Constitution. The High Court's jurisdic-tion was taken away not by the Representation of thePeople Act but by article 329 itself.

Therefore, if the matter which is the subject of thepresent petitions does not fall within the term 'election' inarticle 329 (b), then the High Court's jurisdiction to enter-tain the petitions is not barred by anything contained inthe Representation of the People Act. By no stretch ofreasoning can it be said that the decision of an ElectionTribunal is part of the election or is an election matter.The piirpose of the petitions is to seek the interference ofthe High Court on the ground that in holding that theReturning Officer had improperly rejected the nominationof opponent No. 2 the Election Tribunal had assumed acertain jurisdiction which did not really arise and thatthere was an apparent error on the face of the record. Thequestion whether the Returning Officer was justified inrejecting the nomination of opponent No. 2 no doubt arises,but it does so incidentally and is not the main ground ofthe petitions. Whether the petitioners succeed in showingthat the Election Tribunal has assumed a jurisdictionwhich it did not possess or whether there is an apparenterror on the face of the record is another matter. If thegrounds are not made out the petitions are liable to fail,but the High Court will have jurisdiction to interfere onthese or any other sufficient grounds. That jurisdiction isnot.taken away simply because a question arises incident-ally as to the validity or otherwise of the nominationpapers filed by opponent No. 2. What is disputed in thesepetitions is the verdict of the Election Tribunal and ,thatis a matter falling outside the scope of 'election' as con-templated by article 329. (b). This preliminary objectionurged by the learned Advocate-General is therefore un-sustainable and must be rejected.

Now the petitioner's contention is that although undersection 33 (7), Representation of the People Act, it is opento a candidate to file more than one nomination paper forelection in the same constituency, by reason of section 40the candidate is required to appoint only one electionagent, either himself or some one other person, whatevermay be the number of the nomination papers and that he

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cannot appoint more than one election agent. Undersection 33 (1) the candidate is to deliver to the ReturningOfficer a nomination paper or nomination papers completedin the prescribed form and under sub-section (3) everynomination paper delivered under sub-section (I) is to beaccompanied by a declaration in writing subscribed by thecandidate that he has appointed as his election agent forthe election either himself or another person. The petition-ers contend that the election agent thus appointed is tobe one person only and not more than one and he is to bethe same person in all the nomination papers. Undersection 36 (2) the Returning Officer shall examine thenomination papers, and he may refuse any nomination onone of the grounds contained in clauses (a) to (e) of thesub-section, one of these, clause (d), being that there hasbeen any failure to comply with any of the provisions ofsection 33 or section 34. The nomination papers in thiscase were rejected by the Returning Officer on the groundthat there was a failure to comply with the provisions ofsection 33 inasmuch as more than one election agent hadbeen nominated by the present petitioners. The Tribunalhas accepted the view, and in our opinion rightly so, thata candidate cannot appoint more than one election agentand whatever may be the number of the nomination papersone and the same person has to be appointed as an electionagent in all of them. The Tribunal has further held thatthe appointment of more than one election agent does notinvalidate all the nomination papers and, in doing so it hasduly considered the provisions of sub-sections (1) and (3)of section 33 as also of the foot-note appended to the formof the nomination paper prescribed under rule 4 of therules' framed under the Act.

The form is in Schedule II at page 70 of the rules andthe foot-note relating to the appointment of the electionagent says:

" Only one election agent is to be appointed by a candi-date. If more than one nomination paper is delivered byor on behalf of a candidate for election in the same consti-tuenc}7, the name of the election agent so appointed,whether such agent is the candidate himself or any otherperson, shall be specified in each of the nomination paper."

The Tribunal has accepted the position that, only oneelection agent is to be appointed; all the same it has taken

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the view that there is nothing in these sections or in therule or in the foot-note to say that the appointment ofmore than one election agent will invalidate all the nomi-nation papers. In the Tribunal's opinion the first nomina-tion paper filed by the candidate in each case was in order,it being filed in the prescribed form, and that the secondnomination paper in which a different election agent hadbeen declared was invalid. The Tribunal has come to thisconclusion on general principles of law regarding principalsand agents and the gist of its reasoning is that on thecandidate appointing a particular individual as his electionagent, he has exhausted his right under the statute andany further appointment of such other person as his agentwould be in excess of the statutory right and would there-fore be inoperative and void. Consequently when opponentNo. 2 in Application 13 of 1953 appointed Ranchhodji ashis agent in the first nomination paper, his right to appointan election agent under section 40 was exhausted and hehad no further right to appoint any other person as hiselection agent before revoking the appointment firstmade.

In the TribunalVopinion, the appointment of an electionagent made in the second nomination paper was void andof no effect whatever with the result that the second nomi-nation paper did not contain any declaration about theduly appointed agent. However, according to the Tribunal,this did not affect the validity of the declaration regardingthe appointment of the election agent in the first nomina-tion paper and the first was therefore a valid nominationpaper, and the Returning Officer was not right in refusingthe opponent No. 2's nomination. The facts in the otherpetition are slightly different, but the same principle hasbeen applied by the Tribunal in reaching the conclusionthat the nomination of opponent No. 2 of that case waswrongly refused by the Returning Officer. The Tribunalhas relied upon the decision in Benares and MirzapurDistricts Mohammadan Rural Constituency 1937{l), and hasalso referred to with approval the order of the ElectionTribunal constituted to hear a petition filed by a candidatefrom the Borsad Constituency for election to the Bombaj-Legislative Assembly: M.M. Mahidav. C.I. KhodaBhai (2).

(1) Sen arid Poddar 154. ' (2) 1 E.L.R. 330.

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Mr. Chimanlal Shah has urged that the decision of theElection Tribunal in the present case was altogether wrongand he has even characterized it as perverse. The conten-tion is that once the Tribunal holds that one and the sameperson has to be appointed as an election agent despitethe number of nomination papers, the Tribunal had to holdthat the provisions of section 33 (3) read with section 40had been contravened and that the nomination of the candi-date was liable to be refused under section 36 (2) (d). It isurged that that was the only natural corollary of the viewthat only one election agent could be appointed, and thatonce that requirement was not complied with, it must followas an inevitable consequence that all nomination paperswere invalid and that the nomination of the candidate wasliable to be refused. He seeks to derive support for thisview from " A Handbook for Candidates" issued by theElection Commission, India, in Chapter II whereof, dealingwith nominations, it has been stated in the note to clause (9)of the Chapter (at page 10) that the name of the sameperson should be mentioned as election agent in each of thenomination papers, that the candidate cannot have differentelection agents in different nomination papers filed by himand that violation of this rule may result in rejection of allhis nomination papers. The Election Tribunal has takennote of this note, and has treated it as not authoritativeand not binding.

Mr. Chimanlal Shah has also brought to our notice anorder of the Election Tribunal of the State of Ajmer inMengh Raj v. Bhimandas and Others (*), Election PetitionNo. 242 of 1952, where the Tribunal has held that theappointment of more than one person as an election agentin different nomination papers may result in the rejectionof all the nomination papers and that the ReturningOfficer's order rejecting all the nomination papers on thatground was valid. We do not consider it necessary todetermine in these petitions which of the two conflictingviews is correct, though speaking for ourselves we are notinclined to accept the argument based on the theory of theexhaustion of the candidate's right to appoint an electionagent on his once exercising that right by appointing aparticular individual as his agent. Section 33 (7) of theRepresentation of the People Act permits a candidate to

(1) 2 E.L.R. 301. .

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E. L. B,.] HAMIRKHA ALABKHA V. RETURNING OFFICER 243

file more than one nomination paper, and if that is so, theright to appoint an election agent in each of the nominationpapers is implicit. No question of the exhaustion of thatright can therefore arise and the only factor that circum-scribes the right is that the election agent so appointedshould be the same person in all the nomination papers.But whatever that might be, the Election Tribunal had thejurisdiction to decide whether the nomination paper ofopponent No. 2, had been validly rejected or otherwise andin fact it was the only body which could decide thatc[uestion. There is therefore no question of assumptionof a jurisdiction which it had not; on the contrary,.thatjurisdiction was vested in the Tribunal by the very provi-sions of the Act. Under section 100 (1) (c) of the Act, if theTribunal is of the opinion that the result of the electionhas been materially affected by the improper acceptance orrejection of any nomination, the Tribunal shall declare theelection to be wholly void.

The jurisdiction was in the Tribunal and the Tribunalwas constituted for the purpose of exercising thatjurisdiction. It was open to the Tribunal to construesections 33, 36 and 40 of the Act as also the foot-note tothe form of the nomination paper in Schedule II, in themanner that seemed to it to be right, and because theTribunal's view may happen to be not correct, assumingthat it was so, it will not mean that the Tribunal hadcommitted any flagrant violation of the law or that itsfinding was perverse. The finding may be erroneous butthe Tribunal had the jurisdiction to decide rightly as wellas wrongly. Two views were possible on the question oflaw which the Tribunal was called upon to decide and itwas open to the Tribunal to take one view in preference tothe other. The view urged for on behalf of the petitionerswas not the only or the inevitable view, and it is wrong, onthat footing, to urge that after having held that only oneelection agent could be appointed, it was not open to theTribunal to hold that the first nomination paper was validand that in doing so it assumed a jurisdiction which it didnot have. The argument is a contradiction in terms and atthe highest it amounts to saying that the Tribunal's orderwas wrong in law. But, as I said, two views were possibleand the mere fact that two views are possible on a question

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244 HAMlRKHA ALARKHA V. RETURNING OFFICER [VOL. V

of law does not make the decision of the Tribunal withjurisdiction bad on the ground that it has erred in law.

This question has been considered by the Supreme Courtin Parry & Co., Ltd. v. C. E. Association 31adras{1). There,a writ was sought from the Madras High Court against adecision of the Labour Commissioner, and the High Courthaving interfered by a writ, the Supreme Court observed asfollows:

" The Commissioner was certainly bound to decide thequestions and he did decide them. At the worst, he mayhave come to an erroneous conclusion, but the conclusionis in. respect of a matter which lies entirely within thejurisdiction of the Labour Commissioner to decide and itdoes not relate to anything collateral, an erroneous decisionupon which might affect his jurisdiction. The records ofthe case do not disclose any error apparent on the face ofthe proceeding or any irregularity in the procedure adoptedby the Labour Commissioner which goes contrary to theprinciples of natural justice. Thus, there was absolutelyno ground here which would justify a superior court inissuing a writ of certiorari for removal of an. order or pro-ceeding of an inferior Tribunal vested with powers toexercise judicial or quasi-judicial functions. What theHigh Court has done really is to exercise the powers of anappellate court and correct what it considered to be anerror in the decision of the Labour Commissioner. Thisobviously it cannot do. The position might have beendifferent if the Labour Commissioner had omitted to decidea pat ter which he was bound to decide and in such casesa mandamus might legitimately issue commanding theauthority to determine questions which it left undecided :vide Board of Education v. Eice(2), but no certiorari isavailable to quash a decision passed with jurisdiction byan inferior Tribunal on the mere ground that such decisionis erroneous ".

In Veerappa Pillai v. Raman and Raman Ltd.(3), dealingwith the ambit and scope of the High Court's jurisdictionin interfering with the orders of an inferior Tribunal, theSupreme Court has held:

"Such writs as are referred to in article 226 areobviously intended to enable the High Court to issue them

;,.(1);A.I.R, 1.952.3.0. 179.. ,/(2) [1911] A.C. 179. _... (3,)..A.I.Rt 1352 &C. 192...

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E. L. B,.] HAMIRKHA ALARKHA V. RETURNING OFFICER 245

in grave cases where the subordinate tribunals or bodies orofficers act wholly without jurisdiction, or in excess of it,or in violation of the principles of natural justice, or refuseto exercise a jurisdiction vested in them, or there is anerror apparent on the face of the record and such act,omission, error, or excess has resulted in manifestinjustice. However extensive the jurisdiction may be, itseems to us that it is not so wide or large as to enable theHigh Court to convert itself into a court of appeal andexamine for itself the correctness of the decisions im-pugned and decide what is the proper view to be taken orthe orders to be made. "

Again,, in Ebrahim Aboobakar v. Custodian General, EvacueeProperty, Neiv Delhi^), their Lordships have held that awrit of certiorari cannot be granted, to quash the decisionof an inferior court within its jurisdiction on the groundthat the decision is wrong. It must be shown before sucha writ is issued that the authority which passed the orderacted without jurisdiction, or in excess of it, or in violationof the principles of natural justice. Once it is held thatthe court has jurisdiction, but while exercising it, it made amistake, the wronged party can only take the course pres-cribed by law for setting matters right inasmuch as a courthas jurisdiction to decide" rightly as well as wrongly. Seealso Mohsinali v. State of Bombay {*).

The question of the power of superintendence of theHigh Court under article 227 has been considered inJagannath v. Mt. Puniya(3). After a review of therelevant decisions on the subject, it was held that the word'superintendence' in article 227 includes administrative aswell as judicial superintendence. This view was alsotaken by our own High Court in Bavalal v. Jivanlal^), butit was there pointed out that the fact that the powers ofsuperintendence included interference in judicial matters aswell, did not mean that the High Court should invoke thesepowers in every case where the court finds some error offact or law in the proceedings of the lower courts andTribunals, and that if this was done the limitation placedupon a court of second appeal under section 100, CivilProcedure Code, and a court of revision under section 115,

(1) A.I.R. 1952 S.C. 319. (3) A.I.R. 1952 Madh. B. 51.(2) A.I.R. 1951 Bom. 303, (4) A.I.R. 1951 Sau. 43.

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246 HAMIRKHA ALARKHA V. RETURNING OFFICER [VOL.V

Civil Procedure Code, would become nugatory. TheMadhya Bharat High Court, has held that the power ofsuperintendence under article 227 is not restricted tocases of non-exercise or illegal exercise of jurisdiction butextends also to cases where there has been an obviousmiscarriage of justice because a court or a Tribunal hasapproached the matter entrusted to it in an arbitrary ordespotic manner and against all rules- of natural justice.At the same time it has held that the powers cannot beexercised to disturb a decision of a court or a Tribunalmerely because it has misconceived a point of law or cometo a wrong decision of the facts. The opinion ofRankin, C. J., in Manmatha Nath v. Emperor^), on thepower of superintendence, which the Madhya Bharat HighCourt has followed, is expressed in the following terms:

" Superintendence is not a legal fiction whereby a HighCourt Judge is vested with omnipotence but is a termhaving a legal force and signification. The generalsuperintendence which this court has over all jurisdictionsubject to appeal is a duty to keep them within the boundsof their authority, to see that they do what their dutyrequires, and that they do it in a legal manner. It doesnot involve responsibility for the correctness of theirdecisions, either in fact or law. " •

See also A. R. Sarin v. B. G. Patil(*).In Ratilal Abhechand v. Custodian General of Evacuee

Property^), we have held, following the decisions in Parry& Co.'s case^), and in Veerappa PillaVs case{b), thatthe High Court, not having the jurisdiction of an appellatecourt in proceedings for the issue of a writ of certiorari,will not embark upon an enquiry about the correctness orotherwise of the Custodian General's decision.

In the present case the Election Tribunal has not assumedjurisdiction which it had not, nor has it acted in contra-vention of any natural principles of justice, nor has theerror, if any, resulted in manifest injustice. At the highestthe only thing that can be said is that the decision of theElection Tribunal was erroneous, it having been influencedby a wrong interpretation of the relevant sections andrules bearing on the point. But the Tribunal had the

(1) A.I.R. 1933 Cal. 132. (4) A.I.R. 1952 S.C. 179.(2) A.I.R. 1951 Bom. 423. (5) A.I.R, 1952 S.C. 192.(3) A.I.R. 1952 Sau, 112,

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jurisdiction to decide rightly as well as wrongly and theHigh Court is not sitting in appeal against that decision.

Mr. Chimanlal Shah also urged that there was an appa-rent error on the face of the record, but we are unable to seeany such error. As observed by Chagla, C. J., in BatuJc v.Surat Municipality (')

" The mere fact that two views are possible on a ques-tion of law does not make the decision of a Tribunal withjurisdiction bad on the ground that it has erred in law andthe error is apparent on the face of the record. We havehad occasion several times to point out that only that errorwill be corrected by this court which is clearly apparent onthe face of the record and which does not become apparentonly by a process of examination or argument. "

With respect I agree with these observations. The errorto be an error apparent on the face of the record should beso apparent that one need not have to seek for it by aprocess of reasoning or argument, and if it is disclosed onlyby such a process, then obviously it is not an error apparenton the face of the record. I may also refer to Malikarjunv. Satyanarayan(2). There, the Revenue Tribunal held thatthe landlord was not entitled to get an order for possessionwithout giving a notice to the tenant. In taking that viewwhat the Tribunal did was

" to add to the provisions of section 24 and insistingupon notice by the landlord in cases of non-payment ofrent when the Legislature has thought fit not to require thelandlord to give notice. "

Therefore it was considered that the decision of theTribunal was not merely erroneous but there was an errorapparent on the face of the record. The error was patentbecause the Tribunal had acted in conscious violation ofthe Tenancy Act and its provisions. That could not be saidof the Tribunal's decision in the present case and the abovedecision is distinguishable on the facts. There is no errorapparent on the face of the record in the present case andthere is no scope for interference on that account.

The Advocate-General had urged that the ElectionCommission ought to have been made a party to the presentproceedings, and, in any event, the Election Tribunal

(1) A.I.R. 1953 Bom. 133. (2) A.I.R. 1953 Bom. 207.

EL-32

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248 HARI VISHNU KAMATH V. SYED AHMED [VOL. V

should have been brought on the record, since it is thatTribunal's order that is being impugned. In the view wetake, it is unnecessary to consider the question raised, andwe do not therefore say anything on the subject.

In the result, therefore, no grounds are made out for theissue of a writ under article 226 or for interferenceunder article 227 of the Constitution, and both the petitionsare therefore dismissed. In view of the importance of thequestions raised we make no order as to costs.

BAXI, J.—I agree.Petitions dismissed.

[ELECTION TRIBUNAL, HOSHANGABAD.]

HABJ VISHNU KAMATHv.

SYED AHMED AND OTHERS.*B. K. PURANIK (Chairman),

S. M. AHMED and B. CHATTERJI (Members).

March 27, 1953.Ballot papers—Interchange of Assembly and House of the People bal-

lot papers—Bonafide mistake of officers—Votes for House of the Peoplecast on Assembly ballot papers—Validity of votes—Effect of rule 47 (l) (c)—Election Commission—Power to treat such votes as valid—Counting ofvotes on different dates and places—Legality—Nomination—Electoral roll"Certified copy"—Copy issued by Head Copyist—Proposer also standingas candidate after filing nomination—Validity of nomination—Repre-sentation of the People Act, 1951, ss. 39 {4), 100 0?) (c)—Representationof the People Rules, 1951, rr. 28, 47(l){c).

Held, per B. K. PUEANIK and B. CHATTERJI (S. M. AHMED dis-senting)—

The provision contained in rule 47 (l) (o) of the Eepresentation ofthe People Eules, 1951, that a ballot paper contained in a ballot box shallbe rejected if it bears any mark different from the mark authorised foruse at the polling station or polling booth at which the ballot box inwhich it was found was used, is of a mandatory nature. Consequently,where there has been an interchange of ballot papers intended for theLegislative Assembly and the House of the People through a bona fidemistake of the Presiding Officer of a polling station in distributing the

* The petitioner filed a writ petition before the Nagpur High Court against theorder of the Tribunal in this case, but the petition (M.P. No. 174 of 1953) wasdismissed by the High Court (SINHA CJ. andBHUTT J.—MUDHOLKAR J. dissenting) onNovember 4, 1953. The Judgment of the High Court will be reported in due course,

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E. L. R.] HAB1 VISHNU KAMATH V. SYEI) AHMED 249

papers and ballot papers containing marks authorised for use for electionto the Legislative Assembly are used for election to the House of thePeople the ballot papers must be rejected by the Eeturning Officer.Election Commission also has no jurisdiction to issue an order that suchballot papers shall be treated as valid after they have been actuallyused wrongly.

Per S. M. AHMED (contra).—Eule 47(l)(c) is only a directoryprovision and ballot papers cannot be rejected if the rule has been sub-stantially complied with. If Assembly ballot papers are delivered tothe voters for the House of the People by the Presiding Officer of a poll-ing station, even though through a bona fide mistake, they must be treat-ed as authorised for use for the House of the People within the meaningof rule47(l)(c) and such ballot papers cannot be rejected by the Beturn-ing Officer. In any event, the Election Commission has ample powerunder rule 28 to direct the Eeturning Officer to treat such ballot papersas valid.

Held also by the Full Tribunal:—(i) Where a copy of an entry in an electoral roll bears the seal of

the office of the Deputy Commissioner who is also the Electoral Begis-tration Officer and it is signed as a true copy by the Head Copyist ofthe Deputy Commissioner's Office, it must be presumed that the DeputyCommissioner, who was the custodian of the Electoral Eoll had dulyauthorised the Head Copyist to issue true copies, and the copy mustbe treated as a "certified copy" of the entry.

Brij Naresh Singh v. Thahur Hukum Singh and Others (2 E.L.E.266) followed.

(ii) A voter whose name is entered in an electoral roll of a Legis-lative Assembly constituency being ipso facto a voter for the correspond-ing Parliamentary constituency, a Eeturning Officer may accept the no-mination of a candidate for a Parliamentary constituency OH productionof a copy of an entry from the electoral roll of the corresponding Assem-bly constituency.

(iii) A nomination cannot be rejected merely because afterfiling the nomination, the proposer also stands as a candidate.

(iv) Counting of votes on different dates and at different placesis not prohibited by the Eepresentation of the People Act, 1951, or theRules thereunder.

Gidwani Ghoithram Partabrai v. Agnani Thahur das Ghuharnial andOthers (l B.L.E. 194) dissented from.

Woodward v. Sarsons (L.E. 10 C.P. 733), Institute of Patent Agentsv. Lockwood ([1894] A.C. 347), Hangu Mohammadan Bural Constituency(Sen and Poddar 987), Mohan Singh v. Santohh Singh (l Doabia 192),Balailal Das Mohapatra v. Trailakya Nath Prodhan and Others (4 E.L.E.221), N. P. Ponnuswami v. Returning Officer (1 E.L.E. 133), Lewis v.Shephardson ([1948] 2 A.E.E. 503), Phillips v. Goft (17 Q.B.D. 812), Inre Pembroke (1908, 21 E. 433), Abdul Majid v. Sayed Ahmed (l Doabia229), Nurul Islam v. Muhammad Bafique and Others (2 E.L.E. 70),Naranarayan Goswami v. H. D. Chaudhury and Others (2 E.L.E. 253),referred to.

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250 HARI VISHNU KAMATH V. SYED AHMED [VOL. V

ELECTION PETITION NO. 180 of 1952.

N. C. Chatterji, R. L. Sharma and Badkas, for the peti-tioner.

O. S. Pathak, G. B. Parakh, Hazarnavis, Nanhelal andR. K. Dixit, for respondent No. 1.

ORDER.

1. The petitioner, Shri Hari Vishnu Kamath, was a candi-date for election to a seat in the House of the People fromHoshangabad Parliamentary Constituency in the State ofMadhya Pradesh. This is a single member constituency.Respondents Nos. 1 to 5 were the other candidates at thesaid election. Respondents Nos. 4 and 5 had withdrawn theircandidature. The polling for election to the above seat tookplace on the 31st December, 1951, and on the 7th, 17thand 24th January, 1952. The counting commenced on the25th January, 1952, and ended on 3rd February, 1952.Respondent No. 1, Shri Syed Ahmed, was declared elect-ed by a majority of only 174 votes over the petitioner, thecontesting candidates having been declared to have securedvalid votes as shown below :—-

(i) Petitioner—65201. (n) Respondent No. 1—65375.(in) Respondent No. 2—20653. (iv) Respondent No. 3—13609.

2. The election of the respondent No. 1 has beenchallenged by the petitioner on one or more grounds statedin the petition. Those are as below :—

(a) Counting was done contrary .to the rules at five differ-ent places and on five different dates.

(b) The Returning Officer erroneously totalled the validvotes of the petitioner in Piparia part of the constituencyas 5321 whereas the correct total should have been 5391—•a difference of 70 votes. .

(c) That at the polling stations, Sobhapur Nos. 316and 317, in Sohagpur part of the constituency, ballot papersbearing marks different from those which were authorisedfor use at those polling stations were found. These oughtto have been rejected by the Returning Officer under rule47 of the Representation of the People Rules of 1951. Thosewere, however, improperly accepted by the ReturningOfficer. If these votes found in the boxes, both of thepetitioner and the respondent No. 1, had been rejected as

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required by rule 47, the respondent No. 1 would nothave secured the marginal advantage of 239 votes, whichhe actually did" in these two polling stations.

{d) That the Returning Officer did not properly verifythe account of votes submitted by the Presiding Officersof the polling stations as required by rule 49. Thepetitioner quoted in this connection 16 instances in whichthe ballot papers found in the ballot boxes of the candi-dates at some of the polling stations were found to haveexceeded the number of ballot papers which should havebeen found in the boxes at those stations according to theaccount in Form 10. There were thus serious mistakes inthe counting of votes throughout the Hoshangabad Consti-tuency and therefore a total recount of valid votes wasnecessary.

3. For the above reasons the petitioner contended thatthe election of the respondent No. 1 was void and illegal.He contended that the election and the result thereof werematerially affected by the improper acceptance of thevotes at Sobhapur polling stations by the Returning Officerand also by the Returning Officer's not verifying theaccounts of the ballot papers submitted to him properly asrequired by the rules. He claims that he has, in fact,secured majority of valid votes and therefore he is entitledto a declaration that he has been duly elected to a seat inthe House of the People from Hoshangabad ParliamentaryConstituency. He thus claimed a declaration that theelection of the respondent No. 1 should be declared asvoid and he himself be declared to have been duly elected.

4. The respondent No. 1, Shri Syed Ahmed, contendedthat the election of the petitioner would have been voidfor reasons given by him in his recrimination, if he hadbeen a returned candidate and a petition had been present-ed calling in question his election. According to him, thepetitioner filed three nomination papers but none of themwas filed in accordance with the provisions contained insection 33 of the Representation of the People Act, 1951,and hence the petitioner was not a duly nominated candi-date and his nomination papers were improperly acceptedand the same had resulted in materially reducing thenumber of votes which the respondent No. 1 would haveobtained.

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5. The respondent No. 1 denied that counting of votesat five places was contrary to the rules or that there wasno proper verification of the account of the ballot paperby the Returning Officer. He admitted that under rule 28of the Representation of the People Rules, 1951, the Elec-tion Commission of India decided on 20th September, 1952,that the ballot papers to be used for purposes of voting atelections to the House of the People from all the Parliament-ary Constituencies in Madhya Pradesh should bear as itsdistinction mark a green bar printed near the left marginthereof. He further submitted that the above decision ofthe Election Commission was not final and it was andcould be modified and varied by the Election Commissionfrom time to time. He denied that ballot papers withdifferent distinguishing marks were found in the boxes atSobhapur polling stations Nos. 316 and 317. He submittedin the alternative that those votes were perfectly validvotes and they were rightly accepted by the ReturningOfficer. He pleaded that the provisions of rule 47 werenot mandatory and the Returning Officer had rightlyaccepted as valid, votes polled at the Shobapur pollingstations. In this connection the respondent No. 1 statedthat at Malkajra and at Bamangaon polling stations therespondent got 117 more valid votes which were wronglyrejected by the Returning Officer. He was entitled tohave those 117 more valid votes counted in his favour.

6. As to the discrepancies in the account of the ballotpapers in the 16 instances mentioned by the petitioner,the respondent No. 1 replied that verification of theaccounts of the votes may be ordered only in those 16cases if the Tribunal found the discrepancies to be due tothe misconduct of the Returning Officer or as materiallyaffecting the result of the election. In the end he statedthat his own election was perfectly valid as he secured amajority of votes and the petitioner could not succeed andcould not get the reliefs claimed by him.

7. Respondent No. 3, Shri Raghunathprasad Parsai, filedhis written statement but it is not of much consequenceand hence it is not necessary to state his case.

8. On these and other pleadings of the parties theTribunal framed the following issues for trial. The find-ings arrived at by the Tribunal are stated against theissues:—

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1. Was the petitioner a duly nominated candidatefor election to a seat in the Hoitse of the People from Hosh-angabad Parliamentary Constituency ?—Yes.

2. (a) Whether the counting of votes on five differentdates and at five different places was contrary to the Re-presentation of the People Rules of 1951 ?—No.

(b) If so, what is the effect of the above on the peti-tion and reliefs claimed therein ?—Nil.

(c) Whether the counting at five places and in fivedates was done according to the direction issued by theElection Commission of India in pursuance of the powersvested in them by the proviso to sub-rule (1) of rule 44 ?—Yes.

3. Whether the petitioner has in fact polled 5391valid votes at Piparia while the Returning Officer wronglytotalled them as 5321 ?—Yes.

4. (a) Whether several ballot papers found in the boxesof both the petitioner and the respondent No. 1 at Sobha-pur polling stations Nos. 316 and 317 bore different marksfrom the authorised marks and hence those were invalidvotes under rule 47 and ought to have been rejected by theReturning Officer ?—Yes.

(b) Whether 301 such invalid votes of the polling sta-tions Nos. 316 and 317 were added to the account of therespondent No. 1 and 62 to the account of the petitioner,the respondent No. 1 thus getting a marginal advantage of239 votes over the petitioner ?—Yes.

5. (a) Or whether the decision of the Election Commis-sion as to the distinguishing mark was not final and it wasmodified from time to time and the Returning Officer waspermitted to accept and count all votes irrespective of thedistinguishing mark ?—First decision was,final and couldnot be modified after polling.

(b) If so, whether the decision could be modified bythe Election Commission after the polling was done ?—No.

(c) Whether the above votes were valid otherwise alsofor reasons given by the respondent No. 1 in para. 9 of hisreply ?—No.

6. (a) Whether the Returning Officer did not, contraryto rule 49, verify the accounts submitted by the PresidingOfficer ?—He did not verify properly.

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254 HARI VISHNU KAMATH V. SYED AHMED [VOL. V

(b) Whether the petitioner and his agents could notcheck the counting of votes as a large number of boxeswere opened and account made simultaneously ?—Theycould.

(c) Whether the election has been materially affectedby the discrepancies in the number of votes recorded in theforms and those actually found in the boxes as alleged ?—No, though there are some discrepancies.

(d) Whether a fresh recount of valid votes should,therefore, be ordered ?—Not a total recount. Recount ismade by us in the specified cases.

(e) If recounting is ordered, of which polling stationsit should be ordered ?—As above.

7. Whether the election of Shri H. V. Kamath wouldhave been void for reasons stated by the respondent No. 1if he had been a returned candidate and if an election peti-tion had been made against him, as alleged?—No.

8. (a) Whether all the three nomination papers filed byShri H. V. Kamath were not filed in accordance with theprovisions of section 33 ?—They were proper and valid.

(b) Whether they all infringed other sections andrules made thereunder as shown in the recrimination ?—No.

(c) Whether all the nomination papers of the petitionerwere otherwise defective and invalid for reasons stated inthe recrimination ?—No.

(d) Whether all the nomination papers were, thereforewrongly and improperly accepted by the ReturningOfficer ?—No.

(e) Whether the improper acceptance of the nomina-tion papers of Shri H.V. Kamath has materially reduced thenumber of the votes which the respondent No". 1 wouldhave obtained ?—It was not an improper acceptance.

9. (a) Whether the Returning Officer illegally rejectedmany valid votes polled by the respondent No. 1 at pollingstations Nos. 299 and 371 as stated by him in paras. 13and 14 of the recrimination and paras. 10 and 12 of thewritten statement of the respondent No. 1 ?—No.

(b) Whether the Presiding Officers of Malkajra andBamangaon acted wrongly in issuing the wrong ballotpapers to the voters and not reporting the fact to theElection Commission and in not getting them validated as

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stated by respondent No. 1 in para. 15(6) of the recrimina-tion ?—Yes. But there is no provision for getting theballot papers validated by the Election Commission.

(c) Whether these votes should be accepted in favourof the respondent No. 1 as genuine votes ?—No.

(d) Whether if these votes are accepted in favour ofthe respondent No. 1, he would be found to have securedat these polling stations 117 more valid votes than thepetitioner ?—Yes, that would have been the result.

10. Whether the question of the intention of the votersis relevant and can be gone into ?—Yes, but'only as far asit can be gathered from the manner of voting.

11. To what relief is the petitioner entitled? Whatorder or orders should be passed by the Tribunal ?—-Thepetition deserves to be dismissed.

9. Issues Nos. 1, 7, 8{a) (6) (c) {d) and (e).—These areallied issues and are therefore taken up together for consi-deration. The respondent No. l's contention is that thenomination papers filed by the petitioner were improperlyaccepted by the Returning Officer. Those should havebeen rejected for various reasons stated by the respondentNo. 1. He pleaded that the election of the petitionerwould be void for the above reasons if he had been declar-ed elected and a petition was made calling in question hiselection. The reasons why the nomination papers of thepetitioner ought to have been rejected are the followingaccording to the respondent No. 1 :—

(1) That the 1st nomination paper, dated 13th Novem-ber, 1951, was not presented at the office but at the privateresidence of the Returning Officer.

(2) That the nomination papers did not show that thepetitioner was a candidate for a seat to the House of thePeople.

(3) That the certified copy of the entry in the electoralroll filed by him did not show that he was an elector in theParliamentary Constituency.

(4) That the certified copy of the entry in the electoralroll was not issued by the authority which had the custodyof the electoral rolls.

(5) That his proposer and seconder were not electorsin the Parliamentary Constituency,

EL— 33

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(6) That Shri Gour, his proposer, being himself acandidate for the same election could not be the proposer.

10. As to the first ground mentioned above, it is suffici-ent to refer to the petitioner's evidence on the point andalso to the Returning Officer's own certificates on the firstnomination paper dated 13th November, 1951, and on theother nomination papers that the papers were presented atthe office and not at the residence of the Returning Officer.There is no force in this contention.

11. As to the second ground, Shri R. 8. Dave, ElectionOfficer, as A. • W. 3, has himself stated in his evidence thaton perusing the nomination papers of the petitioner hecould immediately know that he was a candidate for a seatin the House of the People. The portion " LegislativeAssembly " from the title of the forms was already scoredout and the forms showed clearly that the petitioner was acandidate for a seat in the House of the People.

12. As to the grounds 3 and 4 above mentioned, wehave no doubt that the contentions have no force.It is in fact a question of the Returning Officer beingsatisfied that a particular candidate who files a nomi-nation paper is eligible to stand as a candidate orriot. The Returning Officer scrutinized all the three nomi-nation papers of the petitioner and has endorsed his certifi-cate of scrutiny on them saying that not only the petitionerwas eligible to stand but his proposer and seconder werealso qualified to propose and second the nomination. Thetrue copy of the entry in the electoral roll of Nagpur IConstituency of the Legislative Assembly, Madhya Pradesh,which accompanied the first nomination paper showed thepetitioner's name as an elector in that constituency andthis copy of the entry satisfied the Returning Officer thatthe candidate was qualified to stand as a candidate for aseat in House of the People. The Deputy Commissionersare the Electoral Registration Officers and with them aredeposited final electoral rolls as required by rule 24 of theRepresentation of the People (Preparation of ElectoralRolls) Rules of 1950 (vide Ex. R. 44). The true copy of theentry in the electoral roll which accompanied Ex. A-lis signed by the Head Copyist for Assistant Superintendentof Deputy Commissioner's Office, Nagpur. There is aseal, on the back of the copy, of the office of the Deputy

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Commissioner, Nagpur. It is presumed that the ElectoralRegistration Officer (Deputy Commissioner, Nagpur) hadauthorised his Head Copyist to issue true copies of theentries in the rolls under his signature. Section 114, illus-tration (2), of the Evidence Act raises a presumption thatall official acts are regularly performed. It must be pre-sumed that Deputy Commissioner, the Electoral Registra-tion Officer, who is the custodian of the electoral rolls(vide exhibit R-44) had duly authorised his Head Copyistto grant true copies. We rely on the decision in ElectionPetition No. 208 of 1952, Brij Naresh Singh v. ThalcurHuhumsinghi1) for the above view.

13. The Returning Officer was satisfied by the perusalof the copy of the entry filed by the petitioner that he wasqualified to stand as a candidate. The copy is no doubtof the entry in the electoral roll of a Legislative AssemblyConstituency but there is no separte electoral roll for thecorresponding Parliamentary Constituency. A voterrecorded in the electoral roll of a Legislative Assembly isalso i-pso facto a voter for the corresponding ParliamentaryConstituency. Shri Dave, Election Officer's evidence isvery pertinent on this point. There was no separate rollof Parliamentary Constituency with a printed label to thateffect on it. Electoral rolls of some Legislative AssemblyConstituencies formed also the electoral roll xfor theHoshangabad Parliamentary Constituency.

14. As regards ground No. 5, the proposer and seconderof the petitioner were also electors or voters both for theLegislative Assembly Constituency and for ParliamentaryConstituency as stated by Shri Dave, A. W. 3, and theirnames, like the names of the proposer and seconder of therespondent No. 1, were verified from the same elctoral rollof Legislative Assembly Constituency. They were thusrightly held by the Returning Officer as persons dulyqualified to propose and second the petitioner's nomina-tion.

15. As regards ground No. 6, the serial number borneby the nomination paper of Shri Gour, is 5. It was filedon 14th November, 1951. The first nomination paper ofthe petitioner is serial No. 1 and bears the date 13thNovember, 1951. Shri Gour was not thus a candidate on

[\: J, ii.L.K. >00.

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13th November, 1951, when he proposed the petitioner'snomination. He could propose it.

16. For all the above reasons we are of the opinion thatthe nomination papers of the petitioner were rightlyaccepted as valid nomination papers and the right of thepetitioner to present this election petition against therespondent No. 1 is not at all affected. Nor could thepetitioner's election have been declared void if he had beenelected and a petition made questioning his election. Itis also clear that the defects in the nomination papers, ifany, being technical and not of a substantial character, thenomination papers could not be rejected [see 33(4), Repre-sentation of the People Act, 1951]. We find accordinglyon issues 1, 7, 8(a), (b), (c), (d) and (e).

17. Issues Nos. 2 (a), (b) and (c).—We do not agree thatcounting of votes on different dates and at five differentplaces was prohibited by the Representation of the PeopleAct of 1951. This course was permitted by the ElectionCommission for speedy counting. Moreover, rule 44(2)permits the counting to be done at more places thanone if permitted by the Election Commission. Exhibit R-47and R-48 will show that the Election Commission permittedcounting to be done at five places in the same constituency.Betul proper is not situate in the constituency. Thatdid not, however, affect the election or its result materially.There is no substance in this grievance. Moreover, Ex. R-49could show that it was permissible to hold counting at aplace outside the constituency also. We hold accordingly.

18. Issue No. 3.—It was conceded in the argumentstage by the counsel for the respondent No. 1 that thepetitioner's total of valid votes at the Piparia part of theconstituency should be 5391 and it is wrongly shown as5321 in Form 14 (Ex. A-14 and also in the original Form14). The total was made again by the Tribunal and itwas found that the correct total is 5391. There is thus adifference of 70 votes. This number must be added to thetotal number of valid votes (65201) declared to be polledby the petitioner.

19. Issues Nos. 4{a) (b), 5(a) (b) (c) and 9(a) (b) (c) and(d).—These are allied issues and are therefore discussedtogether. The petitioner, Shri Kamath's contention is thatalthough the Election Commission of India has decided

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under rule 28 (Representation of the People Rules of 1951),that the ballot paper to be used for the purpose of votingat elections to the House of the People from all Parlia-mentary Constituencies in Madhya Pradesh State shallhave as a distinguishing mark—a thick green bar printednear the left margin, yet in the ballot boxes used at thePolling Stations of Sobhapur Nos. 316 and 317 of theSohagpur part of the Hoshangabad Parliamentary Consti-tuency ballot papers bearing different marks were found.His contention was that all such ballot papers ought tohave been treated as invalid votes and ought to have beenrejected, therefore, under the mandatory provisions of rule47 (1) (c). The Returning Officer, however, accepted theseballot papers as valid ones and counted them as such. Thesaid action of the Returning Officer was attacked as illegal.The respondent No. 1 was said to have polled 301 suchvotes and the petitioner himself 62 and thus the respond-ent No. 1, Shri Syed Ahmed, thus secured a marginaladvantage of 239 votes over the petitioner. The respondentNo. 1 actually polled only 174 more votes than the peti-tioner as per the final results declared by the ReturningOfficer.

20. If the petitioner's stand is correct and if these votespolled both by the petitioner and the respondent No. 1, atthe abovementioned polling stations at Sobhapur arereally invalid votes and they are rejected by us, it is clearthat the narrow margin of 174 votes in favour of the res-pondent No. 1, would be lost and the petitioner will befound to have polled a larger number of valid votes thanthe respondent No. 1.

21. Respondent No. l's reply to the above contentionof the petitioner is that the votes polled by him and thepetitioner at Sobhapur Polling Stations Nos. 316 and 317were valid votes and they were rightly accepted as such bythe Returning Officer. He pleaded that the Presiding andPolling Officers at the above polling stations acted wronglyin issuing to the electors State Assembly ballot papers forbeing cast in the House of the People boxes and vice versa,There had been, according to him, an interchange of ballotpapers owing to the inadvertence and a bona fide mistakeof the Polling and Presiding Officers, and the ReturningOfficer obtained in time instructions from the Election

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Commission for regularizing the issue of wrong ballotpapers to the electors of the Parliamentary Constituency.The electors were not misled in any way in exercising theirvotes and the votes cast by them were perfectly genuineand valid votes and were rightly counted as valid votes bythe Returning Officer.

22. In this very connection the respondent No. l's ownclaim for treating as valid, votes which were, according tohim, wrongly rejected by the Returning Officer at the Poll-ing Station No. 299 at Malkajra and at Polling StationNo. 37.1 at Bamangaon, has to be considered. At theseParliamentary Polling Stations also ballot papers of theState Assembly were wrongly issued to the electors by thePresiding and Polling Officers. If these votes had not beenrejected and had been accepted as valid votes, he wouldhave secured a further advantage of 117 votes over thepetitioner.

23. We have, therefore, to consider whether wrongballot papers came to delivered to the voters at the Sobha-pur Parliamentary Polling Stations Nos. 316 and 317 onaccount of the mistake, negligence or inadvertence of thePresiding and Polling Officers and whether these votesfound in the boxes of the petitioner and respondent No. 1ought to have been rejected by the Returning Officer underrule 47(1 )(c), or, the rule being only directory, they couldnot be rejected and are rightly counted as valid votes forreasons stated by the respondent No. 1.

24. The evidence of Sk. Chand (R.W. 2), who workedas the Presiding Officer at the two "Sobhapur PollingStations and of the other two Presiding Officers, B. L.Choudhari (R.W. 1), and Nandkumar Jyotishi (R.W. 3),gives us the correct picture of the arrangements at thePolling Stations and also how the work of giving theballot papers to the voters and of exercising the votestook place. Inside each polling station or booth therewere two compartments one for keeping the boxesof the State Assembly candidates and the other forkeeping the boxes of the candidates for the House ofthe People election. Each such compartment for elec-tion in any constituency is, in fact, a polling station forthat constituency as per provisions of section 25 of theRepresentation of the People Act. Opposite these two

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compartments sat one Polling Officer each whose duty wasto hand over ballot papers to the electors. First, the StateAssembly voting papers were given by one of them and thevoter after exercising that vote in the State Assemblycompartment went next to the other Polling Officer whosat near the other compartment for taking his ballot paperfor election of the House of the People candidates. Hegot the ballot paper of the House of the People electionfrom this Polling Officer and was then directed into thecompartment where the boxes of the House of the Peoplecandidates were kept. He then left the polling stationafter exercising the latter vote.

25. It is also abundantly proved that proper care wastaken to see that voters getting State Assembly papercould not go to the House of the People compartment andvice versa. The Presiding Officers had obtained from theReturning Officer sufficient number of ballot papers for thetwo elections at the booth or booths in his charge. ThesePresiding Officers then in their turn gave the ballot papersfor the two elections to the respective Polling Officersunder him who were placed by him in charge of the StateAssembly election and the House of the People election res-pectively. The correct procedure required to be followedunder the rules by the two Polling Officers was dulyexplained to them and they went on giving to the electorsballot papers for the election of which they were in charge.

26. Although the arrangements in the polling stationswere complete and the right procedure was duly explainedto the Polling Officers, there yet occurred cases of inter-change of ballot papers at these places, viz., Sobhapur,Bamangaon and Malkajra as is clear from the evidence ofthree Presiding Officers B.L. Choudhari, Sk. Chand andNandkumar Jyotishi. From the perusal of Shri GidwawV*case (J) decided by the Bombay Election Tribunal, we get itthat similar interchange of ballot papers took place atnumerous polling centres in India and in Bombay Statealone in 23 such cases the Election Commission hadregularized the use of State Assembly papers for House ofthe People election.

27. B. L. Choudhari (R.W. 1), has stated in his evidencechat although he had allocated duties to the Polling Officers

( 1 ) 1 E .L .R , 194, •<

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and given them instructions properly, he found at a certainstage of the poll that wrong ballot papers were before thePolling Officers. He saw that 130 House of the Peopleballot papers were wrongly given to the voters for theState Assembly election and about the same number of theState Assembly ballot papers were wrongly issued to theelectors by the other Polling Officer in charge of the House ofthe People election. He then put the right ballot papersbefore the respective Polling Officers and from that StateAssembly ballot papers were given to the electors for StateAssembly election and House of the People ballot papersfor House of the People election. The mischief had, how-ever, already been done in respect of 130 ballot papers ofboth the elections. How the mistake occurred, B. L.Choudhari could not explain. We are, however, inclinedto think it was probably committed by himself like Sk.Chand (R.W. 2) by giving wrong ballot papers to the Poll-ing Officers who were in charge of the two elections and henoticed the mistake after 130 ballot papers had alreadybeen delivered to the electors for the two elections.

28. Sheikh Chand has frankly admitted in his evidencethat he could not easily distinguish the colour bars on thetwo sets of ballot papers and having already removed thewrappers from the bundles of the ballot papers, he couldnaturally not know which ballot papers were for State-Assembly election and which for House of the People elec-tion. The members of this Tribunal had the opportunityof observing the two kinds of ballot papers from closequarters and a note has been made by us in the depositionof Sk. Chand in para. 11, of our observation as regards thecolour of the bar on the House of the People ballot papers.It was neither prominent nor could it be definitely said tobe green. The difference in the colour of the bar on thetwo sets of papers was one of shade only. State Assemblypapers had a dark brown shade and House of the Peoplepapers a light brown shade. Otherwise they were alike.

29. The mistake in issuing wrong ballot papers mighthave been, in our opinion, either on the part of the Presid-ing Officer, who not realizing properly the difference in thetwo sets of ballot papers, gave wrong papers to the PollingOfficers or the two Polling Officers having received right'ballot papers from the Presiding Officer and having kept

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them on the same table for sometime picked up wrong heaps'from the table. It is, therefore, clear theinterchange of ballotpapers was due to the bona fide mistake of either the Presid-ing Officer or the Polling Officer. It may be negligence orinadvertence on their ^ part but it was still a bona fidemistake resulting in the interchange of voting papers.

30. We are unable to agree with the suggestion of ShriR. L. Sharma, advocate for the petitioner, that the inter-change of voting papers might have been due to inter-change of the boxes in the two compartments, or the Poll-ing Officers might have changed their seats. As regards thefirst suggestion, the arrangement of the polling booth isprescribed and the Presiding Officer cannot allow the Houseof the People boxes to be kept in State Assembly compart-ment and vice versa. Every official working in the boothknows the compartment of State Assembly boxes and thecompartment of the House of the People boxes. EachPolling Officer is distinctly given duties concerning oneparticular election only. There could be, therefore, nointerchange of boxes or change of seats.

31. One more suggestion was thrown by the same coun-sel that some one might have collected ballot papers fromthe voters and thrown them in the boxes wrongly. In thefirst place ballot papers thus obtained from voters wouldnot be thrown in wrong boxes and moreover wrong ballotpapers are to be found in the boxes of both the compart-ments and of all candidates. A regular series of wrongballot papers were found in the boxes. There is no doubtthus that there has been an interchange of voting paperdue to some kind of mistake on the part of the PresidingOfficer or the Polling Officer and in any case it is quiteclear that as regards Sobhapur Polling Stations, where Sk.Chand was the Presiding Officer, the interchange of theballot papers which was wholesale, was entirely due to hismistake. All the ballot papers which were found in theState Assembly boxes of both the booths at Sobhapur inrespect of all the candidates were ballot papers of theHouse of the People election and vice versa.

32. Having held that there was thus an interchange ofballot papers at the Sobhapur Polling Stations due to abona fide mistake of the Presiding Officer, Sk. Chand, themain question to be considered in this case is if the Return-

F.L— 34

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ing Officer ought to have rejected the ballot papers foundin the boxes of both the petitioner and the respondentNo. 1, in these polling stations, under rule 47(1 )(c) of theRepresentation of the People Rules of 1951.

33. Rule47(l)(c) lays down that the Returning Officershall reject a ballot paper contained in a ballot box if itbears any serial number or mark different from the serialnumbers or marks of ballot papers authorised for use at thepolling station or the polling booth at which the ballot boxin which it was found, was used. The respondent No. 1contends that this rule is directory only. The question,therefore, arises if this rule is mandatory or only directory.This rule, along with the rest of the rules known as Repre-sentation of the People Rules of 1951, have been made by theCentral Government after consulting the Election Commis-sion, in exercise of the rule-making power conferred on theCentral Government under section 169 of the Represent-ation of the People Act of 1951. Section 169 itself says thatthese rules are made for carrying out the purposes of theAct. Under article 324(1) of the Constitution of India thesuperintendence, direction and control of all elections toParliament, State Legislatures etc., shall be vested in theElection Commission. Rules which the Central Governmentmakes after consulting the Election Commission pertainto various matters connected with election as mentionedin section 169(2). These matters are inter alia the contentsof the ballot papers, the manner in which votes are to begiven, and the manner in which scrutiny and counting ofvotes are to be made etc.

34. As regards the contents of the ballot papers, thereare rules 20 and 28 (Representation of the People Rules of1951). Under the former the Election Commission maydirect that, before any ballot paper is delivered to anyelector, it shall be marked with such official mark as maybe specified by the Election Commission. No such officialmark had been prescribed for this election. Rule 28 how-ever, lays down that the ballot papers to be used for thepurpose of voting at an election to which 'this' Chapterapplies shall contain a serial number and such distinguish-ing marks as the Election Commission may decide. Rule 23prescribes the procedure to be followed before recordingof votes and rule 25 prescribes the manner of recording

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votes after receipt of ballot papers etc. Rule 47 thenprescribes the grounds for rejection of ballot papers. Thereare numerous other rules in the Representation of thePeople Rules of 1951, regulating the manner and conduct ofelections and other connected matters. But in the presentcase, we are only called upon to consider whether rules 23(read with rule 28), 28 and 47 are mandatory or directory.

35. Relying upon Woodivard v. Bar sons (*), it was urgedthat the Representation of the People Rules of 1951 wereframed to carry out the object contained in the body ofthe Act, that they were directory only and it was enoughif they were complied with substantially. The rules andregulations which were contained in the Schedule of theBallot Act were called directory in Woodward v. Sarsonsbecause they were only directions as such. They are thusstyled in the Act itself. The decision in Woodward v.Sarsons is rather helpful to, and supports, the petitioner'scase. 294 votes were rejected in that case because thePresiding Officer through mistake had written serial num-bers of the voters on the ballot papers. The voters werenot at fault and they gave their votes genuinely to theircandidates and yet the votes were rejected. That wasbecause of section 2 of the Ballot Act which provided for re-jection of such ballot papers and which was considered asmandatory. There can be no distinction in principle, onlybecause what was provided in section 2 of the old BallotAct is now provided in our law in the statutory rules in theform of rule 47. The statutory rules are part of the enact-ment and have equal statutory force. In England also thethe provisions of section 2 of the Ballot Act have beenreproduced in rule 48(1) of the Parliamentary ElectionRules and it could not be said that rule 48(1) of the Parlia-mentary Election Rules is not now mandatory and is onlydirectory because it is only a rule. If provisions of rule48(1) in the English rules of 1949 are mandatory to-day,provisions of rule 47(l)(a)(b)(c)(d) of the Indian Rules areequally mandatory. What was contained in the directionsin Schedule II of the Ballot Act is now reproduced in rule48(2) of the English Rule and that part of rule 48 may besaid to be directory as the penalty of rejection is notprescribed in it and it rather leaves a discretion to the

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Returning Officer to enter into the question of intentionof the voters etc.

36. In considering whether rules framed under a statuteshould be regarded as directory, it should be borne in mindthat the tendency in the modern legislation has been in thedirection of placing in the body of an Act merely a fewbroad general rules or statements of principles and relegat-ing details to statutory rules. This system delegates Legis-lative work to the Executive Government by empoweringit to make rules which do not require express confirmationby the Legislature. (Ilbert's Mechanics of Law Making,page 139). It was in keeping with this tendency thatfundamental provisions of the Ballot Act, matters regardedas of the essence in Woodward v. Sarsonsi1), were incorpor-ated in the English Parliamentary Election Rules. It isurged that the expression used in rule 48 (1) of the Parlia-mentary Election Rules corresponding to section 2 ofthe old Ballot Act is emphatic and unambiguous. It isundoubtedly so, but it is implicit in this contention thatthe general principle that statutory rules should beregarded as directory no longer holds and that the con-struction of the rules depends, as it must, upon the wordsused and other analogous considerations.

37. As to the rules Maxwell observes (at page 83), asfollows:—

" Rules made under an Act which prescribes that theyshall be laid before Parliament for a prescribed number ofdays, during which period they may be annulled by aresolution of either House, but that if not so annulled theyare to be of the same effect as if contained in the Act, andare to be judicially noticed, must be treated for all purposesof construction and obligation or otherwise, exactly as ifthey were in the Act. "

In the Representation of the People Act, 1951, similarprovisions are wanting, though, we understand, the rulesframed under the Act were laid on the table of the Parlia-ment for a period. The question is whether, in the absence ofthese provisions in the Act, the rules under the Act maynot be construed strictly and rigidly. We might inthis connextion point out that, though in Woodward v.Sarsons (l), the provisions in Schedule II were to have the

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same effect as the provisions in the Ballot Act, they wereconstrued to be only directory having regard to the subjectand the context. What we wish to emphasize is that undueimportance need not be attached to a provision in the Actlike " shall be of the same effect" in regard to rules.

38. Referring to the words in an Act, " shall be of thesame effect ", in Institute of Patent Agents v. Lockwoodi1),Lord Herschell observed as follows:—

" I have asked in vain for any explanation of themeaning of those words or any suggestion as to the effectto be given to them, if, notwithstanding that provision,the rules are open to review and consideration by thecourts. The effect of an enactment is that it binds allsubjects who are affected by it. They are bound to conformthemselves to the provisions of law so made. The effect ofa statutory rule, if validly made, is precisely the same thatevery person must conform himself to its provision and ifin such a case a penalty be imposed, any person who doesnot comply with the provisions whether of the enactmentor the rules becomes equally subject to the penalty. Butthere is this difference between a rule and an enactmentthat you may canvass a rule and determine whether or notit was within the power of those who made it, you cannotcanvass in that way the provisions of an Act of Parliament.Therefore, there is that difference between the rule and thestatute. There is no difference if the rule is within thestatutory authority, but a very substantial difference if itbe open to consideration whether it be so or not. "

In our country, even Parliamentary enactments must notinfringe the Constitution and the statutory rules must bewithin the authority committed by the statute.

39. In the same case, Lord Herschell observed at anotherplace as follows:—

" No doubt there might be some conflict between arule and a provision of the Act. Well, there is a conflictsometimes between the sections to be found in the sameAct. You have to try and reconcile them as best as youmay. If you cannot, you have to determine which is theleading provision and which the subordinate provision andwhich must give way to the other. That would be so with

II) [1534] A.C. 34'/.

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regard to the enactment and with regard to rules which areto be treated as if within the enactment. In that case,probably the enactment itself would be treated as thegoverning consideration and the rule as subordinate to it. "

40. It has not been disputed that the Election Com-mission had authority to prescribe the contents of ballotpapers to be used in general elections. The authority ofthe Central Government to make rule 47 (1) (c) undersection 169 of the Representation of the People Act, 1951,has not been challenged except in one respect. It has beenurged that it should be regarded as unconstitutional in that,as interpreted in the present case by the respondent No. 1,it would take away the constitutional right of franchise.As we would have occasion to show hereafter, there is nosuch constitutional or fundamental right. The right is thecreation of a statute and it must be exercised in the mannerprescribed by the statute itself. In view of the foregoingconsiderations, we have come to the conclusion that theRepresentation of the People Rules, 1951, and particularlyrule 47 ibid, must be regarded as within the enactment"for all purposes of construction and obligation orotherwise. "

41. When the language of a statute is plain andunambiguous, there is no scope for interpreting it andconsiderations of hardship, inconvenience or injustice oughtnot to weigh. Effect shall be given to the plain languageused in the statute. In this connection the followingpassage in Maxwell on Interpretation of Statutes at page 5,is noteworthy:—

" When the language is not only plain but admits ofbut one meaning, the task of interpretation can hardly besaid to arise. It is not allowable, says Vattel, to interpretwhat has no need of interpretation. Absolute sententiaexpositore non indiget. Such language best declares, withoutmore, the intention of the lawgiver, and is decisive of it. "

In this connection we also rely on the passages quoted atpages 129 and 130 of the Interpretation of the IndianStatutes by Jagadish Swarup, 1952 Edition :

" The primary and general rule of statutory construc-tion is that the intent of the law maker is to be found inthe language that he has used. He is presumed to knowthe meaning of the words and the rules of grammar. The

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courts have no function of legislation, and simply seek toascertain the will of the Legislator. It is true there arecases in which the letter of the statute is not deemedcontrolling, but the cases are few and exceptional and onlyarise when there are cogent reasons for believing that theletter does not fully and accurately disclose the intent "—(page 129).

" No court ought to depart from the meaning of plainEnglish words unless forced to do so by some very seriousinjustice or hardship which would arise from a literalinterpretation ; for instance, when the literal interpretationin the opinion of the court would operate so harshly thatthe court would be driven to suppose that there must havebeen some clerical mistake in the language of the section orclause of the Act. The mere fact, however, that the literalmeaning of the words used would lead to an injustice wouldbe no ground for disregarding the meaning "—(page 130).

42. The true aim of all rules of interpretation of statutesis to find the real meaning of the words used in an Act.For this purpose, it is always necessary to get an exactconception of the aim, scope and object of the whole Act.It has to be ascertained what the law before the Act was,what' mischief or defect was provided for, what the actualprovision is and why it was made. The Representation ofthe People Rules, 1951, are based on the ParliamentaryElection Rules, 1949. Before that, the matter was governedby the Ballot Act.

43. Comparing rules 20 and 28 of our rules with theParliamentary Election Rules of 1949 in England, it will beseen that while stamping of the official mark on the backof the voting paper is prescribed in rule 20 of the Parlia-mentary Election Rules, the contents of the ballot papers,viz., the distinguishing marks on them have not beenprescribed in the English Rules. In the Indian Rules(Representation of the People Rules of 1951), rule 20 saysthat the official mark on the ballot papers may be prescribedby the Election Commission. Rule 28, however, peremp-torily lays down that there shall be separate distinguishingmarks on the ballot papers to be used at different elections.The presence of distinguishing marks thus on a ballotpaper appears to be of the essence of an election, whateverbe the reasons for having different provisions in the Indian

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Rules from the English Rules. The purpose of a distin-guishing mark on a ballot paper in India and of the officialmark on the back of a ballot paper in England seem to bealike, namely, to lend authenticity to the ballot papers andto prevent fraudulent and improper use of the ballot papers.This appears to be one of the chief objects of the ElectionLaw both in India and in England. Rules 23, 28 and47 (1) (c) appear thus to be mandatory.

44. In England also, rule 48 (1), regarding the presenceof the official mark on the back of the ballot paper, is eventoday considered to be essential and imperative and itsbreach entails rejection of the vote. Even today theauthority of Woodward v. Sarsonsi1) reigns supreme andunchallenged in England. In India also the presence of anofficial mark on the voting paper would be essential underthe present rules if an official mark had been prescribed forIndian Elections. In Hangu M.R.1946(*), rule 81, whichobtained then and which provided for rejection of ballotpapers found without official marks on their back, was heldto be mandatory. In Mohan Singh v. Santokh Singh(3), therule providing for rejection of a ballot paper without anofficial mark was held to be mandatory. Similarly, therecan be no doubt that rule 47 (1) (c) is mandatory a's thebreach of clause (a) violates secrecy of the ballot. Itscounterpart in the English Rules, 48 (1) (c),has always beenconsidered to be mandatory. As regards the rule 47 (1) (d),also in the Indian Rules, there can be no doubt that it ismandatory and a spurious ballot paper shall always berejected.

45. Under sub-rule (2) of rule 47, voting papers mentionedIn the sub-rule shall be rejected by the Returning Officer.It is pertinent to note in this connection that a ballot paperwhich is in contravention of section 63 (1), is definitelyregarded as void under section 63 (1), while a ballot paperwhich contravenes rule 25, is not so void and yet both ofthem are placed on the same footing and have to berejected by the Returning Officer under rule 47 (2).

46. Under our rules, this distinguishing mark takes theplace of the" obligatory official mark in the Ballot Act andin the English Rules. Want of the official mark on the back

(1) I..R. 10C.P. 733, (2) Sen and Poddar 987. . . (3) \ Doabia 192.

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was fatal to the validity of the votes under the Ballot Act:Woodward v. Sarsons supra. It is good law even under theEnglish Rules now in force. There is no good reason whyit should be different in this country which has borrowedits rules from England.

47. Another rule is that construction is to be made of allthe parts together and not of one part only by itself. Thisis often indispensable even when the words are the plainest,for the true meaning must harmonise with the subject andwith every other passage in the statute. The rules whichare to be construed are :—

" RULE 23. Procedure before recording of votes.—(2)shall then cause the left fore-finger of the elector to

be marked with indelible ink and shall thereafter deliver aballot paper or the requisite number of ballot papers to theelector.

Before delivering the ballot paper or papers the poll-ing officer shall, where a direction has been issued in thisbehalf under rule 20, stamp the ballot paper or papers withsuch official mark as may have been specified under thatrule."

" RULE 28. Ballot paper and its contents.—The ballotpaper to be used for the purpose of voting at an electionto which this Chapter applies shall contain a serial numberand such distinguishing marks as the Election Commissionmay decide."

" RULE 47. Grounds for rejection of ballot papers.—(1)A ballot paper contained in a ballot box shall be rejectedif—

(a) it bears any mark or writing by which the electorcan be identified;

(6) in the case where a direction has been issued underrule 20 that the ballot paper shall contain an official mark,it does not contain the official mark ;

(c) if it bears any serial number or mark differentfrom the serial numbers or marks of ballot papers authori-sed for use at the polling station or the polling booth atwhich the ballot box in which it was found was used ;

(d) the Returning Officer is satisfied that it is a spuri-ous ballot paper or that it has been so damaged or muti-lated that its identity as a genuine ballot paper cannot beestablished.

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(2) If the Returning Officer is satisfied that an electorhas put into the same ballot box more than one ballotpaper in contravention of the provisions of sub-section (1)of section 63 and of rule 25, he shall reject all but one ofsuch ballot papers at the time of counting the ballot paperscontained in that box.

(3) A postal ballot paper which is not duly marked oron which more than one mark is placed against any candi-date's name or on which votes are given to more candi-dates than there are members to be elected, or on which amark is placed in such a manner as to make it doubtful towhich candidate it has been given or on which the signa-ture of the elector is not duly attested shall be invalid :

Provided that in the case of a plural member constit-uency where more than one vote can be given on the sameballot paper, if any vote is given by a mark which has notbeen duly made or by placing more than one mark againstany candidate's name or if any of the marks is so placedas to render it doubtful to which candidate it has beengiven, only the vote concerned, but not the whole ballotpaper, shall be invalid on that account.

(4) The decision of the Returning Officer as to thevalidity of a ballot paper contained in a ballot box or of apostal ballot paper or of a vote given on a postal ballotpaper shall be final subject to any decision to the contrarygiven by a Tribunal on the trial of an election petitioncalling in question the election. "

48. When clause (c) of rule 47 (1) of the Indian Rules isgrouped along with these three other clauses (a), (b) and (d)which are, as shown above, mandatory in their character,there can be no doubt that even clause (c) was intended bythe Legislature to be mandatory. If (c) was not so manda-tory and was merely directory, it would not have beenclassed together with clauses (a), (b) and (d) and wouldrather have been classed separately and rejection of votewould not have been prescribed for breach of that clause.In this connection the following passage at page 96 of theInterpretation of Indian Statutes by Jagadish Swarup,1952 Edn., is also noteworthy :—

" There is a natural presumption that identical wordsused in the same section, or in different parts of the same

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Act are intended to have the same meaning and effectthroughout the Act. "

It could not, therefore, be said that the expression" shall reject " in the case of rule 47 (1) (a), (b) and (d)possesses a different meaning than the expression " shallreject " which is used as regards clause (c).

49. The very arrangement of rule 47 lends support to theabove argument. Sub-rule (3) of rule 47 would show thatvotes mentioned in sub-rule (3) are simply dubbed by theLegislature as invalid but the penalty of rejection has notbeen prescribed for these votes as is done in sub-rule (1)and sub-rule (2) of rule 47. It is thus clear that the votesin sub-rule (3) have been put on a different level than thevotes mentioned in sub-rule (1) and sub-rule (2) of rule 47.The reason for thus separately grouping the votes in sub-rule (3) from the other votes, seems to be obvious andintentional. This sub-rule (3) appears to be the counter-part of sub-rule (2) of rule 48 of the English Rules. Boththese sub-rules in the Indian and the English Rules involvevotes in which marking is required to be done by voters.This necessarily involves going into the question of inten-tion of the voters to vote for any particular candidate. Inthe case of the votes in sub-rule (3) of our rule 47, it isthus clear that the Returning Officer may go into thequestion of intention of the voter and he may, therefore,hold the vote to be invalid or otherwise although the sub-rule (3) has generally regarded the badly marked votes asinvalid votes. This sub-rule may, therefore, be said to bedirectory but the sub-rules (1) and (2) of our rule 47, do notappear to be so directory and it is not permissible for theReturning Officer to take into account any other ex-traneous considerations while deciding the question of thevalidity of the votes covered by clauses (a) (b) (c) and (d)of sub-rule (1) and of the votes mentioned in sub-rule (2).There is no option but to reject the votes as soon as thereis a breach of these provisions.

50. Another rule of construction is that a provisionmust be obeyed exactly, when its non-observance is metwith an invalidating or nullifying consequence. The follow-ing passage at pages 259 and 260 of the Interpretation ofIndian Statutes by Jagadish Swarup, 1952 Edn., deservesattention in this contest.—

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" A statute is always understood to be directory whenit contains matter merely of direction, but not when thosedirections are followed up by an express provision, that, indefault of following them, the act shall be null and void.If the Act is directory its disobedience does not entail anyinvalidity, that is, a disregard of directory provisions in anAct will not make the transaction void altogether. If theAct is mandatory, disobedience entails serious legal conse-quences amounting to the invalidity of the act done in dis-obedience of the provision. The intention of the Legislatureshould be construed as mandatory, if the aim and object ofthe statute would be clearly defeated if the direction to doa thing in a particular manner is not strictly observed.Statutes are not directory when to put them in that cate-gory would result in serious impairment of the public orprivate interests that they are intended to protect."

It was urged that there was no nullifying provisionattached to the failure of the Returning Officer to rejectballot papers as provided by rule 47 (1) (c). We might, inthis connection, refer to section 100(2) (c) of the Act, whichprovides as follows :—

" Subject to the provisions of sub-section (3), if theTribunal is of opinion—

that the result of the election has been materiallyaffected by the improper reception or refusal of a vote orby the reception of any vote which is void, or by any non-compliance with the provisions of the Constitution or ofthis Act or of any rules or orders made under this Act orof any other Act or rules relating to the election, or byany mistake in the use of any prescribed form ;

the Tribunal shall declare the election of the returnedcandidate to be void. "

But we think that rejection contemplated by rule 47 (1)(c) itself is the invalidating consequence of disobedience ofprovisions against evasion in the use of the prescribed ballotpapers. We consider that public policy required a provi-sion like 47(1) (c) to guard against fraudulent use ofballot papers. We consider that use of the prescribed ballotpaper was considered as essential to the act or the thingdone and it must be so construed.

51. It is also a well recognized principle of interpreta-tion that similar words used in the Act and in the ruleg

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made under the Act will have the same meaning {viderule 20 of the General Clauses Act of 1897). Referring tosection 32 (4), we get that a nomination paper which is notreceived until 3 p.m. on the last date appointed underclause (a) of section 30 ibid, shall be rejected. Similarly,section 63 (2) lays down that if an elector gives more thanone vote to any candidate in contravention of clause (1) ofsection 63 then only one vote will be taken into accountand all others shall be rejected as void. If these words "shallbe rejected" impose on the Returning Officer an imperativeduty to reject the nomination paper under section 32 (4)and the voting paper under section 63 (2), it could not besaid that similar words " shall reject " occurring in rule 47have to be interpreted otherwise. They cannot mean" may reject " so far as rule 47 (1) is concerned.

52. It will also be seen that if rule 47 (1) (c) was intend-ed to be directory only they would have provided in rule 47some such provision as is contained in section 36 (4) whereit is laid down that the Returning Officer shall not rejectany nomination paper on the ground of any technicaldefect which is not of a substantial character. The Legisla-ture has not treated the breach of rule 23 read with rule 28,or rule 28, or breach involved in rule 47 (1) (c), on thesame footing as the breach contemplated in section 36 (4).The defect is not a technical defect but appears to be ef asubstantial character. The absence of a similar provisionlike section 36(4) in the scheme of rule 47 shows clearly theintention of the Legislature to treat rule 47(l)(c) not asdirectory but mandatory and imperative, because a ballotpaper with a different distinguishing mark is not to betreated as a ballot paper for that election.

53. It was held in OidwanVscase{}) that rule 47(l)(c) isdirectory. We respectfully differ from this view. We alsorespectfully differ from the reasons given by the Tribunalfor the view that rule 47(l)(c) is directory. That view andthe reasons given in support of the same in that case areopen to criticism. Firstly, in para. 8 of their judgment theyhave observed that all the rules framed under the Act aredirectory. It is a dogmatic statement not supported byreasons. The effective answer to this argument is that theabsolute provisions in the Ballot Act are now contained inthe English Rules of 1949. It could never be contended

U) 1 E.L.R. 19*.

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that all these rules are directory. In para. 9 they haveobserved that directions and instructions issued by theElection Commission have not the force of rules. Thiscannot be wholly correct as it will depend on the natureand character of these directions. In para. 10 they haveobserved that the description of the ballot paper was of nomaterial consequence and that the voters could not have beenmisled. This is in fact beside the point as the rule-mak-ing authority has formulated rule 47(l)(c) in an imperativemanner. What the reasons and motives for framing therules in this way were, cannot be a matter for the Tribunalto investigate and no inquiry can also be made if the voterswere misled or not.

54. Further in para. 11 they have depended upon theviews of the Election Commission in support of their viewthat the rules were directory. We humbly differ from such areasoning. The views of the Election Commission referredto may themselves be wrong and open to criticism. Theycannot have the binding force of a judicial decision. Theaction of the Election Commission in regularizing the issueof wrong ballot papers to the voters after the polling was overis itself ultra vires and it could not be called in support ofthe view that rule47(l)(c) is directory. The questionraised similarly in para. 12 of Bombay judgment whetherthe votes were genuine and whether they represented thetrue intention of the elector was also beside the point asrule 47 does not demand any inquiry on these lines and it,on the other hand, lays down explicitly that if wrong dist-inguishing marks are present on the ballot papers, theyshall be rejected. Reliance was placed by them on thedecision in Abdul Majid v. Syed Ahmad{1) and also in MohanSingh v. Santokh Singh (2). But it appears that there wasno rule in the former of the two cases providing for rejec-tion of a ballot paper under certain circumstances. Onlyrule 26 which obtained there was referred to and it merelysaid that the Polling Officer shall give to an elector a ballotpaper conforming to Form 11, bearing an official mark.No rule for rejecting ballot papers is discussed or referredto in the former case. As to the latter, Mohan Singh v.Santokh Singh{*), rule 8 of Chapter VII for rejecting a ballotpaper without an official mark was held to be imperative

(1)1 Doabia229. (2j 1 Doabie 192.

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though as regards rule 16 of Chapter VI, it was held to bedirectory because it laid down how the ballot papers willbe marked by the voters.

55. They further relied on a certain passage from Maxwellat page 326 regarding rules of interpretation. The passageas quoted certainly lays down correct law, but if theprescriptions of the same statute also provide the conse-quence of the failure of such public duty, then both theprovisions have to be construed together. In the presentcase, rules 23, 28 and 47 have all to be read together andthe result necessarily follows that all these provisions toge-ther have to be strictly complied with. The decision in theBombay case is moreover silent as regards rule 47(l)(a),(b)and (d). Surely it could not be said that these are alsodirectory in their opinion like rule 47(l)(c). Their obser-vation similarly that meticulous compliance of rule 47(1 )(c)is not necessary and only substantial compliance is enoughdoes not appear to be correct. Rule 47 admits of no suchdistinction as the ballot papers either have or do not havethe prescribed distinguishing marks. Rules 47 enactsclearly and definitely the law for deciding as to whichballot paper should be rejected by the Returning Officer.Rule 47 is for invalidating certain ballot papers and forrejecting them, while rule 48 which follows, speaks of validvotes which have to be counted. Rule 48 thus operates onthe basis of rule 47.

56. The interpretation put by that Tribunal on the wordsin rule47(l)(c) "authorised for use" at the polling stationsdoes not appear to us as correct. Section 25 of the Repre-sentation of the People Act of 1951, seems to be ignored.The polling stations for State Assembly election and for theHouse of the People election are entirely different undersection 25 and it is not correct to style the place in whichthese two polling compartments for two different electionsare situate as one polling station. It would be seenthat the Bombay Tribunal's view about the words "autho-rised for use etc." was not approved of in BalailalMohapatrax. Trailalcya Nath Prodhan and Others^), Elec-tion Petition No. 122 of 1952, decided by the West BengalTribunal.

57. The view of the Bombay Tribunal further that theElection Commission could validate any ballot paper after

(1) 4E. L. R.22.

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it was used does not, in our humble opinion, appear to becorrect. It is clear that under rules 28 and 47, the Elec-tion Commission has no such powers, and any instructionsor directions issued by the Election Commission for validat-ing the ballot papers after they have been actually usedare ultra vires. Rule 28 permits them to issue their direc-tions regarding the distinguishing marks once only and that,before the voting papers are actually supplied to the Re-turning Officers and Presiding Officers for being handedover to the voters at an election. Otherwise ballot paperswith different marks would be valid ballot papers in thesame election, an anomalous result.

58. The basic error committed in GidwanVs case is that,because certain rules expressed in the Ballot Act to bedirectory, were construed as directory in Woodward v.Sarsons, all provisions in rules, as distinguished from thebody of the Act, were presumably regarded as directory.We have shown that the legal principle is not acceptable.We have further shown that rules must be interpretedwith due regard to the words used, the subject and thecontext.

59. It was contended for the respondent No. 1 that astatute must be construed with regard to its subject-matterand object and hence, in the absence of a statutory defini-tion, a word is to be understood in the sense in which itbest harmonises with the object which the enactment hasin view. It was thus argued that the words "shall re-ject" must be construed so as to give effect to and promotethe object of the Representation of the People Act, which isto enable a voter to exercise his constitutional right of vote.It is sufficient to point out in this connection that it is nota constitutional or a civil right as in England but it is onlya right created by the statute or by a special law and it issubject to all the limitations imposed by that statute orthe special law, as held by the Supreme Court in N. P.Ponnuswami v. Returning Officer (*). The aim and objectof the Representation of the People Act is not only tofacilitate the giving of a vote by a voter but to maintainthe secrecy of the ballot and also to prevent fraudulent andimproper use of a ballot paper by prescribing variousprovisions in the Act or in the rules. Rule 47(1 )(c) willhave thus to be considered from the viewpoint of all these

(1) 1 E.L.R. 133; [1952] S. C. R. 64.

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important aims of the Representation of the People Act.Looked at thus, the rule will be capable of no other interpret-ation than that it is a mandatory rule requiring implicitobedience. Any other interpretation would leave loopholesand permit fraudulent practices. In this connection thefollowing passage from Maxwell on Interpretation ofStatutes at page 336 (5th Edition) also deserves attention:—

"They must look at hardships in the face rather thanbreak down the rules of law; and if, in all cases of ordinaryoccurrence, the law in its natural construction, is not incon-sistent, or unreasonable, or unjust, that construction is notto be departed from merely because it may operate with,hardship or injustice in some particular case."

60. For the above reasons we differ respectfully fromthe decision in the QidwanVs case and the two other ElectionPetitions in which the decision in QidwanVs case has beenaccepted as correct. The rule 47(1 )(c) is mandatory andand not directory and the Returning Officer had no autho-rity or right to accept as valid the invalid ballot papersfound in the House of the People boxes in the Sobhapurpolling stations. Those ballot papers obviously bore differ-ent marks than they should have borne according to theprescription of rule 28. They ought to have been rejected,therefore, as invalid votes under rule 47(l)(c).

61. The Tribunal verified from the bundles of the usedballot papers which were polled in favour of the respectivecandidates in this election at the Sobhapur polling stationsNos.- 316 and 317, in the presence of the counsel of theparties and it was found that Shri Syed Ahmed, respondentNo. 1, had secured 301 votes in these two polling stationsand Shri Kamath the petitioner, 62, and the other twocandidates, 34 and 46. It was also found that all theseballot papers which were found in the boxes of these candi-dates at these two House of the People polling stations ofSobhapur bore the chocolate or brown bar which wasprescribed for the ballot papers to be used at the StateAssembly election. It was also found that they belonged tothe same series of the State Assembly ballot papers whichwere mentioned in form No. 10 of the two polling stationsNos. 316 and 317 referred to above, as having been suppliedto the electors. It is thus clear that the ballot papers whichwere found in the boxes of the petitioner and the respondent

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No. 1, at these polling stations bore distinguishing marksother than those prescribed for the voting papers tobe used in the House of the People election. As alreadyfound above, these votes were votes which ought to havebeen rejected by the Returning Officer as they were hit byrule 47(1 )(c). When these votes—62 of the petitioner and301 of the respondent No. 1—are rejected and left out ofaccount, the respondent No. 1 will be found to lose themarginal advantage of 239 votes which he had gained overthe petitioner as regards the Sobhapur polling stations Nos.316 and 317. Issues 4(a) and (b) are decided accordingly.

62. As for issues 5 (a), (b) and (c), we have alreadyobserved that the decision of the Election Commissionregarding the different distinguishing marks which theyprescribed for the two kinds of elections taken under rule 28was final and they could not validate the wrong issue of ballotpapers at Sobhapur polling stations as done by them. Wehave already held that these votes were invalid and ought tohave been rejected as hit by rule 47(1 )(c). They cannotbe held to be valid for any reason. That wrong ballotpapers were issued to voters owing to a mistake of thePresiding Officer or Polling Officers cannot be a ground fortreating these votes as valid votes as rule 47(1 )(c) is per-emptory and does not admit of any such considerations asalready discussed before.

63. As regards the issues 9(a), (b), (c) and (d), we are ofthe opinion that the petitioner's votes at Malkajra andBamangaon polling stations were correctly rejected as in-valid votes. They are also hit by rule 47(l)(c) as theybore different distinguishing marks than those prescribedfor the voting papers of the House of the People election.They cannot be treated as valid votes. It is true that inthese cases also wrong ballot papers came to be delivered tothe voters because of the mistake of the Presiding Officer orPolling Officer but that circumstance cannot help therespondent No. 1.

64. Issues Nos. 6 (a), (b), (c), (d) and (e).—It is true thatcertain discrepancies are to be noticed in the account ofthe ballot papers. The petitioner has quoted in paragraph 11of this petition, 16 instances in which the discrepancies areon the face of the record. Form 10 of these 16 items(polling stations) showed certain numbers of voting papers

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which should be found in the boxes. However Form 14,showed a greater or smaller number of valid ballot papersthan actually found in the boxes. We verified thesediscrepancies and the result of our verification is containedin the order-sheet of 17th March, 1953. We found thatabout 13 and 1 more votes were shown in the Form 14 aspolled by the respondent No. 1. and the petitioner respect-ively, than were actually found in the boxes. Otherdiscrepancies could not be explained and some were clearlyinadvertent.

65. It is clear from these mistakes and discrepancies thatproper checking and verification were not done by theReturning Officer, but, having regard to the voluminouswork involved, it does not appear to have been possible forthe Returning Officer to check properly and avoid suchmistakes. This has not, however, materially affected theresult of the election and there is not much substance inthe complaint. It was further complained that a largenumber of boxes were opened simultaneously for countingthe votes but it was permissible to do so as stated by theElectoral Officer, Shri R. S. Dave (A.W. 3). Shri Dave hasalso stated that the work of clerks who counted was super-vised by an officer of a Gazetted rank and the candidates andtheir counting agents were given all facilities to supervisethe work. We do not think, therefore, that the petitionerwas prejudiced in any way and there is any force in thisgrievance. It is not moreover shown that very grave errorshave crept in or that the result of the election was affectedmaterially by such absence of proper verification. Somediscrepancies were brought to our notice and we readilylooked into them. We do not think that the case demandsa complete recount. We hold accordingly.

66. Issue No. 10.—The question of intention of thevoters may have to be considered while considering theeffect of the non-compliance of the rules. But no inquirywill be made into it. Their intention may be seen only fromthe manner in which the voters have voted.

67. Issue No. 11.—Having held that rule 47 (1) (c) ismandatory we have to consider what is the consequence ofthat view on the present case. Any non-compliance ofthat rule or even acceptance of other votes which are voidwill have no consequence except when thereby the result of

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the election is materially affected as provided in section 100(2) (c) of the Act. Here rule 47 (1) (c) alone was notdisregarded. There was also a non-compliance with rule 23,read in connection with rule 28 of the Representation of thePeople Rules of 1951.

68. It has been urged before us that there is no expressprovision or rule that a ballot paper having a particulardistinguishing mark should be delivered to an elector forany election. We are unable to agree with this view. Noofficial mark is prescribed under rule 20. No serial numberwas prescribed by the Election Commission acting underthe statutory rule 28. The only insignia of authenticityprescribed by the Election Commission acting under thestatutory rule 28 was the distinguishing mark. Do away withit and there can be no authoritative certainty as to whatballot paper ought to have been used. In that event itcould not be said with reference to the rules that any ballotpaper used at a polling station is less authentic than anyother, the reason is that there would be no authorized testfor authenticity and genuineness. This view, it will be seen,must lead to confusion, besides leaving considerable scopefor fraudulent practices. This is not all. Such a view willrender otiose rule 28 and thus violate another well acceptedrule of interpretation. In our view the ballot paperintended to be used and delivered under rule 23, is theballot paper having the distinguishing mark prescribedunder rule 28.

69. Here, the petitioner wants us to consider the effect ofthe non-compliance of rule 47 (1) (c). That non-complianceis founded upon the initial disregard of rule 23, read withrule 28. Indeed these sections are so intimately connectedthat one cannot be considered apart from the other. In thiscase we have not only to see how the disregard of a parti-cular rule has affected the petitioner. We have to considerhow the non-compliance of the two rules affected theelection as a whole. In our view we can go further. Infairness we must consider the cumulative effect of allviolation of law or disregard of rules to see if the result ofthe election was thereby materially affected. The true testin our opinion for determining whether the result of theelection is materially affected by the non-compliance ofany rules is to see what would have happened if these rules

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were strictly obeyed and not violated. In this particularcase, by sheer mistake caused no doubt by the faintness ofthe distinguishing mark, the officers employed at theSobhapur Polling Station, gave to the Parliamentaryelectors ballot papers meant for use at the State Assemblyelection. If that mistake had not been committed andthere was no non-compliance of rule 23 (read with rule 28),we are sure that the correct ballot papers would have beenfound in the box of the respondent No. 1. In effect theinitial non-compliance of the rule 23, read with rule 28,committed by the election officers makes for the disregardof rule 47 (1) (c) and to the same extent too. In otherwords, if rules 23 and 28 had not been disregarded, therespondent No. 1 would have got all those votes which itis claimed must be rejected. The total effect of- the dis-regard of the above rule 47 (1) (c) and 23, read with rule 28,is that the respondent No. 1 would have been where he isnow, except that petitioner would get about 80 more voteson account of mistake in calculation. We, therefore, holdthat the result of the election • has not been materiallyaffected by the non-compliance of this rule and there istherefore, no case for declaring the election of the respond-ent No. 1 to be void.

70. The facts of the present case do not fall to begoverned by any other part of section 100 (2)(c). It is not acase in which there has been an improper reception of avote or refusal thereof, nor of reception of votes which arevoid. It was argued that void votes were accepted in thiscase by the Returning Officer. We do not agree that thesevotes which the Returning Officer accepted were void. Thereason is that the votes which are to be treated as void orinvalid have been specifically so described in the Act andin the rules : [vide sections 62 and 63 and rule 47 (3)]. Wewish to stress that the Act and the rules make a distinctionbetween void and invalid votes and ballot papers whichmust be rejected.

S. M. AHMED.—1. I have had the privilege of perusing theproposed order of my learned colleagues, Shri B. K. Puranikand Shri B. Chatterji, who have elaborately dealt with allthe contentions raised by the parties to this petition, andhave recorded their findings thereon. I agree generally withmost of the conclusions arrived at by them in their order

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referred to above ; except their finding that the provisionsof rule 47 (1) (c) of the Representation of the People(Conduct of Elections and Election Petitions) Rules, 1951,are mandatory, which, I regret, I am unable to accept asbeing a correct proposition of law. With due respect,I submit I am not prepared to concede that these provisionsare mandatory. On the contrary, I am clearly of theopinion, for the reasons stated hereafter, that these provi-sions are merely directory and that it is sufficient if theyare complied with substantially in a case like this.

2. That there was interchange of ballot papers wholesalein the case of the Polling Stations Sobhapur Nos. 316 and317, in Sobhapur part of Hoshangabad ParliamentaryConstituency and partial in the case of Malkajra, PollingStation No. 299 of the Hoshangabad Parliamentary Consti-tuency and Bamangaon Polling Station No. 371 of Hoshan-gabad Constituency is amply proved from the evidence onrecord. The ballot papers meant for the electors of the State-Legislature were exchanged with the ballot papers meantfor the electors of the House of the People and vice versa.My leaded brothers, Shri B. K. Puranik and Shri B. Chat-ter ji, have in their judgment discussed the evidence in thisconnection at some length, and have, for very cogent andweighty reasons, which I need not reiterate here, come tothe conclusion that this was clearly a case of interchange ofballot papers. They have further remarked, to quote theirown words, '' it is, therefore, clear that the interchange ofballot papers was due to the bona fide mistake of either thePresiding Officer or Polling Officer. It may be negligenceor inadvertence on their part but it was still a bona fidemistake resulting in the interchange of voting papers"(concluding portion of paragraph 19 of their judgment).With these remarks I respectfully agree.

3. Now, having already found that there has been, infact, interchange of ballot papers in the case, due to themistake of the officers entrusted with the conduct of thepoll, the next thing we have to see is how far this mistakehas affected the election and the manner in which theseballot papers should now be dealt with. The ballot papersfor the State Assembly and those for the House of the Peopleare similar, except that on the left margin of the Assemblyballot papers there is a chocolate coloured bar and on the

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left margin of the Parliamentary ballot papers the distin-guishing mark is a green coloured bar. We have noted ourobservations as regards the coloured bars on two kinds ofvoting papers in the course of recording evidence ofShri Sk. Chand (R.W. 2), who was the Presiding Officer atSobhapur Polling Stations (page 3 of his deposition) asunder—

" For a long time even after having seen the two kindsof voting papers most of us were under the impression thatthe voting papers of the House of the People were still to betaken out from the bundles although both these kinds ofpapers were placed before us. The voting papers of theHouse of the People do not appear to have the green barprominently, nor can the colour of the bar on thesedefinitely said to be green. The difference between thecolours of the two bars on the two kinds of papers is one ofshade. The Assembly papers have a light shade of thebrown colour. On both are printed the words " M.P. " inthe centre. The colour of the background of both theballot papers is pinkish ".

Besides these distinguishing marks of bars of differentcolours there are separate series of serial numbers printedon the two kinds of ballot papers. If the officers had beencareful, the mistake could have been avoided or detected.In fact, in one case, viz., Bamangaon Polling StationNo. 371, the mistake was detected in the course of polling.Shri B. L. Choudhari, who was the Presiding Officer at thispolling centre deposes, as R.W. 1, about this incident (vide.paragraph 6 of his deposition) as under :—

" After a while and after the polling had commenced,I happened to go to these Polling Officers of booth No. 1,and I found that wrong ballot papers were in front of them.The ballot papers meant for the State Assembly were withthe other Polling Officer who was in charge of theParliamentary polling and vice versa. I found that about130 ballot papers were issued by each Polling Officerwrongly in the above manner. I then ordered and arrangedthat the right ballot papers were in charge of the rightPolling Officers and I directed them to issue them fromthat moment in the correct way ".

This case is not the solitary instance of such mistakeshaving been committed. Similar cases of interchange of

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ballot papers have occurred in other parts of India. Threepetitions namely, (i) Gidwani Choitram v. Agnani ThakurdasChuharmal and Others^), ElectionPetitionNo. 5 of 1952 de-cided by a Bombay Tribunal, (ii) Naranarayan Goswami v.H.D.Chaudhuri and Others (2), Election Petition No. 39 of1952 decided by a West Bengal Tribunal, and (Hi) BalailalMohwpatra v. Trailahhya Nath Prodhan(3), Election Peti-tion No. 122 of 1952 decided bj' a West Bengal Tribunal,brought to our notice involve, inter alia, this question ofinterchange of ballot papers.

4. The interchange of ballot papers in this case has beenheld to be due to bonafide mistakes on the part of the officersconcerned. We have next to see (i) whether the procedureof polling followed at this polling station was or was notaccording to law, and (ii) whether the result of the electionhas or has not been materially affected by reason of thisinterchange. As regards (i) there is ample evidence onrecord to show that the election at these polling stationswas conducted properly and correct procedure followed.Shri B. L. Choudhari (R. W. 1) who was the PresidingOfficer at Bamangaon Polling Centre, Shri Sk. Chand(R. W. 2) who was the Presiding Officer for the Sobhapurpolling station, and Shri Nandkumar Jyotishi (R. W. 3)who was the Presiding Officer at Malkajra polling station,give graphic description of the manner in which the pollingwas COD ducted at their respective polling stations. Twosets of ballot papers were distributed by them to the Poll-ing Officers in charge of these booths. The Assembly voteswere first cast, and after that, the voters received Parlia-mentary ballot papers to cast votes in different compart-ments where the Parliamentary ballot boxes were kept.The electors acted in good faith and were not confused ormisled by reason of any interchange of ballot papers. Theprocedure of voting by ballot was followed to the fullestextent and every elector appears to have voted as hewished or intended. I have thus not the least hesitation tohold that the correGt procedure was followed and the pollingwas conducted properly at each of these polling stations.As for No. (ii) there is no evidence on record to show thatthis interchange of ballot papers has in any way materiallyaffected the result of the election. The petitioner's case isthat if these interchanged ballot papers at Sobhapur

(1) 1 E . L . R. 194. (2) 2 E . L, R. 253. (3) 4 E. L. R. 22,1,

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polling station had not been counted and if these had beenrejected, as required by rule 47 (1) (c), the petitioner wouldhave secured a majority of valid votes, the petitionerwould have received 65,139 valid votes and the respond-ent No. 1, 65,074 valid votes only (vide para. 10 of thepetition). It is nowhere stated nor is it the case of thepetitioner that if the electors had been given correct validpapers at this polling station, they would have voted forthe petitioner or the result of the election would have beenmaterially affected. For, the electors knew that the ballotpapers that were delivered to them by the Polling Officerin charge of the Parliamentary polling booth at Sobhapurpolling station were meant for the House of the Peopleelection and they accordingly put their ballot papers intothe boxes of the candidates for whom they intended to votefor the House of the People. To this extent, I think, wecan go into the question of intention of the electors. I amtherefore of opinion that the result of the election has notbeen materially affected by reason of this interchange ofballot papers.

5. The petitioner has based his objection to these inter-changed ballot papers, for which neither the electors northe candidates can be blamed, on a technical ground. Asalready stated this interchange of ballot papers was due tobona fide mistakes on the part of the officers concerned,and the matter was one over which the voters had nocontrol. It does not, therefore, stand to reason why thevoters, in a case like this, should be disfranchised and whya candidate who has obtained more votes should be allow-ed to suffer because of this interchange. I may, in thisconnection, refer, with advantage, to a passage from anEnglish case Lewis v. ShephardsonQ), where the officialstamp on ballot papers was prescribed as ten perforatedholes, but a particular ballot paper which was challengedcontained only one hole. The Judge of the King's BenchDivision who decided that case, while allowing that voteto the petitioner, made the following observations :—

''Although it was not perfectly done, we think thepaper ought not to have been rejected on that account. Inevery other respect the vote is perfectly plain and no othersubstantial objection can be raised to it. We think that in

(1) [1948] 2 A.E.R. 503.

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a case where the voter is in no sense to blame, where hehas intended to vote and has expressed his intention ofvoting in a particular way, and, so far as this part of thetransaction is concerned, has done everything that heshould, and the only defect raised as a matter of criticismof the ballot paper is some defect on the part of the officialmachinery by which the election is conducted, a specialconsideration should (and, no doubt, would) be given inorder that the voter should not be disfranchised. So far asthis one vote is concerned it is quite clear from the cross inthe petitioner's section that the voter did all that he couldpossibly do to record his vote. The only challenge was thefact that the official stamp had been imperfectly applied.We are satisfied that there was the clear intention to applyit and we shall allow that, vote for the petitioner": ReSouth Newington (Kingstone-upon-Hull) Municipal ElectionPetition : Lewis v. Shephardsoni^).

On the analogy of the aforesaid English case to this casewe may construe our rules equally liberally and refuse toreject the interchanged ballot papers, I think.

6. So far, I have discussed the question of interchangeof ballot papers and their admissibility for the purposes ofvotes and counting of these votes, from a general andbroad point of view. Coming to the rules themselves, rule28 of the Representation of the People (Conduct of Electionsand Election Petitions) Rules, 1951, (hereafter called theRules) lays down that the ballot paper to be used for thepurpose of voting at an election to which the Chapterapplies shall contain a serial number and such distinguish-ing mark as the Election Commission may decide ; and rule47(1 )(c) thereof says that a ballot paper contained in a ballotbox shall be rejected if it bears a serial number or markdifferent from the serial number or mark of the ballotpapers authorised for use at the polling station or the poll-ing booth at which the ballot box in which it was found,was used. It may be noted that these and the allied ruleshave been framed under section 169 of the Representationof the People Act, 1951, (XLIII of 1951), which givespower to the Central Government after consulting theElection Commission to make rules for carrying out thepurposes of this Act. Most of these rules contain directions

(1) [1948] 2 A.E.R, 503,

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for the gviidance of the officers entrusted with the carryingout of the purposes of this Act, the purposes of the Actbeing to provide for the conduct of elections to the Housesof Parliament and the House or Houses of Legislature ofeach State, the qualifications and disqualifications formembership of those Houses, the corrupt and illegal prac-tices and other offences at or in connection with such elec-tions and the decision of doubts and disputes arising outof or in connection with such elections. Now, from a carefulperusal of rule 28 it is abundantly clear that it contains adirection intended for the Election Commission who maydevise a distinguishing mark for the ballot papers to beused for the purpose of voting at an election. No duty orresponsibility is cast on the voter or elector in this connec-tion. What happens if the Election Commission, eitherdeliberately or through inadvertence, neglects to decidesuch distinguishing marks and the ballot papers are allow-ed to be used for the purpose of voting at an election with-out such distinguishing marks, the election otherwisehaving been conducted properly ? Will all these ballotpapers be discarded and thrown away because of this wantof distinguishing marks and the electors disfranchised forno fault of theirs ? This would be unfair and unjust so faras the electors are concerned. Proper course, in such a casewould be to disregard this omission on the part of the

. officer and treat the ballot papers as valid votes. For,nowhere in the Act, or Rules, such votes have beendeclared to be void or invalid votes, although there areexpress provisions in the Act itself declaring certain typesof votes as void votes. In section 100 (2) (c) of the Act twoclasses of votes are considered, viz., improper reception orrejection of a vote and a void vote. This shows thatLegislature has made a distinction between these two kindsof votes.

7. It may further be noted that no penalty has beenprovided either in rule 28 or rule 47 (1) (c) and it is now-here declared that such ballot papers which do not bearthe distinguishing marks, as prescribed by the ElectionCommission, will ipso facto be deemed to be void or invalid.In rule 47 (1) (c) it is stated that such ballot papers shallbe rejected and in sub-rule (4) thereof it is stated that thedecision of the Returning Officer as to the validity ofa ballot paper contained in a ballot bos shall be fjnaj

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subject to any decision to the contrary given by the Tribunaletc. etc. This shows that the rejection or acceptance ofsuch ballot papers is open to further investigation anddecision by a Tribunal. I may, in this connection, refer toa passage from Craies on Statute Law, 5th Edition (1946),page 246 which explains the distinction between absoluteand directory provisions in the same Act. It runs :—

"Where a statute does not consist merely of oneenactment but contains a number of different provisionsregulating the manner in which something is to be done, itoften happens that some of these provisions are to betreated as being directory only, while others are to be consi-dered absolute and essential; that is to say, some of theseprovisions may be disregarded without rendering invalidthe thing to be done, but others not. For " there is a knowndistinction," as Lord Mansfield said in R. v. Loxdale{1),between circumstances which are of the essence of a thingrequired to be done by an Act of Parliament and clausesmerely directory." In Pearsev. Morricei*), Taunton J. saidthat he understood " the distinction to be, that a clause isdirectory where the provisions contain mere matter ofdirections and nothing more, but not so when they arefollowed by such words as, ' that anything done contraryto these provisions shall be null and void to all intents' ".

Similar views have been expressed in Jagadish Swarup's"Interpretation of Indian Statutes", 1952 Edition, at pages258 and 259. It is stated that the scope and object of astatute are the only guides in determining whether itsprovisions are directory or imperative. According to thisauthor—

" A statute is always understood to be directory whenit contains matter merely of direction, but not when thosedirections are followed up by an express provision that, indefault of following them, the act shall be null and void" :(page 259). " The general rule ", as stated by the author,"is that unless the Legislature uses negative words orwords showing an intention to treat the observance of arule of procedure as essential, the rule will ordinarily betreated as a direction only " : (page 264).

So, it is necessary for a rule to be mandatory that itmust be followed by a nullification clause, namely, by suchwords as, that anything done contrary to these provisions

(I) [1758] 1 Burr. 445, 447, (2) [1834] 2 A, & E. 84, 96.

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shall be null and void to all intents. Examining rule 28 inthe light of the principles stated above, we find that thereis nothing in the rule to show that anything done contraryto this rule or the provisions of this rule, shall be null andvoid to all intents. In this view of the matter, rule 28cannot be mandatory, but it is merely directory. Sincerule 28 is directory the violation of that rule, viz., use ofballot paper minus these contents, which are required to befilled under this rule, is the act done in contravention ofthat rule and this departure can be disregarded withoutrendering the ballot paper invalid. For, it is an establishedprinciple of law that directory statutes are to be construedliberally and it is sufficient if directory enactments beobeyed and fulfilled substantially. Now, the provisions ofrule 47(1) (c) being dependent on rule 28, the same cannotbut be directory, rule 47(1) (c) obviously relates to theballot papers bearing serial numbers or marks referred toin rule 28.

8. In the present case we are dealing with the interpret-ation of rules with special reference to the propositionwhether, where a mistake is committed by an official, therules ought to be treated as mandatory or directory. Inthis connection I need only refer to the following relevantpassages from authoritative books on Interpretation ofStatutes to clear up the position:—

" In the first place, a strong line of distinction may bedrawn between cases where the prescriptions of the Actaffect the performance of a duty, and where they relate toa privilege or power. Where powers or rights are granted,with a direction that certain regulations or formalitiesshall be complied with, it seems neither unjust or incon-venient to exact a rigorous observance of them as essentialto the acquisition of the right or authority conferred, andit is therefore probable that such was the intention of theLegislature. But when a public duty is imposed, and thestatute requires that it shall be performed in a certain manner,or ivithin a certain time to be or under other specified condi-tions, such prescriptions may well be regarded as intended to bedirectory only, in cases when injustice or inconvenience toothers who have no control over those exercising the dutywould result, if such requirements were essential andimperative." % (Maxwell on the Interpretation of Statutes,4th Edition, page 556.)

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" On the other hand, where the prescriptions of a statuterelate to the performance of a public duty, and wherethe invalidation of acts done in neglect of them would workserious general inconvenience or injustice to persons whohave no control over those entrusted with the duty, withoutpromoting the essential aims of the Legislature, they seemto be generally understood as mere instructions for theguidance and governance of those on whom the duty isimposed, or, in other words, as directory only": (Maxwell onthe Interpretation of Statutes, 4th Edition, pages 564-65.)

"To hold that an Act which required an officer toprepare and deliver to another officer a list of voters on orbefore a certain day, under a penalty, made a list notdelivered till a later day invalid, would in effect, put itin the power of the person charged with the duty of prepar-ing it, to disfranchise the electors, a conclusion toounreasonable for acceptance": (Maxwell, 4th Editionpages 565).

"In considering any question which he is empoweredto deal with in respect of any ballot paper, the ReturningOfficer should bear in mind the principles hitherto appliedby election judges in construing the provisions of theBallot Act, 1872, which are now incorporated in the Repre-sentation of the People Act. Thus it has been said that theBallot Act was to be interpreted liberally and that it wasnot every departure from the regulations in the Act thatwould render the vote invalid; and that while on theone hand, the enactments contained in the body of theAct were absolute and must be obeyed by the voter exactly,yet that, on the other hand, the rules and forms in theSchedule were directory merely and it was sufficient if theyare obeyed substantially". [WQodward v. Sarsons ('), ace.Phillips v. Gojf ("): In re Pembroke election petition (a).j Heshould also bear in mind that statutory provisions in generalare directory where the thing to be done is to be done by officer,but are mandatory where it is to be done by the voter" :Thornbury (4) \vide Parker's Election Agent and ReturningOfficer, 5th Edn. page 196.]

" And when the matter is one over which the voter hasno control, the vote is not to be considered bad by reasonof an omission or error of an officer" i Thornbury (i).

l l) L.R. 10 C.P. 746. (3) (1908) 2 I.R. 433.[D 17 g.B.D-812, (*) 16Q..B.D. 746.

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A scrutiny of all these extracts clearly indicates thatthere is a consensus of opinion in the matter that where thething is to be done by an officer and where the voter has nocontrol over it, the provision must be construed as direc-tory and the voter should not be allowed to suffer for themistake or errqr of the officer. In this case, for the reasonsalready stated, the officers alone were responsible for theinterchange of ballot papers and the electors had no controlover it. They should not, therefore, be allowed to sufferfor the mistake on the part of the officers. In this view ofthe case also, the provisions of rule 47(1 )(c) must be helddirectory and substantial compliance thereof must be con-sidered sufficient and the interchange of ballot papers foundin the boxes of various candidates to the House of thePeople must be accepted as proper votes and need not berejected.

9. There is yet another angle from which this case canbe viewed; I have held above that the interchange ofballot papers at the polling stations at Sobhapur, Malkajraand Bamangaon was due to official bunglings and thematter was one over which the voters had no control. Theelectors at these polling stations appear to have followedthe procedure as laid down in rules 22 to 25. Under rule22 an elector has to apply for a ballot paper for thepurpose of voting at a polling station and the Polling Offi-cer concerned, after scrutiny and performance of certainformalities, delivers a ballot paper from out of a number ofballot papers that are entrusted to his charge and thatparticular ballot paper allocated to the elector, must, to allintents and purposes, be deemed to be the ballot paperauthorised for use at the particular polling station, irrespec-tive of the fact whether or not it conforms to rule 28, thatis to say, whether or not it contains the serial number andthe distinguishing mark as decided by the Election Commis-sion. The elector, in fact, is not concerned with it nor isa duty to scrutinize the ballot paper cast upon him by anyrales. Thus, in the present case the interchanged ballotpapers, that is, the State Assembly ballot papers that weredelivered to the respective voters of the House of the Peoplemust be held as ballot papers authorised for use as contem-plated in rule47(l)(c) and their validity canno be ques-tioned nor can they be rejected.

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10. Much has been made of the word "shall" in rules 28and 47, in the course of arguments, by the learned counselfor the petitioner. I, however, do not attach importanceto it in view of the peculiar circumstances of this case,already discussed. As pointed out in the Interpretation ofIndian Statutes by Jagadish Swarup, at page 274, the use ofthe word "shall" would not of itself make a provision of theAct mandatory. It is to be construed with reference tothe context in which it is used. In cases of affirmativewords even the word "shall" might be taken to be onlydirectory as distinguished from imperative.

11. As regards the action of the Election Commission inregularising the issue of wrong ballot papers at Sobhapurpolling station, it may be noted that under article 324(1)of the Constitution of India certain powers, namely,superintendence, direction and control of the preparationof the electoral rolls for, and the conduct of, all electionsto Parliament and to the Legislature of every State arevested in the Election Commission. Obviously, under thesepowers the Commission could act. Conduct of electioncould be controlled by regularising something which wasirregular, by rectifying mistakes committed by officers whowere concerned with the discharge of various duties underthe Representation of the People Act and rules framedthereunder, and issuing directions for their guidance. It wasin pursuance of these powers that the irregularity, namely,issue of State Assembly ballot papers to the voters of theHouse of the People, committed by the Presiding Officer ofSobhapur polling station, must be deemed to have beenregularised. The voters had voted for the persons forwhom they wished or intended to vote without botheringthemselves whether the ballot papers delivered to themwere or were not for that particular constituency. In fact, itwas no concern of theirs. The irregularity had not affectedthe election in any way. It was only a formal mistakecommitted by the Polling Officer which could be rectified orregularised but for the directions in rule 28. But underrule 28 also it was for the Election Commission only todecide about the distinguishing mark. The Election Com-mission could modify its previous order under which ithad decided green coloured bar for the ballot paper meantfor the House of the People. This the Commission could do

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even retrospectively inasmuch as the cwas not over at the time. The directcounting of votes which was not over aCommission said that a mistake wasofficer in issuing the ballot papers whichthat constituency and that the electors had rightly exercis-ed their right of vote on the basis of that

onduct of electionion relates to theb that stage. Thejommitted by andid not pertain to

paper. The Com-mission was thus, in my opinion, justified in regularisingthat mistake.

12. This point, however, to my mind, is no longer impor-tant in view of my finding that the provisions of rule47(l)(c) are directory and meticulous compliance of theseprovisions is not called for. The matter being directory itcannot be said that there was any substantial non-com-pliance with the provision of law if particular contentswere missing from particular ballot papers, so long as thisdid not affect the right of selection and choice of theelectors.

13. It will not be out of place to add here that my viewregarding rule 47(1 )(c) being directory, finds support in thedecisions of four other Tribunals, viz., Gidwani's case (1),Nurul Islam v. Muhammad Rafique and Others (2), Nara-narayan Ooswami v. H. D. Chaudhury and Others(B), BalailalDas Mohapatra v. Trailakya Nath Prodhan and Others (4).Ncu contrary view has, so far been taken by any of theTribunals and this is significant.

14. Mere non-compliance with the rules made under theAct is not enough under section 100(2)(c) of the Represent-ation of the People Act, 1951. It must also be proved thatby reason of such non-compliance "the result of the elec-tion has been materially affected." This must be clearlyestablished by satisfactory evidence. But there is noevidence on record to prove that as a result of non-com-pliance with the rules the result of the election was affectedmaterially.

15. Thus, for the reasons stated in the foregoing para-graphs, my findings are that:—

(i) the ballot papers found in the boxes of both thepetitioner and the respondent No. 1, at Sobhapur pollingstations Nos. 316 and 317, bearing different distinguishing

(1) 1 EX.R. 194. (3) 2 E.L.R. 253.• - (2) 2 E.L.R. 70.: (4) 4 E.L,R: 221.

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marks from the authorised marks, were not invalid underrule 47(l)(c) and were rightly accepted and counted;

(ii) the Election Commission was authorised to modifyits decision in respect of the distinguishing marks and itsdirection to the Returning Officer to accept and count allthese votes, irrespective of the distinguishing marks, wascorrect; and

(iii) the Returning Officer's order rejecting the ballotpapers, bearing different marks than the prescribed distin-guishing marks found in the boxes of the petitioner and therespondents at Malkajra polling station No. 399 andBamangaon polling station No. 371, was improper. Thesevotes should have been accepted and counted.

16. As a result of these findings the respondent No. 1gets an additional majority of votes over the petitioner,and the petition is thus liable to be dismissed with costs.

ORDER OF THE TRIBUNAL :—It is hereby ordered thatthe election petition be dismissed. As for costs, it is order-ed that in view of the peculiar nature of the case and thefact that the petition is the result of the mis-handling ofballot papers by the officials, parties should bear them asincurred.

Petition dismissed.

^ELECTION TRIBUNAL, HAZARIBAGH.]

RAMAYAN SHARAN SINGH AND ANOTHERv.

RAMESHWAR YADAV AND OTHERS.S. B. SENGUPTA (Chairman),

GOBIND SARAN and NIRMAL KRISHNA GHOSE

(Members).

March 10, 1953.

Qualification of candidates -Candidate's name included in electoralroll after nomination but before scrutiny—Validity of nomination—Else-

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toral roll— Inclusion of name by Election Commission—Whether retros-pective-—Representation of the People (Preparation of Electoral Rolls)Rules, 1950, rr. 20(2) and (s)—Representation of the People Act, 1951, s.S(e).

A candidate is not qualified to stand for election unless his name isin the electoral roll as a voter on the last day fixed for nominations,and if his name was not in the electoral roll on that day his nominationmust be rejected even though his name was included in the roll by adirection of the Election" Commission before the date of scrutiny ofnominations.

The words "the electoral roll to which such direction relates shallbe deemed to have been revised accordingly" in rule 20(3) of the Repre-sentation of the People (Preparation of Electoral Rolls) Rules, 1950,are not intended to give retrospective effect to such direction.

ELECTION PETITION NO. 322 of 1952.

ORDER.

This is an election petition filed by two voters of Makh-dumpur Constituency (who did not stand as candidatesfor the election), for a declaration that the election of res-pondent No. 1, Shree Rameshwar Yadav, is void. There aremainly two grounds alleged in the election petition forholding the election of respondent No. 1 void. The firstground is that the return of the election expenses submit-ted by the returned candidate (i.e., respondent No. 1)" discloses incurring of expenses in feeding and payingtravelling allowances to proposers and seconders which isagainst the spirit of law " and amounts to " major corruptpractice". The second ground is that the nominationpapers of respondents No. 8 and 9 (who are son and father)were illegally and improperly rejected by the ReturningOfficer, as a result of which the election was materiallyaffected. The election petition is contested by respondentNo. 1 only, who has opposed the election petition onvarious grounds.

The following issues were framed in the case :1. Is the petition bad for mis joinder of parties ?2. Are the petitioners entitled to maintain the appli-

cation ?3. Does the petition contravene the provisions of sec-

tions 82 and 83 of the Representation of the People Act V4. Were the respondents Nos. 8 and 9 electors in the

Ga»ya town and qualified to be chosen to fill a seat in

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298 BAMAYAN SHABAN SINGH V. BAMESHWAB YADAV [VOL. V

Bihar Legislative Assembly from Makhdumpur Constitu-ency ? If so, whether the rejection of the nominationpapers of the said respondents Nos. 8 and 9 was illegal andcontrary to the express provisions of the Representation ofthe People Act, 1951 ?

5. Whether the result of the election of respondentNo. I has been materially affected by the improper rejec-tion of the nomination papers of the respondents Nos. 8and 9 ? If so, whether the election of respondent No. 1 isfit to be set aside ?

6. Whether the return of election filed on 15th March,1952, is in accordance with law ? If not, is the election fitto be set aside ?

7. Whether the incurring of expenses in feeding andpaying travelling expenses as alleged and disclosed in thereturn of expenses amounts to " treating " and is thiscorrupt practice in law ? Is the election void on thatground ?

8. Was the election fair and free in the constituency inquestion and whether any corrupt practice was practised ?Can the election be set aside on the ground of corruptpractices, as alleged in the petition ?

9. Is the petition entertainable without a properlysigned and verified list of corrupt practices and otherirregularities alleged to have committed by respondentNo. 1?

10. Is the petition bad for multifariousness ? Do therules contemplate a petition by more than one petitionerjoining therein ? If not, is the petition liable to bedismissed?

11. Did respondents Nos. 8 and 9 take steps for gettingtheir names entered in any electoral roll ? Did they get theinclusion of their names published anywhere, or in theBihar Gazette or in the notice boards of Gaya District ?

12. To what relief, if any, are the petitioners entitled ?Issues Nos. 1, 9 and 10 and part of issue No. 3 were heard

by us and these issues were decided by us in favour of thepetitioners by our order, dated 10th January, 1953, in theorder-sheet. The part of issue No. 3 which -relates to con-travention of the provision of section 82 of the Act forjoinder of respondents Nos. 8 and 9 was not heard at thattime as this part is inter-conneoted with issue No. 4. This

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S. L. B. j BAMAYAN SHABAN SINGH V. BAMESHWAB YADAV 299

part of issue No. 3 and the other issues were all taken upand heard together on 23rd February, 1953.

Of these issues, issues Nos. 6, 7 and 8 were not pressedat the time of hearing.

The only point pressed by the petitioners relates to therejection of the nomination papers of respondents Nos. 8and 9 by the Returning Officer and this point is coveredby issues Nos. 4 and 5. We therefore take up these issuestogether.

The facts leading to the rejection of the nominationpapers of respondents Nos. 8 and 9 are as follows :—

The last day of filing nomination papers was 24thNovember, 1951. It is admitted that up to that date thenames of respondents Nos. 8 and 9 were not included in theelectoral roll of Makhdumpur Constituency. But none-the-less these two respondents filed their nomination papers on24th November, 1951, which was fixed, along with thenomination papers of other candidates, for scrutiny on 26thNovember, 1951. On 26th November, 1951, i.e., the dateof the scrutiny, objection was taken before the ReturningOfficer to the effect that the names of respondents Nos. 8and 9 did not find place in the electoral roll. But it wasrepresented on behalf of these two candidates (respondentsNos. 8 and 9) that they had applied to the Election Com-mission for inclusion of their names in the electoral roll.So the Returning Officer ordered that the nominationpapers of these two candidates would be scrutinised on28th November, 1951, on which date these candidatesmust file evidence of inclusion of their names in the elec-toral roll. On 28th November, 1951, no evidence showinginclusion of their names in the electoral roll was producedbefore the Returning Officer. But there was a telegramsent by the Election Commission to the Sub-divisionalOfficer, Gaya, on 26th November, 1951, at 11-10 p.m. Thetext of the telegram was as follows :—

" Commission has directed to-day inclusion in GayaTown Assembly Electoral Roll names of Gopal SaranNaram Singh and Fateh Singh with serial numbers ec. 372,ec. 374 (.). Formal orders follow. " '.

After considering this telegram the Returning Officerconcluded that respondents NOB. 8 and 9 were not electors

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300 BAMAYAN SHABAN SINGH V. RAMKSHWAli YA.UAV [VOL. V

on 24th November, 1951, which was the last date fixedunder section 30(a) of the Act for making nomination.Consequently, the Returning Officer held that the candi-dates not having been electors for any Assembly Constitu-ency of the State of Bihar on 24th November, 1951, thelast date fixed for filing of nominations, the candidates(respondents Nos. 8 and 9) are not qualified to fill a seat inthe Legislative Assembly from Makhdumpur Constituencyand he accordingly rejected their nomination papers.

From the evidence on the record it appears that bothrespondents Nos. 8 and 9 sent telegrams from Gaya to theElection Commission, New Delhi, on 8th November, 1951,stating that their names had been inadvertently omittedfrom the electoral roll of Gaya Parliamentary and Assemb-ly Constituency and praying that their names be includedin the electoral roll. On 14th November, 1951, regularpetitions were filed to that effect before the Election Com-mission, New Delhi, and the necessary fees were deposited.But the Election Commission , passed orders on 26thNovember, 1951, directing that the electoral roll be amend-ed by the inclusion of the names of respondents Nos. 8 and9. These orders, dated 26th November, 1951, were com-municated by a telegram on the same date (quoted above)and also by post thereafter.

Under section 2(e), " elector " in relation to a constitu-ency, means a person whose name is for the time beingentered in the electoral roll of that constituency.

Under section 5 (c) of the Act a person shall not bequalified to be chosen to fill a seat in the LegislativeAssembly of a State unless he is an elector for any Assemblyconstituency in that State.

Under section 32 of the Act any person may be nomi-nated as a candidate for election to fill a seat in a consti-tuency if he is qualified to be chosen to fill that seat underthe provisions of the Constit'ution and this Act.

It is therefore clear that if a person's name is not enter-ed in the electoral roll of a constituency, he is not entitledto stand as a candidate for election to fill a seat in thatconstituency. The last day fixed for filing nominationpapers in Makhdumpur Constituency was 24th November,J951, and the names of respondents Nos. 8 and 9 did not

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E. L. R.] RAMAYAN SHARAN SINGH V. RAMESHWAR YADAV .301

find place in the electoral roll of the constituency up tothat date. They were therefore not electors and not entitledto be nominated as candidates for election to fill a seat inthat constituency and they had no right to file any nomi-nation papers. It is true that by the order of the ElectionCommission it was directed that the electoral roll of Makh-dumpur Constituency be amended by the inclusion of theirnames. But this order was passed on 26th November 1951,i.e., two days after the expiry of the date fixed for filingnomination papers. It is contended on behalf of the peti-tioners that this order must be deemed to have retrospect-ive effect and it must be deemed that the names of res-pondents Nos. 8 and 9 were included in the electoral rollprior to 24th November, 1951. In support of this conten-tion our attention is drawn to rule 20 (3) of the Repre-sentation of the People Rules, 1950. Rule 20(3) runsthus :—

" When any list is republished under sub-rule (1) or adirection is issued under sub-rule (2), the electoral roll towhich such list or direction relates shall be deemed tohave been revised accordingly. "

It is contended on behalf of the petitioners that the term" shall be deemed to have been revised accordingly" meansthat this revision will have retrospective effect. We areunable to accept this contention. If it was the intention ofthe Legislature that the revision of the electoral roll by theorder for inclusion of certain names after the publicationof the rolls is to have retrospective effect, such intentionwould have been expressed clearly. We do not find anyindication, either explicit or by necessary implication, thatthe revision contemplated in rule 20(3) of the Represent-ation of the People Rules, 1950, (quoted above) is to haveany retrospective effect.

The telegram sent on 26th November, 1951, by the Elec-tion Commission to the Sub-divisional Officer, Gaya, forinclusion of the names of respondents Nos. 8 and 9 in theelectoral roll (quoted above), also clearly shows that thedirection given by the Commission was to take effect from" to-day " (26th November, 1951).

The order sent by post by the Election Commission[Exs. 4 to 4(c)] also runs as follows ;—

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302 RAMAYAN SHARAN SINGH V. RAMESHWAR YABAV [VOL. V

"Now, THEREFORE, the Election Commissionhereby directs that the electoral roll be amendedby the inclusion therein of "

The order is dated 26th November, 1951. The ordertherefore means that it is to come into force with effectfrom 26th November, 1951.

We therefore hold that on 24th November, 1951, bothrespondents Nos. 8 and 9 were not electors, as their namesdid not find place in the electoral roll of MakhdumpurConstituency up to that date. They were therefore notentitled to file nomination papers on 24th November, 1951,which was the last date of filing nomination. By virtue ofthe order passed by the Election Commission on 26thNovember, 1951, respondents Nos. 8 and 9 cannot bedeemed to be electors either on 24th November, 1951, oron any date prior to 24th November, 1951 ; though weshould note in this connection that up till now their nameshad not been entered in the electoral roll of MakhdumpurConstituency (Ex. A). As the respondents Nos. 8 and 9not electors and not entitled to file nomination papers on24th November, 1951, which was the last date of filingnomination, the learned Returning Officer was perfectlyjustified in rejecting their nomination papers on thatground. We therefore hold that the nomination papers ofrespondents Nos. 8 and 9 were rightly rejected by the Re-turning Officer.

The rejection of the nomination papers of respondentsNos. 8 and 9 being the only ground pressed by the, peti-tioners during the trial, for declaring the election of res-pondent No. 1 void and the rejection being found by us tobe quite justified and valid, we hold that the election peti-tion must be dismissed. It is therefore not necessary forus to enter into and decide the remaining issues.

We therefore order that the election petition be dismiss-ed with costs of Rs. 200 including pleader's fee payableby the petitioners to the contesting respondent No. 1.

Petition dismissed.

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B. L. IT.] MAKTTTRAO BHATTRAO V. GULABRAO DADASAHEB 3 0 3

[ELECTION TRIBUNAL, POONA.]

MARUTRAO BHAURAO AND OTHERSv.

GULABRAO DADASAHEB AND OTHERS.PRAMOD C. BHAT (Chairman),

Y. K. GHASKABDI and S. B. JATHAR (Members).

March 28, 1953.

Election petition—Joint petition —Joinder of • several reliefs—Polling agents—Bight of admission to polling booths—Wrongful refusalto admit—Validity of acts done in their absence—Ballot papers—Officialmarks fixed by Presiding Officers without authority of Election Commis-sion—Validity—Representation of the People Act, 1951, ss. 84, 110—Representation of the People Rides, 1951, rr. 20, 28, 47(l)(c).

A joint election petition by more than one petitioner is maintainable.Sections 110 and 112 of the Representation of the People Act, 1951,clearly envisage such joint petitions. A security of Es. 1,000 is sufficientfor a joint petition.

It is competent to a petitioner to pray for one or more of the threereliefs mentioned in section 84 ; he is not bound to confine his prayerto one of the three reliefs.

Where the Election Commission had merely directed underrule 28 of the Representation of the People Rules, 1951, that the serialnumbers in the ballot papers must have a prefix By " and had issuedno direction tinder rule 20, for using any official marks for the ballotpapers, but the Returning Officer, thinking that such a mark was neces-sary, affixed the ballot papers with the official Ashok Chakra mark, aftersome ballot papers had been issued, and it was contended that thesepapers were invalid under rule 47(l)(c):

Held, that, as the Election Commission had not issued any direc-tion under rule 20, rule 47(l)(c) was not applicable to the case and theballot papers bearing the official mark were not invalid.

If a polling agent produces a copy of the letter of appointment tothe Presiding Officer and makes a declaration in the manner prescribedin Form 6, he has a right to be admitted to the polling booths beforethe commencement of the election. The Presiding Officer cannot refuseadmission merely because he had not received any authority or com-munication from the Returning Officer in this behalf.

If it is established by the evidence that the petitioners' agents werenot allowed access to the polling booths before the start of the election,then, the consequences, whatever they are, under the law must follow,even though this grievance was common to other candidates as well.

Under the provisions of section 51 of the Act, however, absence ofthe polling agents would not invalidate acts done in their absence ifthey are otherwise duly done.

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304 MARUTBAO BHAITEAO V. GULABRAO BADASAHEB [VOL. V

ELECTION PETITION NO. 6 of 1952.

V. B. Deshmukh and A. D. Kale, for the petitioners.B. D. Bal, P. H. Kothadiya, S. R. Kharat, for the

respondents.B. M. Tarkunde (GovernmeMt Pleader), for the Advocate -

General of Bombay.ORDER.

This petition under section 81 of the Representation ofthe People Act, 1951, (hereinafter referred to as the Act),has been made to the Election Commission jointly by twopetitioners, viz., Shri Marutrao Bhaurao Shelke and ShriNanasaheb Bapuji Jagtap (hereinafter referred to res-pectively as petitioners Nos. 1 and 2), against the threerespondents, viz., Shri Gulabrao Dadasaheb Mulik (herein-after referred to as respondent No. 1) and Shri BalasahebPatilbuwa Gite (hereinafter referred to as petitioner No. 3)and Shri Shrirang Satwa Sonavane (hereinafter referred toas respondent No. 3), calling in question the election heldon 11th January, 1952, of the Bombay Legislative Assemblyfrom the Baramati constituency (District Poona).

2. By their petition the petitioners prayed for (a) adeclaration that the election of respondent No. 1 was voidand against law, (b) a declaration that the whole of theelection was totally void, and (c) costs of the petition fromrespondent No. 1.

3. The petition has been referred to us by the ElectionCommission for disposal according to law.

4. The petitioners and the respondents were contestingthe election of the Bombay Legislative Assembly from theBaramati constituency which is comprised of 40 villagesdivided into 52 polling stations. The petitioner No. 1 wascontesting the said election as an Independent candidateand petitioner No. 2, as a nominee of the Peasants andWorkers' Party. Respondent No. 1 was contesting theelection as a Congress nominee, petitioner No. 3, as anIndependent candidate and respondent No. 3, as a nomineeof the Scheduled Castes Federation.

5. The election was held, on 11th January, 1952, and thecounting of votes was on 14th January, 1952. In the result,respondent No, 1 polled 17,973 votes, petitioner No. 1,

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3,836 votes, petitioner No. 2, 6,380 votes, petitioner No. 3,1,592 votes and respondent No. 3, 670 votes. RespondentNo. 1 was, accordingly, declared duly elected.

6. The election has been challenged on various groundscontained in the petition of the petitioners. It is allegedthat at the said election undue influence has extensivelyprevailed and this has been particularised in the appendixof particulars attached to the petition wherein it is statedthat the poor and illiterate voters of the constituency havebeen threatened by respondent No. 1 and his workers whowarned them that unless they voted for the respondentNo. 1, the Congress nominee, their ration would be stopped,that they would be prosecuted under the Prohibition Actand that they would get no quota of iron, steel and cloth inthe distribution and that the muslim voters would be sentto Pakistan. The names of the voters who were thusthreatened have not been mentioned in the particulars, thegrourid stated being that this might lead to their beingfurther threatened.

7. The petitioners further allege that the result of theelection has been materially affected by the improperacceptance of invalid ballot papers inasmuch as an indeter-minate number of invalid ballot papers was accepted andcounted. This has been amplified in the particulars asfollows :—That the Assistant Returning Officer realised on11th January, 1952, at 9 a.m., the danger of issuing ballotpapers to voters without stamping them with an officialseal and thereafter he immediately took a car and wentaround directing the Presiding Officers to stamp the ballotpapers with the official seal before issuing them to the voters.Accordingly, those of the Presiding Officers that receivedthis direction started the stamping but in no case did suchstamping start earlier than 9 a.m.* and in some pollingstations there was no such stamping throughout the day.The' result of the election is, therefore, said to have beenmaterially affected by the acceptance of a large andindeterminate number of unstamped invalid votes. Actuallythe petitioner No. 1 made an application calling attentionof the Returning Officer to this illegality and requestinghim to reject the offending ballot papers that did not bearofficial mark; alternatively, he also requested him to countthem separately. The Returning Officer, however, ignored.

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the request. Only on the next day at 2-30 p.m., he madea reply that all the ballot papers counted on the 14thinstant contained serial numbers, distinguishing water-marks and State Emblem (Ashok) and that no other offioialmark was necessary.

8. Another allegation in the petition is that the electionis vitiated by certain irregularities and illegalities. It issaid that the officials of Government meted out partial orpreferential treatment to respondent No. 1, the Congressnominee. This has been particularised as follows:—Thepetitioners had submitted forms (in duplicate) of their poll-ing agents for the respective polling stations along with thecombined lists of these agents on 7th January, 1052, thatthe Returning Officer while accepting the lists, had returnedthe forms directing that the respective polling agentsshould submit them to the respective Presiding Officer. On10th January, 1952, however, at about midnight, petitionerNo. 1 was informed by his polling agents that no pollingagent whose form was not signed by the Returning Officeror the Assistant Returning Officer would be admitted inthe polling booths. Thereupon, petitioner No. 1 saw theAssistant Returning Officer at 5 a.m., on 11th January,1952, and the latter thereupon issued instructions to thePresiding Officers to allow the polling agents admission inthe booths. Even so, it was said, it was not until as lateas between'9 a.m. and 12 noon that these instructionsreached the Presiding Officers concerned, with the resultthat the polling agents 'of candidates other than theCongress candidate (respondent No. 1) could not be pre-sent at the polling stations before the starting of the poll-ing. This has robbed the petitioner of his right to inspectthe ballot boxes through his agents before the electionstarted and to satisfy himself that the ballot boxeswere in order and has thus left the door wide open formischief.

9. Another allegation is that the arrangement of theballot boxes was not uniform in all the booths, and inas-much as the canvassing was done on the basis of the serialnumber, the petitioners' voters have been misled intocasting their votes in wrong boxes. Significantly, however,the position of the boxes of the Congress candidate hasalways.remained the same. It has never varied.

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10. Care was not taken by the Presiding Officers to sealthe ballot boxes properly at the close of the election, theresult being that the ballot boxes could be opened withoutdamaging the seal. In some instances, even though the sealson the ballot boxes in certain polling stations were intact,the guarantee that those seals were genuine has been lack-ing and this has caused a reasonable apprehension in theminds of the petitioners that the ballot boxes could betampered and must have been so tampered as to favourthe chances of the Congress candidate, viz., respondentNo. 1. That the petitioners had pointed out that the ballotboxes could be opened without damaging the seal, and thattheir polling agents were not allowed to see their signaturesand seals at the time of the counting, that the strings ofcertain ballot boxes were found broken when the boxeswere opened at the time of counting.

11. Further it was said that the symbols on the ballotboxes of the Congress candidate alone were repasted withthe symbol. On some boxes the symbols were doublypasted.

12. {Omitted].13. The respondent No. 1 has put in his written state-

ment (Ex. 16) which is virtually a denial of all the materialstatements in the petition. He has contended that thejoint petition is not tenable, that the petition is liable tosummary dismissal by reason of the petitioners' failure todeposit Rs. 1000/- as per section 117 of the Act, that thepetition is fundamentally defective as it is not accompaniedby a list as required by section 83 (2) of the Act, and thatthe prayer for more than one relief is contrary to theprovisions of section 84 of the Act and vitiates the petition.He has denied the allegations of undue influence, coercionand intimidation made in the petition and in the appendixattached to the petition, adding that even if established,they are insufficient to invalidate the election. It wasdenied that the Returning Officer accepted invalid ballotpapers as alleged, and it was said that assuming that hedid, the respondent No. 1 was not responsible for the mis-takes of the officers, that the mistakes, if any, would notvitiate the election. It was contended that the objectiongrounded on the officers' errors in the conduct of the elec-tion could not avoid the election which should

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to be perfectly regular and legal until the contrary wasproved. The respondent denied that any preferential treat-ment as alleged was meted out to him. He alleged that incommon with the petitioner he himself had suffered asimilar grievance. It was denied that the ballot boxes werewrongly arranged as alleged. It was stated that no com-plaint of improper sealing of the ballot boxes by any Pre-siding Officers was made by the petitioners and that thedouble pasting on the ballot boxes of the respondent No. 1was due to the accidental fading out of his symbol whichthe authorities on their attention being called to it by him,rectified. It was denied that threats were given as allegedrelating to the ration, the levy, and the expatriation toPakistan of the voters as alleged. It was also denied thatthe respondent or his workers ever made false or defama-tory allegations or threw stones at meetings as alleged orthreatened voters with prosecutions under the ProhibitionAct. That necessary details were not given in this behajf.

14. The respondent asserted that the Election Commis-sion had made no order regarding stamping of ballotpapers, nor was stamping necessary as there was already awater-mark on each paper.

15. He denied that preferential treatment as alleged wasgiven to him or to his workers.

16. [Omitted].17. On these pleadings nine issues have been joined and

upon the hearing of this matter the learned counsel for thepetitioners in limine has wisely abandoned issue No. 7.

18. As regards the remaining issues, the controversy hasmainly centred round issues Nos. 5 and 6, but before deal-ing with these, it will, we think, be convenient to dispose ofthe first four issues which have been canvassed before usby counsel for respondent No. 1. The issues are at Ex. 27and our findings thereon are recorded at the end of ourjudgment.

19. Briefly, the contention has been that a petitionjointly in the names of more than one petitioner is incom-petent, the ground being that the Act provides only for apetition by a single petitioner and this of necessity ex-cludes, and therefore prohibits a joint petition by morethan one petitioner and it, therefore, also follows that the

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deposit of Rs. 1000/- by two petitioners is inadequate andvitiates the petition. On these grounds we are invited todismiss the petition.

20. We think there is no substance in this contention.When one turns to Chapter II of the Act dealing withpresentation of election petitions to the Election Commis-sion, it is true that one finds that sections 80 to 85 whichcomprise that Chapter invariably speak of " the petition "or " the petitioner " in the singular and never in the plural.But it is obvious that the words " the petition " and " thepetitioner" (singular) connote a class or a category asdistinguished from a single entity and we hold that thesingular includes the plural. In this connection, by way ofanalogy a reference might usefully be made to section 13 ofthe Bombay General Clauses Act, which is as follows :—

" In all Bombay Acts, unless there is anything repug-nant in-the subject or context

(b) Words in the singular shall include the plural, andvice versa."

Then again, sections 110 and 112 clearly envisage a jointpetition by more than one petitioner and it is futile tosuggest that the Act intended to prohibit a petition in thename of more than one petitioner.

21. Stress was laid on section 82 of the Act and it wasargued that the wording of section 82 clearly supported thecontention that the petition must necessarily be in thename only of a single petitioner. Now section 82 is inthese terms : " A petitioner shall join as respondents tohis petition all the candidates who were duly nominated atthe election other than himself if he was so nominated".It is difficult to see how section 82 helps, because it onlyprovides for the joinder of the respondents to an electionpetition and has hardly any bearing on the point underdebate. We are clear that section 82 certainly does notprohibit a petition in the. joint names of more than onepetitioner and that respondent No. l's contention to thecontrary must fail.

22. A joint petition then being valid and competent, itfollows in our opinion that the requirements of section 117of the Act providing for the deposit of Rs. 1,000 with thepetition (a joint petition in this case) are satisfied and arenot infringed.

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23. It was urged by counsel for the respondent No. 1,that the petition was defective for want of a list as requiredby section 83(2) of the Act. That being so, we ought toexercise our powers under clause (4) of section 90 of theAct and should dismiss the petition for failure to complywith the provisions of section 83, clause (2). In our viewthe petitioner has in his list of particulars given particularsas sufficiently as was possible and prudent. We havefurther taken particular care to restrain petitioner frommaking any new case not alleged nor involved in the plead-ings. After all, the object of clause (2) of section 83 isplainly to prevent the opponent being taken by surprise andwe are satisfied in this case that no such surprise has beencaused to the opponent, nor was an opportunity to meetthe case made by his adversary withheld or denied to him,

24. It is further argued that the joinder of more thanone relief in the petition would invalidate it. This is thesubject matter of issue No. 8. Reliance is placed on sec-tion 84 of the Act which provides that a petitioner mayclaim anyone of the declarations therein mentioned andconnected by the disjunctive "or". It is said that in sec-tion 84'Of the Act, emphasis is plainly on the words "any-one" which would preclude more than one relief beingasked for. Section 98 dealing with our power in relationto the reliefs claimable is very similarly worded and mightlend support to this contention.

25. We think, however, that there is no substance in thiscontention. The truncated construction of section 84which we are invited to accept is, we think, not warrantedon a fair interpretation of the section. When one examinesthe section, one finds that the three declarations mentionedtherein in substance are neither separate nor exclusive.They overlap. The declaration (b) includes (a) and thedeclaration (c) includes (a) and partly (b). This indicates,we think, that a petitioner is not restricted only to askingfor one single relief. We see nothing in the section toprevent a petitioner praying for one or more of the threereliefs mentioned in the section. Be that as it may, weconsider it unnecessary to pursue the point further as wehave reached the conclusion that this petition should bedismissed on other grounds. We, therefore, refrain fromexpressing a final view on the question.

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B. L. R.] MARUTRAO BHAURAO V. GULABRAO DADASAHEB 311

26. This brings us to a consideration of the more impor-tant points in the case which are the subject matter ofissues Nos. 5 and 6. The case as laid in the petition wasthat the Election Commissioner had, in fact, given a direc-tion to use an official mark. This was inferred from thefact that the petitioner noticed that certain officers had, infact, issued ballot papers after stamping them with theofficial mark, that there were a number of ballot paperswhich did not bear such official marks and were invalid andthat the Returning Officer had counted the valid with theinvalid ballot papers and since the number of such ballotpapers was indeterminate, it was impossible to ascertainthe number of really genuine ballot papers. The election,therefore, it was said, had been materially affected to thedetriment of the petitioner. The appendix annexed to thepetition further stated that, as ballot papers of one consti-tuency could be used in any other constituency, to preventsuch mischief it was necessary to provide for the stampingof the ballot papers with an official mark at each pollingstation and then the petition (appendix) goes on to say thaton 11th January, 1952, the Assistant Returning Officerfinding at about 9 a.m. that the ballot papers were beingissued without any official mark immediately went roundin his car directing Presiding Officers to stamp the ballotpapers with an official mark or seal before issuing them tothe voters. The case as laid in the petition thus was thatit was only ballot papers bearing the official seal that werevalid and the rest not bearing the official seal were invalid.The invalidity alleged in the petition, therefore, attachedto the ballot papers which were issued prior to 9 a.m. on11th January, 1952. But the petitioner changed this caseand his contention before us now is that his objection isnot to the ballot papers which did not bear an official sealbut to those that did. It is thus clear that the case asunfolded in court is in direct opposition to the one laidin the petition. The Mamlatdar (Ex. 102) has stated in hisevidence that when the election started on the 11th, atsome place ballot papers were not sealed, that therefore,he issued instructions with regard to the sealing of eachballot paper before its issue, that he first went to theDarubandiKendra where Shri Gunjal, the Civil Judge, wasthe Presiding Officer, at 9 Pi" 9-30 fr-in, and instructed ftim

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with regard to the seal, that at the time of counting henoticed that at some polling booths no ballot paper boreany seal. He could not definitely say whether the instruc-tions to seal were actually delivered to the various pollingbooths in the constituency outside Baramati. That heissued instructions with regard to the sealing of the votingpaper on reading rule 20 in the Election Manual. That hevisited all the centres in the Baramati town and gave theinstructions there. By stamping the ballot paper he meantsealing the same with the brass seal bearing Ashok Chakrawith three lions, with the ink. He could not say whetherthe Election Commission had directed that this particularmark shall be fixed to the voting paper before that wasdelivered to the elector. Then he goes on to say that therewas a discussion in the morning between him and his HeadKarkun and that thereafter he issued the instructions toseal the ballot papers on the day on his own initiative. Hesays that the- Returning Officer treated all these ballotpapers on the same basis, whether they bore the seal afore-said or they did not, that the discussion between him andMahajan, his Head Karkun, was as to what seal should beused. As far as he knew, no directions had been issued by theElection Commission asking that the ballot papers shouldbe marked with an official mark. In the discussion he hadwith Mahajan they concluded that the ballot papers shouldbear some sort of a seal. He is supported by JayantGunjal, (Ex. 84), who was a Presiding Officer at Baramatipolling station. He says that the Assistant ReturningOfficer Shelke asked him to affix a seal to every ballotpaper. A brass seal and ink was supplied and all ballotpapers issued after 9 a.m. were sealed accordingly. ThenShanker Dange's evidence (Ex. 105) is that he never receiv-ed any instructions with regard to the sealing of theballot papers. He did not seal any voting paper on thatday.

27. Now, we have permitted Mr. Rege to make out thecase which is in opposition to the one contained in the peti-tion for the reason that we thought that no new facts weresought to be alleged at the hearing. For the rest it was amatter of opinion to what ballot papers invalidity wouldattach. Evidently at the time of drafting the petition itwas thought inasmuch as the Mamlatdar had issued instrue-

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tions to seal the voting papers before issue, it followed thatonly those ballot papers which bore the seal were valid.But at the time of evidence it was apparently realised thatin the light of Ex. 135 this was incorrect and that thechallenge ought to be to the validity of ballot papers issuedafter 9 a.m. and bearing an .official seal. In any case,evidence has been led as to the circumstances in which theballot papers issued after 9 a.m. on the polling day came tobear an official seal and we do not think that a differentline of attack practically on the same facts has causedprejudice or surprise to the opponents.

28. Now, it is necessary in this connection to refer torules 20, 28 and 47 of the rules made by the Central Gov-ernment under section 169 of the Act. Rule 20 so far asmaterial provides that the Election Commission may directthat before any ballot paper is delivered to an elector, itshall be marked with such official mark as may be specifiedby the Election Commission. Now, Ex. 135 shows that theElection Commission had issued no directions nor hadspecified any mark under this rule. Rule 28, so far asmaterial, provides that the ballot paper to be usedfor the purpose of voting at an election shall containa serial number and such distinguishing marks as theElection Commission may decide. Exhibit 135 showsthat under this rule the Election Commission had decidedthat before the printed serial number in each ballot paperthere shall be printed as a prefix the letters " By " in thecase of the ballot papers to be used in the State of Bombay.Now rule 47, so far as material, provides that a ballot papercontained in a ballot box shall be rejected if (a) it bearsany mark or writing by which the elector can be identified ;(b) in the 'case where a direction has been issued underrule 20, that the ballot paper shall contain an official mark,it does not contain the official mark; (c) if it bears anyserial number .or mark different from the serial numbers ormarks of ballot papers authorised for use at the pollingstation or the polling booth at which the ballot box inwhich it was found was used. And Mr. Rege, relying onthe evidence and the rules aforementioned says that in thecase with which we are concerned some or most of the ballotpapers issued after 9 a.m. bore the serial number and themark " By " and in addition they also bore the official seal

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which was directed by the Mamlatdar to be stamped onthose papers, and he says that in this case invalidity mustattach to ballot papers bearing the said official seal, inaddition to the water mark, the serial number and (as aprefix) the letters " By ". This is plain on a reading ofrules 28 and 47. Rule 28, says Mr. Rege, affirmatively laysdown what the ballot paper shall contain, viz., a serialnumber, and such distinguishing marks as the ElectionCommission may decide. And rule 47, lays down what theballot paper shall not contain, viz., amongst other things itmust not bear a serial number or mark different from theserial numbers or marks authorised for use at the pollingstations. Ergo, says Mr. Rege, ballot papers bearing theseal in addition to the serial number and the distinguishingmark as authorised must be thrown away as invalid.Mr. Rege, therefore, argues that the result of the electionhas been materially affected by the improper reception ofvoid votes and also by non-compliance with the provisionsof the rules relating to the election. Mr. Bal, for the oppon-ent has contended that the pre-requisite condition of theapplicability of rule 47, clause (l)(c), is the existence of thedirections issued by the Election Commission under rule 20,and as admittedly in this case no instructions had beenissued by the Election Commission under rule 20, the factthat the Mamlatdar, ex majore cautela, thought it necessaryto issue directions to the Presiding Officers to impress anofficial seal may be an error or an irregularity, but itcertainly does not invalidate the ballot.

29. In this case there is little dispute as to the facts, theonly facts material for our purpose being (1) that most ofthe ballot papers which were issued after 9 a.m., bore theofficial seal as per the directions of the Mamlatdar. It iscommon ground that the Election Commission itself hadissued no directions under rule 20. The question, therefore,that we have to determine is whether ballot papers bearingan official seal should be held to be void (2). If we reachthe conclusion that they are void, then the further questionwill be whether there is material before us to enable us toreach the conclusion that on that account the result of theelection has been materially affected. We have very care-fully weighed the arguments addressed to us on both sidesand we have reached the conclusion that the attack made by

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the petitioner must fail. For one thing, we feel considerabledifficulty in accepting the argument made by Mr. Rege, thatnotwithstanding the absence of any directions ' by theElection Commission under rule 20, we must hold that theballot papers in question are void. They undoubtedly bearthe serial number and the prefix "By ". It was this ballotpaper that was authorised for use at the election. True,some or many other ballot papers also bear the official sealin addition. But we think that it is impossible to regardthese ballot papers as hit by clause (l)(c) of section 47, in theadmitted absence of a direction of the Election Commissionunder rule 20. In our view this is an instance of ignoranceor error on the part of local officials which ought not to bepermitted to jeopardise an election otherwise valid. A for-mal departure from the mode of holding an election asprescribed by the statute or the rules which does notdeprive legal voters of their right to vote or permit illegalvoters to participate in the election or cast uncertainty onthe result cannot affect the validity of the election, nor dowe think that the departure in this case offends againstclause (l)(c) of rule 47.

29. The petitioner has stated in his petition that most ofthe Presiding and Polling Officers refused to give to thepolling agents of all candidates a free scope and equallatitude. It is said that they refused permission to thepolling agents of the candidates other than the Congresscandidate to enter the polling booths. In the appendixannexed to the petition this has been amplified as follows :—That the petitioners had submitted the forms of theirpolling agents along with the combined list of those agentson 7th January, 1952. The Returning Officer, however,returned the forms merely accepting the lists and he toldthe petitioners that the respective polling agents shouldsubmit their forms to the respective Presiding Officers.However, on 10th January, 1952, at about midnight peti-tioner No. 1 was informed by his polling agents that nopolling agent whose form was not signed by the ReturningOfficer or the Assistant Returning Officer would be allowedto enter the polling booth. The petitioner No. 1approached the Returning Officer at about 5 a.m., on 11thJanuary, 1952, and the latter directed the Polling Officersto allow the polling agents to enter the booth. But this

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was too late with the result that the polling agents of theCongress candidate alone got access to the polling stationsimmediately before the start of the poll. Presumablybefore the start of the poll the boxes were examined andsealed in the presence merely of the agents of the Congresscandidate, that is to say, the respondent No. 1. Andthe contention is that this amounts to a corrupt practicewithin the meaning of section 123, clause (8), in that itconstitutes assistance resulting in the furtherance of theprospects of the Congress candidate from Governmentofficials and under section 100, clause 2 (c), invalidates theelection. Before going into the merits of the contention, itis necessary briefly to refer to the relevant sections and therules on the point. Section 123, clause (8), so far asmaterial says that the obtaining by a candidate anyassistance for the furtherance of the prospects of the candi-date's election from any person serving under the Govern-ment of India or the Government of any State other thanthe giving of vote by such person shall be deemed to be acorrupt practice. Section 100, clause 2 (a), lays down thatthe Tribunal shall declare the election of the returnedcandidate to be void if the Tribunal is of opinion that theelection of a returned candidate has been procured orinduced or the result of the election has been materiallyaffected by any corrupt or illegal practice. Clause 2 (b) ofthe same section says that the same result would follow ifany corrupt practice specified in section 123, has been com-mitted by a returned candidate or his agent or by any otherperson with the connivance of the returned candidate orhis agent. And clause 2 (c), says, the same result wouldfollow if the result of the election has been materiallyaffected, amongst other things, by any non-compliance withthe provisions of the rules relating to the election or byany mistake in the use of any prescribed form. It is com-mon ground that the agents of the petitioner were refusedentrance in the polling booths at least till 9 a.m. on theelection day. But respondent No. 1 has contended thatthis was no preferential treatment as alleged because theReturning Officer had followed a uniform procedure withregard to the acceptance of agents'lists and that he him-self, amongst others, had to approach the Returning Officerto point out the eventuality of the Presiding Officers not

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admitting the agents to polls if the validated forms orinstructions were not sent to them. In other words, he saysthat this grievance was not peculiar only to the petitioners'agents tnit was common to all the agents. We are notimpressed by this contention because we think that if it isestablished on the evidence that the petitioners' agentswere not allowed access to the polling booths before thestart of the election, then the consequences, whatever theyare under the law, must follow and it will be no answer tosay that they ought not to follow because this grievancewas common to other candidates as well.

30. [The Tribunal dealt with the oral evidence on thepoint].

31. Two things emerge from this evidence which we seeno reason to disbelieve. Firstly, that the polling agents ofthe petitioner as also the polling agents of some othercandidates including probably the Congress candidate, res-pondent No. 1, were refused admission in the booth at thestart of the election in the early morning of the 11th.Secondly, the ground for not admitting the polling agentswas the non-receipt of the requisite authority from theMamlatdar or his assistant. The Mamlatdar was theAssistant Returning Officer. The question, therefore, ariseswhether the receipt of authority from the Returning Officeris a pre-requisite of the polling agents' right to be in thebooths. To answer this question, it is necessary to turn tothe relevant rules and Form 6 appended to the rules.Under rule 12, each validly nominated candidate is requiredto appoint one agent and two relief agents three days beforethe commencement of the poll to act as his polling agents.The candidate or his agent must, in any case, at least threedays before the commencement of the poll, forward to theReturning Officer the letter of appointment. Then thecandidate or his agent must give the polling agent theduplicate copy of the letter of appointment. Then on theday of polling, the polling agent must present this copy tothe Presiding Officer and must also sign the declarationtherein before the Presiding Officer. Form 6 to the rulesprescribes the mode both of the said appointment and thedeclaration. Sub-rule (3) of rule 12, says that no pollingagent shall be allowed to perform any duty at the pollingstation unless he has complied with the provision of this

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sub-rule. Then under rule 21, the polling agent in whosecase the requirements of sub-rule (3) of this rule 12, aresatisfied, has a right to be present in the booth immediatelybefore the commencement of the poll to inspect the ballotbox and to throughly satisfy himself, amongst other things,that the same is in order in all the details elaboratelyreferred to in rule 21. Therefore, all that is required underthe rules is that (1) the appointment by the candidate ofhis polling agents and (2) a duplicate copy of the appoint-ment to be given to the agent, one copy being sent to theReturning Officer under clause (2) of rule 21. Then theletter of appointment, a copy of which is given to the agent,has to be taken to the Presiding Officer for the purpose ofa declaration in the manner mentioned in Form 6. Thisgives him a right of admission to the polling booth andalthough it is true that rule 12, clause (2), requires a copyof such appointment to be sent to the Returning Officer,still under sub-rule (3) of rule 12, it is obvious that this isnot a necessary condition of the agent's right to be in thebooth immediately before the commencement of the poll.The non-receipt of this notice by the Presiding Officer withor without a further authority in that behalf by theReturning Officer to the polling agents could not possiblyjustify a refusal to admit a candidate (sic.) who has properlymade the declaration mentioned in Form 6. In ourview, it is the letter of appointment by the candidatecoupled with the declaration by the appointed agent inForm No. 6 that is all that is necessary to enable thecandidate's agents to be present in the booths at the startof the election. It is true that the presence of the pollingagents in the booths before the start of the election is amatter of importance in that it gives the persons concernedan opportunity to satisfy themselves before the poll hasstarted that the boxes are in order in every way. Even so,we are unable to hold that this is a sufficient ground forinvalidating the election. It certainly does not come underany of the provisions of section 123 of the Act. The officersconcerned with the conduct of the election seem to havecommitted a bona fide mistake in refusing to admit thecandidates on a ground that was wholly untenable, and ithas been contended by the petitioners that as a result ofthis there have emerged certain disquieting features in the

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conduct of the election, e.g., that in some places it is saidthat it was found that some ballot boxes could be openedwithout damaging the seal, etc. However, the petitioner.,has not chosen topursue the point and to establish it byleading evidence in that behalf— and we ourselves do notfeel very happy about it—but in the absence of anyevidence on the point we must hold that it all amounts to abonafide mistake on the part of the officials responsible forthe conduct of the election not resulting in any prejudiceto the candidates, and we are entitled, in these circum-stances, to invoke section 51, which says that where anyact or thing is authorised by or under this Act to be done inthe presence of polling or counting agents, the non-attendance of any such agent or agents at the time andplace appointed for the purpose shall not, if the act orthing is otherwise duly done, invalidate the act or thingdone. We must assume that the ballot boxes were in orderand that everything in relation to them was duly done.

[The remaining portion of the judgment is not materialfor this report.]

40. For the reasons above stated the petition is dismissed.No order as to costs.

Petition dismissed.

[ELECTION TRIBUNAL, BIKANER.]

LUMBA RAMv.

RAM NARAIN AND OTHERS.M. P. ASTHANA (Chairman),

M. C. BHANDARI and GOVERDHANDAS T. GAJRIA(Members).

April 30, 1953.Disqualification of candidates—"Contract to supply goods"—Contract

with Government for quarrying stone—Stipulation to allow P.W.D.contractors to remove stone required for Government purposes on pay-ment of royalty—Whether contract to supply goods—Representation ofthe People Act,1951, s. 7(d).

Where the Director of the Department of Mines and Geology of aState granted to the petitioner the sole right to quarry building stone

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3 2 0 LITMBA RAM V. RAM NARAIN [VOL. V

from the various quarries of the State under a contract which containeda stipulation that the petitioner agreed to submit to the excavationand removal of all stone required for the State Eailway and Militaryworks, and also to allow the P/W.D. contractors to exacavate andremove all stone required for Government works on payment of a fixedroyalty: Held, that the contract was not one "for the supply of goods"to the Government within the meaning of section 7(d) of the Represent-ation of the People Act, 1951, as there was no agreement to supplygoods but only to allow the removal of stone required for Governmentpurposes.

Shanhar Kanasaheb Karpe v. Mamti Sitaram Saivant and Others(1 E.L.E. 302) distinguished.

Held, also that the mere fact the petitioner conceded before theReturning Officer, that he was holding a contract with the Governmentwould not estop him from contending before the Tribunal that therewas no contract for the supply of goods to the Government.

ELECTION PETITION NO. 311 of 1952.Rawat Mai Kochar and Bhanwar Lai, for the petitioner.Thanchand Mehta (Bhopal Singh with him), for respond-

ent No. 4.ORDER.

This petition has been filed under section 81 of the Repre-sentation of the People Act, 1951, by one Shri Lumba Ramthat the election held from the Sanehore Assembly Consti-tuency, to the Rajasthan Legislative Assembly, in whichthe respondent No. 4 was declared to have been successful,be declared as void, on the ground that his nominationpapers were improperly rejected by the Returning Officer,which has materially affected the result of the election.It appears that the petitioner had filed three nominationpapers as a candidate for election to the Rajasthan Legisla-tive Assembly during the last election, from the SanchoreConstituency before the Returning Officer, against whichthe respondent No. 2, Shri Haqiqat Ullah, raised certainobjections, out of which the Returning Officer upheld one,viz., that since the petitioner held a contract of workingstone-quarries under the Rajasthan Government, he wasdisqiialified under section 7(d) of the Representation of thePeople Act, 1951, and therefore rejected them. The peti-tioner, being thus aggrieved by this rejection order of theReturning Officer, has filed this petition.

Out of the respondents, respondents' Nos. 1 and 3 havenot appeared and the respondent No. 2 only filed a reply, in

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which he has raised no objection to the petition beingallowed in spite of the fact that the Returning Officerrejected the petitioner's nomination papers on the objec-tions of this respondent. It is only the respondent No. 4,the succesful candidate, who has contested the petition.He did not file any reply but his learned counsel made astatement on 15th December, 1952, in which he admittedall the allegations of the petitioner regarding the rejectionof his nomination papers by the Returning Officer on theground of the petitioner holding a contract under the Gov-ernment of Rajasthan but he has denied that the saidorder of rejection is improper or illegal, and has furtheralleged that since the petitioner admitted before theReturning Officer that he was holding a contract under theGovernment of Rajasthan, he is estopped from challengingthe order of rejection passed by the Returning Officer. Onthese allegations the Tribunal framed the following issues:—

1. Was the nomination paper of the petitioner impro-perly rejected, as alleged ? If so, what is its effect ?

2. Is the petitioner estopped from challenging thecorrectness of the order passed by the Returning Officer ?

3. To what relief, if any, is the petitioner entitled ?Issue No. 1.—The petitioner has alleged in his petition

that the order passed by the Returning Officer on 28thNovember, 1951, rejecting his nomination papers is wronginasmuch as the contract referred to by the ReturningOfficer in his order, is not a contract which falls within theprovision of section 7(d) of the Representation of thePeople Act, 1951, and as such he did not suffer from anydisqualification to stand as a candidate for the StateLegislature of Rajasthan for which he had filed the nomi-nation papers. The order was passed by the ReturningOfficer on the objection of the respondent No. 2, ShriHaqiqat Ullah, and runs as under:—

" S. Lumbaram has filed three nomination papers forSanchore Constituency. The objector, Haqiqat Ullah Khan,has raised the objection that he holds a contract underthe Rajasthan Government. The candidate himself agreesthat he holds a contract from the Mines Department and assuch is disqualified under section 7 of the Representationof the People Act of 1951. His papers are therefore reject-ed. Announced."

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The petitioner has filed five original contracts marked asExs. P-2 to P-6, which show that he has been taking thecontracts from the Director, Department of Mines andGeology, on behalf of the Rajasthan Government, accordingto which he has been given the sole right to work thebuilding stone quarries at various places in Rajasthan andto sell such stone within and without those limits. Thecontracts relevant for the purpose of deciding the issue indispute are Exs. 2, 3 and 5, which were all subsisting onthe date of the nomination of the petitioner. Since allthese three contracts are absolutely identical in their termsand conditions except that they relate to different places, itwill -be convenient to refer to them as one contract. It isadmitted by the petitioner that he did hold a contract forworking the building stone quarries from the Governmentof Rajasthan, but his contention is that this contract doesnot fall within the provisions of section 7 (d) of theRepresentation of the People Act, 1951, and as such didnot entail any disqualification upon {him. It is admittedby the learned counsel for respondent No. 4 that the peti-tioner did not hold any contract other than those mentionedabove. Section 7 (d) of the Representation of the PeopleAct, 1951, runs as under :—

" Disqualifications for membership of Parliament or ofa State Legislature:— A person shall be disqualified forbeing chosen as and for being a member of either House ofthe Parliament or of the Legislative Assembly or LegislativeCouncil of a State (d) if whether by himself orby any person or body of persons in trust for him or for hisbenefit or on his account, he has any share or interest in acontract for the supply of goods to or for the execution ofany works or the performance of any services undertakenby, the appropriate Government. "

The main terms and conditions of the contract in ques-tion in order to bring it within the mischief of section 7 (d)of the Representation of the People Act, 1951, which havebeen relied upon by the learned counsel for respondentNo. 4, are as under:—

" 2. The contractor hereby covenants with the Govern-ment as follows:—

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E. L. R.] LUMBA RAM V. RAM NARAIN 323

(e) to submit to the excavation and removal "of allstone required for the bona fide use of Jodhpur Railway,the Military works and the Jagirdars of Osian, Kehtasar,Dunaria Naio, free of any charge ;

(f) to allow the P.W.D. contractors to excavate and toremove all stone required for the Government works,but will charge royalty on it at the rate prescribed inSchedule "B" above, as there is no separate royaltycontract, and if despatched by rail he will charge Rs. 2 perwagon;

(k) to remove all the quarried stone before the expiryof the term of the contract and in case any quantity ofsuch stone is left at the quarries after the termination ofthe contract period, to sell it to the incoming contractor atreasonable price mutually agreed upon. In case of thedisagreement between the outgoing and the incoming con-tractors regarding reasonable price, both the contractorswill have to agree to the decision of the Director, Depart-ment of Mines and Geology, with right to appeal to theMinister-in-Charge of the Department of Mines andGeology.

(m) the contract is liable for cancellation by givingthree months' notice by the Government."

There is no other term in the contract which is relevantfor the purpose of determining this issue.

Now, in order to bring any contract within the provisionsof section 7 (d) of the Representation of the People Act,1951, it should be a contract for the supply of goods to, orfor the. execution of any works or performance of any ser-vices undertaken by, the appropriate Government. Thelearned counsel for respondent No. 4 was asked under whatclass of contracts mentioned in this clause the contract inquestion comes and he said that it comes under the class ofcontracts for the supply of goods to the appropriateGovernment, i.e., the State Government. We are afraidwe cannot agree with his contention. There is absolutelynothing in the contract which suggests that the petitionerever agreed to supply any stone to the Government. Wecannot go outside the contract and infer that if at any timethe Government wanted any stone for its own use, thecontractor would have supplied it and as such the contractwould fall within the provisions of section 7 (d) of the Act.

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324 LUMBA RAM V. BAM NAEAIN [VOL. V

The contract, according to its terms and conditions, someof which have been reproduced above, is for the purpose ofworking the stone quarries for which royalty, as laid down,was payable by the petitioner to the Government in addi-tion to the contract money, but if a,ny stone was requiredfor the Government use, it could be removed from thequarries, which was outside the scope of this contract. Thelearned counsel for respondent No. 4 has contended thatthe underlying idea of the provisions of section 7 (d) is thatpersons who are interested in any contract which affectstheir interest against the Government are disqualified andthe word "supply" is wide enough to include this contract.We are afraid we cannot accept his contention. The termsof the contract in question are so clear that we cannot putany such meaning on them, viz., that it is a contract for"the supply of goods to the appropriate Government" inthe absence of any such term in it. In this connection, hehas referred us to the case of Shankar Nanasaheb Karpe v.Maruti Sitaram Sawant and Others^), in which the questionwhether an agreement which, inter alia, provided that whenthe production of 1951-52 sales is ready, if the contractor-is called upon by the Government to sell his stock of fire-wood and charcoal, he will have to sell his stock to theGovernment at a certain maximum " ceiling selling pricespecified in the slip ", would fall within the provisionsof section 7 (d) on account of this condition. The learnedcounsel for respondent No. 4 has relied upon the followingpassage in the judgment of the case and has contended thatthe contract under consideration is exactly the same, asthe one referred to in the case of Shankar Nanasaheb v.Maruti Sitaram Sawant:—

" It was argued that the meaning of the term ' supply 'was entirely different from that of term ' sell'. It wasurged that the dictionary meaning of the term ' supply'connotes ' to fill up, to keep full or to replenish ' etc., andthat it further implies that one party is in need of some-thing and the other party agrees to supply that want.Therefore it is contended for the petitioner that by nostretch of imagination the expression ' sell' could bebrought within the ambit of the word 'supply'. TheTribunal has carefully considered the meaning of the term

(1) 1 E.L.R. 302.

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B. L. R.] LUMBA RAM V. RAM NARAIN 325

'supply'. The opinion of the Tribunal is that the term'supply' is very comprehensive and includes a transactionof sale. If the petitioner agreed to give Government hisstock of firewood and charcoal when ready at a particularceiling rate it meant that he contracted to supply Govern-ment the said quantity of goods. It is impossible to holdthat there was only a contract to resell to Government, thesaid quantity of goods and that it did not amount to acontract to supply goods to Government."

After a very careful perusal of the terms and conditions ofthe contract in question, we are of the opinion that this con-tract does not contain any such term as the one which wasthe subject-matter of discussion in the above reported case,and we hold that it does not fall within the provisions ofsection 7 (d) of the Representation of the People Act, 1951,so as to entail a disqualification against the petitioner underthis section. Even the conditions mentioned in para-graph 2 (k) and (m) referred to by the learned counsel forrespondent No. 4 do not justify a different conclusion.Every contract must be interpreted in the light of the termscontained therein as the parties' rights and obligations arisewith reference to such terms, and no other terms whichwere not in the contemplation of the parties, should beimported in the contract. Accordingly we come to theconclusion that the petitioner's nomination papers wereimproperly rejected by the Returning Officer and answerthe first part of the issue accordingly. .

Issue No. 2.—This issue relates to the estoppel pleadedby the respondent No. 4, against the petitioner, viz., thatsince the petitioner had admitted before the ReturningOfficer that he was holding a contract from the Govern-ment of Rajasthan, he is now precluded from going backfrom it. This argument, in our pinion, has no force at all.Firstly, there can be no estoppel against the statute, as thequestion whether the contract in dispute falls within theprovisions of section 7 (d) of the Representation of thePeople Act, 1951, is one of law, and secondly, the order ofrejection does not show that the petitioner had admittedbefore the Returning Officer that he was holding a contract" for the supply of goods to the appropriate Government. "We find from the order of rejection that the ReturningOfficer had an impression in his mind that any and every

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contract to which the Government is a party will fall withinthe provisions of section 7 (d) of the Representation of thePeople Act, 1951, which is not correct. If the ReturningOfficer, at the time of scrutiny of the petitioner's nomi-nation papers, had carefully considered the provisionscontained in section 7 (d) of the Act, we are sure he wouldnever have come to the conclusion to which he came. Weare, therefore, of the opinion that no estoppel can ariseagainst the petitioner from challenging the order passed bythe Returning Officer rejecting the petitioner's nominationpapers and answer this issue accordingly.

Issue No. 3.—As a result of our findings on issues Nos. 1and 2 a presumption of law arises that the improper rejec-tion of the petitioner's nomination papers has materiallyaffected the result of the election of the respondent No. 4from the Sanchore Constituency and his election is liable tobe declared wholly void.

Then there remains only the question as to what ordershould be passed about costs. The petitioner's nominationpapers were rejected by the Returning Officer on theobjection of respondent No. 2, who again in these proceed-ings has supported the petitioner. In view of his conduct,we would have passed an order of costs in favour of thepetitioner against respondent No. 2, but we are afraid wecannot pass such an order. Therefore, we propose the usualorder of costs, which follow the event, viz., that thepetitioner is allowed the costs of this petition againstrespondent No. 4 and assess the pleader's fee at Rs. 100.The memo of costs will be drawn up accordingly. Weanswer this issue accordingly and the second part of issue 1in the affirmative.

The petitioner's election petition is allowred and it isdeclared that the election of the returned candidate,Shri Kishore Singh, respondent No. 4, from the SanchoreConstituency of the Rajasthan Legislative Assembly in1952, is wholly void.

Respondent No. 4 shall pay the costs of the petition tothe petitioner including Rs. 100 as pleader's fee and shallbear his own costs.

Election declared void.

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E. L. E.] ROOP CHANDRA SOGANI V. RAW AT MAN SINGH 327

[ELECTION TRIBUNAL, JAIPUR.]

ROOP CHANDRA SOGANI ANT) OTHERSv.

RAWAT MAN SINGH AND OTHERS (No. 2).MR. JUSTICE K. K. SHARMA (Chairman),

A. N. KAUL and P. L. SHOME (Members).

March 31, 1953.

Election petition—Practice—Non-appearance of parties—Dismissalfor default—Propriety—Non-appearance of petitioner at adjourned hear-ing—Power of Tribunal to permit ex parte respondent to prosecute peti-tion—Representation of the People Act, 1951, s. 90{2)—Civil ProcedureCode, Or. 9, r. 8; Or. 17, rr. 2 & 3.

If the petitioner fails to appear on a date to which an election peti-tion has been adjourned, whether the adjournment was made by theTribunal on its own motion or at the request of a party, the Tribunal isnot bound to dismiss the petition summarily for default of appearance.On the other hand, as election petitions do not concern merely the par-ties but affect the entire constituency summary dismissal of electionpetitions for default of appearance of the petitioner would be contraryto the spirit of election law.

Where the petitioner shows negligence in the prosecution of thepetition or deliberately wants to defeat his own petition by non-appear-ance, a respondent who expresses a desire to prosecute the petition,must in the interests of justice be permitted to do so. The Tribunalmay in such a case call upon him to give security for the costs of therespondent.

The fact that the respondent who desires to prosecute the petitiondid not put in appearance at previous hearings and was made ex parte,is not a ground for not permitting him to prosecute the petition whenhe finds that the petitioner is negligent or colluding, for the fact thatthe petitioner was prosecuting the petition at the previous hearings is asufficient cause for his non-appearance at such hearings.

Lahri Singh v. Attar Singh (3 B.L.E. 403) followed.Burdwan Central General Rural Constituency (Sen and Poddar

249), Burdwan North-East General Rural Constituency (Sen and Poddar251), Feni Muhammadan Rural Constituency (Sen and Poddar 310),Nawabshah South Muhammadan Rural Constituency (Sen and Poddar620), Dera Ghazi Khan North Muhammadan Constituency (1 Doabia 98),Enatulla Basunia v. Jiban Mohan Roy (I.L.E. 41 Cal. 956), andHoshangabad case (Hammond 407) referred to.

ELECTION PETITION NO. 7 of 1952.

EL—42

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328 ROOP CHANDRA SOGANI V. RAWAT MAN SINGH [VOL. VD. M. Bhandari and B. 8. Sharma, for the petitioner

until March 5, 1953; D. L. Bhargava appeared on March 5.H. P. Gupta, for respondent No. 1.Kasliwal, for respondent No. 4.

ORDER.

In this election petition, Shri Roopchandra Sogani, acandidate for election to the Rajasthan Legislative Assem-bly from the Jamwa Ramgarh Constituency, and oneMangi Lai, an elector of the said constituency, as petition-ers, seek to set aside the election of respondent No. 1,Rawat Man Singh, on the ground that the nominationpaper of the petitioner No. 1, Roop Chandra Sogani, hadbeen improperly rejected by the Returning Officer, that thenomination paper of the respondent No. 1, Rawat ManSingh, was illegally accepted and that the result of the elec-tion has been materially affected thereby. There are fourrespondents in the petition, of whom the respondent No. 1is the returned candidate; the respondents Nos. 2 and 3also contested the election, but the respondent No. 4 with-drew his candidature.

After the election petition was transferred to the presentTribunal for trial, the petitioner No. 1, Roop ChandraSogani, appeared before the Tribunal on several dates, butthe case had to be postponed as the service on all the res-pondents could not be effected till on December 17, 1952,the case came up for hearing. On that day, the petitionerNo. 1 was present in person and the respondent No. 1 wasrepresented by his counsel. The other respondents, thoughduly served, did not appear and an order was passeddirecting that the case should proceed ex parte againstthem.

On the application of the counsel for the respondent No.1, time was given to him to file written statement up toJanuary 6, 1953, and on this date the written statementwas filed. The petitioner No. 1 was present in personalong with his counsel, Shri D. M. Bhandari and in hispresence and in the presence of respondent No. l's counsel,issues were framed and the parties were directed to submittheir respective lists of witnesses and also summonses andother requisites within a week if they wanted to summontheir witnesses through court.

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E. L. R.] ROOP CHANDRA SOGANi V. RAW AT MAN SINGH 329

One of the issues in the case, i.e., issue No. 6, raised aquestion as to the proper constitution of the Tribunal andarguments on the issue were heard in the presence of thepetitioner himself and the counsel for the respondent No. 1,and it was decided in favour of the petitioner on January21, 1953*. The arguments on that issue were made by thepetitioner himself.

After the decision of the issue referred to above, thefurther hearing of the case was adjourned to January 23,1953. On the last mentioned date when the case was calledon for hearing in the presence of the petitioner and thecounsel for respondent No. 1, it was found that none of theparties had filed their lists of witnesses as directed by theorder of the Tribunal dated January 6, 1953, nor did theytake any steps to get any of their witnesses summonedthrough court. The parties were thereupon directed to filethe said lists by January 30, and also to file summonsesand other requisites on that date, if they- wanted tosummon any of their witnesses through court. On January30, the petitioner No. 1 filed a long list of witnessesnumbering 244 and by a separate petition prayed for sum-monses upon some of the witnesses and the Tribunal, onJanuary 31, 1953, directed the issue of summonses asprayed for and fixed February 16, 1953, for the petitioner'sevidence and February 17, 1953, for the respondent'sevidence.

On February 16, 1953, when the case was called on forhearing, Shri H. P. Gupta, counsel for respondent No. 1,was present but the petitioner No. 1, Roop Chandra Sogani,was found absent, and his counsel, Shri D. M. Bhandariand Shri B. S. Sharma, who were present, said that theyhad no instructions. On an examination of the record itwas found that the petitioner No. 2, Mangilalhad, not beenserved with notice of hearing of the petition after thereceipt thereof in this Tribunal, and under the circumstan-ces the case was adjourned to February 27, 1953, and inthe meantime notice was directed to be served on the saidMangilal informing him of the adjourned date of hearingand of the fact that the petitioner No. 1 was not prose-cuting the case. On February 27, 1953, the said Mangilal,though served with notice, did not appear and Shri B. S.Sharma, counsel for the petitioner No. 1, stated that he had

* See3E.L.R. 339.

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330 ROOP CHANDRA SOGANI V. RAWAT MAN SINGH [VOL. V

got a letter from his client but he was not satisfied aboutthe authenticity thereof and as such he wanted to ascer-tain from his client personally as to whether he wanted toproceed with the case and prayed for some time. Timewas accordingly granted to him till March 5, 1953. OnMarch 5, an application w,as presented on behalf of peti-tioner No. 1 in the following terms:—

" In the above case I hereby cancel and withdraw theauthority given by me to Shri Daulatmal Bhandari andBrij Sundar Sharma, advocates, to appear, act andplead on my behalf. The said advocates will hence-forth be not entitled to appear, plead and act on mybehalf."

This application had been signed by Roopchandra Soganihimself, but it was filed in court through Shri DamodarlalBhargava, another advocate, and in the Abhibhashan Patra(Vakalatnam) which was filed engaging the said ShriDamodarlal-Bhargava as advocate on his behalf, the saidpetitioner empowered him only to present the above men-tioned petition for cancellation of authority and power andgave him no other powers.

At this stage, respondent No. 4, Shri Amritlal, enteredappearance and on his behalf, Shri G. C. Kasliwal, advo-cate, filed an application stating that he would have him-self filed an election petition challenging the election of therespondent No. 1 but for the fact that the petitioners hadpresented the election petition, that as the petitioners wereprosecuting the petition and he had identical interestswith the petitioners in the matter, he did not think itnecessary to attend the court and allowed the proceedingsto proceed ex parte against him, that it had now transpiredthat the petitioners had colluded with the respondent No.1, and were absenting themselves from the trial and thathe, the respondent No. 4, was now desirous of prosecutingthe case in the interests of justice and therefore prayedthat the ex parte order against him be set aside and he bepermitted to prosecute the case either as respondent or bytransposing him to the category of a petitioner. He furtherprayed in the alternative that notwithstanding the defaultof appearance on the past of the petitioners, the case maybe proceeded with and decided on merits and he be per-mitted to join in the trial.

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B. L. B.] ROOP CHANDRA SOGANI V. RAW AT MAN SINGH 331

Shri H. P. Gupta, counsel for the respondent No. 1, ob-jected to the aforesaid prayer of the respondent No. 4 andthe matter was adjourned to March 9, for hearing. Argu-ments of the parties were heard on March 9 and 10, 1953,and the points which now arise for decision of the Tribunalare as follows :—

(1) Whether in view of the default in appearance on thepart of the petitioners, the case should be dismissed fordefault.

(2) Whether the Tribunal can and should proceed withthe trial of the case, in spite of the default of appearanceon the part of the petitioners.

(3) Whether the ex*parte order against the respondentNo. 4 should be set aside and whether the said respondentshould be allowed to take part in the proceedings in thecase; and

(4) Whether the respondent No. 4 should not be trans-posed to the category of petitioner.

Points Nos. 1, 2, <fc 3.—Shri H. P. Gupta for the res-pondent No. 1, contends that in the circumstances of thepresent case, the provisions of Order IX, rule 8, of the Codeof Civil Procedure, would apply and in terms thereof theTribunal has no option but to dismiss the case for default.He further contends that Order IX, rule 8, C.P.C., appliesnot only to the first hearing of a case but to allhearings and as such the provisions of Order XVII will notapply to the case and that in any case, if Order XVIIapplies, rule 2 thereof would apply and not rule 3,as the adjournment was not at the instance of theparties, and none of the parties were called upon to doanything for further prosecution of the case. In supportof his contention, Shri H. P. Gupta cited certain decisionsof Election Commissions, in connection with Election Peti-tions filed under the old law under the Government of IndiaAct. These decisions are:—Burdwan Central General RuralConstituency—Mahitosh Saha v. U. C. Mahatab andOthers (*), Burdwan North-East General Rural Constituency—Girindra Kumar Chatterjee v. Rai Sahab JogendraNath Roy (2), Feni Muhammadan Rural Constituency—Md. Sadique v. Abdur Razzaque (3). Nawabshah South

(1) Sen and Poddar 249. (3) Sen and Poddar 310.(2) Sen and Poddar 251,

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332 ROOP CHANDRA SOGANI V. RAWAT MAN SINGH [VOL. V

Muhammadan Rural Constituency—Ali Mahomed Khan v.Sardar Bahadur Jan(x).

Shri G. C. Kasliwal for the respondent No. 4, on theother hand, contended that Election Tribunals stand on asomewhat different footing than ordinary civil courts andhad ample powers to pass such orders as the justice of thecase may require and for a proper inquiry as to whether theelection has been free and fair, and he referred to the follow-ing two cases:—Dera Ghazi Khan North MohammadanConstituency ; Amir Md. Khan v. Atta Md. Khan (2), LahriSingh v. Attar Singh and Others (3).

On the basis of the said decisions he argues that theTribunal should proceed under Order XVII, rule 3, CivilProcedure Code and proceed to decide the case on themerits notwithstanding the default of appearance on thepart of the petitioners. On a reference to the facts of thecase, as narrated above, it will be noticed that the issues inthe case were framed on January 6, 1953, and the hearingof one issue, viz., Issue No. 6, began on January 7, 1953,and the same was disposed of on January 21, 1953, and thecase was adjourned for hearing on the other issues. Thereis no doubt therefore, that the hearing of the case had begunand the subsequent dates on which the case came up, werefor an adjourned hearing. It is well settled that Order IXCivil Procedure Code, does not apply to a case where theplaintiff or defendant had already appeared, but has failedto appear at an adjourned hearing of the suit. In such acase the procedure which applies is laid down in OrderXVII, which deals with adjournments. Reference may bemade in this connection to the case of Enatulla Basunia v.Jiban Mohan Boy (4).

Coming next to Order XVII, Civil Procedure Code, thequestion arises as to whether rule 2 or rule 3 thereof wouldapply to the case. Rule 2 of that order lays down that,where on any date to which the hearing of the suit isadjourned, the parties or any of them fail to appear, thecourt may proceed to dispose of the suit in one of themodes directed in that behalf by Order IX or make suchother order as it thinks fit. Rule 3 of the said order laysdown that where any party to a suit to whom time has

(1) Sen and Poddar 620. (3) E.L.R. 403.(2) 1 Doabia 98. (4) I.L.R. 41 Cal. 956.

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E. L. E.] BOOP CHANDRA SOGANI V. RAWAT MAN SINGH 333

been granted fails to produce his evidence or to cause theattendance of his witnesses or to perform any other actnecessary for the further progress of the suit, for whichtime has been allowed, the court may notwithstandingsuch default, proceed to decide the suit forthwith.

The effect of rule 2 of Order XVII, is that is assimilatesthe procedure in cases of default of appearance at anadjourned hearing with that in cases in which there isdefault of appearance at the first hearing, and the remediesprescribed under Order IX are available to the aggrievedparty. Rule 3 of Order XVII gives an additional powerto the court to proceed to decide the suit forthwith, with-out granting further adjournment and the effect of suchdecision would be that it would be a decree on the meritsand appealable as such and the remedies prescribed underOrder IX in respect of ex parte hearings and ex partedecrees will not be available to the aggrieved parties.

The circumstances to which rule 2 or rule 3 of OrderXVII, would respectively apply have been the subject ofjudicial decisions and it has been held tin he above men-tioned case of Enatulla Basunia v. Jiban Mohan Boy{x) thatthe distinction between the two rules is that the former ruleapplies to hearings adjourned at the instance of the courtwhile the latter applies to hearings adjourned at theinstance of a party to whom time has been allowed to dosome act to further the progress of the suit but who hasmade default.

It is thus clear that whether rule 2 or rule 3 applies toa case, the court has got three alternatives: (1) to dispose ofthe suit in one of the modes directed in that behalf inOrder IX, (2) to proceed to decide the suit forthwith, or (3)to pass such other order as it thinks fit. The remedy ofthe aggrieved party against any such order would dependupon the circumstances as would justify the application ofthe provisions of rule 2 or rule 3. It may be pointed outthat the word used as regards the power of the court ineither case is "may" and not "shall", so that the court isnot bound to dismiss a suit when a default occurs, as in thecase under Order IX, rule 8.

When on February 16, 1953, to which date the case wasfixed for the hearing of the remaining issues, the petitioner

(1) I. L. R. 41 Cal, 956,

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No. 1 was found absent, the Tribunal passed an orderdirecting issue of notice on the petitioner No. 2, who, itwas then discovered, had not got notice of the hearing atall, and that may be taken to be an order under the lastclause of Order XVII, rule 2. No final order of dismissal,even if permissible, could be passed on that day. TheTribunal was not bound to apply the provisions of OrderIX to dismiss the case and it did not do so. In pursuanceof the Tribunal's last mentioned order, when on the nextdate, the counsel for the petitioner No. 1 prayed fortime to ascertain the real intention of his client, therewas not real non-appearance, and adjournment to thenext date, i.e.,March 5, can be said to beat the instance ofthe petitioner No. 1. On March 5, the petitioner No. 1also appeared through an advocate though for a limitedpurpose. At that stage, the respondent No. 4 appearedand applied to be allowed to take part in the proceedingsand to be transposed to the category of the petitioner.The interests of the respondent No. 4 and the petitionersof the election petition were identical and in view of theprayer made by the former and in the circumstances thathave happened in the case, it is doubtful whether it is acase of non-appearance at all, meriting forthwith dismissalfor default.

Even if it be taken that the case does not come underOrder XVII, rule 3, it certainly comes within Order XVII,rule 2. It was argued by the learned counsel for the res-pondent No. 1, that Order XVII, rule 2, applies only if theadjournment is granted at the request of the party. Itwas argued that, looking to the words of rules 1 and 3 ofOrder XVII, it appears that rule 2 also applied to a casewhere adjournment is given at the instance of a party. Weare unable to accept this contention. The words in rule 3are "where any party to a suit to whom time has beengranted fails to produce his evidence or to cause etc"Whereas the words used in rule 2, are simply "to which thehearing of the suit is adjourned." Rule 2 does not saythat the suit is adjourned at the instance of any party.There is no reason why we should qualify the words"adjourned" with any words like "at the instance of a partyetc." Thus, in any case, the provisions of Order XVII,apply and the Tribunal was not bound to dismiss the

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E. I. B.] BOOP CHANDBA SOGANI V. BAWAT MAN SINGH 335

petition either on February 16,1953, or on March 5, 1953.It was in the discretion of the Tribunal to adopt any of themodes provided in Order IX, or to make such other orderas it thought fit. It was contended by the learned counselfor the respondent No. 1, that such other order could beonly of an adjournment. We do not think that the expres-sion "such other order" in rule 2 should be narrowed downto mean only an order of adjournment. In the presentcase before any final order could be made in the case, oneof the respondents who claims to be as much interested inthe petition as the petitioners themselves, appeared beforethe Tribunal and expressed his desire to prosecute the case.It cannot be denied that if an order of ex parte hearing hadnbt been made against him he had a perfect right toappear in the case and produce whatever evidence hewanted to produce on the issues in the case. There areseveral kinds of civil suits in which the defendants are asmuch interested in the plaintiff's case as the plaintiff him-self. They are, e.g., partnership suits, partition suits etc.It cannot be denied that in such suits a defendant mayproduce evidence in support of the plaintiff's case. Elec-tion cases too are, in our opinion, of the same nature.Election petitions are not the concern merely of theparties, as in the case of an ordinary civil suit. They arematters of public importance involving the rights of theentire constituency and it has been held that the summarydismissal of an election petition for non-appearance of thepetitioner on the analogy of dismissing a suit in default fornon-appearance of the plaintiff under Order IX, rule 8, CivilProcedure Code, would be contrary to the spirit of the elec-tion law: vide Dera Ghazi Khan North MohammadanConstituency: Amir Md. Khan v. Atta Md. Khan (1).

Reference may also be made to the case of Lahri Singhv. Attar Singh[*) (Badhra-Satnali Constituency) decided bythe Patiala Election Tribunal. In this case the respondentNo. 6 had filed a written statement supporting all thegrounds made by the petitioner and at the stage of thetrial he claimed the right to produce evidence in supportof the grounds made by the petitioner in addition to whatevidence the petitioner himself might choose to produce.The ground on which this prayer on behalf of the respondent

(1) 1 Doabia 98. (2) 3 E.L.R. 403.EL—43

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No. 6 was made was that due to certain influences, thepetitioner was likely to join hands with the returned candi-date and that the petitioner was indifferent to the properprosecution of the petition and was holding back the avail-able evidence in support of the petition. The Tribunal, byits order, held that the respondent No. 6 was entitled toproduce evidence in proof of the grounds already made bythe petitioner, and the respondent No. 6 was allowed toadduce evidence in support of all the grounds raised in thepetition. The reason for the decision was that the Tribunalwere of the view that the provisions in the Representationof the People Act, 1951, (hereinafter to be referred to asthe Act) as regards election petitions were made with thepurpose of ensuring that elections should be free and fairand that elections which are not found to have been so,should be set aside. Then, referring to the relevant sectionsof the Act regarding the persons who have the right to callan election in question, the wide powers given to the Elec-tion Tribunals to collect all the necessary materials and toexamine any person suo motu, the provisions regardingwithdrawal and abatement of election petitions, the powerof the Tribunal to refuse an application for withdrawal ifit appeared to be induced by unlawful bargain or consider-ation, the Tribunal state as follows:—

" The Legislature could not, therefore, have intended toleave the Tribunal powerless in the matter of having a fairand effective trial of the petition in order to determine ifthe election had been fair and free or not, when as isalleged in this case, the petitioner, though not openly with-drawing the petition is trying collusively to keep back theavailable evidence for sustaining the grounds taken inthe petition. To shut out reception of such evidence onthe ground that it was being produced not by an allegedlyunwilling petitioner but by one of the respondents wouldbe tantamount to encouraging such petitioner in his un-helpful attitude towards the Tribunal and in his attempt toprevent a fair and effectual trial of the election petition. "

In the four cases relied on by the learned counsel forrespondent No. 1, the question of dismissal for default didnot arise in the manner and in the circumstances that havearisen in the present case before us. No other interestedparty offered to carry on the proceedings and prove the

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case made out in the petition. The first two cases, viz.,Mahitosh Saha v. U. C. Mahatab and Others—BurdwanCentral General Rural Constituency^), and Girindra KumarCkatterjee v. Rai Saheb Jagendra Nath Roy—Burdwan Divi-sion North-East General Rural Constituency, 1940^), werecases of simple non-appearance of the petitioners, and theTribunal had no option but to dismiss them. No questionwas raised that Order XVII, Civil Procedure Code, applied.In the third case, viz., Md. Sadeque v. Abdul Razzaque: FeniMuhammadan Rural Constituency, 1937(d), the petitionerwas asked to furnish additional security and he failed to doso. The Tribunal, therefore, held, relying on the Hoshanga-bad case^), that the principle laid down in Order XVII,rule 3, and Order XXV, rule 2, Civil Procedure Code, wouldapply and dismissed the petition " on the ground that thesecurity required has not been furnished. " In the fourthcase, viz., Ali Mohamed Khan Atta Mohamed Khan v.Sardar Bahadur Jam Jan Mohamed Khan Mohamed SharifJuneja—Naivabshah South Muhammadan Rural Constitu-ency, 1937{5), an application for withdrawal of the petitionwas filed jointly by the two parties, but the Tribunalrefused to grant leave to withdraw as it was of the viewthat there was an element of bargaining connected with thewithdrawal petition. The Tribunal held that as no expressprovision has been made in the rules for a case like this,Order IX, rule 8, Civil Procedure Code, would apply,that the absence of the petitioner amounts to failureto support the petition, and, as the petitioner doesnot claim the seat, the Tribunal had no power to go intothe recrimination petition. In that case there was no ques-tion whether the case came under any of the rules of OrderXVII. Taking it for granted that Order IX, Civil ProcedureCode, applied, the Tribunal held that as the default hadbeen committed by the petitioner under rule 8, the Tribu-nal bad no power but to dismiss the petition. No questionarose as to whether any of the respondents, who was pre-pared to prosecute the petition, could be allowed to do thator not.

On a reference to the various provisions of the Act,which we shall presently notice, we are disposed to agree

(1) Sen and Poddar 249. (4) Hammond 405.(2) Sen and Poddar 251. (5) Sen and Poddar 620,(3) Sen and Podder 310,

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with the views of the Patiala Election Tribunal in the caseoiLdhri Singh v. Attar Singhi1), quoted above, so far as itgoes to show that in case the petitioner is found negligentor misbehaving, anyone of the respondents who wants tosupport the plaintiff's case, may be allowed to do that. Bysection 82 of the Act, it has been provided that all the dulynominated candidates shall be joined as respondents to thepetition. Under section 90 after a copy of the petition ispublished in the Official Gazette any other candidate, whohas not been joined as a respondent can, at any time with-in 14 days after such publication come in and claim to bejoined as a respondent and the Tribunal shall join him asrespondent subject to the provisions of security for costsfrom a respondent under section 119. It is thus clear thatthe legislature wanted to make a provision to give anopportunity to all the duly nominated candidates as wellas other candidates who might apply under section 90(1)to take part in the proceedings arising out of the electionpetition. It is not necessary that all the respondents shouldbe interested in defending the case against the petitioner.Some of them may be interested in the sucxess of the peti-tion and as a matter of fact all the candidates exceptingthe successful ones, are normally interested in the successof the petition. If, therefore, anyone of such respondentswants to support the petition the door cannot be shutagainst him.

We should say that it is not only proper but necessaryin the interest of justice that in a case where the petitionershows slackness or deliberately wants to defeat his peti-tion, a respondent who expresses a desire to support thepetition, should be given full chance to support it. From acareful reading of the Act we find that it has been theanxiety of the legislature that an election petition shouldnot be defeated on account of the indifference or deliberateaction of the petitioner. That is why provision has been

.made in the case of withdrawal of,petition that the Tribu-nal should not allow the withdrawal if it thinks that suchapplication has been induced by any bargain or consider-ation which ought not to be allowed. When an applicationfor withdrawal is made, the Election Tribunal has beenrequired to publish notice of withdrawal in the OfficialGazette and to give notice to all other parties to the

(1) 3E.L. R. 403.

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petition on the date of hearing of the application for with-drawal. Even if withdrawal is granted, a further notice ofwithdrawal is required to be published in the Official Gazetteand if within 14 days of such publication a person, whomight have been a petitioner, comes forward and pressesto be substituted in place of the petitioner the Tribunalshall be bound to substitute him, of course on such termsas it thinks fit.

It was argued that there are specific provisions forallowing interested persons to come forward and be substi-tuted for the petitioner. But in a case of default no suchprovision has been made. It is true but we have referredto the provisions relating to withdrawal simply to em-phasize that the anxiety of the Legislature was that anelection petition should not be defeated like an ordinarycivil suit by the negligence or misconduct of the petitioner.We are not adopting the procedure laid down in the case ofwithdrawal of petitions. In the present case we areconcerned with the fact whether we should allow a partywho is already on record to take such steps as he thinksproper for enabling the Tribunal to do justice in the case.We, therefore, see no reason why we should not make anorder allowing the respondent No. 4, Amritlal, to take partin the procedings.

It was finally argued that at any rate an ex parte orderhas been made against him and it cannot be set asideunless valid grounds are made out for the setting aside ofthe order. There is the view of some High Courts thatwhen only an ex parte order has been made against adefendant but no decree is passed, the defendant can comein and take part in the proceedings at any stage before thecase is decided. Of course, it has been held that he wouldbe allowed to take part in the proceedings from the stage atwhich he appeared. Unless the ex parte order has been setaside he would not be relegated to the position which hemight have occupied in the absence of the ex parte order.On this view, we can allow the respondent No. 4 to takepart in the proceedings from the stage at which he appearedand prayed for being allowed to take part in the case, evenwithout setting aside the ex parte order. The only proceed-ings that had taken place before he came in was that an issuerelating to the constitutionality of the Tribunal had been

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decided. No hearing on any other issues had begun, muchless concluded, before he applied to be allowed to take partin the case. But, even if it be necessary to set aside theex parte order before he is allowed to take part in the pro-ceedings, we are satisfied that he has shown good causefor his non-participation in the case before he ceased totake any interest in the case. He is as much interestedboth as a voter as well as a candidate in the success of thepetition as the petitioners themselves. He had no necessityto come in and prosecute the case so long as the petitionerswere taking interest therein, as he had only to support thepetition and not to oppose it. When he found that themain petitioners were trying to defeat the petition by theirconduct, the necessity arose of his coming before theTribunal for the prosecution of the petition. There can beno doubt that the petitioner is deliberately trying to defeathis petition and is not fair enough to give an opportunityto the other respondents or other persons who might havebeen entitled to file the election petition to prosecute thecase in case the petitioners had applied for withdrawal. Itis not a case where the petitioner is unable due to anysufficient cause to appear in court. He made an applicationthrough a counsel to have his previous Vakalatnama infavour of Shri B. S. Sharma and Shri D. M. Bhandari,cancelled and was cautious enough to mention in hisVakalatnama in favour of Mr. Damodar Lai Bhargava, thathe was engaged only for the purpose of having the previousVakalatnama in favour of Messrs. B. S. Sharma andD. M. Bhandari, cancelled. From this conduct of his it isquite clear that he wants to throttle the election petitionand at the same time wants to keep other interested per-sons from coming in. Under the circumstances it would bevery unjust to the constituency to disallow a party in thecase from looking after the interests of the constituencyand seeing that justice is done on merits in the case. Toour mind the respondent No. 4 has been able to show goodcause for having the ex parte order set aside.

Point No. 4.—In view of the fact that we are settingaside the ex parte order and allowing respondent No. 4 totake part in the proceedings we do not consider it necessarynow to go into the question whether he can be transposedas a petitioner in the case.

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The application of respondent No. 4 is allowed, theex parte order made against him is set aside and he isallowed to prosecute the case, provided he files cash securityof Rs. 300, within a week from to-day for any probablecosts of the respondent No. 1, in case the petition isdismissed.

Application allowed.

[MADRAS HIGH COURT.]

S. K. SAMBANDAMv.

ELECTION TRIBUNAL, MADRAS, AND OTHERS.RA.TAMANNAR, C. J., and VENKATARAMA AYYAR, J.

March 31, 1953.Nomination of candidates—Electoral roll—Rejection of nomination

for omission to produce certified extract of roll—Legality—Substantialcompliance—Power to reject— Electoral Rules—Amendment of Rules afterNotification of Governor to elect—New Rules, whether applicable—Methodof counting votes—Whether matter of substantive right or procedure—Change of rules before filing of nomination—Effect of—Representation ofthe People Act, 1951, ss. 36 (2) (d), 39 {4)—Representation of the People{Conduct of Elections and Election Petitions) Rules, 1951, rr. 91, 96to 102.

Where a candidate produced along with his nomination paper aprinted copy of the Block of the electoral roll for the constituency,wherein his name was entered as a voter, but the Returning Officerpassed an order calling upon him to produce a certified extract from theelectoral roll and rejected his nomination for non-compliance with thisorder: Held, (i) that by producing the printed copy of the Block of theelectoral roll in which his name appeared, the candidate had substantiallycomplied with the requirements of section 39 (4) of the Representationof the People Act, 1951; (ii) even assuming that the provisions of sec-tion 39 (4) were not complied with, the Returning Officer had no powerunder section 36 (2) (d), or any other provision of law to reject thenomination for non-compliance with the proviso to section 39 (4).

Basti Election Case, (Sen and Poddar 106) applied.The purpose of the proviso to section 39(4) is not to prescribe ordeals

for the intending candidates to undergo, but to provide for guides to theReturning Officer in deciding about the identity of the candidate and ofthe proposer and seconder.^ Where, after the notification of the Governor under section

18 (l), but before the nomination papers of the candidates had been

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filed,' Kules 91, and 96 to 102, of the Conduct of Elections and ElectionPetitions Rules, 1951, (which related to the method of counting of votes)were repealed and new rules were substituted for the same and theReturning Officer counted the votes in accordance with the new rules,and the election of the successful candidate was impugned on the groundthat the Returning Officer should not have applied the new rules:

Held, that, though the right to vote was a substantive right, yet, asthe rules in question did not abrogate any right to vote or to stand forelection but merely regulated the mode in which that right should beexercised, they were wholly procedural in nature, and the ReturningOfficer acted rightly in applying the new rules for the counting of votes.

Held further, that, until a person had chosen to stand as a candi-date and filed his nomination paper he could not acquire any substantiverights in respect of that election and, as the new rules had comeinto force before the nomination papers were filed, the new rules were,in any event, applicable to the case.

Ponnuswami v. Returning Officer, Namakkal [1952] S.C.R. 218;(1 E.L.R. 133) and United States v. Classic (85 L.E.D. 136) referred to.

WRIT PETITIONS NOS. 869 of 1952 and 72 of 1953.Writ Petition No. 869 of 1952 was an application

under articles 225 to 227 of the Constitution praying forthe issue of a writ of certiorari calling for the records inElection Petition No. 324 of 1952, and to quash the decisionmade therein and directing the Returning Officer to recountthe votes and declare the petitioner elected. (The orderof the Election Tribunal is reported at 2 E.L.R. 61.)

Writ Petition No. 72 of 1953 was an application underarticles 225 to 227 of the Constitution praying for the issueof a writ of certiorari calling for the record in ElectionPetition No. 261 of 1952, and to quash the decision therein,dated 11th December, 1952. (The order of the ElectionTribunal is reported at 2 E.L.R. 225.)

T. Lakshmiah, K. Pandurangam, K. Srinivasamurthy,B. Lakshminarayana Reddy, for the petitioner in both thepetitions.

K. Srinivasa Rao and ' M. O. Kamath, for the 2ndrespondent in Writ Petition No. 72 of 1953, and respondentsNos. 3 to 9 in Writ Petition No. 869 of 1952.

Advocate-General of Madras, for the State of Madras.The Judgment of the Court was delivered by VENKATA-

RAMA AYYAE J.—These petitions arise out of proceedings taken for setting

aside the election of members to the Madras Legislative

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Council by the members of the State Legislative Assembly,at an election held on 27th March, 1953. On 4th March, 1953,the Governor of Madras issued a notification under sec-tion 18(1) (b) of the Representation of the People Act(XLIII of 1951); hereinafter referred to as the Act, callingupon the members of the Legislative Assembly to elect24 members to the Legislative Council. The last date fixedfor nomination was the 13th March; for scrutiny of thenomination paper 14th March ; and for polling 27th March.One Sri U. C. Subramania Bhatt, who is the respondent inWrit Petition No. 72 of 1953, presented his nominationpaper on the 12th March, and along with it he filed aprinted copy of Block No. 15 of the electoral roll for theMangalore City Constituency wherein his name is entered asa voter, the serial number being 26. On 14th March, 1952,the Returning Officer passed the following order on thenomination paper:

"Time given till 3 p.m., on the 16th for producingcertified extract from the electoral roll. "

It may be mentioned that 16th March, 1952, was aSunday and the certified extract as required by the orderwas actually produced on 17th March, 1952. But thenomination paper had in the meantime been actuallyrejected on 16th March, 1952, for non-compliance with theorder. Subramania Bhatt, filed Election Petition No. 261of 1952, for setting aside the election on the ground thathis nomination paper had been improperly rejected. TheElection Tribunal which went into this matter upheld hiscontention and set aside the election. Writ Petition No. 72of 1953, has been filed for the issue of a writ of certiorari toquash this decision.

The petitioner in Writ Petition No. 72 of 1953, is oneSri S. K. Sambandam. He is not one of the persons whohave been unseated as a result of the decision of theElection Tribunal in Election Petition No. 261 of 1952, buthis interest in the matter arises by reason of the factthat he was one of the unsuccessful candidates at the elec-tion which was held on 27th March, 1952. He filed ElectionPetition No. 324 of 1952, to set aside the election on theground that in counting the votes the Election Officer hadapplied the rules which had been enacted on 10th March,1952, whereas he ought to have followed those which were

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in force on 4th March, 1952, and that according to thoserules he was entitled to be declared elected. This conten-tion was overruled by the Election Tribunal on the groundthat the rules in question related to procedure in which thepetitioner had no vested right and that" the matter wasgoverned by the rules which had been enacted on 10thMarch, 19.52. In the result, Election Petition No. 324 of1952, was dismissed. It is to quash this order of dismissalthat Writ Petition No. 869 of 1952, has been filed. It willbe seen that even if the petitioner is right in his contentionthat the rules applicable for the counting of votes arethose which were in force on 4th March, 1952, and that inaccordance therewith he should be declared elected, thatwill do him no good, unless the decision in Election Peti-tion No. 261 of 1952, that by reason of the improper rejec-tion of the nomination paper of Subramania Bhatt theentire election should be set aside, is also set aside. Inother words, he must succeed in both the petitions, if he isto have any relief.

Taking Writ Petition No. 72 of 1953, the only point fordetermination is whether the rejection of the nominationpaper of Subramania Bhatt on 16th March, 1952, by theReturning Officer is improper. The statutory provisionsrelating to the matter are these. Section 39 deals with thenomination of candidates for election to the LegislativeCouncil of the State by the members of the Legislative -Assembly of that State. Section 39 (4) enacts that "theprovisions of sub-sections (1), (3), (4), (5) and (7) of section33 and sections 34 to 38, shall apply to the nominationof candidates, deposits to be made on such nominationsand withdrawal of candidatures". Section 36(2) providesfor rejection of nomination paper and is as follows :—

" (2) The Returning Officer shall then examine thenomination papers and shall decide all objections whichmay be made to any nomination, and may, either on suchobjection or on his own motion, after such summaryinquiry, if any, as he thinks necessary, refuse any nomina-tion on any of the following grounds :—

(a) that the candidate is not qualified to be chosento fill the seat under the Constitution or this Act; or

(b) that the candidate is disqualified for being chosento fill the seat under the Constitution or this Act; or

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(c) that a proposer or, seconder is disqualified fromsubscribing a nomination paper under sub-section (2) ofsection 33; or

(d) that there has been any failure to comply withany of the provisions of section 33 or section 34 ; or

(e) that the signature of the candidate or any propo-ser or seconder is not genuine or has been obtained byfraud."

The contention of the petitioner is that the order ofrejection of the nomination paper falls under section 36(2)(d). Section 34 relates to deposit and has no application.As for section 33, as already mentioned, section 39(4)expressly provides that sub-sections (1), (3), (4), (5) and(7) of section 33 shall apply to elections to LegislativeCouncil by the members of the Legislative Assembly. It isconceded by Mr. T. Lakshmiah, the learned advocate forthe petitioner, that there has been no failure to complywith any of the above provisions.. The result then is thatthe nomination paper is not liable to be rejected undersection 36(2)(d) and, as there is no other provision conferr-ing power on the Election Officer to reject it, the order ofrejection is manifestly erroneous.

It is argued for the petitioner that under section 33(6) ofthe Act the Returning Officer is entitled to called upon thecandidate to produce either a copy of the electoral roll inwhich the name of the candidate is included or a certifiedcopy of the relevant entries in such roll: that though thisprovision is not as such applicable, under section 39(4), toelections to Legislative Council, it is substantially enacted inthe second proviso to section 39(4): and that, as the termsof that proviso have not been strictly complied with, theReturning Officer had power to reject the nominationpaper.

There are two answers to this contention : (i) There hasbeen a substantial compliance with the terms of the pro-viso to section 39(4); and (ii) even if there has been nosuch compliance the Returning Officer has no power toreject the nomination paper on that ground.

(i) The second proviso to section 39(4) runs asfollows:—

" Provided further that at the time of the present-ation of the nomination paper, the Returning Officer may

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require the person presenting the same to produce either acopy of the electoral roll in which the name of the candi-date is included or a certified copy of the relevant entriesin such roll."

In the present case, the candidate produced not theentire roll of the Mangalore Constituency, but that portionof it wherein his name was entered, i.e., Block 15. That it isan authentic and accurate copy was not in dispute; norwas it disputed that the portion of the rolls actuallyproduced was all that was relevant and material for thepurpose of the nomination paper; nor can it be arguedthat the Returning Officer is entitled to call upon thecandidate who has produced a copy of the electoral roll toproduce also certified copy of the relevant entries in therolls ; the proviso does not authorise the Returning Officerto call upon the candidate who has produced either a copyof the rolls or a certified copy of the relevant entries, toproduce also the other. The contention that is urged isthat the electoral roll is a single document containing thenames of all the electors of the constituency, that a portionrelating to a Block therein is not ' the electoral roll 'referred to in the section : that the production ofthe portion of the roll relating to Block No. 15 was not,therefore a production of the electoral roll as required bythe provision; and that the Returning Officer was withinhis rights in calling upon the candidate to produce a certi-fied copy of the relevant entries in the rolls. This argumentattaches more importance to the form than to the substanceof the enactment. It has often been observed that section33(6) and section 39(4), proviso, and similar provisions instatutes in pari materia enact a rule of evidence and that theirobject is to enable the Returning Officer to satisfy himself asprovided in section 33(5) "that the names and electoral rollnumbers of the candidate and his proposer and seconder asentered in the nomination paper are the same as thoseentered in the electoral rolls." The purpose of the provisoto section 39(4) therefore, is not to prescribe ordeals for theintending candidates to undergo, but to provide guides tothe Returning Officer in deciding on the identity of thecandidat'e and of the proposer and seconder. In the BastiElection case (') it was held by the Election Tribunal that

(1) Sen and Poddar 106.

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an order of the Returning Officer rejecting a nominationpaper on the ground that a certified copy of the entries inthe rolls had not been produced was erroneous and that theelection was, therefore, liable to be set aside. The princi-ple of that decision is clearly applicable to the presentcase. As already mentioned, there was no dispute aboutthe genuineness of the copy of the electoral roll which wasproduced, nor about the identity of either the candidateor proposer and seconder. It must, therefore, be held thatin producing the copy of the electoral roll there has been asubstantial compliance with the requirements of theproviso. In this view, it is unnecessary to go into thequestion whether having regard to section 22(a), BlockNo. 15 can be considered to be a distinct unit and theportion of the electoral roll actually produced held to be anelectoral roll for the purpose of section 39 (4). (ii) Even ifit were to be held that the nomination paper did not con-form to the requirements of section 39(4), proviso, thequestion still remains whether the Returning Officer hadpower to reject it on that ground. The proviso itself doesnot confer any such power on the Returning Officer. Theonly other provision in the Act conferring such power issection 36 (2) (d) which, as alredy mentioned, has no appli-cation. The contention of Mr. T. Lakshmiah, the learnedadvocate for the petitioner, is that it would have beencompetent to the Returning Officer, under section 36(2)(d)to reject the nomination paper for non-compliance withsection 33(6): that though the provision has not been madeapplicable under section 39(4), to elections to LegislativeCouncil, nevertheless, it is in substance and with suitablemodifications enacted in the proviso to section 39(4) andthat, therefore, what the Returning Officer could do incase of non-compliance with section 33(6), he could do fornon-compliance with the proviso to section 39(4). This con-tention is clearly untenable. The power to reject a nomina-tion paper for non-compliance with section 33(6), is conferredon the Returning Officer by section 36 (2) (d). There isno similar provision either in that section or elsewhere forthe rejection of a nomination paper for failure to complywith the proviso to section 39(4) and a power which is acreation of the statute must be found within its terms andcannot be extended by analogy. We, therefore, agree with

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the Election Tribunal that the Returning Officer had nopower under the Act to reject the nomination paperfor non-compliance with the terms of the proviso tosection 39(4).

In the result, Writ Petition No. 72 of 1953, is dismissedwith costs one set, advocate's fee Rs. 250.

In this view, the question raised in Writ Petition No. 869of 1952, is purely of academic interest, for even if it be heldthat petitioner should have been elected on the basis of therules which were in force on 4th March, 1952, that is of nopractical interest to him as the entire election has to be setaside on the ground that the nomination paper of Subra-mania Bhatt had been improperly rejected. But as Mr. T.Lakshmiah, the advocate for the petitioner, has pressed onus to give our decision on the question, we proceedto do so.

It will be remembered that the notification for election tothe Legislative Council was issued by the Governor undersection 18(l)(b) of the Act on 4th March, 1952. On 6thSeptember, 1951, in exercise of the powers conferred onthem by section 169 of the Act, the Central Governmentenacted a body of rules for the conduct of elections underthe Act and it is these rules that were in force at the timeof the notification of 4th March, 1952. On 10th March,1952, the Central Government repealed rules 91 and96 to 102 of the rules framed on 6th September,1951, and submitted therefor new rules. The Elec-tion Officer applied these rules in counting the votes,and following the method of counting prescribedtherein, declared respondents 2 to 25 to the petition asduly elected. It is stated for the petitioner that if thevotes are counted in accordance with the rules as theystood before 10th March, 1952, he is entitled to be declaredelected, unseating one of the respondents and that is con-ceded by the learned Advocate-General. The point indispute is whether the counting of votes should be inaccordance with the rules which were enacted on 6thSeptember, 1951, or with those which came to be substi-tuted therefor on 10th March, 1952. The contention onbehalf of the petitioner is that the election commencedwith the issue of the notification under section 18 (l)(b)

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on 4th March, 1952; that the right which is conferredon a candidate to stand for election is a substantiveright which accrues to him at the commencement ofthe election ; that any subsequent change in the electionrules could not operate to prejudice such a right; and thatin consequence the votes should be counted in accordancewith the rules as they stood on 4th March, 1952 and not"the new rules which came into force on 10th March, 1952.That an election commences with the issue of a Notifica-tion is well settled ; that was so held by the Supreme Courtin Ponnuswami v. Returning Officer, Namakkali1) whereinFazl Ali J. observed :

" That word (election) has by long usage in connec-tion with the process of selection of proper representativesin democratic institutions, acquired both a wide and anarrow meaning. In the narrow sense, it is used to meanthe final selection of a candidate which may embrace theresult of the poll when there is polling or a particularcandidate being returned unopposed when there is no poll.In the wide sense, the word is used to connote the entireprocess culminating in candidate being ' declared elected...The discussion in this passage makes it clear that the word'election' can be and has been appropriately used withreference to the entire process which consists of severalstages and embraces many steps, some of which may havean important bearing on the result of the process. "

Taking it then that the election commenced on 4th March,1952, the question is what substantive rights the petitioneracquired on that day with reference to the election and whe-ther those rights have been interfered with by the newrules. It will be convenient at this stage to examine thenature of the change that was introduced by the new rules.Both under the old and the new rules the election to theLegislative Council is based on the principle of proportionalrepresentation by means of a single transferable vote.Rules 96 and 97 of the old rules are as follows :—

" 96. Counting of votes.—The Returning Officer shallthen count the number of papers in each parcel, and crediteach candidate with one vote in respect of each validpaper on which a first preference has been recorded for

(1) F1952] S.CR. 218; 1 E. L. R. 133 at pp. 140-141,

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him, and he shall ascertain the total number of validpapers.

97. Ascertainment of quota.—The Returning Officer shallthen divide the total number of valid papers by a numberexceeding by one the number vacancies to be filled,and the result increased by one, disregarding any fraction-al remainder, shall be the number of votes sufficient tosecure the return of a candidate (in this Chapter referredto as the "quota")."

The new rules which were substituted on 10th March,1952, as follows :—

"96. Counting of votes.—(1) The Returning Officer shallthen count the number of papers in each parcel and creditthe candidate concerned with the value of those papers.He shall also ascertain and record the total number ofvalid papers.

(2) For the purpose of facilitating the processes pres-cribed in rules 97 to 102, each valid ballot paper shall bedeemed to be of the value of one hundred.

(3) In carrying out of provisions of rules 97 to 102the Returning Officer shall disregard all fractions andignore all preferences recorded for candidates already elect-ed or excluded from the poll. '

97. Ascertainment of quota.—The Returning Officer shalladd together the values of the papers in all the parcels anddivide the total by a number exceeding by one, the numberof vacancies to be filled. The quotient so obtained increasedby one shall be the number sufficient to secure the returnof a candidate, hereinafter called " the quota ".

It will be seen that under both the sets of rules theprocedure prescribed for counting of votes is firstly to totalup the number of valid votes, then to divide that total bythe number of candidates plus one and the resulting figureplus one is taken as the quota and the candidates whosevotes equal or exceed the quota are to be declared elected.The change introduced by the new rules consists in thisthat, while under the old rules fractions were to be dis-regarded, under the new rules that situation'is avoided byallotting to each valid paper the value of 100. The effectof the change is to avoid the inexactitude arising by reasonof elimination of fractions. The rule of construction beingwell settled that a statute is not to be construed as

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having retrospective operation otherwise than as regardsmatters of procedure, the question -is, does the changeintroduced in the rules on 10th March, 1952, relate tomatters of • substantive right or of procedure 'I Mr. T.Lakshmiah contended that while the enforcement of aright is a matter of procedure, its existence or extent is amatter of substantive right and cited passages from Max-well on " Interpretation of Statutes ", Craies on " StatuteLaw ", Cheshire on "Private International Law", Salmondon " Jurisprudence " and Paton on "Jurisprudence", insupport of the position. It is unnecessar}^ to refer to thepassages themselves because the distinction is well-settled, •the only difficulty being in deciding whether the particularAct deals with substantive rights or procedure. Counselfor the petitioner also relies on the decision of the SupremeCourt of the United States in United Spates v. Classic^).There the question was whether the right of a citizen tochoose a representative which is conferred under Article I,section (2), of the Constitution extends to the right to votein the primary elections. In holding that it did, Stone J.observed:

" The right of the people to choose, whatever itsappropriate constitutional limitations, where in other res-pects it is defined, and the mode of its exercise is pres-cribed by state action in conformity to the Constitution,is a right established and guaranteed by the Constitutionand hence is one secured by it to those citizens and in-habitants of the state entitled to exercise the rightObviously, included within the right to choose secured bythe Constitution, is the right of qualified voters within astate to cast their ballots and have them counted atcongressional elections. This court has consistently heldthat this is a right secured by the Constitution. "

What this decision lays down is that a right to voteconferred by a statute is a substantive right. It has noapplication to the present case because the new rulesneither take away the right of any elector to record a votenor of the candidate to stand for election. They onlyprovide for a method for counting of the votes and that isprima facie procedural. The rules do not affect or impairany substantive right; they only regulate, to adopt the

(1) 85 L.E.D. 1368 at page 1377,EL—45

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language in United States v. Classic (supra), 'the mode of itsexercise'. It may be conceded that changes in rules,though they may ostensibly relate to matters of proce-dure, might in effect affect substantive rights. But in thiscase, the changes introduced by the new rules are whollyprocedural and the Electoral Officer rightly adopted thoserules in counting the votes.

There is the further ground in this case that thepetitioner presented his nomination paper only on 11thMarch, 1952, while the new rules had come into forceon 10th March, 1952. Though the election commencedon 4th March, 1952, when the Governor issued theNotification it is difficult to hold that the petitioneracquired any rights of a substantive character onthat date. The petitioner was no doubt entitled tostand as a candidate for election but he was not bound to,and until he chooses to stand, it is difficult to say that heacquires any rights in respect of the election. As on thedate of the nomination, the new rules had come intoforce, it is not open to the petitioner to contend that thecounting should be in accordance with the old rules.

It remains only to notice one other contention put for-ward by the petitioner. That is based on the language ofthe Notification dated 10th March, 1952, which runs asfollows :—

" In exercise of the powers conferred by section 169 ofthe Representation of the People Act, 1951, (XLIII of1951) the Central Government hereby directs that thefollowing further amendments shall be made. "

The argument for the petitioner is that the CentralGovernment has not itself enacted these rules, but hasmerely directed some other authority to do so. The argu-ment has only to be stated to be rejected.

In the result, we agree with the Election Tribunal thatthe counting of votes was governed by the rules whichcame into force on 10th March, 1952, and that under thoserules respondents 2 to 25 were properly declared as elect-ed. This petition is accordingly dismissed. But, in thecircumstances there will be no order as to costs.

Petition dismissed,.

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E. L. R.] PAEMATMA SINGH V. KEO SARAN SINHA 353

[ELECTION TRIBUNAL, PATNA.]

PARMATMA SINGHv.

DEO SARAN SINHA AND OTHERS.

BASU PRASAD (Chairman),HARGOBIND PRASAD SIJSTHA and ADITYA NARAYAN LAL

(Members).

April 2, 1953.

Disqualification of candidates—Contract for execution of worksContractor expressing inability to complete contract—Payment of finalbill for work done—Whether terminates contract—Inference from con-duct of parties—Mistakes in final bill, effect of—Whether contract subsistsuntil contractor is fully paid—Effect of relinquishmmt—Contract Act,1872, ss. 39, 63—Bepresentation of the People Act, 1951, s. 7(d).

The petitioner, who was a prominent man of a village in Bihar, exe-cuted an agreement in favour of the Sub-Divisional Officer undertaking torepair certain minor irrigation works at an estimated cost of Rs. 2,508,before the 4th December, 1949, and took advances amounting toEs. 1,600,but being unable to complete the work, requested the Collector on 8thApril, 1950, to measure the work that he had done and pay him forit and to prepare a new estimate for the unfinished work and entrust itto some others. The Circle Officer was accordingly directed to measurethe work and he submitted a final bill which was duly checked and pass-ed by the Sub-Divisional Officer, for Es. 1,512-11-0. The petitioner wasaccordingly ordered on 25th June, 1950, to refund Es. 87-5-0 and a certifi-cate was issued for recovering it on 23rd August, 1951, and the amountwas recovered on 18th November, 1952. I t appeared however, that thecorrect amount due to the petitioner was Es. 1,612-11-0 and notEs. 1,512-11-0 and that a sum of Es. 12 was really due to the petitioner.The petitioner filed his nomination paper on the 23rd November, 1951,and it was rejected on the ground that he was interested in a contractfor the execution of works undertaken by the Government and wastherefore disqualified -under section 7(d) of the Eepresentation of thePeople Act, 1951:

Held, per HABGOBIND PBASAD SINHA and ADITYA NARAYAN LAL(BASU PBASAD dissenting)—that, as the petitioner had unequivocallyexpressed his inability to perform the contract and the Collector had settl-ed the amount payable to the petitioner for work done by a final billand never insisted on his completing the contract, the contract must bedeemed to have been put an end to with the consent of both partiesunder section 39 of the Indian Contract Act, at any rate when the certi-ficate for recovery was issued by the Sub-Divisional Ojficer in August,1951, and, as the contract did not subsist on 23rd November, 1951,when the nomination paper was filed, the rejection of the nomination

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was improper. The fact that the correct amount payable to the peti-tioner was Es. 1,612-11-0 could not alter the legal position.

Per BASU PEASAD (contra)—(i) There was not sufficient evidence forcoming to the conclusion that the Sub-Divisional Officer had terminatedthe contract within the meaning of section 39 of the Indian ContractAct; (ii) whatever might have been the intention of the Sub-Divi-sional Officer, as he had not paid the petitioner in full on a correctstatement of accounts, he had not performed his part of the contract inits entirety, and as this contractual obligation of the Sub-DivisionalOfficer cannot be deemed to have been put an end to by the petitioner'sacquiescence or relinquishment under section 63 of the Contract Actuntil 18th November, 1952, when the certificate amount was paid byhim, there was a subsisting contract when the nomination paper wasfiled and the nomination was rightly rejected.

Held also, per BASU PRASAD and HARGOBIND PRASAD SINHACADITTANARAYAN LAL dubitante)—that the agreement entered into by the peti-tioner was a contract and not merely an obligation undertaken by thepetitioner as headman of the village in the discharge of his duties asheadman under the Bihar Private Irrigation Works Act, 1922.

Satyendra Kumar Das v. The Chairman of the Municipal Commis-sioners of Dacca (I.L.E. 58 Cal. 180), Seshaiah v. Koti Beddi (3 B.L.E. 39),Boysey. Birley (1869, 38 L.J.C.P. 203), Baidyanath Prasad v. Chandresh-war Prasad (2 B.L.E. 88) and Kalika Prasad v. Hayat Chand (4 E.L.R.118) referred to.

ELECTION PETITION NO. 177 of 1952.

A. N. Chakravarty and Kanhaya Prasad Varma, for thepetitioner.

P. B. Das, Lal Narain Singh, and Balbhadra Prasad, forrespondent No. 1.

ORDER.

BASU .PRASAD.—Shri Parmatma Singh, who was a candi-date for election to the Bihar Legislative Assembly fromthe Fatwah Constituency in the District of Patna, has filedthis petition under section 81 of the Representation of thePeople Act, 1951, for a declaration that the election in thesaid constituency is wholly void on the ground,that hisnomination was improperly rejected by the ReturningOfficer.

It appears that the petitioner had filed two nominationpapers,one on 23rd November, 1951, and another on 24thNovember, 1951, before the Returning Officer. On 26thNovember, 1951, the date fixed for scrutiny of the nomina-tion papers, the Returning Officer rejected the nomination

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E. L. B.] PABMATMA SINGH V, DEO SABAN S1NHA

of the petitioner, passing the following orders: " Thisgentleman is the contractor in connection with the MinorIrrigation Scheme No. 61 of 1949-50 and order for issue ofcertificate has been passed for realising certain excess pay-ment received by him. As such he is disqualified undersection 7(d) of the Representation of the People Act, 1951.Nomination paper rejected."

It is urged by the petitioner that he was not a personwho could be disqualified for being chosen as a member ofthe Bihar Legislative Assembly under section 7(d) of theAct for the reason that he had no share or interest in anysubsisting contract for the execution of any work under-taken by the Government of Bihar. It is alleged that thepetitioner, as headman of the village, was under an obliga-tion to maintain the irrigation work in an efficient stateunder the provisions of the Bihar Private Irrigation WorksAct, 1922. It is further alleged that on the dates ofpresentation of the nomination papers by the petitionerthere was no subsisting contract between him and theGovernment and that the work entrusted to the petitionerin the capacity of the village headman terminated before25th June, 1951, that is, long before the dates on whichthe nomination papers had been filed.

The petitioner contends that his nomination had beenimproperly rejected and that the result of the election hasbeen materially affected by such rejection.

The election petition is resisted by respondent No. 1,the returned candidate. He has filed a written statementalleging that the petitioner had entered into a contract inconnection with the Minor Irrigation Scheme undertakenby the Government of Bihar and had executed an agree-ment in his individual capacity. He has also alleged thatthe petitioner had a subsisting contract in his favour withinthe meaning of the Representation of the People Act, 1951,on all material dates and was, therefore, disqualified forbeing chosen as a member of the Legislative Assembly.Lastly, it is alleged that the petitioner, even if his nomina-tion were accepted, had no reasonable chance of success atthe election.

Respondent No. 2 and respondent No. 7, riled separatewritten statements, the former supporting the petitioner

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and the latter supporting the returned candidate, but theywere absent at the trial.

The following issues arise for determination :—1. Was the petitioner not disqualified for being chosen

as a member of the Bihar Legislative Assembly ?2. Was the nomination of the petitioner improperly

rejected ? If so, has the result of the election been mate-rially affected by such rejection ?

Issues Nos. 1 and 2.—These two issues are inter-relatedand may be conveniently dealt with together.

The main question to be considered in this case is whe-ther or not the petitioner was disqualified under section 7 (d)of the Representation of the People Act, 1951, for beingchosen as a member of the Legislative Assembly. Therelevant portion of section 7 (d) runs as follows : " A per-son shall be disqualified for being chosen as a member of theLegislative Assembly of a State if he has any share orinterest in a contract for the execution of any works under-taken by the appropriate Government. "

In the present case, the following facts are admitted. InMay, 1949, a scheme for repairs of certain irrigation worksin village Masarhi was taken up by the Sub-Divisional Officerof Barh under Chapter II of the Bihar Private IrrigationWTorks Act, 1922 ; the scheme was taken up as an emergentmeasure under section 5 (a) of the Act and so notices con-templated by section 3 of the Act which had to be served inordinary proceedings for repairs upon the landlord and alsoupon every person known or believed to be under an obliga-tion to maintain the irrigation work in an efficient state,were not required to be issued. Parmatma Singh (petitioner),one of the prominent men of the village, executed an agree-ment Ex. 3 on 4th November, 1949, agreeing to repair theirrigation works at an estimated cost of Rs. 2,508 by 4thDecember, 1949. The date for completion of the work wassubsequently extended to 15th May, 1950: vide order dated6th April, 1950, of the Sub-Divisional Officer contained inthe Order-sheet Ex. 1. During the continuance of the agree-ment, Parmatma Singh took certain advances of money forcarrying out the work; he took Rs. 500, Rs. 800, andRs. 300 on 3 different dates : vide Ex. 1. Parmatma Singhcommenced the work, but did not complete it, and it

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appears that sometime in April, 1950, he left the workunfinished after informing the Collector and the Sub-Divisional Officer.

The main contention of the petitioner is that there wasno contract between him and the Sub-Divisional Officer forthe repairs of the irrigation work, but there was a statutoryobligation on him as headman of the village to carry outthe said work. From section 21 of the Act it appears thata " village headman " is one of the four classes of villageagencies in whom the Collector, after making inquiry, vests,by means of an order, the duty of maintenance of certainirrigation works. I should like to point out at once thatChapter IV, under which section 21 lies, deals with" maintenance of small irrigation works by village agency ".This is quite distinct from " repair and improvement ofirrigation works " dealt with under Chapter II.

The repair work in the present case, as stated above, wastaken up under section 5 (a) of Chapter II of the Act.Section 5 (a) contemplated two classes of persons who canbe appointed to carry out the work, namely, (i) persons whoare under an obligation to maintain the irrigation work inan efficient state, (ii) any other agency which is consideredproper to carry out the work. From rule 11 of the rulesframed by the Governor of Bihar in exercise of the powersconferred by section 40 of the Act, it appears that anyother agency in class (ii) can include a contractor.

The question to be decided, therefore, is, to which classdid Parmatma Singh, belong. It has not been shown thathe was a person on whom there was obligation to maintainthe irrigation work in an efficient state. Even if he was aperson on whom there was such obligation, it was open tohim to agree or not to agree to carry out the repair work.[See section 5 (1) (a) of the Act]. If he had this choice, itcannot be assumed that there was a statutory obligation onhim to carry out the repair work. But I shall presentlyshow that Parmatma Singh really belonged to the othergroup of "any other agency" which can include acontractor.

From the Government Circular, Ex. 8, as also from theoral evidence of the petitioner, P.W. 4, it appears that, forthe purpose of carrying out such work, a small Panchait offive public-spirited and reliable persons of the village is

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formed with a headman, and the Collector or the Sub-Divisional Officer gets the work executed through theheadman. The petitioner admits in his evidence that hewas not the headman of the village before he signed theagreement, Ex. 3. So, it is clear that he was made the head-man only for the purpose of executing this repair work.

In the estimates of the work in question, Ex. 3 (a), thenames of 5 villagers, including that of Parmatma Singh, asheadman, are noted. This is quite consistent with theGovernment Circular just referred to. But from this alone,it cannot be inferred that Parmatma Singh was a person onwhom there was a statutory obligation to repair the irriga-tion work and that he was not a contractor. It seems tome that in choosing a contractor the Collector or the Sub-Divisional Officer gives preference to a public-spirited andreliable man of the village who is expected to execute thework properly and efficiently. But, nevertheless, the statusof such man, in the eye of law, is that of a contractor.

The agreement, Ex. 3, makes the status of ParmatmaSingh, abundantly clear. On reading the document, thereis no doubt that it embodies a contract within the meaningof section 10 of the Indian Contract Act. There wasconsideration for the promise of each contracting party.Parmatma Singh promised to execute the work and theSub-Divisional Officer promised to pay him Rs. 2,508. Thepromise of one was the consideration for the promise of theother. Mr. A. N. Chakravarty, appearing for the petitioner,has tried in his argument to impress upon the Tribunalthat there was no margin of profit in the amount estimated,namely, Rs. 2,508, and so it was not a contract. Thequestion, whether by agreeing to execute the work for aconsideration of Rs. 2,508, Parmatma Singh made someprofit, or suffered some loss, or did not make any profit, ordid not suffer any loss, is, in my view, wholly immaterialfor judging the nature of the document.

The agreement, Ex. 3, contains a term that if ParmatmaSingh fails to complete the work in the manner and withinthe time specified in the document he will render himselfliable under section 5 (3) (a) of the Private Irrigation WorksAct, 1922, to such pecuniary penalty as the other party,namely, Sub-Divisional Officer, thinks proper. Section 5(3) (a) provides for imposition of pecuniary penalty on a

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person who is required to carry out the work of repairunder section 5 (l)(a), i.e., on a person who is under anobligation to maintain the irrigation work in an efficientstate and who also agrees to carry out the work of repair.So, at first sight, it may appear that Parmatma Singh, whoexecuted the agreement Ex. 3, belonged to the group ofpersons on whom there was obligation to maintain theirrigation work in an efficient state. But it has been pointedout above that there are no sufficient materials for holdingthat view. What appears to me is that a term borrowedfrom the provisions of section 5 (3) (a) was inserted in theagreement as one of the terms of the contract and it cannotbe argued that this was illegal. At any rate, it is clearbeyond doubt that the agreement, Ex. 3, is a contractentered into by Parmatma Singh, in his individual capacityand it cannot be interpreted as containing a statutoryobligation of Parmatma Singh to carry out the repairwork. If there were such a statutory obligation, there wasno necessity of taking an agreement from Parmatma Singh.A mere order of the Sub-Divisional Officer directingParmatma Singh to execute the repair work would havebeen sufficient.

The conclusion is, therefore, irresistible that ParmatmaSingh entered into a contract for carrying out the repairwork.

The next question for consideration is, whether ParmatmaSingh had or had not a share or interest in the contract onthe dates when he presented his nomination papers, i.e., on23rd November, 1951, and 24th November, 1951. Theanswer to this question will depend upon the determinationof the fact whether or not the contractual relationshipbetween Parmatma Singh and the Sub-Divisional Officerwas subsisting on those dates.

The evidence clearly shows that Parmatma Singh didnot complete the work contracted for, but he executed workto the value of Rs. 1,612-11-0 only. The bill Ex. 5 (a),prepared in the Measurement Book, shows that the totalearth work done was 102,409 cubic feet; whereas theestimate Ex. 3 (a) shows that Parmatma Singh undertookto do earth work to the extent of 209,130 cubic feet.Parmatma Singh admits in his evidence that a part of thework, which he had to do under the agreement remained

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unfinished. He says further that he could not complete thework as the village panches did not co-operate with himand he had difficulties in getting money from the Sub-Divisional Officer for doing the work. The agreement Ex. 3,does not say that co-operation of the panches or advance ofmoney by the Sub-Divisional Officer will be conditionprecedent to the performance of the promise by ParmatmaSingh. Chapter II of the Bihar Private Irrigation WorksAct, 1922, under which this contract was given, also doesnot provide any such condition precedent. The Sub-Divisional Officer made some advances of money from timeto time as an aid to the contractor, though he was notbound to do so under the terms of the agreement. Theexplanation offered by Parmatma Singh, therefore does notexonerate him from the obligation under the contract.

Parmatma Singh then says in his evidence that hesubmitted an application Ex. 6, to the Collector on 8thApril, 1950, explaining why he did not complete the workand praying for measurement of the work already executedbeing made and also praying that another headman may beentrusted to execute the remaining part of the work and hemay be relieved. The Collector wrote out a note Ex. 6 (a),on the application on the same date, asking the Sub-Divisional Officer to direct the Overseer, if necessary, tomake a measurement in the presence of the Circle Officer andto find ways and means to complete the work. The Collectorobserved in his note that if some of the panches stood inthe way, the scheme should not be allowed to suffer. TheSub-Divisional Officer, in his turn, passed orders on 11thApril, 1950, directing the Circle Officer to get the workmeasured by the Overseer: vide Ex. 6 (b). Nothing appearsto have been done till 28th March, 1951, and it was on 29thMarch, 1951, that measurement was made in the presenceof a Sub-Deputy Collector and Parmatma Singh. The Sub-Deputy Collector noted on the Measurement Book thatmeasurement had been made in his presence and was correct:vide Ex. 5. Parmatma Singh also signed on the Measure-ment Book. All these things happened on 29th March,1951. Nothing has been pointed out to the Tribunal to sug-gest that there was some error in the measurements noted.A period of about 3 months, since the measurement wasmade, again expired and on 25th June, 1951, the bill was

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passed for Rs. 1,512-11-0. This figure is obviously wrong.On looking into the bill, it appears that the correct amountof bill should be Rs. 1,612-11-0, and not Rs. 1,512-11-0.There is a mistake in making total of the two amounts,Rs. 1,433-8-0 and Rs. 179-3-0, at the end of the bill. Thereis no evidence that Parmatma Singh, was present at thepassing of the bill and had an opportunity to object to thebill being passed for a wrong amount, Rs. 1,512-11-0. So, itcannot be assumed that he accepted a lesser amount insatisfaction of his claim. I shall have occasion to refer tothis matter later.

It cannot be doubted that Parmatma Singh executedwork to the value of Rs. 1,612-11-0. Parmatma Singhdefinitely asserts this fact in his evidence. But he was paidonly Rs. 1,600. This fact, as I shall show presently, hasan important bearing on the question of contractualrelationship subsisting or terminating.

When the bill was passed, and I must say, wrongly passed,for Rs. 1,512-11-0, the Sub-Divisional Officer made anorder directing Parmatma Singh, to refund the balance,Rs. 87-5-0 by 31st July, 1951, as he had already receivedadvance of Rs. 1,600 (vide Ex. I). If the bill had beenrightly prepared for Rs. 1,612-11-0, a sum of Rs. 12-11-0would have been payable by the Sub-Divisional Officer toParmatma Singh for the work already executed. WhenParmatma Singh failed to refund Rs. 87-5-0, the amountwas realized from him by means of a certificate proceedingon 18th November, 1952. (Vide deposition of P.W. 4).

The evidence in this case is very scanty as to what ulti-mately happened to the contract or to the scheme ofrepair undertaken by the Sub-Divisional Officer. Neitherthe Sub-Divisional Officer, nor the Circle Officer, nor anyother prominent man of the village has given evidenceon these points. The petitioner only says in his evidencethat after filing the petition (Ex. 6) he ceased doing thework.

The point to be considered is whether the contractualrelationship between Parmatma Singh and the Sub-Divi-sional Offiper came to an end before 23rd November, 1951,or whether such contractual relationship was subsisting on23rd November, 1951 and 24th November, 1951. The partiesare at variance on this point. The petitioner contends

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that, in any event, there was no subsisting contract onthose dates, whereas the respondent No. 1 contends that onthose dates there was a subsisting contract in favour of th<petitioner.

A contract creates a legal obligation which subsists untdischarged. Performances of their respective promises bthe contracting parties are the principal and most usutmode of discharge. But there are several other modes <discharge described in various sections under Chapter Iof the Indian Contract Act. The relevant sections here asections 39 and 63. Section 39 provides : " When a parto a contract has refused to perform, or disabled himsellfrom performing, his promise in its entirety, the promiseemay put an end to the contract, unless he has signified, bywords or conduct his acquiescence in its continuance. "Section 63 lays down: " Every promisee may dispense with,or remit, wholly or in part, the performance of the promisemade to him, or may extend the time for such perfor-mance, or may accept instead of it any satisfaction whichhe thinks fit".

In the present case, Parmatma Singh did not executethe work in its entirety, nor did the Sub-Divisional Officerpay him the full consideration, Us. 2,508. So, there wasno discharge by performances of their respective promisesby the contracting parties. Let us then consider whetherthere was discharge under section 39 or section 63. Thereis no clear proof of the fact that, when Parmatma Singhexpressed his inability to execute the work in its entirety,the Sub-Divisional Officer put an end to the contract orremitted the unperformed part of the promise of ParmatmaSingh. The note (Ex. 6a) of the Collector and the order(Ex. 6b) of the Sub-Divisional Officer do not in my opinion,sufficiently show that the contract was terminated. Thereis no express order of the Sub-Divisional Officer thatParmatma Singh be relieved from the obligation of per-forming the remaining part of the work. The work alreadyexecuted was measured and the bill for the same preparedat the request of Parmatma Singh. But these things donot, in my view, necessarily indicate that the contract wasterminated, specially when we find that the Sub-DivisionalOfficer did not employ any other agency to execute theremaining part of the work as suggested by Parmatma

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Singh, and that he did not make an order abandoning thescheme at that stage.

It has been argued on behalf of the petitioner that thepreparation of the first and final bill indicates that thecontract came to an end. I am not in agreement with thiscontention. Rule 206 of the Bihar and Orissa AccountCode 1926, at page 60, says that First and Final Billshould be prepared for making payments to contractorsfor work, when a single payment is made for a job orcontract on its completion. Such bill has always referenceto completion of the work. But in this case, the workcontracted for was not completed. It is, therefore, doubt-ful that this form of bill was correctly used. The personwho prepared this bill has not been examined to clarifythe position. Be that as it may, I find myself unable tohold that the preparation of the bill (Ex. 5a) gave dischargeto Parmatma Singh.

The order of the Sub-Divisional Officer demanding refundof Rs. 87-5-0 from Parmatma Singh, and the subsequentorder for issue of certificate proceeding against him werebased upon a mistake of fact, namely, that ParmatmaSingh had executed work to the value of Rs. 1,512-11-0only. It has been discussed above that, in fact, ParmatmaSingh had executed work to the value of Rs. 1.612-11-0. Thequestion of demanding refund, therefore did not arise. Ithas been argued by the learned Advocate for the petitionerthat Parmatma Singh had to receive Rs. 12-11-0 more fromthe Sub-Divisional Officer and that he had been wronged bythe act of the Sub-Divisional Officer in taking out thecertificate proceedingagainst him. The certificate proceed-ing was clearly wrong and, at any rate, it cannot be cons-trued has meaning that the Sub-Divisional Officer termi-nated the contract. Even if it be assumed that the certifi-cate proceeding was correct, it will only mean that theSub-Divisional Officer took steps to recover a part of theadvance money which was in excess of the value of thework already done. The Sub-Divisional Officer intended tomake payment for the work executed and to recover theexcess amount. But when the Sub-Divisional Officer didnot expressly put an end to the contract and when he didnot either employ any other agency to carry out theremaining work or abandon the scheme, such payment for

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the work done will not necessarily point to the conclusionthat the contractual relationship between the parties cameto an end. But whatever the Sub-Divisional Officer mighthave intended to do, he did not, in fact, perform his partof the promise in its entirety, by making full payment toParmatma Singh for the work executed. And this has animportant bearing on the question of termination of thecontractual relationship.

It has been found above that Parmatma executed workto the value of Us. 1,612-11-0. The Sub-Divisional Officer,under the terms of agreement, was under an obligation topay him Rs. 1,612-11-0. But he paid only Rs. 1600. So, theSub-Divisional Officer did not perform his part of the promsein its entirety. It was open to Parmatma Singh to claimthe amount, Rs. 12-11-0, from the Sub-Divisional Officer srto remit that amount and accept Rs. 1,600 only insatisfaction of his claim. There could not, therefore, be xend of the. contractual relationship between the parties uiless it be proved that Parmatma Singh (promisee) dispensed with, or remitted, the performance of the unperformecpart of the promise by the Sub-Divisional Officer (promisor).With regard to payment of money by the Sub-DivisionalOfficer to Parmatma Singh, the latter will be in the posi-tion of a "'promisee" and the Sub-Divisional Officer in theposition of a " promisor ". In this case, however, there isno suggestion, far less any evidence, that Parmatma Singhremitted a part of the consideration of his promise or thathe accepted a consideration of Rs. 1,600, in place of aconsideration of Rs. 1,612-11-0. The position therefore, isthat the Sub-Divisional Officer not having performed hispart of the promise in its entirety, there was no end ofcontractual relationship and Parmatma Singh must be,therefore, considered to be interested in the contract. Thefact that the amount remaining unpaid was small iswholly immaterial.

In Satyendm Kumar Das v. The Chairman of the Munici-pal Commissioners of Dacca^), it has been held that when acontractor has performed his part of the promise, but theother party has not performed its part of the promise andpayment to the contractor is outstanding, the contractormust be deemed to be interested in the contract. In the

(1) I.L.R. 58 Cal. 180.

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above case, the contractor was held disqualified for beingelected as Commissioner of Dacca Municipality as, althoughhe had already supplied certain goods to the Municipalityand the bill had been passed, the bill remained unpaid atthe date when his nomination paper was sent in. It maybe noted that the provisions of the Bengal Municipal Act,1884, and the Bengal Municipal Election Rules, 1927,dealing with such disqualification, are similar to the provi-sions of section 7(d) of the Representation of the PeopleAct, 1951.

It may be urged that Parmatma Singh paid the certifi-cate dues to the Sub-Divisional Officer, thereby relinguish-ing a part of his claim and acquiescing in the satisfactionof his claim at Rs. 1,600. Such relinguishment and ac-quiescence may put an end to the contractual relationshipunder section 63 of the Contract Act. In a recent electioncase, Seshaiah v. Koti Reddi (*), it has been held that, whenthe contractor relinguishes his claim under the contract,the contractual relationship comes to an end and no dis-qualification under section 7(d) of the Representation ofthe People Act, 1951, can be attached to him. In the pre-sent case, it has not been shown that Parmatma Singh,relinquished a part of his claim and acquiesced in thesatisfaction of his claim at Rs 1,600 on or before 23rdNovember, 1951. The certificate dues were paid on 18thNovember, 1952, and so, if any such relinquishment andacquiescence can be inferred from the conduct of ParmatmaSingh, the relinquishment and acquiescence were made on18th November, 1952, i.e., long after the presentation ofthe nomination papers. The contractual relationship can-not, therefore, be deemed to have terminated on or before23rd November, 1951.

I, upon a careful consideration of all the facts, come tothe conclusion that the contractual relationship betweenParmatma Singh and the Sub-Divisional Officer subsistedon the dates of presentation of the nomination papers bythe former. In view of the above finding, I hold that thepetitioner was disqualified under section 7(d) of the Repre-sentation of the People Act, 1951, and that his nominationwas not improperly rejected. I shall therefore, answerissue No. (1) and the first part of issue No. (2) against thepetitioner.

II) 3 E.L.R. 39.

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The second part of issue No. (2), in view of my abovefindings, does not arise. But if I am to express my viewson this point, I will hold that if the nomination of thepetitioner be held to be improperly rejected, there will bea presumption that the result of the election has beenmaterially affected by such rejection. This presumption nothaving been rebutted in the present case, it will prevailand the whole election is to be declared void.

HARGOBIND PRASAD SINHA.—I agree that the repairwork was done bj' the petitioner on the basis of a contractfreely entered into by him. But in my opinion this work ofcontract had come to an end long before the petitioner filedhis nomination paper on 23rd November, 1951. The order-sheet of the emergency Minor Irrigation Works (court Ex.1) and the agreement, Ex. 3, executed by the petitionershow that the work of repair was to be completedby 4th December, 1949, failing which the petitionerwas liable to have penalty imposed on him. The order-sheet also shows that the Sub-Divisional Officer wasmaking enquiry from time to time as regards the progressof the work which the petitioner had undertaken to do.But when he found that the petitioner was not doing thework undertaken by him he passed order on 6th April, 1950,directing the petitioner to complete the work by loth May,1950, or the amount Rs. 1,600, advanced to him will haveto be refunded. But in spite of this stringent order thepetitioner filed petition, Ex. 6, dated 8th April, 1950, beforethe Collector informing him that he had given up the workof repair and made a request that the work done by himup till then be measured, final bill be prepared, and thework that still remained to be done may be entrusted tosomebody else. • The Collector referred this petition to theSub-Divisional Officer and in course of his note on it madecertain observations expressing opinion that the schemeshould not be allowed to suffer. We should always bear inmind that the contract into which the petitioner hadentered for doing the repair work is quite distinct from thescheme of repair which had been sanctioned by the Sub-Divisional Officer. So, simply because the Collector expressedthe desire that the scheme should not be allowed to suffer,it does not mean that he intended that the contract withthe petitioner should not be ended even though the latter

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had expressly made a request to this effect. The Sub-Divisional Officer by his order, dated 11th April, 1950,Ex. 6 (b), directed the Circle Officer to get the work doneby the petitioner measured by the Overseer in the presenceof the petitioner. There was delay in making this measure-ment and it was made on 29th March, 1951. On its basisa first and final bill was prepared for Rs. 1,512-11-0 inrespect of the work found to have been done by thepetitioner. On basis of this first and final bill the order-sheet shows that an order, dated 28th June, 1951, waspassed as follows :—" first and final bill has been receivedfrom Circle Officer duly checked by Mr. Tripathi, Sub-Divisional Officer, for Rs. 1,512-11-0. Rupees 1,600 hasalrealy been advanced to him. Ask him (Parmatma Singh),to refund the balance Rs. 87-5-0 by 31st July, 1951 ".Parmatma Singh did not refund the amount found duefrom him, and the Sub-Divisional Officer by his order,dated 23rd August, 1951, directed issue of a certificate forrecovery of the amount overpaid to him. All these factstaken together leave no doubt that the contract enteredinto by the petitioner came to an end when the Sub-Divisional Officer passed order for issue of certificate forrealisation of the amount found due from him. It has beenurged that the Sub-Divisional Officer was within his rightsto issue a certificate for the realisation of Rs. 87-5-0 whichwas found to have been overpaid to the petitioner. Butwhen, as shown by the order-sheet, Rs. 500, Rs. 800 andRs. 300 were being advanced to the petitioner without anymeasurement being made of the work done by him, itappears rather ridiculous that the Sub-Divisional Officershould have ordered the recovery of the small sum ofRs. 87-5-0 by a certificate proceeding, if he was not accept-ing the request of the petitioner to terminate the contractand had really intended that the petitioner should continueto do the work as before. It was bee'n also urged that thefirst and final bill prepared for the work done by the peti-tioner does not mean termination of his work. It onlymeans payment for the work done by him up till then andit was expected that when he would do further work subse-quent payment would be made. But I am unable to acceptthis contention as correct. The petition, Ex. 6, filed beforethe Collector shows that only a small portion of the work

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had remained to be done by the time the petitioner hadmade up his mind to give up the contract work. Thepetition shows that only two Khanrh (breach in embank-ment) remained to be filled up. One to the extentof half and the other to the full. So, if the intention hadbeen to make payment only for the work which had beencompleted up till then, and that the petitioner would con-tinue to do the work, then there can be no doubt that the'Khanrh' which had been filled up only to the extent ofhalf would not have been included in the measurement andno payment would have been made for it. The first andfinal bill has a special significance attached to it under theAccount Code. It means single payment for a contract oncompletion. The scheme as sanctioned had not been com-pleted when this first and final bill was prepared as twobreaches in the embankment had remained to be filled.But so far as the petitioner was concerned he had given upthe contract and had come to an end of his work. The onlything that could have been done in respect of the workdone by him was to prepare a first and final bill. So, I haveno doubt that the preparation of the first and final billmeans ending of the contract by the petitioner and itsacceptance by the Sub-Divisional Officer. It has beenargued that so far as the petitioner is concerned there wasno full payment of his bill and so the contract should bedeemed to be subsisting and not to have come to an end.According to the petitioner the calculation made in Ex. 5 (a)that he had worked to the extent of only Rs. 1,512-11-0 isnot correct as the correct total comes to Rs. 1,612-11-0.So it has been contended that when the petitioner was notpaid Rs. 12-11-0 which was still due to him the contractcannot be considered to have come to an end. The peti-tioner has also no doubt claimed in his evidence that hehad done work to the extent of Rs. 1,612-11-0 and not onlyfor Rs. 1,512-11-0. But when the work done by the peti-tioner was calculated at Rs. 1,512-11-0 and on this basis acertificate case was started against him for recovery ofRs. 87-5-0, it is difficult to accept that the real amount ofthe work done by him was Rs. 1,612-11-0 and notRs. 1,512-11-0, specially when he raised no objection to thecertificate' proceeding and never claimed before the Sub-Divisional Officer that Rs. 87-5-0 was being wrongly realised

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from him. So it appears that there has been some mistakesomewhere and the real amount of the work done by thepetitioner was only Rs. 1,512-11-0 as shown in order-sheet.Even if it be conceded that the real amount due to thepetitioner was Rs. 1,612-11-0 and so Rs. 12-11-0 stillremained due to him, it makes no difference and it doesnot mean that the contract continued to be operative andsubsisting. There can be no doubt that if after the prepa-ration of the final bill the Sub-Divisional Officer had realisedthat Rs. 12-11-0 was to be paid to the petitioner over andabove the amount already received by him he would havemade payment of this sum and would not have started acertificate proceeding for Rs. 87-5-0. So simply becauseRs. 12-11-0 remained unpaid to the petitioner it does notmean that the contract continued to subsist when all thecircumstances of the case leave no doubt that both the peti-tioner and the Sub-Divisional Officer had come to a decisionto end it. It is true that so far as the Sub-DivisionalOfficer is concerned there are no express words to end thiscontract as is the case with the petitioner. But the entirecourse of his conduct leaves no doubt that he had also theintention to end the contract as was asked for by the peti-tioner. It is significant that in spite of the order of the Sub-Divisional Officer,, dated 6th April, 1950, directing the peti-tioner to complete the work by 15th May, 1950, on pain ofhaving to refund the amount advanced to him, the peti-tioner instead of trying to complete the work as was to beexpected from him, filed petition, dated 8th April, 1950,giving out in unequivocal words that he did not intend todo the repair work. This petition was received by the Sub-Divisional Officer on 11th April, 1950. As was desired bythe petitioner he ordered the Circle Officer to get the workdone measured and did not take any step to have carriedout his orders, dated 6th April, 1950, under which thepetitioner had been directed to complete the repair work by15th May, 1950. Though the petitioner did not do anywork of repair the Sub-Divisional Officer did not take anystep against him and ultimately the work done by thepetitioner was measured on 29th March, 1951, and on itsbasis final bill was prepared and step was taken to recoverthe amount found due from him. If the Sub-DivisionalOfficer had the intention to keep the contract subsisting it

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is expected that some step must have been taken by himdirecting the petitioner to complete the work. But nothingin this connection was done after the petitioner filed hispetition, Ex. 6, giving up the contract work. So, I have nodoubt that the Sub-Divisional Officer also intended to endthe contract as was the express desire of the petitioner. Ifthese actions of the Sub-Divisional Officer cannot be inter-preted as ending the contract I do not see what more hewas expected to do by his conduct to end it. Even if it beconceded that these actions of the Sub-Divisional Officer didnot end the contract on his part and that in law it continuedto subsist so far as he was concerned, all this means is thatwhen the petitioner refused to do the repair work he wasliable for breach of contract. But the contract as such didnot exist. Section 7, clause (d), of the Representation ofthe People Act, 1951, contemplates that in order to escapedisqualification for being a member of Parliament or ofState Legislature the candidate should have no share orinterest in a contract for the execution of a work undertakenby the appropriate Government. When the petitioner inhis petition, Ex. 6, dated 8th April, 1950, expressed inunequivocal words that he had given up the contract workhe, in my opinion, ceased to have interest or share in thecontract which entailed disqualification for standing as acandidate. For these reasons I am of opinion that thenomination paper of the petitioner has been improperlyrejected. It has been conceded before us that if the nomi-nation paper of a candidate has been improperly rejected,it raises a presumption that the result of the election hasbeen materially affected and the election of the successfulcandidate should be set aside. This presumption has notbeen rebutted. So petition is allowed and the election of therespondent No. 1 to the Bihar Legislative Assembly is setaside.

ADITYA NARAYAN LAL.—This election petition has beenfiled by one Shri Parmatma Singh, who was a candidate forelection as member of the Bihar State Assembly, from theFatwah Constituency in the Sub-Division of Barh, DistrictPatna. The original petition was against ten persons, outof which respondent No. 1, the Returning Officer of FatwahConstituency and No. 2, State of Bihar, have been deleted.Therefore, now respondent No. 1, is Sri Devasaran Sinha,

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who has been declared to be the successful candidate. Thecase of the petitioner is that he duly filed his nominationpapers before the Sub-Divisional Officer, Barh, who was theReturning Officer, on 23rd November, 1951, and 24thNovember, 1951, complying with all the necessary require-ments and showing deposit; on the day of scrutiny, thatis to say, on 26th November, 1951, the Returning Officerrejected the nomination paper of the petitioner and passedthe following orders: " This gentleman is the contractor inconnection with Minor Irrigation Scheme No. 61 of1949-50 and order for issue of certificate has been passed forrealizing certain excess payment received by him. As suchhe is disqualified under section 7 (d) of the Representationof the People Act, 1951. Nomination paper rejected ".

The main case of the petitioner has been detailed inparagraph 5 of the Election Petition, which is quotedverbatim below:—

" Paragraph 5. That the petitioner was not a personwho could be disqualified for being chosen as a member ofLegislative Assembly under section 7 (d) of the Represen-tation of the People Act, 1951, for the following reasons:—

(a) That the petitioner was not a person who hadany share or interest in any subsisting contract for thesupply of goods to, or for the distribution of any work orperformance of a service undertaken by the Government ofState of Bihar.

(b) That the petitioner as headman of the village wasunder an obligation to maintain the irrigation work in anefficient state under the provisions of Bihar Private Irriga-tion Works Act, 1922.

(c) That under the Minor Irrigation Works Scheme aheadman of the village is enjoined by law to do certainwork in connection with minor irrigation and it is a dutycast on him under the law and not by any contract enteredinto with the Government.

(d) That Act V of 1922 empowers the Collector to im-pose on the person entrusted with the execution schemeof irrigation, a pecuniary penalty, which is made recover-able as a public demand payable to the Collector.

(e) That the Collector under the Act passes an orderdeclaring that the maintenance of the work shall be

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entrusted to the village agencies, e.g., Village Panchayat, avillage headman.

(/) That to secure an efficient and prompt dischargeof the function, a form of agreement is signed by theperson on whom is enjoined the work of irrigation, parti-cularly in order to make him liable under the Bihar PrivateIrrigation Works Act.

(g) That in any event at the time of presentation ofthe nomination paper by the petitioner there was no sub-sisting contract between the petitioner and the Govern-ment of State of Bihar to do any work under any law orcontract."

In paragraph 6, the petitioner says: "That the orderpassed by the Collector makes the village agencies respon-sible for the proper maintenance of irrigation work. Butthe village agency is in no case in the position of contrac-tor. The further case of the petitioner is contained inparagraph 7, which runs as follows:—

" That the work entrusted to the petitioner in thecapacity of village headman terminated before 26th June,1951, long before the date on which the nomination paperswere required to be filed." The petitioner, therefore,submits that the result of the election in this constituencyhas been materially affected by the improper rejection ofthe nomination paper of this petitioner and on this groundalone the election is wholly void. On the grounds men-tioned above the petitioner prayed that the election ofFatwah Constituency may be set aside as wholly void onthe ground that the nomination paper of the petitionerwas wrongly, illegally and improperly rejected.

Three written statements have been filed :—One bythe successful candidate Sri Devasaran Sinha who is therespondent No. 1, the other by Shri Brijnandan Singh whois respondent No. 2, and the third by Sri Narsing Singhwho is respondent No. 7. The main defence of respond-ent No. 1, is that the petitioner had a subsisting contractin his favour within the meaning of the Representation ofthe People Act, 1951, at all material dates and was, there-fore, disqualified for being chosen as a member of theLegislative Assembly of the State of Bihar; that the dis-qualification of the petitioner is conclusively established bythe agreement and order-sheet regarding the irrigation work

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undertaken by the petitioner ; that the Collector passed noorder making any village agency responsible for the irriga-tion work in question; that the petitioner entered into acontract as an individual. The fact that he was also theheadman of the village did not affect the nature of thecontract or the legal consequences.

The respondent No. 2 supports the petitioner, while therespondent No. 7 supports the respondent No. 1. Hisfurther case is that he had also filed a nomination paperbut he was also a contractor under the Minor IrrigationWorks and his nomination paper was rejected. He furthersays that the certificate case which was filed for excessamount is still pending against the petitioner in the courtof Certificate Officer, Barh, in connection with Minor Irriga-tion Works Scheme 61 of 1949-50.

The petitioner has adduced documentary and oral evi-dence. The respondent No. 1, who alone is contesting,neither.filed any documentary evidence nor did he examineany witness. He had filed an application to examine threewitnesses but at the trial they were given up.

The following issues arise in this case for consi-deration :—

(1) Was the petitioner not disqualified for beingchosen as a member of the Bihar Legislative Assembly ?

(2) Was the nomination of the petitioner improperlyrejected? If so, has the result of the election been material-ly affected by such rejection ?

Issue No. 1.—The real question in issue No. 1 resolvesitself into two main parts :

(1) Whether the contract in the present case was sub-sisting on the relevant date;

(2) Whether it was an obligation cast on the petitionerby statute, i.e., Bihar Private Irrigation Works Act, 1922,that is to say, it was a duty cast on him under the law andnot by any contract entered into with the Government.

I shall take up the first point first. The entire order-sheet of Minor Irrigation Case No. 61/2 of 1949-50 of villageMasarhi is on the record as court Ex. 1. The Ex. 3(a),dated 29th May, 1949, is the estimate of minor irrigationwork of village Masarhi. The amount mentioned isEs. 2,508. On 30th May, 1949, an application of village

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Masarhi for repair of irrigation work in village Masarhiduly sanctioned by the Committee appointed for it wasreceived. The scheme was taken up under section 5A ofthe Bihar Private Irrigation Works Act, V of 1922, onaccount of its emergent nature. The Sub-Divisional Officerordered on 30th May, 1949, that half the cost will berealised from the persons benefited later on. It was orderedto be put up after rains. A petition Ex. 7 was filed on 14thJune, 1949, before the Sub-Divisional Officer, Barh, byAudh Behari Singh, Jangbahadur Singh, Sri Ram Singh andParmatma Singh to this effect:—

" Scheme was given by Overseer on 28th May, 1949.We could not execute the agreement due to want ofBeldars. But now we have given earthwork of Rs. 800.As Parmatma Singh is ill, we could not come to you for theagreement. Therefore, agreement should be taken fromParmatma."

Ex. 7(a), dated 14th June, 1949, the order of the CircleOfficer on the petition Ex. 7 is "Office to report". Thereis a report of the office, dated 14th June, 1949, on the peti-tion which is not exhibited, as follows :—"The scheme wassanctioned by the Committee but it was ordered to betaken up after rains".

The order of the Sub-Divisional Officer, dated 16th June,1949, on the petition is, "Wait till rain is over".[Exhibit 7(b).]

The agreement executed by Sri Parmatma Singh is Ex. 3.I shall refer to this agreement in detail later on. Thereis no date on this agreement. But from the order sheetEx. 1, it is clear that on 4th November, 1949, the agree-ment was filed by the headman which was accepted. Theorder of the Sub-Divisional Officer on 4th November, 1949,is as follows : "Issue written order to complete the workby 4th December, 1949, failing which penalty would beimposed. Issue notice under section 5-A of the PrivateIrrigation Works Act, that the work has begun." There-after there are orders of the Sub-Divisional Officer to payRs. 500 and Rs. 800, on 16th December, 1949, and 30thDecember, 1949, respectively. It appears from the order-sheet Ex. 1, that the work was not completed within thestipulated time, that is to say, 4th December, 1949, and the

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period was extended to complete the work from time totime. On 17th February, 1950, a further sum of Rs. 300was given. When the work was not completed ultimately,the Sub-Divisional Officer on 6th April, 1950, ordered asfollows:—

"The work has not been completed. Ask the headman to complete it by 5th May, 1950, or the whole amountadvanced will have to be refunded."

It appears that two days after, that is to say, on 8thApril, 1950, Sri Parmatma Singh submitted a petitionbefore the Collector who had gone to Saidanpur MasarhiH. E. School for Prize Distribution (P.W. 4). This peti-tion is Ex. 6, and is very important. After narrating thathe is the village headman, he executed the agreement andhe got advances from time to time, he narrates his difficul-ties and helplessness to complete the repair work. Therelevant portion of the petition is as follows :—

" Therefore I had to give up the work under compul-sion. Two khands of my estimate remain undone—onewhole and the other half. Therefore, it is my prayer to yourHonour that the Circle Officer may be ordered to measurewhatever work I have done and make it final and afterthat to get a new estimate prepared and entrusted to thosewho would become the headman of the village and I maybe relieved of this work."

The petitioner was asked by the Collector to take thepetition to the Sub-Divisional Officer and the Collectormade the following remarks on the petition:

" I was at Saidanpur Masarhi yesterday. I have notedsome earthwork in Masarhi. I would request you to askCircle Officer to inspect and find out. If necessary youmay ask Overseer to make measurement in the presence of

' Circle Officer and to find ways and means how to completethe work. If some of the Panches stand in the way, thescheme should not be allowed to suffer. At Saidanpuralso I found a lot of work done. Here I was told thatestimate was not made. It should be included."

When the petition was taken to the Sub-DivisionalOfficer, Barh, he passed the following orders on 11thApril, 1950.

" Circle Officer to get the work measured in his presenceby the Overseer."

EL—48

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The measurement was made 5 or 6 months after thestoppage of the work (P.W. 4). Ex. 5 is the endorsementon the measurement book in the name of Mr. Tripathywhich is dated 29th March, 1951. Exhibit 5(a), is the Firstand Final Bill of Scheme 61 of 1949-50, of village Masarhi,dated 29th March, 1951. The order-sheet Ex. 1, recordsthe following order on 25th June, 1951:

" First and Final Bill has been received from CircleInspector duly checked by Mr. Tripathy, Sub-DivisionalOfficer, for Ks. 1,512-11-0. Rs. 1,600 has already beenadvanced. Ask him to refund the balance Rs. 87-5-0 by31st July, 1950."

Exhibit 4 is the certified copy and Ex. 5(b), originalcopy, of the order of the Sub-Divisional Officer, Barh,dated 25th June, 1951, on the First and Final Bill, Scheme61 of 1949-50.

In Ex. I there are two more relevant orders. The orderdated 31st July, 1951, is as follows :—

" S. R. of notice not received nor has the headmandeposited the balance. Await and put up on 23rd August,1951 ".

On 23rd August, 1951, the following order waspassed:—

" Notice was served by hanging it on the door of theheadman in presence of the Sarpanch. No deposit made.Issue certificate ".

It is to be noted that the Sub-Divisional Officer, Barhwas the Certificate Officer, as well as the Returning Officer.It is in evidence (P.W. 4) that the certificate dues wererealised from the petitioner on 18th November, 1952.

We have seen above that two nomination papers werefiled by the petitioner—one on 23rd November, 1951, andthe other on 24th November, 1951. The entries in thenomination papers were checked and the nominationpapers were ordered to be placed on 26th November, 1951,at 10-30 a.m., for scrutiny. On 26th November, 1951, SriB. Narayan, the Returning Officer, passed the followingorder while rejecting the nomination paper :—

"This gentleman is the contractor in connection withMinor Irrigation Scheme No. 61 of 1949-50 and order forissue of certificate has been passed for realising certain

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excess payment received by him. As such he is disqualifiedunder section 7(d) of the Representation of the People Act.Nomination paper rejected. "

The real question is whether the petitioner was disquali-fied under section 7(d) of the Representation of the PeopleAct, 1951, on the dates he filed the nomination papers.The relevant portion of section 7 is as follows :—

Section 7.—" A person shall be disqualified for beingchosen as, and for being, a member of either House ofParliament or of the Legislative Assembly or LegislativeCouncil of a State—

(d) if whether by himself or by any person or body ofpersons in trust for him or for his benefit or on his account,he has any share or interest in a contract for the supply ofgoods to or for the execution of any works or the perfor-mance of any services undertaken by the appropriateGovernment. "

The genesis of this disqualification mentioned in section7(d) of the Representation of the People Act, 1951, istraceable to similar disqualifications in Canada, UnitedKingdom and Australia. I shall shortly deal with some ofthose provisions and the case law on that topic.

1. Revised Statutes of Canada, 1927, Vol. II, Chapter 53,Section 39 (c):

" The respective persons hereunder mentioned shall notfor the time specified as to each such person be eligible ascandidate at an election namely :—-

(c) Every person directly or indirectly, alone or withany other person, by himself or by interposition of anytrustee or third party, holding or enjoying, undertaking orexecuting any contract or agreement express or implied,with or for the Government of Canada on behalf of theCrown, or with or for any of the officers of the Govern-ment at Canada for which any public money of Canada isto be paid—during the time he is so holding, enjoyingundertaking, or executing."

2. By 22 Geo. 3, C. 45, section I, applied to the Parlia-ment of the United Kingdom of Great Britain and Irelandby 41 Geo. 3, C. 52, section I—Ireland 41, Geo. 3, C. 52,section 4—any person, directly or indirectly etc.. under-taking or enjoying, in the whole or in part any contracts,

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etc., made with the Commissioners"of the Treasury, Com-missioners of the Navy or victualling officers etc., or generallyon account of the public service, is disqualified from beingelected or sitting.

The above statutory provision No. 2 creating this dis-qualification is to be found in section I of the House ofCommons (Disqualifications) Act, 1782, which was extendedby section I of the House of Commons (Disqualifications)Act, 1801, to the New Parliament, viz., Parliament of theUnited Kingdom.

Certain principles have been established as a result ofthe decisions of the court under these statutes and fromthe statutes themselves. They have been summarised inNorman's Parliamentary Elections, 1950 Edition, p. 91.One of the principles mentioned at p. 93 is as follows:—

" Secondly, the contract must be capable of being exe-cuted after the member's election. An executed contractdoes not disqualify. "

In the case of Royse v. Birley^), a contract for the sup-ply of goods had been executed by the contractor beforethe election. The goods had been delivered to and accept-ed by the Government. At the time of the election nothingremained to be done except to pay the contractor the pricewhich had also been ascertained before the election. Thecourt in that case held that, as the contract has been exe-cuted before the election, the member was not disqualified.It was confirmed in Trantor v. Astor (2), in which it was heldthat a contract which had been entered into and executedat the time of sitting and voting in the tiouse did notinvoke the disqualification provided for in 1782 and 1801Acts.

In Rogers on Elections, Vol. II., p. 22 (20th Edition,1928) on the basis of the above two cases it has beenremarked that the above Act applies to executory contractsonly and not to contracts completely executed before theelection and where all that, remains to be done is for theGovernment to pay the money.

In Leominster (1827)(h) an objection was taken to thereturn of B on the ground that lie was a. lottery contractor.It was argued for B that the Act did not apply to a

(1) [-1S6V] 38L.J.C.P. 203. (,;.' 3.1 T.L.K. JH3. !,Vt > Rogers <M9,

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contract for lottery, and if it did, that the contract hadexpired at the time of the election. It was held that hewas disqualified.

But Norman in his Parliamentary Elections at p. 92says, this case appears now to be in doubt as it was arguedwithout effect that the contract was completed at the timeof election. It is now clear from the second principle(which has been stated above) that the completion of thecontract before election does not disqualify.

It is significant to note that in the bigger ElectionManual, published by the Government, Part V, Miscellane-ous Notes, at page 611, there is a topic " RegardingContractors ". Under this topic the statutes of Canada,United Kingdom and Australia have been quoted and case-law discussed. This shows that these statutes and thecase-law are intended to be of some help in deciding casesof disqualifications under section 7 of the Representationof the People Act, 1951.

I shall now discuss some of the cases decided in 1952-53by Election Tribunals in India.

We have been referred to a decision of the ElectionTribunal, Bellary (Madras), Seshiah v. Koti Reddii1). It hasbeen held in that case that once it is proved that theperson concerned has interest in a contract, the disqualifi-cation would operate whether or not the work has beencompleted. This view seems to be against the Englishdecisions on the point. They have relied on SatyendraKumar v. The Chairman of Municipal Commissioners ofDacca(2). In that ease the facts were : the plaintiffs suedfor a declaration that they were qualified to be electedCommissioners of Dacca Municipality. Their father'sFirm had supplied road materials to the municipality.Their bills for the materials supplied were passed by theChairman, but remained unpaid at the date when thenomination papers were sent in. It was held that thecontract had not terminated as the plaintiffs were interest-ed in it and consequently they were disqualified for beingelected.

But the Bellary Election Tribunal finally held that, inas-much as respondent had relinquished his claim for monies

(1) 3 E,L,R. 3", - (-":) I.L.R. 38 Cal. 1 SO.

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due to him, he was not subject to the disqualification men-tioned in section 7, clause (d), of the Representation of thePeople Act, 1951. Therefore, the observations of theBellary Tribunal that the party must be considered to beinterested in the contract when he has not received pay-ment is merely an obiter dictum.

The other cases cited at the Bar are not important forthe decision in this case.

But the case before us is a different case altogether. Inthis case it is not necessary for us to decide that thecontract came to an end after the execution of the work andbefore the payment of bills. Whatever divergence ofjudicial opinion there may be with regard to the pointwhether the contract subsists till the payment of the bill,there is no doubt that where the work has been executedand payment has been made for the work, nothing remainsto be done by either party and contract is at an end. Letus examine the exact position in this case in the light ofthe facts stated already in the beginning. v

On 6th April, 1950, the Sub-Divisional Officer orderedthe headman to complete the work by 5th May, 1930, orthe whole amount advanced will have to be refunded.Immediately after it, the petitioner, on 8th April, 1950,submitted a petition before the Sub-Divisional OfficerEx. 6, in which he made the following prayers : (1) CircleOfficer may be ordered to measure whatever work he hasdone and make it final (2) to get a new estimate preparedand entrusted to those who would become the headman ofthe village and (3) he may be relieved of this work.

It has been argued by the petitioner that this case comeseither under section 39 or section 63 of the Contract Act.The petitioner on 8th April, 1950, by his petition Ex. 6,refused to perform his promise in its entirety and the pro-misee put an end to the contract and thus he brings thecase under section 39 of the Contract Act. He invokes theprovision of section 63 by saying that the promisee dis-pensed with or remitted in part the performance of thepromise made to him and therefore it was a contractwhich need not be performed. It appears to me that thepresent case comes under section 39 of the Contract Act.There is no doubt that on 8th April, 1950, the petitioner

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clearly signified his refusal to perform his promise in itsentirety. But this is not all that the section requires. Inorder to take advantage of the section it must be shownthat the promisee put an end to the contract. Thereforeit is essential to examine the orders passed by the authori-ties on the petition, Ex. 6, and the conduct of the authoritiesafter the filing of this petition.

The Collector recommended the petition on that verydate, i.e., on 8th April, 1950, and requested the Sub-Divisional Officer to ask the Circle Officer to inspect and findout and if necessary to ask the Overseer to make measure-ment in the presence of the Circle Officer and to find out waysand means to complete the work. He also remarked that ifsome of the Panches stand in the way, the scheme should notbe allowed to suffer. On 11th April, 1950, the Sub-DivisionalOfficer ordered the Circle Officer to get the work measured inhis presence by the Overseer. For many months to comenothing was done by either party. The measurement wasmade on 29th March, 1951, nearly a year after the Sub-Divisional Officer's order to measure. On the strength ofthis measurement the first and final bill was prepared onthe same date, that is to say, on 29th March, 1951, forRs. 1,512-11-0. On 25th June, 1951, the Sub-DivisionalOfficer passed the following order:—

" First and final bill has been received from CircleInspector duly checked by Mr. Tripathi, Sub-DivisionalOfficer, for Rs. 1,512-11-0. Rs. 1,600 has already beenadvanced. Ask him to refund the balance Rs. 87-5-0 by31st July, 1951."

It is significant that in the first and final bill as well as inthe order-sheet the amount mentioned is Rs. 1,512-11-0. Ithas been stated above that the certificate proceeding wasstarted on 23rd August, 1951, and the certificate dues wererealised on 18th November, 1952. This election petitionwas filed on 19th April, 1952, and in it the petitioner doesnot challenge the certificate proceedings; nor does he makeany grievance on the score that the first and final bill waspassed for a wrong amount. The respondent No. 1 alsodoes not mention about this certificate proceedings in hiswritten statement though he has filed along with his writtenstatement the order-sheet culminating up to the certificateproceeding. There is no doubt that the petitioner in his

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evidence and argument has attempted to develop a casethat the certificate proceeding was wrongly taken out. Thepetitioner in his examination in chief says : " I had donework worth Rs. 1,612-11-0 " and in the cross-examinationhe says : " I had explained to my lawyer the circumstancesunder which I had been able to do the work to the extent,of Rs. 1,600 ; the money under the certificate proceedingwas realised from me on 18th November, 1952 ; I had filedno petition when I had become aware of the certificateproceeding that nothing was due from me and the certifi-cate was wrong. "

However, whatever may be the real fact and whatevermistake might have crept in totalling of the amounts in thefirst and final bill, it is quite clear from the conduct of theparties that both of them took Rs. 1,512-11-0 as the correctamount which was passed against the first and final bill andon that basis the certificate proceeding was started. In myview, whether the correct amount is Rs. 1,612-11-0 orRs. 1,512-11-0 it does not change the position in law. Ifthe correct amount is Rs. 1,612-11-0 and Rs. 1,600 wasalready paid, then surely the petitioner will be deemed tohave relinquished the remaining amount by his conduct.It is no party's case in the pleading that the petitioner wasto be paid Rs. 12-11-0 more. In case the correct amountis Rs. 1,512-11-0 as understood by both the parties and asmentioned in the first and final bill and the order-sheet,then for the balance the Sub-Divisional Officer took outcertificate proceeding which has nothing to do with thecontractual relations. In any view of the matter, I feelsure, that the contractual relation ceased at least after thecertificate proceeding started. At any rate petitioner'sinterest in the contract ceased from that date.

The real point to be decided is whether theSub-DivisonalOfficer has put an end to the contract after the petitionerhad communicated to the Sub-Divisional Officer his refusalin unmistakable terms to perform his promise in itsentirety. No doubt there is nothing on the record to showthat he by words either put an end to the contract oracquiesced in the continuance of the contract. But the factthat the Sub-Divisional Officer put an end to the contractcan be inferred from his conduct as well. His conduct maybe gathered from the following circumstances :—

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(1) The order of the Sub-Divisional Officer to measurethe work done by the petitioner.

(2) The actual measurement of the work in the pre-sence of the petitioner.

(3) The preparation of the first and final bill whichwas passed by the Sub-Divisional Officer.

(4) The order of the Sub-Divisional Officer, dated 25thJune, 1951, which shows that the first and final bill wasreceived from the Circle Inspector duly checked byMr. Tripathi, Sub-Divisional Officer, for Rs. 1,512-11-0.

(5) Adjustment of Rs. 1,600 which was advanced to thepetitioner and striking a balance against the petitioner, ofRs. 87-5-0 to be refunded by the petitioner by 31st July,1951.

(6) The undue haste in starting the certificate proceed-ing for this small sum.

(7) Absence of attempt on behalf of the Sub-DivisionalOfficer to get the remaining work executed through thepetitioner.

The cumulative effect of all these circumstances is thatthe Sub-Divisional Officer treated the contract as termi-nated and thus he put an end to it.

It was contended by the respondent that the first andfinal bill has no special significance and that the bill is finalwith regard to the work already done and which had beenmeasured ; it is first in sequence of events ; it means thatother bills had to follow. But from Bihar and OrissaAccount Code, First Edition, 1926, page 60, rules 205-209,I find that first and final bill has got a technical and specialsignificance. Rule 206 is as follows :

''First and final bill, Financial Rule, Form No. 12.—This form should be used for making payments both to thecontractors for work and to suppliers, when a single pay-ment is made for a job or contract, i.e., on its completion.A single form may be used for making payments to severalpayees, if they relate to the same work (or to the samehead of account in the case of supplies) and are billed forat the same time. "

The use of the first and final bill indicates that theauthorities treated the work of the petitioner as completedand this first and final bill was used as this was the first and

RT,—49

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384 PARMATMA SINGH V. DEO SARAN SINHA [VOL. V

final payment to the petitioner for a contract on its com-pletion so far as the petitioner was concerned. If the workwas to be continued by the petitioner and the contract wassubsisting, then in that case running account bill (a) or (c)mentioned in rules 207-209, would have been used. There-fore, I conclude that the first and final bill was used by theauthorities with full knowledge of the implications of thisterm and this is a pointer to the direction that the Sub-Divisional Officer put an end to the contract.

I shall now take up the second point in issue No. 1. Inorder to determine this point it is essential to summarisethe scheme of the Bihar Private Irrigation Works Act,1922.

[After considering the provisions of this Act in detailthe learned member expressed his opinion on the point inthese words:]

Taking into consideration the various provisions of theAct under which the Collector enjoys excessive powersmentioned above, I am inclined to think that the agreementis not a contract but may be termed to be only a licensesuperimposing certain obligations on the petitioner. Butthe question is not free from doubt. I therefore do notpropose to decide this point as it is not necessary forthe determination of the case, in view of my findings onpoint No. 1, in issue No. 1.

But before concluding I desire to point out that thelegislature is rightly contemplating to have the Represent-ation of the People Act, 1951, so amended as to get thequestions relating to the validity of nomination papersfinally disposed of before the holding of the election. Itis obligatory on the Tribunal to set aside the election andorder a fresh election when there is an improper acceptanceor rejection of a nomination paper, if the result of the elec-tion has been materially affected by such acceptance orrejection. Nomination papers have been rejected by theReturning Officers sometimes due to inexperience and some-times under a mistaken view of law. This is what I havenoticed in Election Petition No. 86 of 1952, Baijnath Pra-sad v. Chandreshwar Prasad(l) and Election Petition No. 225of 1952, Kalilca Prasad v. Hayat Chand(2) already decidedby this Tribunal. In the present case also I feel that the

- (1) 2 E.L.R. 88, (3) 4 E.L.R. 118.

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E. L. B.j PARMATMA SINGH V. DEO SARAN SINHA 385

post election remedy is wholly inadequate. Therefore, someforum should be provided to decide the nomination disputesbefore the actual election.

Therefore, I hold that at the dates of filing the nomina-tion papers the petitioner was not disqualified under sec-tion 7(d) of the Representation of the People Act.

Issue No. 2.—Consequently, the nomination paper hasbeen improperly rejected. The presumption in law is thatthe result of the election has been materially affected whichhas not been rebutted by the respondent.

I, therefore, set aside the election of the Fatwah Consti-tuency as wholly void on the ground that the nominationpaper of the petitioner was illegally and improperlyrejected.

As no objection was taken by the respondent as to thedisqualification of the petitioner and the Returning Officer,under a mistaken view of law, rejected the nominationpaper of his own motion, no costs are awarded against therespondent. The parties shall bear their own costs.

Order of the Tribunal.—According to the majority opinionof the members, the Tribunal finds that the petitioner wasnot disqualified for being chosen as a member of the BiharLegislative Assembly and that his nomination was impro-perly rejected by the Returning Officer.

The Tribunal, further, finds, according to the unanimousviews of the members, that the result of the election hasbeen materially affected by the rejection of the petitioner'snomination which according to the majority opinion, wasimproper.

The Tribunal, therefore, declares the election to bewholly void.

As the election petition has arisen on account of error onthe part of the Returning Officer, the Tribunal considersthat each party should bear its own costs.

The election petition be allowed and the election to theBihar Legislative Assembly from Fatwah Constituency bedeclared wholly void. Each party shall bear its own costs.

Election declared void.

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380 BAM CHAN.D V. WADHAWA BAM [VOL. V

x [ELECTION TRIBUNAL, LUDHIANA.]

RAM CHANDv.

WADHAWA RAM AND OTHERS.HABBANS SINGH (Chairman),

HANS RAJ KHANNA and PABMA NAND •SACHBEVA

(Members).April 2, 1953.

Disqualification of candidates—" Contract for performance of servi-ces undertaken by Government "—Contract to distribute rice under EastPunjab Paddy and Bice {Mill Control and Procurement) Order, 1948—Bepresentation of the People Act, 1951, s. 7{d)—Bentoval of disqualifica-tion after nomination and before scrutiny, effect of.

In pursuance of the scheme for distribution of foodgrains at fairprices introduced by the East Punjab Paddy and Rice (Mill Control andProcurement) Order, 1948, the Governor of the Punjab entered into anagreement with an association called the "New Rice Association," bywhich the association agreed to distribute all rice manufactured by it,in the manner laid down, and at the prices fixed, by the Government.The petitioner, who was a partner of a firm which was a member ofthis association, stood as a candidate for election to the Punjab StateAssembly, but his nomination was rejected by the Returning Officer onthe ground that he was interested in a contract for the performance ofservices undertaken by the State Government:

Held, that the Punjab Government had taken upon itself an essen-tial service for the equitable distribution and availability at a fair priceof foodgrains and other essential commodities, and the contract enteredinto by the association was a contract for the performance of a serviceundertaken by the Punjab Government, and, as the petitioner's firmwas a member of the association, he was interested in the contract andwas disqualified to stand for election under section 7(d) of the Repre-sentation of the People Act, 1951, and his nomination was rightlyrejected.

Dr. Kannabiran v. A. J. Arunachalam and Others (2 E.L.R. 167)followed. Qian Chand v. Sriram Bansal and Others (2 E.L.R. 136)distinguished. Prabhudas Bamjibhai Mehta v. Lallubhai KishordasManiar (i E.L.R. 154) referred to.

The material date for determining whether a candidate was quali-fied is the date of his nomination and if he was disqualified on that date,his nomination must be rejected, even though the disqualification wasremoved before the date fixed for scrutiny of nominations.

P. N. Balasubrainanian v. C. B. Narasimhan and Others (1 E.L.R.461) followed.

ELECTION PETITION NO. J37 of 1952.

Page 401: Election Law Reports, Vol. V

IS. L. K.] HAM ('HAND V. WADHAWA BAM 38?

ORDEK.

HANS RAJ KANNA.—Shri Wadhawa Ram, respondentNo. 1, was elected to the Punjab Legislative Assemblyfrom the Faziika Constituency in the general elections heldin January, 1952.

The present election petition has been filed by Shri RamChand, an elector in the c6nstituency, to question theelection of Shri Wadhawa Ram. It is alleged by the peti-tioner that the election of respondent Shri Wadhawa Ramis void on account of the fact that the agents and othersupporters of respondent No. 1, made appeals to voters ofKamboh caste to vote for respondent No. 1 on the basis ofcaste, community and religion. It is also alleged that theagents and supporters of respondent No. I held out falsepromises of free grant of agricultural land. It is furtherstated that the election was not a free election by reason ofthe fact that corrupt practices of bribery and treating byliquor extensively prevailed throughout the constituency.The allegations of intimidation of voters by respondentNo. 2, Shri Mukand Lai, who was one of the candidates,are also made. It is further stated that the election isvoid on account of the fact that Shri Mukand Lai, respond-ent No. 2, was one of the proprietors of the shop RaiSahib Bool Chand Nathu Ram, which was under a contractwith the Punjab Government for the supply of wheat andother foodgrains. According to the petitioner this entaileda disqualification for Shri Mukand Lai from standing asa candidate. It is stated that the improper acceptance ofthe nomination papers of Shri Mukand Lai has materiallyaffected the result <3f the election. In another para, it isalleged that the nomination papers of Shri Sher Singh, res-pondent No. 7, were improperly, illegally and wronglyrejected by the Returning Officer. The petitioner allegesthat the Returning Officer rejected the nomination papersof respondent No. 7, on the ground that respondent No. 7was a member of the Karnal Rice Association. Accordingto the petitioner, respondent No. 7 had ceased to be amember of the Rice Association before the date of thefiling of the nomination papers. It was pleaded in thealternative that, even if respondent No. 7 was a member of

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388 HAM CHAHD 1). WADHAWA RAM [VOL. V

the Association, this fact did not disqualify respondentNo. 7, from standing as a candidate.

The election petition has been contested by respondentNo. 1. The allegations of the petitioner have been contro-verted by the aforesaid respondent. It is also stated byrespondent No. 1, that the list of particulars supplied bythe petitioner was defective and not in accordance withlaw. After replication had been filed by the petitioner tothe written statement of the respondent, the followingthree preliminary issues were framed:

1. Were the nomination papers of respondent No. 2,improperly and illegally accepted by the Returning Officerfor the reasons detailed in paragraph 9 of the petition ? Ifso, has it materially affected the result of the election ?

2. Were the nomination papers of Shri Sher Singh,respondent No. 7, improperly and illegally rejected by theReturning Officer ? If so, has this not materially affectedthe result of the election V

3. Do the particulars given by the petitioner, notcomply with the provisions of section 83 of the Represent-ation of the People Act, 1951, and if so, is any portion ofthe list liable to be struck off and should further parti-culars be ordered to be given in respect of the same ?

Evidence was recorded on the preliminary issues. On14th February, 1953, it was held {vide Annexure A) by theTribunal that we would defer the hearing of argumentsand the pronouncement of orders on preliminary issues Nos.1 and 2 and that those issues would be taken up a longwith the issues on merits when framed. Arguments werethen heard on issue No. 3 only. The Tribunal then dic-tated an order (Annexure B) on th*at very day by whichthe petitioner was called upon to furnish further informa-tion with regard to certain facts mentioned in the petitionand the particulars attached therewith. After the Tribunalhad dictated the order on issue No. 3, the counsel and theMukhtar-i-Khas of the petitioner made a statement thatit was not possible for the petitioner to substantiate theallegations of corrupt and illegal practices made in thepetition, and that the petitioner would confine himself tothe allegations on which the preliminary issues Nos. 1 and 2had been settled. In view of the above statement noissues were framed on merits and the pres'ent petition

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B. L. B.] KAM CHAND V. WADHAWA RAM 389

would now have to be disposed of on Issues Nos. 1 and 2on which our findings are as under :—

Issue No. 1.—[No arguments were addressed on behalf ofthe petitioner on this issue. Issue No. 1 was therefore,decided against the petitioner.]

Issue No. 2.—On Issue No. 2, the position taken up bythe petitioner is that the firm Sher Singh and Co., ofwhich Shri Sher Singh was a partner, had ceased to be amember of the New Rice Association, Karnal, and that inany case the membership of the New Rice Association didnot result in a disqualification for Shri Sher Singh. Weshall deal with these two aspects seriatim.

The petitioner has led evidence before the Tribunal toshow that Shri Sher Singh was a member of the New RiceAssociation, Karnal. This Association was formed on 20thSeptember, 1951. The firm, Sher Singh and Co., was oneof the members of the Association. Shri Sher Singh res-pondent is a partner of the firm Sher Singh and Co. ShriSher Singh has deposed that on the 18th October, 1951, hesent a letter Ex. P.W. I/A, wherein he wrote to the Presi-dent of the New Rice Association, Karnal, that the firmSher Singh and Co. was giving up its connection withthe Association and that its contribution might be return-ed to the same. A meeting of the Association, it is alleged,was called on the 19th of October, 1951, and a resolution,Ex. P.W. 1/C, was passed on that day by which it wasresolved that firm Sher Singh and Co., might be permittedto sever its connections with the Association and thatintimation with regard to that might be sent to theDistrict Food Controller. The point at issue between theparties is whether this resolution that is alleged to havebeen passed on the 19th of October, 1951, was in factpassed on that day or whether it has been subsequentlymanoeuvred and ante-dated. In order to come to a correctconclusion on this question, we have to look to the courseof events at the time of scrutiny.

The nomination papers were filed by the different candi-dates including Shri Sher Singh on the 5th November,1951. On the 9th November, 1951, the date of scrutiny,an affidavit was filed by Shri Isher Dass, R.W. 7, in whichit was stated that Shri Sher Singh was the proprietor offirm Sher Singh and Co., and that firm Sher Singh and Co,

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390 RAM OHAND V. WADHAWA RAM [VOL. V

was an authorised dealer and was a share-holder of theNew Rice Association, Karnal, which had a contract forthe supply of rice with the Government. It was also statedin that affidavit that firm Sher Singh and Co. was a share-holder of Pacca Ahrtis Association, Karnal, which had acontract for the supply of wheat. It was further stated thatShri Sher Singh was a share-holder in a Society known asNilibar Society, District Karnal, which had taken a largearea of land on lease from the Government. The ReturningOfficer, thereupon, passed a long order. It was ultimatelyordered by the Returning Officer as under :

" I direct that by tomorrow, in case the position takenis a position of denial, a complete and clear affidavitshould be submitted before 3 p.m. stating :

1. That Shri Sher Singh is not a member of Sher Singhand Co.

2. That Sher Singh and Co., as such, is not a memberof the New Rice Association, Karnal, and the Karnal PaccaAhrtis Association.

3. That Shri Sher Singh has not taken any land underthe Utilization of Lands Act from the D. C, Karnal, byhimself or in the name of Nilibar's Association of which heis a member.

This affidavit should specify that at no time thesefacts were true as against Shri Sher Singh. If, at any time,these facts were true and if at some time Shri Sher Singhhad ceased to be a member of all the Associations men-tioned above or had ceased to be a beneficiary under anyof the concerns as discussed above, the exact date of suchceasing of interest should be clearly specified in theaffidavit. "

On the 10th November, 1951, Shri Sher Singh filed anaffidavit in which he stated that there was no associationin Karnal running under the name and style of PaccaAhrtis Association, and that Shri Sher Singh was nomember of any such Association. It was further stated thatthe New Rice Association was not a nominee of theGovernment nor was it appointed by the Government. Itwas further stated that 5 or 6 rice licencees had joinedtogether to form that Association instead of carrying onbusiness separately. It was also stated that they had no

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E. L. R.] TtAM CHANT) V. WADHAWA RAM 391

dealing with the Government and did not derive any bene-fit from the Government. Shri Sher Singh also denied thefact that he was a member of Nilibar Society. He furtherstated that he had no contract with the Government forsupply of wheat or rice.

On 10th November, 1951, the Returning Officer passedan order wherein he reproduced the fact that Shri SherSingh had denied that he was a member of the PaccaAhrtis Association, Karnal, or that Shri Sher Singh was inany way interested in lands procured under the Utilizationof Lands Act. After that there is a significant passage inthe order of the Returning Officer to the following effect:—

" It has been admitted by Shri Sher Singh that he is amember of Sher Singh and Co., who, as such, is in turn amember of the New Rice Association, Karnal. The ques-tion, therefore, for final disposal is whether he is disquali-fied as a candidate under clause (d) of section 7 of the Re-presentation of the People Act, 1951. "

The Returning Officer thereafter wrote that he hadheard lengthy arguments and that as it was 6-20 p.m.then, and Shri Sher Singh wanted an adjournment forarguments till the following day, the proceedings be ad-journed till. then.

On the 11th November, 1951," an affidavit was filed byShri Sher Singh to the effect that he had ceased to be amember of the New Rice Association, Karnal, on the 22ndOctober, 1951. The filing of this affidavit was objected toby the other party. The affidavit was, however, taken onthe record and thereafter the Returning Officer passed anorder whereby he rejected the nomination papers of ShriSher Singh, respondent. A telegram was also received bythe Returning Officer on the 11th November, 1951, purport-ing to be from Shri Sunder Singh, President, New RiceAssociation, Karnal. It was recited in that telegram thatSher Singh and Co., was no longer a member of the NewRice Association since 22nd October, 1951.

The Returning Officer held in his order that the telegramcould not be admitted in evidence and that there was nopresumption that the telegram was actually sent by ShriSunder Singh, the President of the Association. The Re-turning Officer further held as under ;

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392 RAM CHAND V. WADHAWA EAM [VOL. V

" Finally, the whole matter is extremely doubtful asup till yesterday the position of Shri Sher Singh was thathe was, up to date, a member of the Association concerned.It is not possible to imagine any contingency whereby heshould have made this statement at the bar without hisbeing a member. "

It is further stated in the order as under :" Under the circumstances if Shri Sher Singh was not

a member of the alleged association the following circum-stances must have existed beforehand:—

1. He should have said yesterday that he had resignedfrom the Association ; in fact he was required to do so, videmy order dated 9th November, 1951, and he clearly deniedmembership of several other concerns, questions aboutwhich were also raised.

2. He should have shown something in writing fromthe D. F. C. of his district. "

The petitioner, in order to show that the respondent hadin fact resigned from the Association on the 19th October,1951, has produced P.W. 1, Shri Sunder Singh, and P.W. 2,Shri Sher Singh.

[After discussing the evidence the Tribunal held thatShri Sher Singh retained his connections with the Asso-ciation till the 10th November, 1951, and that somethinghappened between the 9th November, 1951, and the 11thNovember, 1951, which brought into existence the afore-said letters and resolutions.]

The next question that arises is as to what would be theeffect on the nomination papers of Shri Sher Singh, if hesuffered from disqualification on the*5th November, 1951,i.e., the date of nomination, in case his disqualification wassubsequently removed either on the date of scrutiny or alittle after that. On that point we find that it has been laiddown in a case decided by the Election Tribunal, NorthArcot, Vellore, entitled P. N. Balasubramanian v. CM. Nara-simhan, ete.(l), that if a person suffered from disqualificationon the date of nomination, the subsequent removal of thedisqualification would not improve the matter. It was alsolaid down in that case that the material date in order todecide the eligibility of a candidate to stand for election isthe date of nomination.

(1) 1 E.L.R, 461,

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E. L. R.] RAM OHAND V. WADHAWA RAM 393

The learned counsel for the petitioner next argued thateven if the petitioner be taken to be a member of the NewRice Association that fact did not disqualify the petitionerfrom standing as a candidate. Section 7 (d) lays down thelaw which has bearing on the present petition. It has beenlaid down therein as under :—

" A person shall be disqualified for being chosen as,and for being, a member of either House of Parliament orof the Legislative Assembly or Legislative Council of aState:—

(d) If whether by himself or by any person or body ofpersons in trust for him or for his benefit or on his account,he has any share or interest in a contract for the supply ofgoods to, or for the execution of any works or the perform-ance of any services undertaken by, the appropriateGovernment.

Shri Sunder Singh, stated that the New Rice Associationwas formed with the object of getting rice husked and tosupply the same to the Punjab Government or to otherbodies at the instance of the Punjab Government. Headded that they could not sell the rice in the market andthat it was a Monopoly Scheme. Shri Raj Kumar, DistrictFood Controller, stated that an agreement was executedbetween the Punjab Government and the New Rice Asso-ciation which is Ex. R.W. 13 (f). This agreement wasmade between the Governor of the Punjab on one sideand the New Rice Association on the other. The materialterms of this agreement are as under:—

" Whereas it is the policy of Government to control thedisposal of all rice manufactured at Karnal;

And whereas the dealer has undertaken to place allsupplies of rice manufactured by or for him for distributionunder the orders of Government;

And whereas the Government have agreed to authorisethe dealer .to have rice manufactured under the East PunjabPaddy and Rice (Mill Control and Procurement), Order,1948 ", in the said place ;

Now these presents witness as follows :-—(1) The dealer hereby agrees not to have manufactured,

retained in his possession or disposed of any rice except and|n accordance with the terms of this agreement.

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394 RAM CHAND V. WADHAWA KAM [VOL. V

(2) The dealer hereby agrees not to have any ricemanufactured from paddy except by an Authorised RiceMiller.

(3) The dealer agrees to distribute all rice manufacturedby him or on his behalf under the instructions and in themanner laid down by Government.

(3) (a) The dealer agrees that each and every partneror member of the Association will work as rice dealer collec-tively on behalf of the Association and not in his individualcapacity.

(4) The dealer agrees to charge only such prices,incidental charges and commission, if any, for the rice soldby him, as are fixed by Government from time to time, andsubject to the prescribed specifications and inspection forquality. ?

v (5) (a) This agreement shall commence from 3rd Octo-ber, 1951, and shall remain in force until its terminationeither by mutual agreement or by either party by onecalendar month's notice in writing, or by any other provi-sion of these presents.

(b) Without prejudice to sub-clause (a), Governmentshall have the right to terminate this agreementforthwith:—

(i) in the event of the dealer becoming insolvent, orhis business being wound up, or making agreement withcreditors or failing to observe or perform any provision ofthis agreement;

(ii) if any bribe, commission, gift or advantage isgiven or offered by or on behalf of the dealer to any officer,servant, or any person acting on behalf of Government inrelation to the operation of this agreement;

(iii) for any other reason which it may deem justand sufficient. '

(c) In the event of the agreement being determined,by Government under the provision of sub-clause (b) above,the dealer shall, in addition to any other liability, civil orcriminal, and under the terms of this agreement or other-wise, be liable to pay any loss or damage resulting fromsuch determination.

(6) The dealer agrees to deposit with the DistrictMagistrate- of the district a sum of Us. 1,000, against thefulfilment of this agreement and agrees to the forfeiture by

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E. L. R.] RAM OHAND V. WADHAWA RAM 3'J5

him of this deposit or any part of it for any breach by himor any person acting on his behalf of any of the provisionsof this agreement."

Shri Raj Kumar, in the witness box, stated that theAssociation gets the rice husked and the entire rice obtainedis sold by the Association to the Government again at afixed rate subject to quality variations.

The learned counsel for the petitioner has contendedthat the aforesaid agreement was not a contract for thesupply of goods to, or for the execution of any work or theperformance of any service undertaken by, the PunjabGovernment. The learned counsel for the petitioner hasalso, in this connection, cited Gian Chand v. Sriram Bansal(l)a case decided by the Election Tribunal, Patiala, relatingto Kandaghat Constituency in Pepsu. "In that case it washeld that the mere fact that the father of a candidate, withwhom the candidate was joint, was a member of theGrain Dealers' Association, did not disqualify him fromstanding as a candidate. It was also laid down in thatcase that the arrangements with regard to the rationingand procurement of foodgrains were made by the State byvirtue of Essential Supplies (Temporary Powers) Act, 1946,and there was no indication in that enactment that theGovernment had undertaken to supply foodgrains to thepeople of the State.

Before dealing with the question as to whetherEx. R.W. 13-E is hit by the provisions of section 7(d) itwould be more appropriate to deal with the history of thisenactment and the case-law that preceded it. Some of theEnglish decisions which have a bearing on section 7(d),have been reproduced in a case, Dr. Kannabiran v. A. J.Arunachalam^), decided by the Election Tribunal, Vellore.The relevant para, in which these cases have been referredto, runs as under :—

" Before we conclude, we have to refer to some of theEnglish decisions cited before us by the learned counsel,which have a bearing on the general policy implied inproviding for the disqualification stated in clause 7(d) of theAct against persons being chosen for membership ofdemocratic legislative bodies. As pointed out by thelearned counsel for the petitioner, these decisions, basedupon various enactments, in England, will not have much

(1) 2 E.L.R, 136. (2) 2 E.L.R- 167,

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396 RAM CHAND V. WADHAWA RAM [VOL. V

bearing when we have got the duty of interpreting andapplying the provisions of an enactment like the Repre-sentation of the People Act, which differs from previousstatutes in several material respects. But the decisions,however, have a value for the light they throw upon thejealousy with which democracy guards the freedom andindependence of its elected representatives. The principlewhich these decisions emphasise, is no member of a Legisla-ture or a Municipal Body, should be elected, if there willbe a likelihood of a conflict between his duty and interest.Another principle laid down is that a disqualifying clausein an enactment should be construed strictly, because it ispenal in nature. In Lapishv. Braiihwaite^), the Courthad to construe a disqualification clause under the Muni-cipal Corporations Act, 1882, against a candidate having ashare or interest in a contract or employment with, by, oron behalf of the council, and it observed that "the atten-tion of the legislature in framing that section was to secure,as was thought necessary, that aldermen and councillorsshould not place themselves in positions in which theirduty and their interest conflicted and to remove a possiblesource of temptation." In Holden v. Southwark Corpora-tionl^), their Lordships applied the Local Government Actof 1894 which provided disqualification for membershipfor a person 'concerned in any bargain or contract enteredinto with the council, or who participates in the profitof any such bargain or contract and held that such andsimilar provisions were intended to prevent the membersof Local Boards, who may have occasion to enter intocontract from being exposed to temptation or even to thesemblance of temptation, and the object obviously wasto prevent the conflict between interest and duty thatmight otherwise inevitably arise.' These observations werequoted from an earlier decision in Nutton v. Wilson (3).The decision in Thompson v. Pearce{% relied upon by thecounsel for the first respondent, is relevant only for theobservation that in construing an Act, the first thing toconsider is the nature of the Act, whether it be remedialor penal and that the Act which disqualified a candidatefor the Parliament 'if he had interest in a contract withthe Commissioners of His Majesty's Treasury, Navy or

(1) (1925) 1 K.B. 47-1. (3) 22 Q.B.D. 747.(3) (1921) 1 Ch. D. 550. (*l 129 E.R. 632,

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E. L. R.] RAM CHAND V. WADHAWA RAM 397

the Victualling Office, or with the Master General orBoard of Ordnances, or with anyone or more suchCommissioners, or with any other person or personswhatsoever, on account of public service was surely penaland, therefore, the Court had to construe it strictly'. Butthe facts of the case were wholly different, and that casehas no application here. Even if we have to give dueweight to the policy underlying the disqualification, asstated in the decisions cited, that the individual electedshould not be exposed to a situation where his duty andinterest might conflict, we are of the opinion that it willhold good in the case of the first respondent also. It willbe unnecessary to catalogue a number of possible situationswhich might arise, and it will suffice to mention one suchsituation, for example, when the member elected mayhave to vote for the continuance or discontinuance of theState nominee system, it will be an occasion when his dutyand interest conflict with each other."

It has also been laid down in two authorities, onedecided by the Election Tribunal in Saurashtra State inElection Petition No. 1 of 1951, Prabhudas RamjibhaiMehta v. L. K. Maniar(l), and the other in Dr. Kannabiranv. A. Arunachalam^) that the words "contract for" used insection 7 (d) must be held to govern also the clause "theperformance of any services".

A perusal of the agreement Ex. R. W. 13/F shows thatthe Association has agreed to distribute all rice under theinstructions and in the manner laid down by the Govern-ment. The Association was entitled to charge such priceand other incidental charges as they were authorised tocharge by the Government. The Government had to bringon the Statute Book the Essential Supplies (TemporaryPowers) Act because there was a shortage of certain sup-plies and the Government wanted to regulate their suppliesso that the general public may not experience difficulty inhaving their due share of those supplies.

With the advance of times, the functions and activities ofthe Governments have considerably expanded. The exigen-cies of the modern times demand the undertaking by theGovernment of a number of services which were consideredbeyond the pale of the normal activities of state in ancient

(1) 1 E. L.R. 154. (2) 2 E. L. R, 167,

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39$ RAM OHAKB 1). WADHAWA RAM [VOL. V

times. Even the trend in some of the countries is for theestablishment of a welfare state wherein the Governmentundertakes to supply a very large number of amenities toits citizens. Even in those countries where we do not havean attempt for a welfare state, the Government undertakescertain essential services for the betterment of the people.With that end in view the Government takes upon itselfthe duty, inter alia, of fair distribution of certain essentialsupplies like foodgrains. It has been laid down on page 186of " Modern State " by R. M. Maelver, 1950 Edition, asunder:

" Just as the conception of order widens into that ofprotection, so does protection in turn find a wider interpret-ation in the business of conservation and development.The state with its command of resources and its universalreach can build for the future in ways that no partialorganization may attempt. It can over-rule the near selfishaims that would waste for immediate advantage the greatergifts of nature. It can carry on vast works of constructiveenterprise whose benefits will be shared by future genera-tions. It can control by means of the forethought which isproper to its might and permanence the haphazard en-deavours of individuals which result, when left alone, insprawling, ill-built, congested cities and a slovenly, ill-tended country-side. It can preserve and enhance thosesignal beauties of forest and lake and mountain which theadvance of industrialism threatens. It can carry on fruit-ful experiments in irrigation, the utilization of the soil, thebreeding of plants and animals, the control of insect pests,and other services of great significance for the developmentof agriculture. It can promote the establishment ofindustries, by providing initial aid and by facilitating thediscovery and application of scientific methods. It canmitigate the severity of economic fluctuations by itscontrol over currency, credit, and its own expenditures. Ina great variety of ways it can encourage the industry, tradeand commerce of the country, a perfectly legitimate enter-prise of Government so long as it does not yield to theconstant temptation to benefit the part at the expense ofthe whole. "

Further, it has been laid down on page 311 of the saidbook as under:

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E. L. R.] RAM CHAND V. WADHAWA RAM 399

" The fluctuating eccentricity of economic and politicalpowers could not be better illustrated than by the result-ing situation. The growth of the economic corporation haskilled the principle of laissez-faire. Its might for good andevil is too great to be " let alone ". It cannot refrain frominfluencing the policies of the state, nor can the state with-out denying its raison d' etre, the common interest of itsmembers, refrain from the task of regulation. Theconsumer appeals to the state for protection againstmonopoly, the worker demands safeguards for labour, thesmall businessman cries out against 'unfair competition',while 'big business' seeks tariffs against the foreigner. Thestate, feeling the constant impact of opposing economicforces, cannot stand still. It must act as the trend of publicopinion directs. In general it must, in the measure of itsdemocratization, act as a moderating influence to temperthe inequalities which form the essential condition ofeconomic power."

It is also noteworthy that even the position taken up bythe petitioner himself in the petition is to the effect thatthe fact that a person has a contract for supply of food-grains to the Government entails a disqualification. Thepetitioner has alleged in the petition that Shri Mukand Lai,respondent, was not entitled to stand and his papers wereimproperly accepted. The allegation against Shri MukandLai, as brought in evidence, was that he was a member ofNew Fazilka Pacca Ahrtis Association. It however, trans-pired ultimately that Shri Mukand Lai had severed hisconnection with that association earlier. The fact remainsall the same that according to the petitioner's case as setup in the petition the membership of New Fazilka PaccaAhrtis Association, amounted to a disqualification. Theredoes not seem to be much difference in the functions of theNew Fazilka Pacca Ahrtis Association, and the New RiceAssociation, Karnal, except that one dealt in wheat andbarley, while the other dealt in rice.

In my opinion, the Punjab Government has taken uponitself an essential service for the equitable distribution andavailability at fair price of foodgrains and other essentialcommodities and for that reason they issued the EastPunjab Paddy and Rice (Mill Control and Procurement)Order, 1948. I also find that the New Rice Association,

FX— 51

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400 BAM CHAND V. WADHAWA BAM [VOL. V

Karnal, by entering into that contract with the PunjabGovernment, entered into a contract for the performance ofa service undertaken by the Punjab Government. In thecase oiDr. Kannabiran v. A. J. Arunachalam^), mentionedabove, the first respondent was a State nominee of the StateGovernment for the distribution of bales of yarn in theNorth Arcot District. The question arose whether he wasdisqualified under section 7 (d) of the Representation ofthe People Act. It was held by the Tribunal that the StateGovernment had taken upon itself an essential service forthe equitable distribution and the availability at fair priceof yarn. The election of respondent No. 1 was set aside.

In another Election Petition, No. 1 of 1951, in Saurashtra,Prabhudas Mehta v. L. K. Maniari?), the petitioner was aregistered stock-holder in Saurashtra in Iron and Steel.The petitioner's nomination papers for being elected to theState Assembly were rejected and he filed an electionpetition. In that case the only argument which wasadvanced and accepted by the Tribunal was that Ironand Steel were controlled by the Central Government andtheir distribution was controlled by the Central Govern-ment, and that the Saurashtra Government could not bedeemed to be an appropriate Government. It was however,otherwise never doubted in that case that the contract forthe distribution of Iron and Steel fell within the mischiefof section 7 (d).

In the case ofGian Chand v. Sriram Bansal(B), referred toabove, cited by the petitioner, there was no indication inthe agreement that the Association had agreed to supplyfoodgrains to any particular person. In the present case anindication to that effect is there in the statement of Shri RajKumar, wherein he stated that the Associations sold theentire rice after husking the same to the Government.Apart from that, in my view, the reasoning and the conclu-sions arrived at in the case of Dr. Kannabiran v. A. J. Aruna-chalam^) lay down the law correctly. The PunjabGovernment by issuing various directions, notifications andentering into contracts did undertake the service of regulat-ing the supply of rice and paddy in the State. Shri SherSingh, having entered into a contract through the NewRice Association with the Punjab Government, was

(1) 2 E.L.R. 167. (2) 1 E.L.R. 154 (3) 2 E.L.R. 136.

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E.L.R.] RAMACHANDRA CHOWDHURI V. SADASIVA TRIPATHY 401

disqualified by section 7 (d) of the Representation of thePeople Act.

I, therefore, hold that Shri Sher Singh was not qualifiedto stand and his nomination papers must, therefore, be heldto have been rightly rejected.

The petition consequently fails and is dismissed.As the petitioner has withdrawn all his allegations with

respect to corrupt practices detailed in his petition and thecase is being decided on preliminary issues only, we allownominal costs, i.e., Rs. 100 only to Shri Wadhawa Ram,respondent No. 1.

HARBANS SINGH and PARMANAND SAOHDEVA.—We agree.

Petition dismissed.

[ELECTION TRIBUNAL, NAYAGARH.] .'

RAMACHANDRA CHOWDHURIv.

SADASIVA TRIPATHY AND OTHERS (No. 2).DWARIKANATH DAS (Chairman),

G. KRISHNAMTTRTHI and R. K. RATHO (Members).April 30, 1953.

Corrupt practice—Undue influence by Government servants—Minis-ter doing electioneering campaign during official tours—Manager of Courtof Wards, whether Government servant—Representation of the People Act1951, s. 123(8).

A candidate who is a Minister is not guilty of a corrupt prac-tice under section 123(8) of the Eepresentation of the People Act, 1951,merely because during the course of his official tours as a Minister heconducted his electioneering campaign also. Nor would a District Magis-trate's tour just before election, by itself amount to exercising undueinfluence on voters.

Habibgaiig.South N. M. B., 1924 (Hammond 387) and GajendraChandra Chaudhuri and Others v. P.C. Datla (2 Jagat Narain«85) reliedon.

The Manager of a Court of Wards under the Orissa Court of WardsAct, 1947, is not a Government servant within the meaning of section123(8) ot the Eepresentation of the People Act, 1951, though he is a'public servant' within the meaning of section 12 of the Indian PenalCode.

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402 RAMACHAJStDRA CHOWDHUEIV. SADAS1VA TE1PATHY [VOL.V

ELECTION CASE NO. 2 of 1952. !tJayachandra Patra, for the petitioner.M. Sitaramayya, G. Narayanamurli and Y. Srirama

Murti, for the respondent No. 1.OBDER.

The petitioner, Sri Ramachandra Choudhuri, was a dulynominated candidate of the Ganatantra Party at the lastelection to the House of Legislature of the State of Orissafor the general seat of the double-member constituency ofNabarangpur and was defeated by respondent No. 1, whosecured 40,426 votes as against 18,358 votes of the peti-tioner. The petitioner originally filed the petition undersection 81 of the Representation of the People Act of 1951,impleading respondent No. 1, the returned candidate, res-pondent No. 2, the other unsuccessful candidate for thegeneral seat, and respondent No. 3, the returned candidatefor the Scheduled Caste seat. At the stage of first hearing,the petitioner wanted to add four more persons as respon-dents on the ground that they were left out by inadver-tence, and on the prayer being allowed (vide order dated5th January, 1953) respondents 4 and 5 whose nominationpapers were rejected by the Returning Officer and respond-ents Nos. 6 and 7 who withdrew their candidature anddid not enter contest at the poll, were added.

2. The petitioner's case is that the entire extent ofNabarangpur constituency is a part of the Jeypore Estatewhich is now under the management of the Court ofWards. Respondent No. 1, who is the Congress candidate,was a Minister in the outgoing Congress Cabinet. Prior tothe election, a dispute to the succession of the Estate ofJeypore was raised after the death of the Maharaja ofJeypore in April, 1951, at the instigation of respondentNo. 1. Respondent No. 1 had set up a pretender to claimheirship to the Maharaja so that the estate would be eitherunder the control of his nominee, the said pretender, or itwould be placed in charge of the Court of Wards and ineither eventuality he would utilise the heirarchy of officialsas the Minister of the State for his own election purposes.Being so motivated, respondent No. 1 resorted to corruptpractices of bribery, undue influence, coercion and intimid-ation and his election has been procured or induced bycorrupt and illegal practices as detailed below.

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.] KAMA CHANDRA OHOWDHUBI V. SABAS1VA TRIPATHY 403

3. That Notification No. 176 dated 15th December, 1951,was published in the Orissa Gazette whereby enhancedseigniorage for timber and other forest produces of Jeyporeestate were realised and keen anti-congress feelings wereroused affecting the prospect of respondent No. l's elec-tion. To allay these feelings and to further the electionprospects, respondent No. 1 conspired with the then ChiefForest Officer of the estate and caused a confidentialcircular dated 20th December, 1951, issued by the ChiefForest Officer to all forest officers asking them not to en-force the enhanced seigniorage rate. By stopping theenforcement of enhanced seigniorage rate, respondent No. 1himself, and his agents and workers with his consent andknowledge, told the electors that respondent No. 1 had gotthe aforesaid notification rescinded and thus the corruptpractices of mass bribery was committed and undue influ-ence on the free exercise of electoral rights was exercised.Respondent No. 1 utilised his position and power asCabinet Minister and obtained and procured the assistanceof various Government Officers in the matter of carrying onactive propaganda for advancing the prospects of his elec-tion. The Government Officers actively participated in theelection work on behalf of respondent No. 1 and with hisconnivance and that of his agents and workers resorted toacts of intimidation, coercion and threat in inducing andunduly influencing the electors to cast their votes in favourof respondent No. 1. .

[Issue No. 2 which alone is material for this report wasas follows:]

2. Whether respondent No. 1 iitilised his position as aMinister of Orissa State and got the assistance of theDistrict Magistrate and the Officers of the Jeypore estate tomake propaganda in his favour to help him in his election ?

[After discussing the evidence the learned member ofthe Tribunal held as follows:]

To conclude, the corrupt practice of conspiracy in thematter of issuing the circular Ex. 16 alleged againstrespondent No. 1 is not at all established and we have nohesitation in finding that respondent No. 1 did not conspirewith the then Chief Forest Officer of Jeypore to issue thecirculars not to collect the enhanced seigniorage rate.

19. . Issue No. 2.—The second type of corrupt andUlegaJ practice alleged against the respondent No. 1 is that

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404 HAMACHANtoRA CHOWDHURl fl.SADASIVA TKIPATHY [VOL.V

his success in the election was achieved with the assistanceof the District Magistrate and the officials of the Jeyporeestate who made propaganda on his behalf and helped himin his election. Before dealing with the particulars of theoffence herein alleged it is necessary to clarify what typeof official influence is meant to have been exercised in thiscase. As against respondent No. 1 who was also then aMinister of the State it is said that his tour was anelection tour. As against the District Magistrate ofKorapur, under whose jurisdiction the constituency inquestion falls, it is said that he held the tour with a viewto influence the voters and thus helped respondent No. 1,the Minister. So far as the officials of the Jeypore estateare concerned, particular reference is made to the General

"Manager, Sri G. N. Behera (P.W. 1), and his tours too arestigmatised as election tours undertaken mainly for thepurpose of canvassing on behalf of respondent No. 1, theMinister. Respondent No. 1, as the then Minister of theState, no doubt held tours during the months of Novemberand December, 1951, when election was at the door but tosucceed in his contention, the petitioner, must prove thatthe tour was purely an electioneering tour. RespondentNo. 1 in his evidence has told us that urgent files were sentto him for disposal during his tour and the officials used tosee him now and then in the course of his tour. The aboveevidence of respondent No. 1, taken on its face value, showsthat the tour was not altogether devoid (sic.) of official tour.In Habibgang South N. M. R., 1924 (]), the position of aMinister in regard to his tour has been discussed andwe cite the following passage with advantage: "Weare not aware of any rule requiring a Minister to resignoffice before offering himself as a candidate for re-election.We cannot therefore say that the respondent committedany irregularity in choosing to remain in office whileconducting his election campaign. In the circumstancesit was inevitable that he should to a certain extent,combine canvassing with official work. It was also inevit-able that whenever he went out canvassing he should beattended 'with all the prestige and powers of his highofficial position.' We do not see how he could leave thesebehind so long as he was Minister, any more than hecould leave his own shadow behind." In Gajendra Chandra

[D Hammond 387,

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E.L.B.] BAMACHANDRA CHOWDHtTBI V. SADASIVA TBIPATHY 405

Chowdhuri and Others v. P. C. Datta^), the same view inregard to the Minister's position has been taken and it isheld that there is no rule of law requiring a Minister toresign his post before starting his canvassing nor is itillegal for a Minister to combine canvassing with hisofficial duties. In the case reported in I.L.R. Cuttack,1952, Part X and XI at p. 574, the Honourable ChiefJustice Das has expressed incidentally on the point asfollows :—"In a system of elections where the Governmentin power continues in office during the elections, noMinister can abdicate his function, if the public exigenciesdemand it, merely for fear of being misunderstood." Sideby side with the above legal position we have already gotit that the petitioner's statement that respondent No. 1as Minister gave assurance to the people to reduce thethe enhanced seigniorage rate at a meeting at Omarkoteis beyond the averments made in the petition and theparticulars. The well-established principle of election lawrequires full and complete particulars in the case of officialundue influence. That not being done and the law havinggiven respondent No. 1 the privilege as Minister to combinecanvassing with his official duties, no question of exercise ofundue influence by the Minister, respondent No. 1, can arise.

20. We next come to consider the undue influencealleged against the District Magistrate in course of histour. In the first place it is to be pointed out that theofficial undue influence thus alleged is without full andcomplete particulars as required by the law. In paragraph11 and 12 of the petition it is said that the Minister,respondent No. 1, utilised his power and position, andprocured the assistance of various Government Officers inthe matter of carrying on active propaganda and thoseGovernment Officers resorted to acts of intimidation,coercion and threat in inducing and unduly influencingthe election to cast their votes in favour of respondentNo. 1. In particular No. 3 no mention about Governmentofficers is made and it was confined to the Range Officer,General Manager, Forest Moharirs and other employeesof the Jeypur estate. Paragraph 4 of the particulars saysthat the District Magistrate with many Governmentofficers was moving about and was canvassing manyelectors for respondent No. 1.

(1) 2 Jagat Narain 85.

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406 RAMACHANBRA CHOWDHUEIV. SADASIVA TRIPATHY [VOL.V

It remains to be seen if the District Magistrate's tour atthe time of election by itself amounts to undue influenceby officials. Under section 123, clause (8), of theRepresentation of the People Act, there must be inter-ference or attempt to interfere with the free exercise ofelectoral right by the Government servant to make theoffence a major corrupt practice. The District Magistrateheld the tour in discharge of his official routine duties andthe freedom of the voters can thus by no means be said tohave been interfered with. On this question of fact theparticulars being absolutely nil, the petitioner cannot beheard to say that the District Magistrate used undueinfluence by holding tour in the constituency during thedays of polling specially when the only one instance allegedin evidence has not been proved.

21. It remains next to be seen in what way the GeneralManager, P.W. 1, interfered or attempted to interfere withthe free exercise of the electoral right by the voters of theconstituency. In the first place it is said that the GeneralManager, Sri Behera, though in the employ of the Court ofWards is still a Government servant to come under the mis-chief of section 123(8) of the Representation of the PeopleAct. That is, though P.W. 1 has retired and has beenre-employed under the Court of Wards as the GeneralManager, still he is a public servant within the. meaning ofsection 21 and thus comes under the category of Govern-ment servants referred to in section 123 (8) of the Represent-ation of the People Act. Sri Behera, has deposed that asDewan of Jeypore estate he was drawing his salary fromthe estate fund. He, as General Manager, was also drawinghis pay from the estate. In cross-examination he hasfurther stated that prior to the merger of the Zamindari on29th December, 1951, all the estate officials were being paidout of the funds of the estate. Under section 21, clause 9,Indian Penal Code, every officer in the service or pay of theCrown is a public servant. Shri Behera's drawing pay fromthe estate fund thus takes his case out of the category ofGovernment servants dealt under clause 9 of the section.The petitioner's pleader urges that under section 32 of theOrissa Court of Wards Act, 1947, every guardian, manager,or other servant of the Court shall be deemed to be a publicservant within the meaning of section 21 of the Indian

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E.L.K.] fcAMACHANDRA OHOWDHURTW. SABASTVA TRIPATHY 407

Penal Code and as such the General Manager is a Govern-ment servant for all practical purposes. In this connectionhe refers to Queen v. Mathura Prasadi1) where it has beenheld that the Manager of an estate employed under the Courtof Wards is a public servant. The contrary view has beentaken in Queen v. Arayi (2) and Nazamuddin v. Queen (3).In the Allahabad case it has been held that the pro-visions of the 9th clause of section 21 of the IndianPenal Code are wide enough to include the case ofCourt of Wards' employees. But what weighed with hisLordship to hold as above is that neither Act XIX of1873 (N. W. P. Land Revenue Act), nor any other Actapplicable to those provinces contained any provisionsimilar to the one contained in the Court of Wards Act.Here, section 32 of the Orissa Court of Wards Act, 1947,says that Manager -shall be deemed to be a public servantwithin the meaning of section 21 of the Indian Penal Codeand this clearly shows that the provisions of section 21 ofthe Indian Penal Code were not sufficient to cover the caseof Court of Wards' employees and the provisions of the saidsection were extended to such employees by expresslegislation. Thus the Allahabad decision is distinguishedand reliance is placed on the Madras and Calcutta casesto hold that the General Manager is not a Governmentservant as contemplated by section 123 (8) of the Re-presentation of the People Act and is merely a publicservant within the meaning of section 21 of the IndianPenal Code. If we hold that the General Manager, P.W. 1,is not a Government servant, section 123(8) of the Re-presentation of the People Act has got no application andhis tour and even his canvassing if any, cannot be treatedas amounting to exercise of undue influence by officials.

25. We, therefore, find that respondent No. 1 did notutilise his position as Minister of the Orissa State nor didhe take the assistance of the District Magistrate and theofficials of the Jeypore estate, particularly that of theGeneral Manager of Jeypore estate, to achieve his successin the election.

[Remaining portion of the Judgment is not material for thisreport]

l.L.R. 21 All. 1 L'7. (2i I.L.R. 7 Mad. 17, (31 TJ..R, 28 Cai. 344,E l . — 5 '

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408 NATWAR LAL V. BHARTENDRA SINGH [VOL. V

[ELECTION TRIBUNAL, KOTAH.]

NATWAR LALv.

BHARTENDRA SINGH AND ANOTHER.P. D. PANDE (Chairman),

J. P. MATHTTR and B. S. DARBARI (Members).

April 23, 1953.Returning Officei—Power to review orders rejecting nomination—

Disqualification of candidates—' Office of profit"—Assessor of SessionsCourt—Representation of the People Act, 1951, s. 7 (d).

An Assessor of a Sessions Court does not hold an office of profitunder the' Government within the meaning of section 7 (d) of theRepresentation of the People Act, 1951.

A Returning Officer has no power to review an order rejecting anomination paper which he has made on scrutiny of the nominationpapers, and to accept a rejected nomination paper on review.

Ainritsar Central (Sikh) Constituency case (Sen and Poddar 15) andPunjab Anglo Indian, 1946 (Sen and Poddar 66) referred to.

ELECTION PETITION NO. 138 of 1952.

ORDER.

This is an election petition by Shri Natwarlal, with theprayers that the elections to the Rajasthan LegislativeAssembly from Banswara constituency be declared whollyvoid, the opposite party No. 2 be unseated and re-electionsbe ordered. '

It appears that the petitioner and both the oppositeparties were candidates for the Rajasthan State Assemblyfrom Banswara constituency, in connection with the lastgeneral elections. The petitioner was a Congress candidateand filed his 4 nomination papers on the 24th of November,1951. Along with the petitioner, there was a dummyCongress candidate named Shri Ram Chandra, as also twomore candidates out of whom Shri Bhartendra Singh, res-pondent No. 1, was an Independent candidate, whileShri Velji Bhil, respondent No. 2, had stood up as a candi-date of the Socialist Party. The nomination papers of thepetitioner and Shri Ram Chandra, were rejected but thenomination paper of Shri Bhartendra Singh, respondentNo. 1, was accepted. So far as Shri Velji Bhil, respondent

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U. L. R.j NATWAR LAL V. B U A R T E N D R A SINGH 409

No. 2, was concerned, his nomination paper was firstrejected and then accepted, on reconsideration. It may benoted that the nomination papers of the petitioner andShri Ram Chandra, were rejected by the Returning Officer,on the ground that both of them were Assessors for theDistrict of Banswara, and as such, were public servantsunder section 21, clause 5 of Indian Penal Code and werealso holding offices of profit and were, therefore, not eligiblefor election.

The nomination papers of the petitioner and Shri RamChandra, having been rejected, the result was that the tworespondents alone contested the elections and respondentNo. 2 was ultimately declared elected to the RajasthanLegislative Assembly.

The petitioner contends that his own nomination paperswere improperly rejected, while the nomination paper ofShri Bhartendra Singh was improperly accepted, because,being a Jagirdar of Surpur Jagir, he held an office of profitand was thereby disqualified for being chosen as a memberof the Legislative Assembly. He further pleads that theact of the Returning Officer in first rejecting the nomina-tion paper of Shri Velji Bhi], respondent No. 2, and subse-quently accepting the same, in the absence of the partiesand without giving notice and hearing was both illegal ajidbeyond jurisdiction.

According to the petitioner, the elections to the Bans-wara constituency, are wholly void and liable to be setaside, in so far as they have been materially affected by theillegal rejection of the petitioner's nomination papers andthe illegal acceptance of the nomination papers of the tworespondents.

Respondent No. 1 having remained absent, we haveproceeded ex parte against him, but respondent No. 2 hascontested the petition on various grounds. His preliminaryobjection, as subsequently clarified by means of an appli-cation at page 34, was that inasmuch as the Chairman ofthis Tribunal has never been a District Judge in this State,he could not be appointed as a member of the Tribunal inview of the provision of section 86, sub-section 3 (a) of theRepresentation of the People Act of 1951. This objectionhas been already disposed of against him, vide our order,dated 22nd January, 1953, at page 35 of the record,,

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410 N A T W A R M L t - BHABtBNi)RA_Sl]SUH [voL. V

The other grounds of objection to the election petitiontaken up by respondent No. 2, are that the petition isdefective as it is not signed and verified according to theCode of Civil Procedure and the verification neither includesparagraph 13 of the petition nor shows the places where itwas signed. And as regards the rejection of the petitioner'snomination papers and the acceptance of his own andrespondent No. 1's nomination papers, respondent No. 2maintains that the rejection and acceptance have notmaterially affected the election, because the petitionerwould have forfeited his deposit if had been allowed tocontest the seat.

The above pleadings have given rise to the followingissues :—

1. Is the petition bad for want of proper verificationor alleged non-disclosure of any cause of action ?

2. Was the petitioner an Assessor of the court of theAdditional Sessions Judge of Banswara at the time of therejection of his nomination paper '? If so, did he hold anoffice of profit under the Rajasthan Government and if not,was his nomination paper improperly rejected and did therejection materially affect the election ?

3. Were the nomination papers of respondents Nos. 1and 2 improperly accepted, and if so, with what effect onthe election ?

4. To what reliefs, if any, is the petitioner entitled ?Issue No. 1.—All the controversy raised by this issue as

regards verification has now been set at rest by the factthat the defects in the original verification of the electionpetition have been removed by the petitioner by filing hisamendment application at pages 68 and 69, which has beenallowed by the Tribunal as per the order dated 14thApril, 1953, recorded on the order-sheet. It is, therefore,held that the petition is not bad for want of properverification.

Nor is the petition bad for the alleged non-disclosure ofcause of action, because paragraph 11 of the electionpetition clearly discloses the cause of action by statingthat the result of the election to Banswara constituencyhas been materially affected by illegal acceptance of thenomination papers of respondents Nos. 1 and 2, and illegalrejection of petitioner's own nomination paper.

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M.L.&.] NATWAB LAL V. BHAltTEKDiiA SLNQK 411

The whole of the issue is accordingly decided againstrespondent No. 2. _ .

Issue No. 2.—This issue gives rise to the following twopoints:-—

(a) Was the petitioner an Assessor of the court of theAdditional Sessions Judge of Banswara, at the time of therejection of his nomination paper, and if so, did he hold anoffice of profit under the Rajasthan Government, and

(b) Was his nomination paper illegally rejected anddid the rejection materially affect the election ?

As regards point (a) it may be recalled that on 24thNovember, 1951, the petitioner filed nomination papers,viz., Exs. 5 to 8, with different persons as proposers andseconders to each of them. The order, Ex. 4, of theReturning Officer shows that these papers were rejected on29th November, 1951, on the grounds that the petitionerbeing an Assessor was a public servant under section 21,clause 5, of the Indian Penal Code, that he got his travellingallowance and daily allowance to attend the court as anAssessor and that therefore he held an office of profit.

In regard to the first ground there can be no dispute,for, the petitioner's own witness Chandra Nath, P.W. 2,who is the Reader of the Additional Sessions Judge ofBanswara, states that the petitioner had already beenappointed as an Assessor on 3rd March, 1951. It has,therefore, to be admitted that he became a public servantfrom the date of the appointment as Assessor. But apublic servant as defined in section 21 of the Indian PenalCode must not be confused with a ' Public Officer ' asdefined in section 2 (17) of the same Code.

The second ground mentioned by the Returning Officeris. more or less misconceived, because, although an Assessorgets his Travelling Allowance in Rajasthan, he does not getany Dearness Allowance but gets only some subsistenceallowance which has to be determined by the court con-cerned and should not in any case exceed Rs. 5/- per day.This subsistence allowance of the maximum paltry sum ofRs. 5/- per diem is only designed to cover the out-of-pocketexpenses of an Assessor and can therefore be hardly deem-ed to be a source of profit to him. We are, therefore, not;:prepared to hold that the office of an Assessor is at all anoffice of profit.

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412 NATWAB LAL V. BHABTENDEA SINGH [vOL. V

Again, even if it be conceded for a moment, for the sakeof argument alone, that the office of an Assessor is an officeof profit, it cannot be said that the present petitioner 'held'any such office on the date of the rejection of his nomina-tion paper, i.e., on 29th November, 1951. The evidence ofChandra Nath, P.W. 2, indicates that although the peti-tioner had already been appointed on 3rd March, 1951, yet,no intimation of this was conveyed to him and the veryfirst summons that he received for attendance was on 2ndFebruary, 1952, that is, not before, but after about 2 monthsof the rejection of the nomination paper. On 17th February,1952, the petitioner sent his letter Ex. 1, asking for exemp-tion and although no specific order of exemption was passed,he was never called up again as an Assessor. All thismakes it clear that not having attended the court as anAssessor at any time before the rejection of his nominationpaper, he cannot be said to have held the office of anassessor, under the Rajasthan Government.

In connection with point (a) as involved in this issue, itmay further be noted that the learned counsel for res-ponent No. 2 has drawn our attention to article 191 (a) ofthe Constitution of India. The relevant portion of thatarticle reads as follows:—

" A person shall be disqualified for being chosen as,and for being a member of the Legislative Assembly...of aState if he holds an office of profit under the Governmentof India or the Government of any State..."

The words "office of profit " are not easy to define butthey have a definite historical association which is familiarto students of Constitutional History. It appears that theAct of Settlement 12 and 13, William III, Chapter II,section 3 provided that upon the accession of the Houseof Brunswick, no person holding any office or place of profitunder the King should be capable of serving as a memberof the House of Commons. The phrase recurs in the Act ofSettlement of 4th Anne and in 6th Anne, Chapter 41.

The essential object of all these Acts, as well asarticle 191 (a) of the Indian Constitution, is to keep thelegislatures independent of the executive or to insure, sofar as possible, that the members of a Legislative Assemblyor Legislative Council of a State should be free from anypossibility of influence or the exercise of authority by the

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executive, or, in other words, free to hold or express theirindependent opinions and discharge their duties to theelectorate without any hope of personal gain or fear ofpersonal loss.

The faithful fulfilment of the above object has in Englandled to some curious results of which the institution of theChiltern Hundreds and Manor of Northstead is an acuteinstance and the more recent decisions in cases relating toCoatbridge and Springburn Divisions which a'rose after theGeneral Elections of 1945 and in which it was held thateven a trivial amount paid for subsistence and travellingexpenses to members of tribunals constituted under theControl of Furnished Rent Act 1943 amounts to a profit,are extreme cases which should not be adopted in India.

When we consider the position of an Assessor in India inthe light of the aforesaid object, we fail to arrive at anyproximate or even remote conclusion that any Assessorattached to a Sessions Court is so much beholden to theGovernment for his appointment that his independence asa member of the Legislative Assembly is likely to be affectedor influenced by the powers that be. In fact, for aughtwe know, an assessorship in the present times is more aburden than an asset—an irksome office rather than anoffice of profit.

For the reasons given above, we hold that although thepetitioner had been appointed as an Assessor prior to therejection of his nomination paper he did not hold an officeof profit under the Rajasthan Government.

And in so far as point (b) as raised by this issue is con-cerned, our decision of point (a) leads to the necessaryconclusion that the petitioner's nomination paper wasillegally or improperly rejected.

The further question that now remains to be consideredunder point (a) is as to whether the rejection of petitioner'snomination papers has affected the election materially. Asthis question is somewhat correlated to the question raisedby the second portion of issue 3, we shall discuss both thequestions together.

Issue 3.—It is an admitted fact that the nominationpaper of respondent No. 1 was accepted. The petitionerhad objected to the acceptance on the ground that respon-dent No. 1 is a jagirdar, suggesting thereby that he holds

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an office of profit as jagirdar. This objection is, however,left unconsidered in view of petitioner's application atpage 67, to that effect.

But, so far as the nomination paper of respondent No. 2is .concerned, the copy of order Ex. 3 indicates that it wasfirst rejected and then accepted on reconsideration. It hasbeen argued for the petitioner that, when carrying out thescrutiny of nominations, the Returning Officer performs ajudicial function, and so, when he passed his first order ofrejection in Ex. 3, he became functus officio and had nopower to pass the second order on reconsideration. Thisargument has great force, in so far as, by passing hissecond order, the Returning Officer virtually and com-pletely reviewed his own order, although the Election Lawdoes not give him any power of review. We do not, there-fore, hesitate to hold that the second order was both illegaland beyond jurisdiction.

The next question that now requires disposal is as towhether the illegal rejection of petitioner's nominationpapers [vide point (b) under issue 2] and illegal acceptanceof respondent No. 2's nomination paper have, as question-ed by the second portion of issue 3, affected the electionmaterially. We hold that on this question there can beno two opinions. We find it laid down in Amritsar Central(Sikh) Constituency case (J) that a strong presumption thatthe result of the election has been materially affectedarises from improper rejection of a nomination paper andthat, that presumption requires the most conclusiveevidence for rebuttal. In another case, Anglo-Indian Con-stituency, Punjab^) it has been held that the onus is on therespondent to rebut that presumption.

There is, however, a vital difference between improperrejection and improper acceptance of a nomination. Inthe former case, the entire electorate is deprived of itsright to vote for a candidate who was qualified to stand.In the latter case, all the candidates including the un-qualified one, usually compete at the polls and theelectorate gets an opportunity of voting for a candidate ofits choice.

But, what has actually happened in the present case isthat in respect of the election, the petitioner found himself •under a treble disadvantage, for, not only were his own

(1) Sen and Poddar 15. (2) Sen and Poddar 6f>.

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nomination papers rejected but the nomination paper ofhis rival candidate, viz., respondent No. 2, was improperlyaccepted, and in pursuance of the Congress directive, allthe Congress votes were transferred to respondent No. 2.In other words, if his own nomination had not beenrejected, he would have obtained all the Congress or Inde-pendent votes that he could have possibly secured and ifrespondent No. 2's nomination had also not been impro-perly accepted, there was reasonable chance for him to getas many votes as he could canvass for, out of those whichwere in the event of the rejection of his nomination, givento respondent No. 2. This argument not only supportsthe petitioner's contention that the improper acceptanceof respondent No. 2's nomination has materially affectedthe result of the election but also strengthens the presump-tion that the improper rejection of petitioner's nominationpapers has deprived the electorate of the right to votefor him.

In order to refute the above presumption, respondentNo. 2 has examined himself and produced six other wit-nesses. The sum-total of the evidence of these witnesses isthat since the Bhils are in a majority in Banswara consti-tuency and respondent No. 2 is also a Bhil and a memberof the Praja Socialist, to which may of the Panchas orSarpanchas of the Grampanchayats belong, the petitionercould have no chance of success at the election againsthim. In our opinion, this evidence is as partial as it isopinionative, for, the first of the six witnesses produced byrespondent No. 2 is a mysterious sort of mathematician,who neither knows the exact total population of Banswaraconstituency, nor the total number of Bhils, living therein,but has yet been able to calculate that the Bhils number75%. The next three witnesses are Bhils and so is res-pondent No. 2; the 5th witness is respondent No. 2 himselfand the sixth one has reasons to be partial to respondentNo. 2, because he has admittedly helped him in regard tohis nomination.

But the petitioner himself having admitted that theBhils in Banswara constituency should number about 50%,we have to concede their strength to that extent. But, inview of the special circumstances of the case and even aftermaking due allowance for possible primitive instincts of

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communal partiality amongst the Bhils, we find it difficultto hold that all of them would have voted en bloc for res-pondent No. 2 alone and that none of them would havevoted for the petitioner, who was a Minister for Revenueand Health under the former Banswara State Government(vide P.W. 3) and who had been nominated (vide P.W. 4)by the Congress which had been running Gandhi Ashramsat Pratapgarh and Kushalgarh as also a Seva Sangh, andhad been wroking in Banswara Constituency for the last15 or 20 years (vide R.W. 1). According to respondentNo. 2's own admission, at least in six of the Grampancha-yats out of seventeen, the Sarpanchas are Congressmen andwe have it from Hiteshi Lai (R.W. 1) himself that in theBanswara Municipal elections which took place about oneyear before the general elections, 14 out of 15 seats werecaptured by the Congress candidates. All this signifiesthat the Congress also exercises some appreciable influencein Banswara Constituency.

The suggestion that since respondent No. 2 is a Bhil, themajority of the Bhils should have voted for him, is furtherweakened by the admissions of respondent himself and hiswitness Moghji Bhil (R.W. 3) that the respondenthad not asked for votes from the Bhils on the groundthat he himself was a Bhil. This weakness is, in its turn,enhanced by the statement on oath of the petitioner thatafter his nomination as a Congress candidate was rejected,the Congress Party lent their votes to respondent BeljiBhil and in pursuance of the Congress policy, he himselfvoted for the said respondent.

In view of the facts and evidence discussed above, wehave come to the conclusion that respondent No. 2, hascompletely failed to refute the presumption that the rejec-tion of the petitioner's nomination papers has materiallyaffected the election and that the illegal acceptance of res-pondent No. 2's nomination paper had further handicappedthe petitioner both by losing his Congress votes as alsosome other votes which should have possibly gone to himif respondent No. 2 had not been nominated. We decidepoint (b) relating to issue 2 and the last portion of issue 3pertaining to respondent No. 2, in favour of the petitioner.

Issue 4.—In view of our findings on the first 3 issues, andrelying on section 98 (d) of the Representation of the

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People Act of 1951, we hold that the petitioner is entitledto the relief that the election be declared to be wholly void.

That the petition be allowed and it be declared that thegeneral election of 1952 to the Rajasthan LegislativeAssembly from the Banswara Constituency is wholly void.

Considering that the election has been upset not on ac-count of any fault of respondent No. 2, but owing to theviews of the Returning Officer which have turned out tobe erroneous, we leave the parties to their own costs.

Election declared void.

[ELECTION TRIBUNAL, TANJORE.]

SANKARA PANDIA NADAR, A.S.13.S.,v.

V. V. RAMASWAMI AND OTHERS.K. S. VENKATARAMAN (Chairman),

R. RAJAGOPALA AYYAR andP. §. NARASIMHA AYYAR (Members).

April 4, 1953.Disqualification of candidates— Contract to perform services

undertaken by appropriate Government "—Contracts with Governor underfood distribution and procurement scheme for procurement, storage, distri-bution, etc.—Whether contracts for performance of services " undertaken "by Government—" Undertake", meaning of—Contract not complying withformalities—Validity of—Hindu joint family—Conversion into firm-Contract by firm—Member relinquishing his interest before filing nomi-nation—Accounts with Government not settled—Whether contract subsists— "Retiring member, whether disqualified—Acceptance of relinquishmentby Collector with retrospective effect—Validity—Corrupt practice^—Faltepersonation—Mens rea,—Nature of offence—Polling — Tampering ofballot boxes during polling—Procedure to be folloived—Representation ofthe People Act, 1951, ss< 7{d), 9(.2), 100{3)(b)', 123(3)—Constitution ofIndia, art. 299—Essential Supplies {Temporary Powers) Act, 1946—Madras Foodgrains (Intensive Procurement) Order, 19.51-

The members of a joint Hindu family, of which the respondent wasthe manager, formed themselves into a firm in 1950, to carry on thefamily business, and in 1951, the firm entered into four kinds of con-tracts with the Governor of Madras, viz., (i) a stock-holder's agreementby which the firm undertook to hold the reserve stock of the Government,store them safely and to dispose of them as directed by the Govern-ment ; (ii) to store and sell imported foodgrains and food-products whichwere allotted to the firm by the Government; (iii) a quota-holder's

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agreement by which the firm agreed to pay the Government the differ-ence between the landed costs and market price of paddy and rice allottedto the firm ; and (iv) a wholesale procuring agency agreement under theMadras Foodgrains (Intensive Procurement) Order, 1951. The respond-ent, intending to stand as a candidate for election, executed a deed onthe 15th November, 1951, by which he relinquished his interest in thefirm to the other partners, and gave notice of his retirement to theRegistrar of Firms and in the newspapers, and his retirementwas accepted by the Collector on 1st October, 1952, " with effectfrom 15th November, 1951 ". The accounts between the respondent andhis firm, and the accounts between the firm and the Government werenot however settled until the 15th March, 1952. The nomination paperof the respondent was filed on the 20,fch November, 1951 :

Held, (i) that a formal contract with the Government complyingwith the formalities laid down in article 299 of the Constitution is notnecessary for the purposes of disqualification under section 7(d) of theRepresentation of the People Act, 1951 ;

(ii) the fact that the stock allotted for storage had been disposed ofon the date of nomination did not put an end to the stock-holder's agree-ment as the agreement was not confined to one allotment alone, andmoreover the accounts had not been settled ;

(iii) as it is open to the members of a joint Hindu family to formthemselves into a firm to carry on their business, and the members ofthe respondent's family had done so, section 9(2) of the Act had noapplication;

(iv) the contracts in question were contracts for performance of ser-vices " undertaken " by the State Government under the scheme forequitable distribution of foodgrains contemplated by the EssentialSupplies (Temporary Powers) Act, 1946, and the various foodgraincontrol and procurement Orders passed thereunder, even though theState had assumed the performance of such services voluntarily andwas under no statutory or enforceable obligation to do so ;

Leek v. Epsom Rural District Council (1922, 1 'K. B. 383)referred to;

(v) the relinquishment deed was not, on the facts of the case, a realone and at any rate it was not effective as the accounts between thepartners and the share of the respondent in the assets and liabilities ofof the firm had not been settled;

(vi) even if the relinquishment was a true one, as it was onebetween the partners inter se, and was not made with the concurrence ofthe State Government, it could not put an end to the obligation of therespondent under the contracts;

(vii) as election is a matter of public concern, it was not open to theCollector to accept the relinquishment with retrospective effect from15th November, 1951, so as to affect the rights of thirdparties or removethe disqualification which attached to respondent on the date ofnomination;

Ford v. Newth ([1901] 1 Q.B. 683) relied on ; Maidstone 1831, andDartmouth 1845 ([1845], B and Am. 460) distinguished ;

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(viii) whatever may be the correct view where the only thing thatremains is an outstanding liability on the part of the Government,there can be no doubt that where a person has not completely performedhis obligations under the contract, he is interested in the contract withinthe meaning of section 7(d);

(ix) the respondent was therefore interested in contracts for theperformance of services undertaken by the appropriate Governmentwithin the meaning of section 7(d) on the date of his nomination anddisqualified to stand as a candidate.

Held further, (i) mens rea is an essential element in the offence offalse personation specified in section 123(3).

Pantam Venkayya, In re (I.L.E. 53 Mad. 44) relied on.(ii) The offence of false personation is not an offence " of a trivial

character " within the meaning of section 100(3)(b).(iii) Where a corrupt practice specified in section 123 has been

committed by any agent other than the election agent it cannot bepresumed, in the absence of evidence to that, effect, that it was committedcontrary to the orders of the candidate.

(iv) Where the Presiding Officer suspects that there has beentampering with a ballot box, it is open to him to substitute anotherballot box in its place and continue the polling and if it is subsequentlyfound that there was no tampering, the ballot papers in both the boxescan be counted. Such a case does not fall within section 58 of the Actand there is no need for a re-poll.

ELECTION PETITION NO. 58 of 1952.

B. Harihara Ayyar and N. Bajagopala Ayyangar, forthe petitioner.

A. Lakshminarayana Ayyar, P. T. Rajan andP. P. Thangamani, for the 1st respondent.

ORDER.

The petitioner, Sri A. S. S. S. Sankara Pandia Nadar, wasa candidate for election to the Legislative Assembly,Madras State from the Virudhunagar Constituency. Therespondents were the other duly nominated candidates.Respondents 4 and 5, who were added as parties as perorder on C. M. P. No. 2 of 1952, withdrew before the elec-tion. The contest was between the petitioner and respond-ents 1 to 3. The election took place on 5th January, 1952,and the 1st respondent secured 22,811 votes while thepetitioner obtained 22,307 votes. The other candidatesgot considerably less number of votes and the 1st respond-ent was declared the duly returned candidate. The presentpetition is one under sections 81 to 84 of the Representation

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of the People Act, 1951, for a declaration that the electionof the 1st respondent is void. It contains, besides others,the usual allegations of bribery and false personation butdoes not pray for the seat.

2. The grounds upon which the petitioner seeks that itmay be determined that the election of the 1strespondent is void, range themselves under eight headings,namely:—

(a) Disqualification for membership of the State Legis-lature under section 7(d) of the Representation of thePeople Act, 1951, (hereinafter referred to as the Act) readwith section 9(2) of the Act consequent on the 1st respond-ent having a share or interest in a contract for the perform-ance of services undertaken by the Government of theState of Madras (paragraphs 7 to 13 of the petition);

(b) Bribery of the Roman Catholic voters of Virudhu-nagar Town (paragraph 16 and List No. I ) ;

(c) Bribery (offer of bribe) of the voters of Kumara-lingapuram (paragraph 16 and List No. I(b));

(d) False personation by one Subbiah, a polling agentof the 1st respondent (paragraph 14 and List No. I I ) ;

(e) Tampering of the ballot box at the polling stationNo. 165 by one Amanulla (paragraphs 19 and 20);

(f) and (g) [Not pressed, hence omitted].(h) Irregularities on the part of the-Presiding Officers

of Polling Station No. 172, Mallankinar, and Polling StationNo. 151, Kambikudi, (paragraph 23 and List No. III).

The plea is that by reason of the above irregularities (e)to (h) the result of the election has been materially affect-ed and the election of the 1st respondent has to be declaredvoid under section 100 (2)(c) of the Act.

3. The 1st respondent contends that he had no subsist-ing interest or share in a contract of the nature specified insection 7(d) of the Act on the relevant date (20thNovember, 1951, the date of nomination) and that there-fore the disqualification under the said section does notattach itself to him. He denies the alleged corrupt prac-tices, tampering of ballot boxes and irregularities on thepart of the officers concerned. The officers whose conductor procedure at or during the election are the subjectmatter of attack in the petition have, except one who

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could not be served, filed their answers to the allegationsagainst them. They deny the same and state that theyhave correctly followed the procedure regulating the con-duct of elections. Sri M. S. Ram, the Returning Officer,has, besides traversing the allegations, entered into a discus-sion of the rules and the law bearing on the matter anddefended his decision accepting the nomination of the 1strespondent to which objection was taken even at the timeof the scrutiny of the nomination papers and prays thatthe petition may be dismissed with costs.

4. After hearing the advocates on both sides, the follow-ing issues which arise on the pleadings were framed by theTribunal:

(1) Whether the 1st respondent was disqualified undersection 7(d) of the Representation of the People Act, 1951 ?

(2) Whether the 1st respondent's connection with thecontracts referred to in the petition ceased with effect from15th November, 1951 ?

(3) Whether the 1st respondent was guilty of corruptpractices mentioned in lists I and I(b) ?

(4) Whether they were committed with the sanctionor connivance of the 1st respondent or his election agent ?

(5) Whether the 1st respondent or his election agentwas guilty of conniving at false personation as alleged inlist No. II ?

(6) Whether the irregularities mentioned in list No. I l lare true.

(7) Whether the violation of the rules alleged inparagraph 19 of the petition is true ?

(8) Whether the result of the election has been materiallyaffected by all or any of the said illegalities and irregulari-ties '!

(9) To what relief, if any, is the petitioner entitled ?5. Though the petitioner adduced evidence in respect of

all the matters alleged in the petition, Sri Harihara Ayyar,the learned advocate for the petitioner did not duringarguments press the contentions forming the subject matterof grounds (f) and (g) supra. It therefore becomes un-necessary to enter into a detailed discussion of theevidence bearing on the same. Suffice it to say that noirregularities on the part of the Returning Officer, muchless of a character that would affect the declaration of the

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result by him, have been made out on the evidence in thiscase. As regards the alleged tampering of the ballotboxes at Periaperali and Alagiyanallur, the allegations inthe petition are based mainly on the discrepancies betweenForm No. 10 returns and the actual number of ballotpapers found in the boxes. An examination of the relevantrecords revealed that there was really nothing wrong withthe voting in those stations. The clerical errors and theinaccurate preparation of the returns, it was, that gaverise to a suspicion of a surreptitious introduction of ballotpapers and this, on a scrutiny, has been found to beunreal.

6. We shall now proceed to discuss the evidence bear-ing on the other charges. The weightiest and the mostimportant one is the alleged disqualification on accountof the interest in Government contracts and it will beconvenient to take it up first and dispose of it. Beforereferring to the evidence relating to that question it isnecessary to set out a few facts to understand the respect-ive contentions of the parties. The 1st respondent SriV. V. Ramaswami is the Karta (Manager) of a joint Hindufamily consisting of himself, his two adult sons SriR. T. Rajan and Sri R. Jayakar and his minor son SriR. R. Sekharan. The family carried on wholesale busi-ness in foodgrains and groceries at Virudhunagar in thename and style V. V. Ramaswami and Sons. There wasalso a partnership business at Madras and Bombay inwhich the said joint family had a share. On 20thFebruary, 1950, under Ex. B-21 the four members of thefamily decided to carry on their joint family business asa partnership business. The primary object of this stepwas, of course, to reduce their liability to income-tax.The name of the new partnership firm was however thesame as the old joint family firm, namely, V. V. Ramaswamiand Sons. The firm entered into various contracts withthe Government relating to foodgrains and foodstuffs thescope, nature and the subsisting character of which onthe relevant date (20th November, 1951) the date of thenomination, as per section 100 (1) (c) of the Act, is thesubject matter of a good deal of controversy between theparties in the present case. The petitioner would allegethat four such conracts had been entered into between

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V. V. Ramaswami and Sons and the Government ofMadras and that they were in force on 20th November,1951. They are referred to as Exs. A, B, C and D i n thepetition. The petitioner's case is that the 1st respondenthas a share or interest in the said contracts, that theycome within the mischief of section 7 (d) of the Act andthat the 1st respondent is therefore disqualified from beingchosen as a member of the Madras State Legislature.The 1st respondent denies that any such contract was sub-sisting on the relevant date and that, in any event, he hadno interest therein after 15th November, 1951, since hehad relinquished all his interest in the partnership by adeed dated 15th November, 1951, Ex. B-31. His furtherplea is that the alleged contracts do not fall within thecategory of those mentioned in section 7 (d) as imposing adisqualification. The petitioner's answer is threefold:first, that the business continued to belong to, and wascarried on by, the- joint family even after 20th February,1950, and that it assumed the cloak of a partnership onlyto evade income-tax. If such were the case the allegedretirement of the 1st respondent on 15th November, 1951,would be of no avail, because under section 9 (2) of theAct the 1st respondent would still be subject to thedisqualification. Section 9(2) declares "For the avoidanceof doubt it is hereby declared that where any such contractas is referred to in clause (d) of section 7, has been enter-ed into by or on behalf of a Hindu undivided family andthe appropriate Government, every member of thatfamily shall become subject to the disqualification men-tioned in the said clause ; ". The second answer isthat even assuming that the business was not a jointfamily business after Ex. B-21 dated 20th February, 1950,and was a partnership business, the. retirement of the 1strespondent from that partnership under Ex. B-31 dated15th November, 1951, was sham. The third answer isthat even if Ex. B-31 dated 15th November, 1951, wasintended to be real, it will not suffice in law to remove thedisqualification arising under section 7 (d), for reasons tobe discussed later.

7. Section 7 (d), the disqualifying sub-section onwhich reliance is placed on behalf of the petitioner, is inthe following terms; "A person shall be disqualified for

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being chosen as and for being a member of either Houseof Parliament or of the Legislative Assembly or Legisla-tive Council of a State

(d) if, whether by himself or by any person or bodyof persons in trust for him or for his benefit or on hisaccount, he has any share or interest in a contract forthe supply of goods to or for the execution of any worksor the performance of any services undertaken by, theappropriate Government".

To bring the case within that sub-section and to entitlethe petitioner to succeed, he must establish three things :(1) that the 1st respondent had a share or interest in thecontract, either directly or indirectly; (2) that the contractis of the nature specified; and (3) that the contract waswith the appropriate Government—here the Governmentof the State of Madras. There is no dispute in the presentcase that the contract if made out is with the appropriateGovernment.

8. The questions, on the answers to which depends theultimate decision as to disqualification, are three in numberand may be postulated thus :

(i) Did Messrs. V. V. Ramaswami & Sons enter intoany contracts with the Government and were they sub-sisting on the date of nomination ?

(ii) Are the said contracts of the nature specified insection 7(d) of the Act ?

(iii) Had the 1st respondent any share or interesttherein ?

The third question involves three subsidiarj7 matters,viz.: (a) whether even after Ex. B-21 dated 20th February,1950, the business continued to belong to the joint familyand whether the 1st respondent would be disqualified byvirtue of section 9 (2); (b) whether the relinquishment ofhis interest by the 1st respondent in the firm of V.V. Rama-swami & Sons evidenced by Ex. B-31 is sham and notintended to be acted upon ; and (c) whether even if real itwill not suffice to extinguish his interest in the contract.

9. We shall now proceed to discuss the above questionsin their order. Four1 contracts were according to the peti-tioner, entered into by the firm oi V. V. Ramaswami &Sons with the Government and subsisting on the date of

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nomination. The details of these are to be found inparagraph 9 of the petition and the several types of theagreements executed by the firm are set out in Exs. AtoDat the end of the petition. The first of these is the Stock-holder's agreement by which the firm has agreed to holdthe reserve grain stock of the Government of Madras,safely store the grains on behalf of the Government anddispose of the same according to the directions of theGovernment subject to the terms and conditions set outin the agreement. Paragraph 4 of the objection state-ment of the 1st respondent contains his answer to thisaverment. It admits the execution of the agreement butit is pleaded that it related but to 200 tons of foodgrains(during evidence this is mentioned as 300 tons) and thatthe said quantity having. been sold and exhausted evenbefore 15th November, 1951, it had ceased to be in forceon that date. The petitioner summoned the Collectorof Ramanathapuram to produce the agreement executedby the firm on 8th March, 1951, and Ex. B-27 wasaccordingly produced. It purports to be an agreementmade between the Governor of Madras on the one partand the firm of V. V. Ramaswami & Sons on the other.It has been signed on behalf of the firm only and objec-tion is taken, during arguments, that it is not a valid andenforceable document, as it is not executed by or on behalfof the Governor as required by the Constitution of India.It is not necessary to go into the merits of this contentionin the present case. Firstly, the plea is not open to the1st respondent as he has admitted the execution of theagreement of the type of Ex. A in the pleadings and it wastherefore not necessary for the petitioner to adduce proofof it. For aught we know, there might be some otheragreement in existence signed by both parties and, if objec-'tion had been taken even at the outset, the petitioner couldhave insisted on its production by the Government.Secondly, the absence of a formal contract on which alonethe firm could sue is not a matter of any consequence forthe present purpose. For, it has been held in England thatit is quite immaterial that the contract between themember and his council is one upon which he could notsues in consequence of its not being under seal: (See page\Q of Arnold's Municipal Corporations—Sixth Edition).

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10. We shall now turn to the other contentions of the1st respondent with regard to Ex. B-27. Exhibit B-28 is theproceedings of the Collector of Ramanathapuram dated5th March, 1951, under which a stock of 500 tons of ricewas allotted to V. V. Ramaswami & Sons amongst othersand the allottees were directed to execute an agreementimmediately. The 1st respondent says that he tookdelivery of but 300 tons and that the entire stock wasexhausted long before 15th November, 1951, as Ex. B-29 the' State Reserve' Stock Register shows. His plea is thatEx.B-27 had spent itself before the day of nomination andwas no longer in force. Though the allotment under Ex. B-28might have been the occasion for, and necessitated theimmediate execution of, Ex. B-27, there is nothing to showthat it was restricted to the particular allotment. As awholesaler with whom the Government had agreed to keepa portion of its reserve, the firm had to execute the agree-ment to cover this and other allotments that might bemade. The language of the document is wide and general.Clause 10 of Ex. B-27 which provides for the terminationof the contract at the instance of either party by notice isa sure pointer that it is a continuing contract. We havetherefore no hesitation in coming to the conclusion that onthe date of nomination there was a stock-holder's agree-ment, valid and subsisting, between the firm and theGovernment, of the type of Ex. B-27. It may be addedthat even if Ex. B-27 related to but one allotment andthat allotment had been disposed of, still the accountsbetween the parties had not been settled and the obligationsof the firm under the contract were not at an end on thedq,te of nomination, as will be shown later.

11. Exhibit B to the petition is the second type ofagreement alleged to have been entered into by the firmwith the Government. It relates to the storage and saleof imported or imported and converted foodgrains. Wheatand milo and even paddy at times would come under theformer category and maida would come under the secondcategory. In his written statement the 1st respondentmerely stated that he did not remember whether the firmhad executed any such agreement. The petitionersummoned the Collector of Ramanathapuram to pro-duce the agreement executed between the Government

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and the firm as agents of imported and converted goodsin about September, 1951, (see item 2 of the summons Ex.B-55). The Collector, in his reply Ex. B-54, dated 5thJanuary, 1953, to the summons, stated that " no suchagreement was executed as he was not an importer ofconverted goods ". The petitioner, however, tried again inthe Collector's office and was able to get an agreement ofthis type which was executed on 5th September, 1948. Itis marked as Ex. A-55. It was signed by the 1st respond-ent on behalf of the firm V. V. Ramaswami and Sons. Itdoes not purport to be for any limited period.

This Ex. A-55 was produced into court on 23rd Feb-ruary, 1953. In his evidence in chief examination givenby the 1st respondent on 23rd February, 1953, he slightlymodified his stand in the written statement by admittingthat it was possible he had executed such an agreement in1949 (this concession was evidently because of the produc-tion of Ex. A-55). He, however, reiterated that he did notremember to have executed any such agreement in lateryears and that such an agreement would hold good onlyfor one year and he was positive that he did not receiveany stock of imported or converted foodgrains in 1950 or1951 or 1952. That, however, is belied by the document-ary evidence. Exhibits A-74 and A-77 to A-85 show thatallotments of wheat, milo and maida were made to the firmduring the period March, 1951 to September, 1951. Theyalso find a place in the firm's account Ex. B-41. In fact,the 1st respondent himself later admitted (see paragraphs4 and 28 of his evidence) that on 15th November, 1951, hehad stocks of milo, wheat, paddy and rice belonging to theGovernment. He could not, however, say off-hand towhich agreement or agreements those stocks related. Thatcould, however, be ascertained from the registers availablein his; shop, but only one such register Ex. B-29 was filedwhich however, related only to paddy. It is a matterwithin his personal knowledge and the burden is upon himunder section 106 of the Evidence Act to explain underwhat agreement these stocks were allotted. It will beobserved that so far as wheat, milo and maida are concern-ed their allotment is referable only to. an agreement of thetype of Ex. A-55 (same as Ex. B to the petition), since theother three agreements marked as Exs. A, C and I) to tjje

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petition do not relate to imported and converted food-grains like maida or even to imported foodgrains likewheat and milo. The petition alleged that on 20th Novem-ber, 1951, the firm was in possession of 1,800 bags ofmilo, 840 bags of wheat and 1,700 bags of paddy onGovernment account under one or other of the agreements,Exs. A, B, C and D. In the counter \he 1st respondentmerely disputed the quantities as exaggerated but did notsay under what agreement these stocks were being held. Inthe course of arguments, Sri A. Lakshminarayana Ayyar,the learned counsel for the 1st respondent, faintly urgedthat from the mere fact of allotment of wheat, milo andmaida in 1951, we could not conclude that the allotmentsmust have been made only ,in pursuance of an agreementand that possibly the allotments were made because thefirm was a licence-holder without there being any contract.This, however, was a new case put forth only at the timeof arguments and was not set up in the pleadings or evenduring the evidence of the 1st respondent. In fact, Ex.B-46, the proceedings of the Collector, implies that all theallotments including the allotments of imported or import-ed and converted foodgrains were made only in pursuanceof an agreement and it will be seen that the 1st respond-ent's evidence itself implies that the allotments weremade only in pursuance of some agreement. It may be, asstated by the Collector in Ex. B-54, his reply to the sum-mons, that no such agreement was executed in 1951 itself,but that is immaterial. What is material is that allotmentsof imported or imported and converted foodgrains weremade during March, 1951 to September, 1951, and thesecould have been made only in pursuance of some outstand-ing agreement. In fact, there is even reason to think thatthe allotments were made under Ex. A-55 itself because,as we have said, it was not for any definite period. Itwould be further clear from the correspondence marked asExs. A-59 to A-72 that the final outstandings and accountsbetween the firm and the Government were settled only in1952, long after the nomination and the election. Thesignificance of this will be apparent later.

12. The third of the agreements is what is known as thequota-holder's agreement and Ex. C in the petition is aspecimen of that agreement. It relates to rice and paddy

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only and under it the quota-holder agrees to pay theGovernment the difference between the landed costs andthe market price obtaining in the Ramanathapuramdistrict (the market price being higher). No such writtenagreement is available in the present case. But the 1strespondent has not in his objection statement denied theexecution of such an agreement though in his evidence hewould say that he does not remember to have executedsuch an agreement in 1950 or 1951. Admittedly, allotmentsof rice were made to the firm even during 1951 as will ap-pear from Exs. A-73, A-75, A-76 and A-86, the proceedingsof the Collector. The last of the allotments was on 3rdOctober, 1951, and they were all made to the firm in itscapacity of quota-holder. There are entries at page 204 ofEx. B-26 and page 230 of Ex. B-41, the ledgers of the firmrelating to the remittance of sum of Rs. 339-9-0 and Rs.1,724-11-9 on 4th July, 1950 and 5th December, 1951, res-pectively. These amounts represent the difference betweenthe landed cost and the local market price of rice. Suchpayments should have been made only in pursuance of anobligation undertaken by the firm and it is not too muchto conclude that the firm must have executed a quota-holder's agreement of the nature of Ex. C even for 1951,though no direct evidence is forthcoming on this point.

13. The last of the contracts referred to as Ex. D in thepetition is that which is to be executed by authorisedwholesale procuring agents. The case of the petitioner isthat V. V. Ramaswami and Sons were one such procuringagent and that therefore an agreement of that kind shouldhave been executed by the firm. All that the 1st respon-dent contends in the counter is that there was no procure-ment in Ramanathapuram district from about May 1951,as Ex. B-30, the Madras Foodgrains (Intensive Procure-ment) Order, 1951, did not apply to that district. In hisevidence he adds that he does not remember to have exe-cuted any such agreement. The contention that theMadras Foodgrains (Intensive Procurement) Order,'1951,did not extend to Ramanathapuram district has not muchbearing on the matter as the procurement was in thesurplus district of Tanjore. Exhibit A-56, an agreementexecuted by the firm relating to the purchase, storage anddistribution of notified foodgrains under the Intensive

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Procurement Order is of date 15th February, 1949, and exfacie purports to be for fasli 1358 only (1948-49). There isno documentary evidence that any similar agreement wasexecuted in 1950 or 1951 and was in force on the date ofnomination. But Ex. A-67, the report of the RationingOfficer to the Collector, shows that procurement was doneby the firm during the years 1949 and 1950, and state-ments in respect of them furnished by the firm in 1952 andaccepted. It is fairly deducible from this that for the year1950 also there must have been an agreement similar toEx. A-56 and that the obligations arising thereunder werenot completely worked out till about the middle of 1952.

14. We shall now pass on to the next question : whetherthe contracts are of such a nature as to entail disqualifica-tion. Though in one portion of the petition {vide paragraph10) it is stated that the contracts are both for the supplyof goods to and for the performance of services undertakenby the Government of Madras it is now urged that thecontracts fall within the scope of section 7(d) of the Actonly because they are for the performance of servicesundertaken by the Government of Madras. It is wellknown—and the matter is not controverted—that owing tothe shortage of rice and other foodgrains both during thewar and subsequently, the Government assumed largepowers with regard to the production, supply, transportand distribution of foodgrains and introduced statutoryrationing and interested itself in undertakings in further-ance of the aforesaid purposes. The Essential Supplies(Temporary Powers) Act, 1946, and the various foodgraincontrol orders passed under it gave the necessary powersto the Government in that behalf. What is contended onbehalf of the 1st respondent is that though the contractsmay relate to performance of services voluntarily assumedby the Government, it cannot be said that the serviceswere undertaken by the Government. Stress is laid on theword " undertaken " found in section 7 (d) and it is urgedthat " undertaking " connotes a statutory or enforceableobligation on the part of the Government and so long asthe Government was not bound in law or under the provi-sions of any enactment to perform the services of thenature referred to, the Government cannot be said to haveundertaken those services. We are unable to agree. This

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is to put too narrow a construction on the word 'under-taken', and to add words which are not to be found in thesection. The observations of McCardie J. in Leek v.Epsom Rural District Council (l) where the question arosewhether the local authority had undertaken the workof cleansing cess pools are very pertinent in this connec-tion. He says, " By the word 'undertook' I understandthat they either expressly resolved to do the thing men-tioned in the section or in practice so acted as to showthat they had resolved to do it. " It is obvious that aperson might undertake to do a thing though he may beunder no legal obligation to do it, and nowhere can this bemore true than in the case of a Government which indeedfrom its sovereign nature cannot be compelled legally totake up any task but which increasingly takes upon, itselfservices to the society. The argument of the 1st respond-ent, if accepted, would reduce a material part of section 7(d) to a dead letter. It is clear that the services repre-sented by the contracts in the present case, viz., procure-ment, supply and distribution of foodgrains and foodstuffswere " undertaken" by the Government of Madras withinthe meaning of section 7(d) of the Act and a person havinga share or interest in the said contracts would be disquali-fied from being chosen as a member of the StateLegislature.

15. This leads us on to the last and remaining questionin this branch of the case whether the 1st respondent hadany share or interest in the said contract on 20th Novem-ber, 1951. The contentions of the parties on this pointhave already been set out and, as indicated, it raises threesubsidiary questibns, the first of which is whether even afterEx. B-21 dated 20th February, 1950, the business conti-nued as that of the joint family and whether the 1st res-pondent was disqualified on that account by virtue ofsection 9(2) of the Act. Exhibit B-21 the deed of partner-ship between the 1st respondent and his sons recites that onand from the 1st of Hasi Virothi (12th February, 1950) thebusiness which was till then carried on by the joint familywill be continued as a partnership, each of the partnerscontributing a share capital of Rs. 15,000/-. At page 363of Ex. B-25 are to be found credits in the name of each

(1) [1922] 1 K.B. 383,

EL—35

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of the partners of the amount of share capital contributedby them. It is conceded by the learned advocate for thepetitioner that in law it is possible for all the coparcenersof a joint Hindu family to constitute themselves into apartnership and to continue as partners the business for-merly carried on by them as members of a joint Hindufamily. He would only contend that in fact it was notdone and points to three circumstances in support of hiscontention. The share capital of each of the partners hasbeen contributed from out of the joint family funds onlyand has been found by debiting the joint family accountin the books of the business and crediting the individualmembers with a corresponding amount to enable them tocontribute towards the share capital (See pages 3, 9 and 4of Ex. B-25). At the time when these adjustments weremade the joint family had overdrawn to the extent of overRs. 90,000/- from the business. This, it is urged, exposesthe unreal character of the change over. There is nothing inthe procedure adopted to indicate that the partnership wasnot a real one. Though the joint family was heavily in-debted to the business, there is nothing to prevent furtheradvances being made for the purpose of finding the sharecapital and it is again not necessary that the share capitalshould be contributed in cash and not by book adjust-ments. That the assets and liabilities of the business asthey stood on the date of the conversion were not actuallydivided is again not a circumstance against the reality ofthe partnership.

Though the status had been changed, yet the actual sharesof the individual members in the business did not undergoany variation and there was therefore no need for a divi-sion of the assets and liabilities. That the minor was alsodebited with a share of the losses (see for instance page 12of Ex. B-39), would not again support the contention of thepetitioner. It might be that the minor is not liable for thelosses of the partnership and the debit might be open toquestion by him. But the debit of the minor's share of thelosses in the accounts is not consistent with the theory ofthe business being a joint family one for in the case of ajoint family business there can be no division of the loss orprofits between the various coparceners. The loss or profitswill have to be borne by or taken over to the joint familyas a whole. On the other hand, there are several circum-

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stances which indicate that the partnership was a genuineaffair. It was certainly to the interest of the 1st respond-ent and his sons to convert the business into a partnershipto avoid the heavy incidence of income-tax. Even on23rd February, 1950, the 1st respondent wrote the letterEx. B-22, to the Income-tax Officer intimating the partner-ship and this has in effect been recognised by him in Ex.B-23 on 22nd May, 1951, as the partnership came intobeing only during the accounting year 1950-51. TheIncome-tax returns also were submitted on that footing.The Registrar of Firms was informed about the partnershipand Ex. B-24 is his acknowledgement of the registrationof the firm. The profits of the year ending with VikruthiThai 30, (12th February, 1951,) were divided and carried tothe individual partner's accounts (vide the entries at pages7 to 10 of Ex. B-26). Transactions have been entered intowith third parties on the basis of a partnership thus mak-ing the adult sons of the 1st respondent also personallyliable (see e.g., Ex. A-32, dated 17th October, 1951, theletter of the firm to the Indian Bank Ltd., Virudhunagar).It is thus abundantly clear that the business became apartnership one with effect from 12th February, 1950.We are not unmindful of the recital in Ex. A-54 that thebusiness is being conducted on behalf of the family. Thatis evidently due to a certain looseness of expression and isprobably accounted for by the fact that all the membersof the family had an interest in the partnership. We mayadd that there is no distinct averment in the petition thatthe partnership was not a genuine one. It has only to beinferred from the reference to section 9(2).

16. The second subsidiary question is whether the retire-ment of the 1st respondent from the partnership on 15thNovember, 1951, was not real. Exhibit B-31 is the regis-tered deed ofrelinquishment executed by the 1st respond-ent in favour of the other partners. It was admittedlyexecuted on the eve of the nomination, according to the 1strespondent, ex abundanti cautela to enable him to stand forthe election. There is nothing wrong about the 1st res-pondent trying to rid himself of a possible disqualificationand the only question is whether Ex. B-31 was intend-ed to be acted upon. The 1st respondent relies on certainpieces of conduct on his and the other partners' part to

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show that the relinquishment was real and was acted upon.Exhibit B-32 and Ex. B-32(a) are the copies of letterswritten by Sri R. T. Rajan to the Registrar of Firms on15th November, 1951, intimating the change in the firm.Exhibit B-34(a) is the memorandum of the Registrar inti-mating that the notice of the change in the constitution ofthe firm had been filed in pursuance of the Indian Partner-ship Act. Exhibit A-35 is the office copy of the letterdated 17th November, 1951, written by Sri R. T. Rajan tothe Collector of Ramanathapuram informing the latter thatthe 1st respondent had relinquished his share in thepartnership. Exhibit B-37 and B-38 are respectively thenotices published in the Tamil Nad Newspaper and theFort St. George Gazette informing the public that the 1strespondent had ceased to be a partner. As will appear frompage 3 of Ex. B-39 interest has been calculated on the sumof Rs. 15,000, (the original share capital of the 1st respond-ent) from 18th November, 1951, to 12th February, 1952,and credited in his accounts. His share of the loss up to15th November, 1951, only has been debited against him,though the figure has been arrived at by calculating theloss for the entire year and then ascertaining the propor-tionate loss for the period till 15th November, 1951.Though all this has been done, there is no doubt in ourminds that the retirement was not real. On the very nextday after. Ex. B-31, the 1st respondent has along withhis sons executed Ex. A-34, an instrument of pledge ofgoods in : favour of the Indian Bank acting on behalf of thefirm and describing himself as a partner. The firm wasgranted a key loan of two lakhs and an open loan ofRs. 50,000. In respect of the key loan a promissory notewas executed by the 1st respondent along with the otherpartners. .This is spoken to by P.W. 9, Sri Ardhanari, theAgent of t|fe" Indian Bank, Virudhunagar Branch, and isreferred to In'Ex. A-34 itself. During the cross-examina-tion of P.W. 9, the execution of the promissory note on16th November, 1951, for two lakhs was admitted butsome suggestions were made which were denied by thewitness/, to explain away its effect, The 1st respondentwould deny from the witness box the execution of thepromissory note by him. That incidentally shows that the1st respondent has not much regard for truth and no great

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reliance can be placed on his testimony. P.W. 9, the agentsays further that for the open loan of Rs. 50,000 a promis-sary note was executed on 21st November, 1951, by the1st respondent also. The 1st respondent would deny this.According to P.W. 9, the two promissory notes had beenreturned as they had been discharged and the promissorynotes must be with the firm. There was no cross-examin-ation of P.W. 9, on this point. The promissory notes havenot been produced and we have no hesitation in conclud-ing that the 1st respondent did along with the otherpartners execute promissory notes in favour of the IndianBank on 16th November, 1951, and 21st November, 1951.In Ex. A-34 the 1st respondent has described himself as apartner and acted on behalf of the firm as such. Whyshould the 1st respondent join in the execution of thedocuments if he was not a partner and describe himself assuch ? The 1st respondent would state that he phoned toP.W. 9 on 16th November, 1951, that he had ceased to bea partner and could not therefore join in the execution ofthe document, that P. W. 9 replied that unless he joined inthe execution immediate credit facilities could not bearranged for the firm and that he P.W. 9, would hold thedocument as a security only and that therefore he was ledto join in the execution of Ex. A-34. P.W. 9 denies thephone conversation and that he insisted on the 1st respond-ent joining in the execution of the documents notwithstand-ing his retirement from the partnership. The explanationof the 1st respondent is quite unconvincing. He need nothave described himself as a partner if he was not such andhe could well have executed Ex. A-34 as a surety. Thatwould have safeguarded his position while at the same timeguaranteeing the prompt repayment of the loan to theBank by him also. The alleged assurance of P.W. 9 waspurely verbal and the 1st respondent did not take anydocument from P.W. 9 to evidence that, In the letter tothe Bank, Ex. A-32, the 1st respondent and his sons under-took expressly to give notice in writing to the Bank of anychange in the firm; and this admittedly has not been done.The Bank carried on its transactions with the firm on thebasis that the 1st respondent continued to be a partner.We have no hesitation in preferring the testimony ofP.W. 9, a disinterested witness to that of the 1st respond-ent on the point.

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17. There is next the fact that in Ex. A-54, the copy ofthe sale deed executed by the 1st respondent in favour ofhis nephew on 14th May, 1952, it is mentioned that thebusiness is conducted on behalf of the family. Further,the sale is for the discharge of the debts of the firm andnot for the discharge of the debts which the joint familyowed to the firm. It is therefore made out that the 1strespondent had a subsisting interest in the firm and thatwas the reason why he sold the properties to discharge thedebts of the firm.

18. There is yet another circumstance which points inthe same direction. If the 1st respondent really went outof the partnership, one would expect a settlement of itsaccounts, the ascertainment of the 1st respondent's share ofthe assets and liabilities and the payment thereof to theparty entitled. Even if the assets and liabilities wereequal, as 1st respondent would suggest in his evidence, andnothing would be due to or from him, still the accountswould have to be looked into and a balance sheet drawn upto find out whether it was really so. That this was not doneaffords some indication that the interest of the 1st respond-ent in the partnership did not cease.

19. In view of our above findings it follows that the 1strespondent had a subsisting share and interest, on the dateof nomination, in contracts for the performance of servicesundertaken by the Madras Government and is thereforedisqualified for being chosen as a member of the StateLegislature.

20. Even if the relinquishment of his interest in thepartnership by the 1st respondent were true, still the sameresults would follow. The arrangement evidenced byEx. B-31 was one between the partners inter se and was notmade with the concurrence of the State Government. TheCollector accepted it only on 1st October, 1952, by hisproceedings Ex. B-46. In response to the letter of the 1strespondent Ex. B-47, dated 29th October, 1952, that thedate of relinquishment may be specified, the Collector byhis proceedings of even date Ex. B-36 accepted the relin-quishment with effect from 15th November, 1951. All thishappened long after the date of the presentation of theelection petition. Before accepting the relinquishment,the Collector desired to know whether the new firm was

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willing to accept the obligation of the old firm (see Ex.A-59, dated 16th February, 1952) and the new firm by itsletter Ex. A-60 undertook to be so liable. Exhibit A-62,the letter of the Collector to the Government shows that asa result of the checking of the accounts by the StatisticalAssistant, some amounts were found due from the firm inits capacity of wholesaler and these amounts were remittedinto the Treasury on 15th March, 1952. The firm wasfurther called upon to submit statements with regard totheir procurement up to 31st December, 1950, and thequantity of grain received by way of import quotas etc.(see Ex. A-63). The accounts were checked and a scrutinyby the Rationing Officer revealed that an excess collectionof Rs. 5-5-1 had to be remitted by the old firm. This isfound in Ex. A-67 the report of the Rationing Officer. Itwas after all this, that the Collector passed the proceedingsEx. B-46, accepting the relinquishment. It is thus seenthat on the date of the nomination, the accounts had notbeen looked into and finally settled, that the obligation ofthe old firm under the contracts executed by it subsistedand that subsequently on a scrutiny of the accounts moneys,were found due from the old firm, and were accordinglypaid.

In the above state of things, can it be said that the 1strespondent ceased to have any interest in the contracts byreason of his execution of Ex. B-31 and his retirement fromthe partnership in pursuance thereof, assuming that to betrue ? The answer can only be in the negative. Sri A.Lakshminarayana Ayyar, appearing for the 1st respondentcontends that by his own unilateral act the 1st respond-ent's interest in the contracts came to be determined. Thisis certainly not right since so far as third parties are con-cerned his obligations cannot cease except with their con-currence and assent. If authority were needed, referencemay be made to Cox v. Ambrose^). That was a case of adisqualification arising under section 12 of the MunicipalCorporations Act, 1882 (45 and 46 Viet., C. 50). In thatcase the candidate was a member of a firm interested incertain continuing contracts w-ith a corporation of a boroughunexpired at the time of a municipal election for thatborough. Before offering himself as a candidate for electionhe dissolved the partnership and assigned all his interest

(1) 60-L.J. Q.B.D. 114.

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in the said contracts to the other partner, remainingliable, however, on bonds securing the due performance of:the contracts. The corporation was not a party to theassignment and gave no assent thereto, nor did they releasethe candidate from the contracts. It was held that he wasnot qualified to be elected within the meaning of the abovesection.

21. The question next arises whether the acceptance ofthe relinquishment by the Collector under Ex. B-36 witheffect from 15th November, 1951, makes any difference.Ford v. Newth(l) is a clear authority that it does not. Thefacts of that case are analogous to the present one. Therespondent in that case had entered into a contract withthe Gloucester Corporation and on October 19, 1900, therewere various amounts due to him under the contract. Onthat day the respondent being anxious to stand as a candi-date at the forthcoming election of Councillors in Novem-ber applied to a committee of the corporation to be relievedfrom his contract. The committee resolved on the sameday to so release him subject to the approval of theCouncil. On 24th October, 1900, the respondent wasnominated and on the 30th October, the Council approvedthe resolution of the Committee. The election was held onNovember 1, 1900, and the respondent was declared to beelected to the office of councillor. It was held that theratification, after the respondent's nomination, of theresolution releasing him did not relate back to the date ofthe resolution of the Committee and that therefore the res-pondent, at the date of his nomination, had an interest ina contract with the council and was disqualified and thathis election was void. The reason given is that election isa matter of public concern, that on the day of nominationit was entirely uncertain whether the contract would beput an end to or not and that it was not open to the coun-cil to put an end to the contract so as to affect the rightsof electors or of other candidates. In view of the abovepronouncement of the law, which we respectfully adopt,it must be held that Ex. B-36 cannot operate retrospec-tively so as to prejudice the* rights of third parties andcannot avail to remove the bar of disqualificationwhich would otherwise attach to the 1st respondent. Thecases of Maidstone (1831)(2), and Dartmouth (1845)(3).

(1) [1901] 1 Q B. 683; (2) Rog. 1204. (3) (1845) B. and Am. 460.

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referred to at pages 31 and 32 of Rogers on Elections,Volume II, 19th Edition, may at first sight appear to beagainst the above view. But a closer examination of thefacts will reveal that it is not so. In the Maidstonecasei1) theassignment was with the consent of the Navy Boardand the only contention was that the assignor wasstill liable for the due execution of the contract bythe assignee. The contention on the other side was thatafter assignment, the assignor was only liable as a suretyand that sureties were not within the Act. It was held thatthe assignor was not disqualified. In the Dartmouth case (2)the candidate made an assignment of the contracts to hisnephews a few days before the election and was according-ly released therefrom by the admiralty. It was decidedthat as the contract had been substantially assigned beforethe election with the consent of the admiralty, though theassignment had not been formally completed, the assignorwas not a contractor within the statute. It will be noticedthat in both the above cases the assignment was beforethe material date and with the concurrence of the Govern-ment authorities. Those cases do not therefore lay downanything to the contrary.

22. The matter may be looked at from another stand -•point. There were outstanding obligations under the con-tracts on the part of the firm including the 1st res-pondent, on the date of the nomination. Can it be said inthose circumstances that the 1st respondent was notinterested in the contracts ? It is a moot point whether aperson who has performed his part of the contract can besaid to remain interested because he has not received pay-ment. Some cases have taken the view that the disqualifi-cation arises only when the contract is executory and notwhen the contract has been completely executed before theelection and all that remains to be done is for the Govern-ment to pay the money. [See Royse v. Birley(3) and Cox v.Truscott^)}. On the other hand, in a carefully reasoned judg-ment the Irish Court of Appeal has held in 0'Carroll v.Hastings (5) that a person's interest in a contract executedby him only determines when he is paid for it or possiblywhen a chance of a dispute arising as to the amount due

(1) Rog. 1204. (3) (1869) L.R. 4 C.P. 296. (5) (1905) 2 I.R. 590.(2) (1845) B. & Arn 460. !4) (1905) 69. J.P. 174.

EL— 56

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has been determined by a judgment or arbitrator's awardor the like. Whichever be the correct view where the onlything that remains is an outstanding liability on the partof the Government, it does not admit of any doubt that aperson who has not yet completely performed his obliga-tions under the contract is interested in it. The object be-hind the provisions like those enacted in section 7(d) is toprevent the conflict between interest and duty that mightotherwise inevitably arise. The mischief guarded against isthe sapping of that freedom and independence by membersbeing admitted to profitable contracts. To hold that aperson who has not fully performed his obligations undera contract is still not interested in it within the meaning ofsection 7(d) would be to let in the very mischief the Actintended to prevent and subject the members of the Legis-lature to the class of temptations which it was intended toremove. Thus, in the present case the duty of the 1st res-pondent as an elected representative of the public wouldrequire him to protect the revenues of the Government buthis self-interest in these contracts would stand in the wayof his discharging that duty properly. We would thereforehold that even if the relinquishment were genuine, the 1strespondent continued to be interested in the contracts ashis obligations had not terminated.

23. Our conclusion on this part of the case therefore is,that V. V. Ramaswami and Sons had entered into con-tracts with the Government of the State of Madras of thenature specified in section 7(d) of the Act, that the saidcontracts and obligations thereunder were subsisting on20th November, 1951, the date of the nomination, that thebusiness was a partnership one, that the relinquishment ofhis share in the business under Ex. B-31 by the 1st respond-ent is sham and nominal, that even if it were real, stillthe 1st respondent had an interest in the contracts on therelevant date and was therefore disqualified under section7(d). Issue 1 is found in the affirmative and issue 2 in thenegative.

[Issue No. 3 was also found in the negative.]31. Issue No. 5.—The next allegation is that Subbiah,

R.W. 7, a polling agent of the 1st respondent, who was notentitled to vote, impersonated another Subbiah, P.W, 1,

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voter No. 118 in Muthuvel Nadar Street, Locality No. 5, andvoted by postal ballot in the name of the latter and that inconsequence the real voter Subbiah, P.W. 1, had to give atendered vote. The counter is rather bald on this point butseems to deny that there was another real voter apart fromthe polling agent of the 1st respondent and that voter hadto tender his vote.

[The Tribunal referred to the evidence on the point andcontinued as follows.]

37. It is clear, therefore, that the voter entitled to voteas No. 118 was P.W. 1, and not R.W. 7, and that R.W. 7impersonated P.W. 1 when he applied for the postal ballot.This would be a major corrupt practice under section 123 (3)of the Act. Sri Lakshminarayana Ayyar, the learnedcounsel for the 1st respondent, contends that the mere factthat R.W. 7 was not entitled to vote would not bring hisact within the mischief of section 123 (3) without furtherproof of mens rea on his part and that if he bona fide believedthat he was the voter entitled to vote, that would excusehim. Sri Harihara Ayyar, however, goes to the extent ofcontending that the question of mens rea is totallyirrelevant under section 123(3). But the serious nature ofthe offence clearly shows that mens rea must be a necessaryelement. In fact, the authorities are also to the same effect.Thus, in Pantam Venkayya, In re{1), the High Court heldthat mens rea was an essential element of an offence of im-personation under section 171 (d) of the Indian Penal Code,the words of which are substantially the same as in sec-tion 123 (3). Their Lordships quoted the following obser-vations of Denman, J., in the Stepney Case^): " I t isthoroughly understood election law that, unless there becorruption and a bad mind and intention in personating, itis not an offence ". No doubt, the observation was made ina criminal case, but we think the same principle appliesespecially as the words used are practically the same.

38. The question, therefore, is whether R.W. 7 couldhave bona fide believed that he was the real voter

The cumulative effect of the circumstances ofthe case is such that in our opinion it is impossible to saythat R.W. 7 could have honestly or bona fide believed thathe was the person entitled to vote as voter No. 118. We

1,1) I.L.R. 53 Mad. 444. (2) 4 O'*M. and H. 34. >'

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therefore find that R.W. 7 was guilty of the offence definedin section 123 (3) and we would name him accordinglyunder section 99 (a) (ii). We may add that after we cometo a prima facie opinion on this point and before finallymaking up our minds, we gave an opportunity to R. W. 7as contemplated in the proviso to section 99.

39. While we hold that R.W. 7 was guilty of the offence,we must add that there is no proof that the 1st respondentor his election agent connived at this impersonation or evenhad knowledge of it then.

40. The next question is what is the consequence of thisimpersonation of R.W. 7 under the above circumstances.Section 100 (2) (b) enacts that if the Tribunal is of opinionthat any such corrupt practice specified in section 123 hasbeen committed by a returned candidate or his agent or byany other person with the connivance of a returned candi-date or his agent, the Tribunal shall declare the election ofthe returned candidate to be void. Now, section 79 (a) ofthe Act defines an 'agent' for the purpose of Parts VI, VIIand VIII—section 100 is in Part VI—as including a pollingagent. In other words, R.W. 7 would be an 'agent' for thepurpose of section 100(2) (b) and the Tribunal would haveto hold the election of the returned candidate to be voideven without proof of the connivance by the 1st respondentor his election agent. Section 100 (3), however, is in thenature of a proviso of section 100 (2) and enacts:—

" 100(3). If in the opinion of the Tribunal, a returnedcandidate has been guilty by an agent, other than hiselection agent, of any corrupt practice specified in sec-tion 123, but the Tribunal is satisfied—

. (a) that no such corrupt practice was committed at theelection by the candidate or his election agent, and everysuch corrupt practice was committed contrary to theorders, and without the sanction or connivance, of thecandidate or his election agent;- (b) that all such corrupt practices were of a trivial and

limited character or took the form of customary hospitalitywhich did not affect the result of the election ;

". (c) that the candidate and his election agent took allreasonable means for preventing the commission of corruptor illegal practices at the election ; and

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(d) that in all other respects the election was free fromany corrupt or illegal practice on the part of the candidateor any of his agents,

then the Tribunal may decide that the election of thereturned candidate is not void.

41. Section 100 (3) is in the nature of a proviso and thefour clauses of sub-section (3) are connected by theconjunction 'and'. It is, therefore, clear that to availhimself of sub-section (3), the 1st respondent must satisfythe Tribunal that all the four clauses (a), (b), (c) and (d)have been satisfied. Unfortunately however, for the 1strespondent, he has not been able to satisfy us in this regard-Taking clause (a), we are prepared to hold in his favourthat the corrupt practice was committed without the sanc-tion or connivance of the 1st respondent or his electionagent, but he has not shown that the practice was com-mitted contrary to his orders. Now, in the first place, it hasnot been pleaded in the counter that he issued ordersprohibiting such a corrupt practice. Even in chiefexamination he does not say that he issued any suchorders. In cross examination he stated that he did notgive instructions individually to his polling agents, regularand reserve, but he got a set of instructions printed anddistributed among them, but no copy of it was available.It is not his case that he gave any specific instructions toR.W. 7 prohibiting such corrupt practices. On the con-trary, his evidence is that he had not seen R.W. 7 at allbefore R.W. 7 mounted the witness box. Sri Lakshmi-narayana Ayyar, the learned counsel for the 1st respondent,suggests that the 1st respondent may be presumed to havegiven such orders and that to construe the section other-wise would be an invitation for letting in artificial evidenceof such orders having been given. We are unable to agree.The argument would treat the words " contrary to theorders " as surplusage, a construction which we must tryto avoid. We hold therefore that clause (a) has not beensatisfied.

42. As for clause (b), it is true that since only oneinstance of impersonation has been proved and no othercorrupt practice has been proved, the corrupt practice is ofa limited character, but then the clause says that it mustalso be of a trivial character. How can we say that

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impersonation is of a trivial character ? It may be trivial inits result since it brought only one additional vote but it iscertainly not trivial in its character. We therefore hold thatclause (b) also has not been satisfied.

43. Regarding clause (c), for reasons given re clause (a),we hold that the 1st respondent has not satisfied us that hetook all reasonable means for preventing the commissionof such a corrupt practice.

44. Clause (d), of course, has been satisfied, because noother corrupt or illegal practice has been proved, but sinceclauses (a), (b) and (c) have not been satisfied, the 1strespondent cannot avail himself of the benefit of sub-section (3) of section 100. It follows, therefore, that undersection 100 (2) the Tribunal has no option but to declarethe election of the 1st respondent to be void on this groundof impersonation also. Our finding on issue No. 5, is there-fore that R.W. 7 was guilty of false personation and thatunder section 100 (2), the election of the 1st respondent hasto be declared void.

45 to 47. [Not material for this report.]48. Issue No. 7.—The next incident we propose to deal

with is the alleged tampering of the ballot box by oneAmanulla. The facts relating to this are not very much indispute. In polling station No. 165, Virudhunagar, thePresiding Officer suspected that voter Amanulla wastampering with the ballot box of the 1st respondent, caughthold of him and handed him over to the police. He removedthe box which bore the number '45-2' and substitutedanother 45-2A. The polling continued and as on examin-ation by the Returning Officer it was found that the boxwith the paper seals were intact, the votes in both theboxes were counted and included in the votes cast onbehalf of the 1st respondent. This the petitioner contendsis illegal. According to him, the new box should not havebeen substituted nor the votes in the two boxes countedand there should have been afresh poll under the provisionsof section 58 of the Act. R.W. 2, Sri S. V. KrishnaAyyangar, the Presiding Officer, says that he got the reportEx. B-8 from the Assistant Presiding Officer, went insidethe booth and found that the seals had been separated.Amanulla was apprehended and his explanation was thathis ballot paper did not go into the slit and that therefore

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he placed his hand on the box and blew air into the slitand the seals got separated. He sent the report Ex. A-17(a)to the Returning Officer and Ex. B-9 is his diary whichcontains a record of what took place. He closed the boxNo. 45-2, and placed a new box 45-2A, and the votingwent on. R.W. 11, Sri M. S. Ram, the Returning Officer,states that the paper seals in both the boxes were intactand that the counting began after the candidates and theiragents satisfied themselves about it. We are unable toappreciate the grievance of the petitioner in this matter.There is nothing illegal or irregular about the procedureadopted by the Presiding Officer and one should think thatthe course followed by him was the most sensible andproper one. He could not without opening the box—whichhe could not do—find out whether really the box had beentampered with and he therefore substituted a fresh boxleaving it to be decided later, whether, in fact, there wastampering. Subsequent examination by the ReturningOfficer showed that really there was none and the votes inboth the boxes were taken into account. The case does notfall within section 58 and there was no need for a fresh poll.And we have not been referred to any provision of anyenactment, rule or authority that in circumstances like thepresent the election should be set aside. On principle too,we should think that there is no justification for thecontention that the election is void on that score. Issue 7is found in the negative.

49. Issue 8 connected with issues 6 and 7 is also found inthe negative.

50. Issue No. 9.—We have held under issues 1 and 2 thatthe 1st respondent was disqualified under section 7 (d) of theAct on the date of the nomination, namely, 20th Novem-ber, 1951. Obviously, the result of the election has beenmaterially affected by the improper acceptance of thisnomination within the meaning of section 100 (1) (c) of theAct; it could not possibly be otherwise from the verynature of the thing. The election has therefore to be setaside on this ground as well as on the ground of impersona-tion by R.W. 7, the polling agent of the 1st respondent,under section 100 (2) (b) as we have found under issue 5.

51. In the result, we declare the election of the 1strespondent, the returned candidate, to be void under

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4 4 6 HAISTUMAN PEASAD MTSBA V. TARA OHAND [VOL. V

section 98 (b). Further, under section 99, we find that thecorrupt practice of impersonation defined in section 123 (3)was committed by R.W. 7, S. Subbiah, the polling agent ofthe 1st respondent, and we accordingly name him undersection 99 (1) (a) (ii). Under section 99(l)(b), and sec-tion 120, we direct the 1st respondent to pay the petitionerthe costs of this petition and bear his own costs. We fixRs. 600 (Rupees six hundred only), as the costs of thispetition payable by the 1st respondent to the petitioner(Rs. 500 the vakil's fee and Rs. 100, which we find to bethe remaining expenditure incurred by the petitioner).

52. Before closing, we would like to express our agree-ment with the opinion of the other Tribunals that it isdesirable to have the validity of the acceptance or rejectionof the nomination finally decided before the polling beginsinstead of following the present system.

Election declared void.

[ELECTION TRIBUNAL, FAIZABAD.]

HANUMAN PRASAD MISRAv.

TARA CHAND AND OTHERS.D. N. ROY (Chairman), A. SANYAL and M. U. FABITQI

(Members).April 6, 1953.

Disqualification of candidates—"Contract for performance of servicesundertaken by Government"—Merchants' Association—License to store andsupply foodgrains under procurement and levy scheme—Member of associa-tion, whether disqualified—Association of firms—Capacity to enter intocontract—Contract with government, whether necessary—Procurementscheme, nature of —Resignation of membership—Unconditional acceptancewithout settlement of accounts and payment of dues—Whether terminatescontract ~ Nomination—Improper acceptance—Proof that result of elec-tion was materially affected, necessity of—Double member constituency—Petition for setting aside election to one seat—Maintainability—Power toset aside whole election—Election agent—Appointment—Mode of declara-tion— Verification—Essentials—Corrupt practice—Duty to give parti-culars—Indian and English Law—Representation of the People Act, 1951,ss. 7 {d), 33 (3), 40, 98, 100 (l) (c), 83, 84.

An association of merchants styled 'Merchants' Association,Sidhauli" of which the respondent No. 1 was the President, and a firm,

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of which respondent No. 1 was a partner, was one of the members,obtained a 'license' from the Controller of Foodgrains of the U.P.Government, under the foodgrains procurement and levy scheme of theGovernment, by which the association undertook to buy, store anddeliver to the State Government controlled foodgrains of such specifica-tion as may be prescribed by the Pood Controller and to deliver suchfoodgrains only to such person or persons, and at such prices, as maybe fixed by the State Government. The agreement was terminable bymutual consent or on one month's notice. The respondent, intending tostand as a candidate, tendered resignation of his office of President ofthe Association on the 21st November, 1951, and his resignation wasaccepted, but he was requested to sign cheques until a new Presidentwas appointed, and he continued to sign cheques after his nomination.The respondent's firm also resigned its membership on the 22ndNovember and its resignation was accepted on the same day but moneysdue to it for grains supplied to the association were fully paid onlyafter the acceptance of the nomination. Eespondent No. 1 waselected to the general seat. An election petition was filed to declarethat the election of respondent No. 1 was void and the petitioner wasduly elected, without an express prayer for declaring the election of thecandidate for the reserved seat also void :

Held, per D. N. BOY and A. SANYAL (M.U. FABUQI dissenting)—

(i) though the respondent's firm as such could not be a partner ofthe association as 'a firm is not a juristic person, the legal effect of onefirm becoming a partner of another firm was that the individuals of thetwo firms become partners, in the latter firm, and the respondent No. 1was therefore a partner of the association ;

(ii) that the 'license' was really a contract as there were mutualobligations under it;

(iii) that, for the purposes of section 7 (d) of the Representation ofthe People Act, 1951, it is not necessary that there should be a contractwith the*Government; it is enough if there was a contract for supply ofgoods to, or the execution of any works or the performance of anyservices undertaken by the Goverment; and there need not be a contractsatisfying the requirements of the Constitution with regard to contractsmade on behalf of the Government ;

(iv) that under the procurement and levy scheme, the StateGovernment had undertaken an essential service, viz., the equitabledistribution of foodgrains at fair prices to consumers and retail dealersand the association had therefore entered into a contract for the per-formance of a service undertaken by the State Government;

(v) that, as the security amount had not been returned, and therespondent No. 1 continued to sign cheques as President, and theaccounts with the association had not been finally settled and paymentsmade before the nomination was filed, the contract continued to subsistat the time of nomination and the resignation of the respondent andhis firm could not remove the disqualification of the respondent) undersection 7 (d):

i;:L—57

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(vi) though the petition did not contain an express prayer fordeclaring the election of the candidate returned for the reserved seatalso void, the Tribunal had power to give such relief as was just andproper on the facts and circumstances proved ;

(vii) that in the case of a double member constituency, theprinciple that the election for the two seats is one indivisible electionapplies to the improper acceptance as well as improper rejection andthe whole election can be set aside even in the case of improperacceptance of a nomination for the general seat, if the result of theelection has been affected ;

(viii) that on the facts, the result of the election was materiallyaffected by the improper acceptance of the nomination of respondentNo. 1 and the whole election must be declared void.

Per M. TJ. FARUQI {contra).—(i) Neither the Merchants' Associationnor its member firms were juristic persons capable of entering into acontract, and it was no one's case that the members individually hadentered into a contract with anybody and section 7(d) had no appli-cation to the case ;

(ii) as the respondent's resignation and the resignation of the firmwere unconditionally accepted and the Regional Controller had con-sented to the resignation, the respondent was not interested in theagreement in question ; the mere signing of cheques after acceptance ofthe resignation until another person was appointed did not negative theeffect of the resignation ;

(iii) in the case of an improper acceptance of a nomination an elec-tion cannot be 3et aside unless the petitioner proves positively thatthe result of the election was materially affected thereby, and as therewas no evidence at all to prove it, the result of the election cannot beheld to have been materially affected ;

(iv) as the petitioner had not challenged the election to thereserved seat and the election to the two seats was an indivisible elec-tion, even the respondent's election could not be declared void, and thepetitioner was not entitled to any relief.

Held also, by the Full Tribunal, -(i) A declaration that the candi-date has appointed himself as his election agent on the form of nomina-tion itself is a sufficient compliance with sections 33 (3) and 40 of theEepresentation of the People Act, 1951. The words "accompanied bya declaration" in section 33 (3) do not necessarily imply that a separatepaper containing such declaration is essential, (ii) The appointmentof an election agent need not be made before the filing of the nomina-tion paper, (iii) Omission to state the place of verification or to addwords to the effect that the statements made on information are believedto be true, are not substantial defects for which a petition could bedismissed, (iv) Indian election law relating to giving of particulars ofcorrupt practices is much more stringent than the English law andallegations of corrupt practices in respect of which full particularsare not given must be struck off.

Seodoyal Khemha v. Joharmull Manmull (I.L.E. 50 Cal. 549), BrojoLai Sdhu v. Budh Nath Pyari Lai (A.I.E. 1928 Cal. 148), Bam Das v.

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Bam Babu (158 Ind. Cas. 25), In re Jay Dayal Madan Gopal (I.L.R. 54All. 846), K.T.M. Muhammad Abdul Latiff Bouther v. S.M.S. SheikhIsmail Bouther (A.I.E. 1934 Mad. 9), Kadir Bux Onier Hay at v. BaktBehari (A.I.E. 1932 Cal. 768), Brij Kishore Bam Sarup v. Sheo GharanLai (A.I.E. 1938 All. 69), Kannabirdn v. A. J. Arunachalam and Others(2 E.L.E. 167), K. Perumal Mudaliarv. Province of Madras (A.I.E. 1950Mad. 194), Satyendra Kumar Das v. The Chairman of the MunicipalCommissioners of Dacca (I.L E. 58 Cal. 180 >, Jagannath v. Pandurangand Others (4 B.L.E. 167), Naranjan Singh v. Brish Bhan and Others(3 B.L.E. 179), Batnachandran Nair v. Bainachandra Das and Others(1 E.L.E. 442), Vijaya Mohan Beddy v. Paga Pulla lieddy and Others (2E.L.E. 414), Nagjibhai v. MithabhaH I R.L.R,. 162), Insein case, 1923:P.D. Patel v. Maung Ba Glay and Mating Kyaiv Din (Hammond 411),C. M. Karale v. B. K. Dalvai and S. N. Angadi (2 Jagat Narain 31),Piarey Lai v. Munshi Amba Prasad (4 Jagat Narain 4 ; Hammond 29),Hoshiarpur West General Constituency, 1946 : S. Moola Singh v. Ch.Mangu Bam and Others (Sen and Poddar 945), Trade Union Labour{North-Western Bailway Union) Constituency, 1946 : B-S. Bam JaivayaKapurv.B.B. Gang a Saran and Others (Sen and Poddar 823), BastiNorth East case (Sen and Poddar 106), Batata Sikh case (Sen and Poddar122), Bazzar M.B.case (Sen and Poddar 716), Bajit Bam and Others v.Katesar Nath and Others (I.L.E. 18 All. 396), Lancaster case (5 O.M. & H.39) and Bulandshahr East case (Hammond 217) referred to.

ELECTION PETITION NO. 272 of 1952.

ORDER.

D. N. ROY and A. SANYAL.—This is an election petitionfiled by Sri Hanuman Prasad Misra, who was one of theduly nominated candidates for election to the LegislativeAssembly of U. P. for Sidhauli West Constituency for thegeneral election held in 1951-52. This is a double-memberconstituency from which Sri Tara Chand, respondent No. 1,was elected to the general seat and Sri Baiju Ram, respond-ent No. 5, was elected to the other seat reserved for theScheduled Caste. The remaining respondents were dulynominated candidates to the same election inclusive of SriLalloo Ram, respondent No. 9, who was for the reservedseat.

The election has been challenged on a variety of grounds.It has been contended that the nomination paper of res-pondent No. 1 had been improperly accepted at the timeof the scrutiny under section 36 of the Representation ofthe People Act,, 1951, inasmuch as respondent No. 1, at thetime of the nomination and scrutiny was disqualified undergeotion 7(d) of the Representation of the People Act,

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because he had share and interest in the contract of supplyof goods and for the execution of works and performanceof services to the Government of Uttar Pradesh. It wascontended in paragraph 12 of the petition that the wrong-ful inclusion of the name of opposite party No. 1 in the listof the validly nominated candidates had materially affectedthe result of the election. In the election petition, thepetitioner set out a number of grounds of illegalities andirregularities, which according to him affected materiallythe result of the election. Some of these grounds wereexamined by this Tribunal and were found wanting inparticulars and were therefore scored out. The othergrounds which were not so wanting were allowed to re-main. It was prayed by the petitioner that the,election ofopposite party No. 1 be set aside and declared null andvoid and illegal. It was further prayed that the petitionerbe declared elected to the general seat of this constituencyin place of opposite party No. 1.

The respondents were duly served, but only respondentNo. 1, v{z., Sri Tara Chand and respondent No. 7, viz., SriRaghuram, entered appearance and filed their writtenstatements. The allegations made by the petitioner weretraversed by respondent No. 1. He, inter alia, contendedthat on the date of his nomination or at the time ofscrutiny, he was not hit by the provisions of section 7(d)of the Representation of the People Act. He submittedthat neither by himself nor by any person or body ofpersons in trust for himself, or for his benefit, or on hisaccount, he had any share or interest in a contract for thesupply of goods to the State Government within the mean-ing of clause (d) of section 7 of the Representation of thePeople Act. It would not be necessary for us to noticehere the pleadings in greater detail because these pleadingswill be considered at the proper place in subsequentdiscussionin this order. Respondent No. 7 lent support torespondent No. 1. The pleadings of the parties gave riseto the following issues :—

(1) Is the petition liable to be rejected for want of pro-per verification ?

(2) Is the petition liable to be rejected for non-compli-ance with the provisions of sections 83(2) and 117 of theRepresentation of the People Act ?

*

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(3) Are the allegations of corrupt and illegal practices inparas. 27 to 33 vague and indefinite and should not beentertained for that reason ?

(4) Can the allegations of corrupt and illegal practicesin paras. 27 to 33 be entertained in the absence of a list ofsuch practices and in the absence of proper verification ofsuch list as required by section 83 (2) of the Act ?

(5) Is the petitioner entitled to the relief claimed by himin view of his plea that the nomination of the oppositeparty No. 1 was wrongly accepted by the Returning Officerand in view of Baiju Ram's election not having been ques-tioned and having become final ?

(6) Was the respondent No. 1 disqualified from beingchosen as a member of the U. P. Legislative Assembly asalleged in paras. 11 to 18 of the petition ?

(7) Was the nomination paper of the respondent No.- 1invalid for the alleged reason that he had not appointedany election agent previous to the filing of his nominationpaper as contemplated by section 40 of the Act ?

(8) Are the allegations contained in paras. 20 to 26, 27(ii), (iii), (iv), (ix), (x) and 34 to 36 true, and, if so, was theresult of the election materially affected by such facts or byany of them ?

(9) Are the allegations relating to corrupt and illegalpractices contained in para. 27 (ii), (iii), (iv), (ix), (x) trueand if so, what is its effect ?

(10) To what relief, if any, is the petitioner entitled ?The preliminary issues Nos. 1, 2, 3, 4 and 7 were heard

by us. The findings on these issues were given on 17thJanuary, 1953.

We have now to deal with the other issues formulatedabove.

Issue No. 5 covers the question as to whether the peti-tioner is entitled to the relief claimed by him in view of hisplea that the nomination of the opposite party No. 1 waswrongly accepted by the Returning Officer and in view ofBaiju Ram's election not having been questioned andhaving become final. This issue is to be considered along,with issue No. 6, which is to the effect whether res-pondent No. 1 was disqualified from being chosen as a-

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member of the Uttar Pradesh Legislative Assembly asalleged in paragraphs 11 to 18 of the petition. In thisconnection, certain facts which are now more or lessadmitted have to be stated.

Sri Tara Chand, respondent No. 1, has been a partner infirm Lachhmi Narain Chunni Lai of Sidhauli, which is aregistered firm. This firm came into existence in its presentform on the 20th of March, 1944, under the deed of partner-ship Ex. A-12, executed by the different partners includingSri Tara Chand. At Sidhauli, there came into existence in1938, an association known as " Merchants' Association,Sidhauli" or " Beopar Mandal, Sidhauli". It is an un-registered body, and as the evidence adduced by both theparties in this case goes to show, its membership was notregulated by any well-defined rules or principles. Itsmembership was open to such merchants dealing in cloth,Our and grain as used to perform, in the parlance of thesewitnesses, " Bachna Ka Pujan ". It was no doubt a loosely-knit association as has been contended on behalf of respond-ent No. 1. The partners of the firm "Lachhmi NarainChunni Lai " were members of the Merchants' Association,Sidhauli, and they made use of their firm's name in joiningit as such. In 1946-47, the Government of Uttar Pradeshin furtherance of the obligation taken by it for supplyinggrain to the public started a "levy scheme" or "procure-ment scheme" at Sitapur. For that purpose, some of thegrain merchants at Sitapur and Sidhauli, obtained"B" class licence from the Government. A similar licencewas obtained by the Merchants' Association, Sidhauli. Thisparticular licence which is Ex. D.W. 1/10 described the nameof the licensee as " Tara Chand Maheshwari, President, forMerchants' Association, Sidhauli ", as the licensee. And inthe column of parentage, the name of Lala LachhmiNarain ", was specified. The merchants supplied grain tothe Government under this scheme through the Merchants'Association, Sidhauli. The firms, inclusive of firm LachhmiNarain Chunni Lai, had each to contribute a sum of Rs. 280which-had been deposited with the Government as security.Sri Lachhmi Narain. Sharm'a, D.W. 1, has been theSecretary of the Merchants'Association. .. Firm " NirmalKumar Santosh Kumar" was appointed as the workingagent of this association. They used to acquire grain from

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different constituent firms and to make up accounts ofcollection. Amounts paid by the Government were depositedwith the Bank, and they were distributed and paid bycheques drawn by Sri Tara Chand, respondent No. 1, whowas the President of the Association, jointly with theSecretary of the Association. The Government used to paya commission of Rs. 1-4-0 per cent over this procurement.Part of it went to the working agent and the balance wasdistributed amongst the members of the Beopar Mandal,who supplied the grain. These facts are proved by theevidence of the Secretary of the Beopar Mandal, and bythe other witnesses produced in the case. It may be statedhere that firm Lachhmi Narain Chunni Lai also held alicence in form B, which is in the same manner as thelicence Ex. D.W. 1/10 held for the Merchants' Associationas stated above. The licence held by firm " LachhmiNarain Chunni Lai " has not yet been surrendered. It hasfurther been stated by Sri Tara Chand, respondent No. 1,that firm " Lachhmi Narain Chunni Lai " is still doing busi-ness under the terms of the deed of partnership, Ex. A-12.In his cross-examination, he stated that firm " LachhmiNarain Chunni Lai" are still'B'class licensees and theynever surrendered their licence and that even after theresignations (which will hereinafter be examined), this firmdid purchase gram, wheat and barley under the terms ofthe licence. What happened in this particular case wasthis. Sri Tara Chand, respondent, on or about 21st ofNovember, 1951, perceived that he was likely to be hit bythe provisions of section 7 (d) of the Representation of thePeople Act. In order, therefore, to get rid of the disqualifi-cation, he made the application Ex. D.W. 1/2 on the 21stof November, 1951, addressed to the Secretary of theMerchants' Association, Sidhauli, saying that he was resign-ing from the presidentship of the Association and that hisresignation be accepted. It may here be stated that thepresidentship is an honorary office. On the 22nd of Novem-ber, 1951, firm "Lachhmi Narain Chunni Lai" made apetition Ex. D.W. 1 /3 addressed to the Secretary, Merchants'Association saying that the firm was resigning from themembership of the Association and as such the firm wouldnot be able to sell grain to the Association. These twoletters were placed before the meeting of the Merchants'

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Association on the 22nd of November, 1951. The proceed-ings book of the Association shows that the resignation ofSri Tara Chand, from the office of presidentship wasaccepted, but he was requested to sign cheques till suchtime as a fresh President was not elected ; and this waswith a view to enable the Beoparis to receive payment oftheir dues. By another resolution of the same date, theAssociation accepted the resignation of firm "LachhmiNarain Chunni Lai ". We may here quote the exact resolu-tions in order to bear out their true import:

" Yeh Committee Sri Tara Chand Ji Maheshwari ketyagpatra par hichar karney ke had is nirnai par puhnchi keSri Tara Chand Ji ka Sabhapati pad se tyagpatra sakhedsuikar kiya jata hai am koi navin sabhapati ke liye bicharkiya guya ke iske waste bhawishya men Shigrahi baithakbolai jaway, jab tah Sri Tara Chand Ji se pararthana ki gaike who kewal Bank ke cheque par hastaksher ka karya kerterahen Jab tak Bank men dosri beioashthe hastakshron kina ho jawe take beopariyon ko rupyamilne men asubidha,na honepawe.

(2) Sri Lakshmi Narain Chwni Lai, ka tyagpatrabaithak men pesh kiya gaya ke way gala kharid kar Associa-tion ko na den saken gay aur aj se na uske member hi rahsaken gay. Tyagpatra bichar hua aur sarvasammati se yehtai hua ke unka istifa manzoor kar liya jawe aur woh suikritkiya gaya ".

The Marketing Inspector, Sidhauli, and the RegionalFood Controller, Lucknow, were informed of theseproceedings. On 4th July, 1951, another meeting of theMerchants' Association was held i in which Sri PramsukhJain was unanimously elected as the President. Thereuponthe Merchants' Association informed their Bankers, theCentral Bank of India, Ltd., Sitapur, of this change,obviously with a view to tell them that the bank accountwill be operated upon by the new President jointly withthe Secretary. Meanwhile, between the 21st of November,1951, and the 4th of December, 1951, certain cheques weredrawn up by Sri Tara Chand as President, jointly withSri Lakshmi Narain Sharma as Secretary of the Merchants'Association. Four of such cheques have been producedbefore us. They are Exs. P.W. 1/1 to P.W. 1/4. By thesecheques, payments were made to the grain merchants,

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towards this "procurement" or "levy scheme" by theAssociation. Two of these cheques, viz., cheque Ex.P.W. 1/1, dated 25th November, 1951, for Rs. 6,896-14-9and cheque Ex. P.W. 1/4, dated 3rd December, 1951, forRs. 1,584-14-6 were in favour of firm " Lachhmi NarainChunni Lai " of which Sri Tara Chand, respondent, is apartner. Payment under these cheques have been receivedby this firm.

It has been contended on behalf of the petitioner thatthese resignations were unreal and were intended to makea pretence of formal resignation. We do not agree withthis contention and we are of opinion that Sri Tara Chandknew that he was likely to be hit by the provisions ofsection 7 (d) of the Representation of the People Act, unlesshe shook himself of the-liabilities which brought him withinthe four corners of the provisions of that section. Thequestion before us would, therefore, be whether on the factsstated above and proved by the witnesses, Sri Tara Chandcan be regarded to have succeeded in getting rid of thedisqualifications by the passing of the resolutions and by theacts mentioned above. In this connection, it has beenargued before us that a firm is not a juristic person and thata firm could not enter into partnership with another firm orAssociation. It has further been argued that the transactionaforesaid was only a unilateral agreement, and not a bilateralcontract. It is true that a firm is not a juristic person andas such it cannot enter into a partnership with another. SeeSeodoyal Khemka v. Joharmull Manmull^), Brojo Lai Sahuv. Budh Nath-Pyari Lal(z), Ram Das v. Bam Babu(3), in thematter of Jai Dayal Madan Gopal^). But there is nothingto prevent the partners of the firm as individuals from beingbrought in as partners in another firm by the use of theirfirm's name. The name under which a firm carries onbusiness is, in point of law, a conventional name applicableonly to the persons who on each particular occasion whenthe name is used are members of the firm. This view issupported by a decision of the Madras High Court inK. T. M. Muhammad Abdul Latijf Souther v. 8. M. 8. SheikhIsmail Routher^), and by two other decisions, the one of

(1) I.L.R. 50 Cal. 549. (4) I.L.R. 54 All. 846.(2) A.I.R. 1928 Cal. 148. (5) A.I.R. 1934 Mad, 9,(3) 158 Indian Cases 25,

EL-5S •«

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the Calcutta High Court in Kadir Bux Omer Hayat v. BaktBeharii1), and the other, of the Allahabad High Court infirm Brij Kishore Ram Sarup v. Sheo Charan Lai (2). In allthese eases the view taken has been that a firm is not a legalentity and there cannot be a partnership of firms, but whentwo firms combine, the legal effect is that the individuals inthe two firms become partners.

Appended to the petition, there are two annexuresspecified as Parts 'A' and 'B'. Part 'A' is a " form ofapplication for agency, " and Part 'B' is described as an" agreement " entered into by the promiser with the StateGovernment of Uttar Pradesh. These two forms wereadmittedly used at the time of obtaining the licence inform 'B' by the Merchants' Association. That fact is statedin the petition and admitted in the written statement. Ithas been contended on behalf of the respondent that ifthese documents are examined in their true perspective itwould appear that the form is only an " agreement " andnot a " contract", and it has been urged that there isabsence of mutuality and that the obligation is onlyone-sided. It has further been urged that whether we callit an " agreement " or a " contract " it was not with theGovernment and it was not executed by the Governmentso as to fulfil the conditions of article 299 of the Constitutionof India and section 175, sub-section (3) of the Governmentof India Act, 1935. In order to consider these questions,we have first to state the provisions of section 7 (d) of theRepresentation of the People Act, 1951. That section saysthat a person shall be disqualified for being chosen as,and for being a member of either House of Parliament orof the Legislative Assembly or Legislative Council of aState, if, whether by himself or by any person or hodj ofpersons in trust for him or for his benefit or on his account,he has any share or interest in a contract for the supply ofgoods to, or for the execution of any works or the perform-ance of any services undertaken by, the appropriateGovernment.

These provisions, so far as it is necessary for this case,can be split into three ingredients ;

(1) The candidate must have a share or interest in acontract,

(1) A.I.R, 1932 Cal. 768, (2) 1938 A.I.fl. All. 69,

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(2) The contract must be for the purpose of supplyinggoods to, or for the performance of any services under-taken by, the Government, and

(3) The Government in question must be the appro-priate Government, which has been defined in section 9 ofthe Act, which, in the present case, is the State Govern-ment of Uttar Pradesh.

The petitioner has to make out that all the three ingre-dients are satisfied in the case of the respondent in orderto bring him within the scope of the disqualification. Therewas no contest before us that the word " contract " usedin section 7(d) has been used to govern all the clauses,inclusive of the clause " performance of any services ",which is the last of the» three clauses in the series in thissub-section; and this view has been upheld by the deci-sion of other Tribunals. We may quote here the decisionof the Vellore Tribunal in Election Petition No. 109 of1952, Kannabiran v. A. J. Arunachalam (1).

The first point to be determined is whether there was acontract between respondent No. 1 and the State Govern-ment of Uttar Pradesh. Section 7(d) of the Representationof the People Act does not say that the contract must bewith the Government. What it says is that " there shouldbe a contract for the supply of goods to, or for the execu-tion of any works or the performance of any services under-taken by the appropriate Government. In the presentcase, it is conceded that there is no contract with theGovernment. Consequently the decision in K. PerumalMudaliar v. Province, of Madras (2), and the pro-visions of section 175(3) Government of India Act, 1935,which bear upon the question as to how contracts withGovernment should be made in order to have a bindingeffect need not be noticed or discussed by us.

Coming to the facts of the present case, we have to dealwith the case of a Merchants' Association which applied forlicence in Annexure 'A' and 'B' appended to the petitionand which obtained the licence from the Controller of theGovernment in the " procurement and levy schemes"of controlled foodgrains. Annexures 'A' and 'B' appendedto the petition show that the licence was applied forand granted by the proper authority (in this case the

U) 2 E. L. R. 167. (2) A. 1. R. 1950 M»d-. 194,

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Controller), and the terms and the conditions which wereaccepted by the promiser, and detailed in Annexure 'B' con-tained mutuality as well. Annexure 'B \ inter, alia, statedthat the promiser undertakes to buy, store and deliver tothe State Government controlled foodgrains of such specifi-cation as may be prescribed by the Regional Food Cont-roller of the Region concerned, in accordance with theterms of this agreement and not to transfer such grain toany other person or persons except in accordance withsuch agreement as may be entered into between " thepromiser " and " the Controller ". It also provided thatall controlled foodgrains delivered as aforesaid shall bepaid after they have been tested and passed in accordancewith the direction of the Controller at a price calculatedand fixed by the State Government, plus commission, ifany, at the rates fixed by the State Government and alsothe actual cost of the gunny bags supplied by the promi-ser. It further provided that the agreement shall bedeterminable at any time by mutual agreement or by theState Government giving one month's notice to the pro-miser, in which case the State Government shall take deli-very of all the controlled foodgrains in possession of thepromiser. It further provided that the promiser shalldeposit with the Controller such amount as may bedemanded from him by the Controller as security for thedue performance by him of the terms of this agreement.There can therefore be no doubt that there was mutualityof obligations, and not a one-sided agreement. The mutual-ity provides a clause of penalty by forfeiture besides aremedy, and a clause about the termination of the agree-ment by mutual consent, and valuable considerationspassed for the agreement. The agreement is to be viewedonly as a contract as known to law and not as a purelicence, the essential feature of a licence, viz., the absenceof mutuality and one-sidedness being absent in thiscase.

We have in this connection also to consider whetherthere has been in this case a " service undertaken " asdefined in section 7(d) of the Representation of the PeopleAct and whether such an undertaking was by the StateGovernment. The State Government has taken an essen-tial service for the equitable distribution of controlled

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foodgrains at a reasonable price. The "procurementscheme" and the "levy scheme" were introduced as anintegral part of the scheme of distribution of controlledfoodgrains at a fair price to consumers and licenseddealers; and there can be no doubt whatsoever that thescheme formed a " service undertaken " by the Govern-ment in the interest of the community. During periods ofacute shortage of essential goods and commodities, it is notonly desirable but also imperative that the state shouldtake steps to regulate their purchase and sale with a viewto equitable distribution amongst all consumers.

It would be unnecessary for us to quote English andIndian decisions bearing upon the general policy implied inthe provision for disqualification stated under clause 7(d)of the Act against persons chosen for membership ofdemocratic legislative bodies. The decisions have a valuefor the light they throw upon the policy with whichdemocracy guards the freedom and independence of itselected representatives. No person should be elected ifthere will be a likelihood of a conflict between his duty andinterest. Another principle which we have to observe aboutthe disqualification clause in an enactment is that it shouldbe strictly construed because it is penal in nature. In thelight of these principles, and in the light of the facts statedabove, and also in the light of what has been stated bySri Lakshmi Narain (D. W. 1) and Sri Tara Chand res-pondent to the effect that the security deposit with theGovernment has not yet been taken back, that final ac-counts have not yet been settled with Government becausethe question of " refraction " has not yet been made up,that after the resignation of Sri Tara Chand as Presidentfrom the Merchants' Association and the resignation offirm Lachhmi Narain Chunni Lai from membership of theMerchants' Association, this firm has accepted paymentafter the nomination and scrutiny in relation to transac-tions made with the Government prior to the date of nomi-nation, and that firm Lachhmi Narain Chunni Lai are still'B' class licensees and they never surrendered their licenceafter the resignation, the only conclusion to which we aredriven is that at all relevant times respondent No. 1 hadinterest in a contract for the supply of goods to, and forthe performance of a service undertaken by, the Uttar

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Pradesh Government and he was thereby disqualified undersection 7(d) from being chosen as a member of the StateLegislature and that the acceptance of his nomination bythe Returning Officer was improper. It is true that in hisown way Sri Tara Chand did all that he thought wasnecessary for him to do to rid himself of the disqualifica-tion. But in our opinion, he could not succeed and in lawhe failed to rid himself of the disqualification on accountof reasons stated above.

We may in this connection refer in passing to the provi-sions of section 63 of the Indian Contract Act whichentitles a promiser to dispense with or remit wholly or inpart the performance of the terms made to him. In thiscase, with regard to the money payable to the first res-pondent or to firm " Lachhmi Narain Chunni Lai " by theGovernment, the first respondent would be in the positionof a promisee and the Government in the position of apromiser. The first respondent did not relinquish the pay-ment of money that was due from the Government on thematerial dates. In fact, as we have already stated above,payment was received after the nomination and its scru-tiny. And as has been stated by Sri Lachhmi NarainSharma, Secretary of the Merchants' Association, who isone of the witnesses for the respondent, the account withthe Government had not been finally settled even on 11thFebruary, 1953, when the said witness was examined. Acontract terminates by its discharge. And, in this case, asthe accounts had not been settled and money was due tofirm " Lachhmi Narain Chunni Lai ", the contract was notdischarged and was still subsisting when the nomination ofrespondent No. 1 took place. In this connection, we mayrefer to the decision in Satyendra Kumar Das v. TheChairman of the Municipal Commissioners of Dacca(l). Inthat case, the plaintiff's sued for a declaration that theywere qualified to be elected Commissioners of DaccaMunicipality. Their father's firm had supplied roadmaterial to the Municipality. Their bills for the materialssupplied were passed by the Chairman but remained un-paid at the date when nomination papers were sent in. Itwas held that the contract had not terminated and theplaintiffs were interested in it and consequently were dis-

Cw I.L.Fi. 58C3I. 180,

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qualified from being elected. The ratio decidendi of thatcase is that when payment is outstanding to the con-tractor, he must be considered to be interested in thecontract. Here in the present case, we have the additionalfactor that Sri Tara Chand did not relinquish his claim duefrom the Government at the time when nomination wasmade, or the scrutiny was held. We may here reiteratethat the accounts with the Government have not yet beensettled. * * *

Having come to the conclusion that respondent No. 1was hit by the provisions of section 7(d) of the Represent-ation of the People Act, 1951, and was disqualified forbeing chosen on the date of the nomination as a memberof the Legislative Assembly, we have to examine the ques-tion as to what would be the effect of the wrongful accept-ance of his nomination paper by the Returning Officer onthe election, specially in view of Baiju Ram's election tothe reserved seat. On this point, it has been arguedthat since Baiju Ram's election has not been directlychallenged by the petitioner and since no relief has beenclaimed against Baiju Ram, Baiju Ram's election must betaken as final, and consequently the election of respondentNo. 1 cannot now be assailed " because the election is one andindivisible." It has further been argued that, having regardto the provisions of section 84 of the Representationof the People Act, which deals with the reliefs claimableby a petitioner, it was not permissible for the petitioner toclaim more than one relief out of the three reliefsenumerated therein. Section 84 of the Representation ofthe People Act reads as under:—

"84. Relief that may be claimed by the petitioner.—Apetitioner may claim any one of the following declara-tions :—

(a) that the election of the returned candidate is void;(b) that the election of the returned candidate is void

and that he himself or any other candidate has been dulyelected;

(c) that the election is wholly void."This being the position, we have to see what is the relief

which has been claimed in the petition and what shouldhave been the relief upon the alleged facts and upon the

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proved circumstances of the case. The relief that has beenclaimed in the petition is that the election of the returnedcandidate, viz., respondent No. 1, is void and illegal andthat the petitioner should be declared as duly elected tothe general seat. The relief claimed, although split upinto two in the petition, would, in a sense, come withinclause (b) of section 84 of the Representation of thePeople Act. We may now quote the provisions of section 98of the Representation of the People Act: —

"98. Decision of the Tribunal.—At the conclusion ofthe trial of an election petition the Tribunal shall make anorder—

(a) dismissing the election petition ; or(b) declaring the election of the returned candidate to

be void; or(c) declaring the election of the returned candidate to

be void and the petitioner or any other candidate to havebeen duly elected; or

(d) declaring the election to be wholly void."From this section, it would follow that at the conclusion

of the trial of =an election petition, the Tribunal shallmake an order referred to in clauses (a) to (d) of the sec-tion. The section does not lay any impediment on theTribunal granting such relief as may be just and properon the facts and circumstances proved in the case.

Section 36 of the Representation of the People Act,1951, deals with the scrutiny of nominations by theReturning Officer. It-, inter alia, lays down that if uponexamination of the nomination papers and upon thehearing of all objections which may be made to the nomina-tions, the Returning Officer comes to the conclusion thatany candidate is disqualified for being chosen to fill theseat under the Act, he shall reject the nomination. It hasbeen urged on behalf of the respondent that the reliefclaimed in the petition being one for a declarationthat the election of respondent No. 1 be held null andvoid and illegal and be set aside, and that the petitionerbe declared elected to the general seat in place of res-pondent No. 1, such a relief cannot be entertained in viewof the provisions of section 100 and section 101 of theRepresentation of People Act, 1951, upon the facts stated

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in. the petition. His contention is that the grounds ofimproper acceptance of nomination paper cannot beentertained for granting this relief by virtue of the provi-sions of section 100 and section 101 of the Act. He main-tained that the scheme of the Act is to classify the electionpetitions under three categories according to the reliefswhich are open to a petitioner under section 84 (which canbe granted or refused by the Tribunal under section 98 ofthe Act), and also to classify the grounds on which elec-tion petitions can be based [detailed in sub-sections (1)and (2) of section 100 and section 101], and to relate thegrounds to the relief. The grounds as well as the reliefwere contended to be mutually exclusive. In other words,the argument is that the relief under section 84 (a) isrelated to the grounds in sub-section (2) of section 100,the relief under section 84 (c) to the grounds in sub-section(1) of section 100 and the relief under section 84 (b) to thegrounds in section 101; and the relief ixnder section 84 (b)which has been claimed by the petitioner may be grantedif the grounds under section 101 have been made out. Ithas further been urged that since under section 84 of theRepresentation of the People Act only one relief enunciatedunder that sfection can be claimed, and since the reliefswhich have been claimed in the petition have been splitup into two, there is a breach of the provisions of the Act;that if the petitioner were to claim relief (c) of section 84of the Representation of the People Act, 1951, Baiju Ram'selection should have been "formally" attacked and not"incidentally"; and that Baiju Ram has been, more or less,made a pro forma party and therefore he has not come for-'ward to contest the election. In other words, it has beencontended that since the "whole of the election" has notbeen sought to be declared void and since Baiju Ram'selection is not sought to be set aside, Baiju Ram's electionmust be taken as final, and the petitioner cannot claim adeclaration in favour of himself in respect of the generalseat. In this connection it has further been argued thatunder section 100 of the Representation of the People Act,it is on the grounds contained in the section that the elec-tion can be declared wholly void and that if we enter intothose grounds and embark upon a determination of thequestion whether the nomination of respondent No. 1 was

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improperly accepted, it could be for the purpose ofdeciding only whether the election was "wholly void"within the meaning of section 100(l)(c) of the Represent-ation of the People Act, 1951, and for no other purpose andthat, therefore, the investigation of that question, viz., animproper acceptance of nomination does not come withinsection 100 sub-clause (2) or (3), or section 101 of the Act.On this ground, it has been finally urged that the order of theReturning Officer accepting the nomination of respondentNo. 1 must be taken as final and cannot be questionedbefore the Tribunal. And we have been asked to rejectthe petition on the ground that proper relief has not beenclaimed and that we are debarred from granting reliefunder section 100 (1) (c) or under section 101 of the Re-presentation of the People Act.

Before proceeding to examine these contentions onmerits, we may refer to paragraph 12 of the petition whereit has been specifically stated that the wrongful inclusionof the name of opposite party No. 1 in the list of validlynominated candidates has materially affected the resultof " the election ". This averment to our mind coverscompletely the question that the whole of the electionhas been materially affected. The use of the words"the election'" cannot be interpreted to cover only the"general seat" and to make the election divisible into twoseparate water-tight compartments, one for the generalseat and the other for the reserved seat. In fact, theargument which has been advanced on behalf of res-pondent No. 1 is that the election is indivisible. In Elec-tion Petition No. 4 of 1952, Jagannath v. Pandurang andOthers^1), the Election Tribunal of Jabalpur dealt with acase where the constituency was a double-seated con-stituency covering a general seat and another reservedseat for the Scheduled Caste. There the Tribunal in con-struing the words of section 100 (1) (c) held that theelection so far as it relates to the reserved seat will alsobe affected by the improper rejection of the nominationrelating to the general seat because the election relatingto the two seats was one indivisible election, and not twoseparate elections held simultaneously for the purpose ofconvenience. The reasoning that was urged in support of

(1) 4 E.L.R. 167.

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that conclusion was this. Under section 63 of theRepresentation of the People Act the voters in the con-stituency are under the rules allowed two votes each,with the option of casting these votes for any of thecandidates irrespective of the fact whether he does or doesnot belong to the Scheduled Caste, the only conditionbeing that not more than one vote could be cast in favourof one candidate; and therefore it was clear that anyone of the voters who cast his vote in that case for thecandidate for the reserved seat might have cast the samevote for any other candidate, had his nomination not beenrejected, and it was of course, impossible to discover whomay or who may not have voted for the candidate to thereserved seat if the candidate whose nomination hadbeen rejected had been in the field. The same consider-ations would, pari passu, be applicable to the case of awrongful acceptance, more specially in the present case,as we shall presently show. But before we do so, wewould also refer to the provisions of section 55 of theRepresentation of the People Act, 1951. Under that sec-tion, a member of the Scheduled Caste is not disqualifiedto hold a general seat. This shows that Sri Baiju Ram,respondent No. 5, and Sri Lallu Ram, respondent No. 9,who had filed their nominations relating to the reservedseat were also contesting the election to the general seat.In a double-member constituency when two of the candi-dates of the Scheduled Caste top the polls, they carry awayboth the seats—the general and the reserved. All thesefacts go to show that the election to the general seat andthat to the reserved seat are not two separate electionsbut one indivisible election in which candidates of theScheduled Castes are also contesting for the election to thegeneral seat. It was one entire indivisible election. Ashas been held in the Jabalpur case cited above, the onlymeaning that can be put upon the words ''the election"used in section 100 (1) (c) would be "the election to boththe seats in the constituency". The words "the election'''in paragraph 12 of the petition must therefore be con-strued as meaning the whole of the election covering boththe seats in the constituency.

Similar view was taken on this question in the followingcases:—(1) Election Petition No, 104 of 1952—Niranjan

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Singh v. Brisk Bhan (*), before the Election Tribunal,Patiala; (2) Election Petition No. 3 of 1952—Surajbhan v.Hemchand(2), before the Election Tribunal, Delhi ; (3)Election Petition No. 33 of 1952—C. K. BamchandranNair v. Bamchandra Das(3), before the Election Tribunal,Quilon; (4) Election Petition No. 1 of 1952—VijayaMohan Beddy v. Paga Pulla Beddy^), before the ElectionTribunal Secunderabad ; and (5) Election Petition No. 19of 1952—Nagjibhai v. Miihabhai^), before the ElectionTribunal, Baroda, Bombay.

All these cases were relied upon and noticed in theJabalpur case(6), cited above. The reasoning adopted inevery case was the same, viz., that the election to the twoseats—one for the general and the other for the reserved—was one indivisible election and therefore the improperrejection of a nomination paper relating to either of thesetwo seats affects the entire election.

The question which we have to consider is whether in thecase of improper acceptance of a nomination paper the sameresult would follow. In our opinion, there would be no differ-ence in the result. We can illustrate this upon the factsand circumstances of the present case. In this case thevotes secured by the candidates were these (vide Ex. A2):

VotesSri Tara Chand, respondent No. 1 ... 26,275Sri Baiju Ram, respondent No. 5

(Scheduled Caste) ... 25,133Sri Lallu Ram, respondent No. 9

(Scheduled Caste) ... 11,938Sri Hanuman Prasad, petitioner ... 8,973Sri Raghuram, respondent No. 7. ... 8,002

If, therefore, the nomination paper of Sri Tara Chandwas wrongly accepted and the votes cast in his favourwere to go to the other candidates who were in the field, itmay just be that either Sri Hanuman Prasad Misra, or SriLailu Ram, or, for the matter of that, even Sri Raghurammight have been elected to the general seat. It would ofcourse be a matter of speculation to whom those 26,275

(1) 3 E. h. K. 179. | (4) 2 E. L. K. 414.(2) 2 E. L. R. 1. (5) 1 E. L. R. 16?.(3) 1 E. L. K. 442, (6) 4 E. L. R. 167.

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votes would have gone if Sri Tara Chand were not in thefield. But even if it had gone to one or to morethan one candidate, and in any proportion, the result ofthe election would have been absolutely different, andconsequently the result of the election has been materiallyaffected by the wrongful acceptance of the nomination ofSri Tara Chand. We may in this connection refer again tosection 100 (1) (c) of the Representation of the People Act.It says that if the Tribunal is of opinion that the result ofthe election has been materially affected by the improperacceptance or rejection of any nomination paper, the Tri-bunal shall declare the election to be wholly void. Theplain meaning of this clause is that before an improperacceptance or rejection of any nomination paper can be aground for setting aside an election, the Tribunal mustform an opinion that in fact the result of the election hasbeen materially affected, and not merely that it is likely tohave been materially affected. In our opinion, under thefacts and circumstances of the present case, there can beno two opinions that the result of the election has beenmaterially affected by the improper acceptance of thenomination of Sri Tara Chand.

The question next arises whether, in view of the failureof the petitioner specifically to claim any relief against SriBaiju Ram, it would entail a dismissal of the petition whenit has been found that the improper acceptance of thenomination of Sri Tara Chand has materially affected theresult of " the election ". We have already referred to para-graph 12 of the petition on this question. That paragraphhas all the elements of a valid prayer for a declaration thatthe election is wholly void, a relief falling under section84 (c). If the relief as formulated in the petition be takenas restrictive of the relief which can be claimed undersection 84 (c), even then the Tribunal is not debarred fromgranting the proper relief which justice and the circums-tances of the case require. This construction of the peti-tion which tends to harmonise two different parts of thepetition and to give each part its full meaning and impli-cation is, we think, more justified than one which eitherexcludes one of them, or reads it as subservient to theother, without any warrant to do so. A similar questionwas considered by the Election Tribunal, Quilon, in Election

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Petition No. 33 of 1952 in C. K. Ramchandran Nair »v. Ramchandra Das and Others ('). There it has beenlaid down that a contravention of section 84 of the Act inthe matter of claiming relief cannot entail a dismissal ofthe petition, which can only happen under section 90(4) ofthe Act for other infractions of the law specified in thatsection. We may here advert to the provisions of section98 of the Representation of the People Act which says,with regard to the decision of the Tribunal, that at the con-clusion of the trial of an election petition, the Tribunal shallmake an order (a) dismissing the election petition ; or (b)declaring the election of the returned candidate to be void;or (c) declaring the election of the returned candidate tobe void and the petitioner or any other candidate to havebeen duly elected; or (d) declaring the election to bewholly void.

The relief that can be granted is conditioned only by thegrounds alleged and proved to exist. The reliefs are not apart of the pleadings unlike in a civil case in which thesuitor seeking relief individually against his opponent, isthe most competent person to decide what he wants andwhat he does not want. It ought not to be open to apetitioner in an election petition to conclude his constitu-ency or to tie the hands of the Tribunal by moulding hisprayer in a manner that may best conduce to his privateends, whatever be the grounds on which he bases his claim.The question was again specifically considered in theQuilon case^) cited above; and the conclusion was veryclearly laid down in the following words :

"The above, we think, is the true intendment of thelanguage employed in sections 100 and 101 of the Act. Inthis view, granting a minor relief when a major one isasked for, or refusing to grant a major relief when only aminor one is sought, a principle which commonly arises inthe disposal of civil suits, has no analogy with the award ofrelief in an election petition, which is governed solely bythe statute of which it is a creature ".

We, therefore, come to the conclusion that whether sub-sections (1) and (2) of section 100 and section 101 aremutually exclusive or not, and whatever be the scope ofthe prayer made, or the relief claimed in the election

(1) 1 E.L.R. 442.

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petition, the relief which the Tribunal can and is boundto grant mu"st depend on grounds which it finds to exist.

In the Jabalpur case of Jagannath v. Pandurang andOthers^), it was observed that although respondent No. 13was elected to the general seat and respondent No. 18was elected to the other seat reserved for the ScheduledCastes and although in the election petition no allegationwas made against respondent No. 18 (Scheduled Caste),the election was to be declared wholly void as a result ofthe provisions of law enunciated above and the Tribunalcannot withhold that conclusion and cannot in any waymitigate the hardship which comes to the candidateagainst whom no specific allegation is made. We mayquote another passage bearing upon this question from thedecision of the Election Tribunal, Secunderabad, Deccan,in Election Petition No. 1 of 1952, Vijaya Mohan Reddy v.Paga Pulla Reddy and Others^):—

"It has also been urged before us by Mr. Subbarayudu,pleader of respondent No. 1, that we are not competent todeclare the whole election void, firstly, because the pe-titioner does not pray for it, and secondly, because thewording of the notification of the Election Commissionappointing us members of the Tribunal is such that itdoes not confer such powers on us. So far as the electionpetition is concerned, the words in the prayer of thepetitioner that we may declare 'that the election to whichthe respondent No. 1 has been returned is wholly void',do not support this contention. Declaring an electionwholly void does not mean avoiding the election only ofrespondent No. 1. With regard to the terms of referencecontained in the notification we do not think that theyconfine us to this limited scope as alleged by the respond-ent. It is inconceivable that a petition in which the groundsfor wholly avoiding an election are set out, should be referred tous, and the powers to pass the order necessary on the successof the petition should be withheld. We are unable to givethis narrow interpretation to the wording of the notifica-tion suggested by the pleader of the respondent. Thevery reference for trial of this petition, in our opinion, byimplication confers on us powers to pass any order thatis necessary under the provisions of the Act, which

(1)4E. L. R. 167, (2) 2E,L, R. 414,

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470 HANTTMAN PRASAD MISEA V. TARA CHAND [VOL. V

we may be called upon to pass as a result of ih$ trial of thepetition"'.

To sum up, therefore, our conclusion on issues Nos. 5and 6 are these. Sri Tara Chand, respondent No. 1, wasdisqualified for being chosen as a member of the UttarPradesh Legislative Assembly in view of the provisions ofsection 7 (d) of the Representation of the People Act andhis nomination paper was wrongly accepted by the Return-ing Officer. In this case, therefore, the whole electionrelating to the general and the reserved seats has beenmaterially affected as a result of the improper acceptanceof the nomination paper of Sri Tara Chand, respondentNo. 1. Consequently, the entire election relating to boththe seats must be declared to be wholly void

[The Tribunal then dealt with issues Nos. 8 and 9 andfound them against the petitioner.]

Issue No. 10.—In view of our findings on the foregoingissues our decision is that the election in respect to thegeneral seat to which Sri Tara Chand, respondent No. 1,has been returned and also in respect to the reserved seatto which Sri BaijuRam, respondent No. 5, has been return-ed should be declared wholly void. In the circumstancesof the present case, we would direct the parties to bear theirown costs.

M. U. FARUQI.—I had the advantage of perusing thejudgment of my learned colleagues. I regret that I do notagree with some of their findings on the main issues somuch so, that I think it proper to give my findings in aseparate judgment.

It was a double-member constituency to which the elec-tion in question related. One seat was reserved for theScheduled Caste and the other was open to all.

As many as twenty persons were nominated out of whomfive remained in the field to contest the election. Some ofthem were for the reserved and some for the general seat.The Returning Officer announced the result of the electiondeclaring Tara Chand, respondent No. 1, elected for thegeneral seat and Baiju Ram, respondent No. 5, for thereserved one. Hanuman Prasad, the petitioner, who ha4contested the election, was defeatecL

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Being dissatisfied with the result of the election,Hanuman Prasad filed the petition challenging the electionof Tara Chand alone. The latter contested.

Ten issues were struck from the pleadings of the parties.Issues Nos. 1 to 4 and 7 related to preliminary points andwere decided previously. Issues Nos. 5, 6, 8, 9 and 10remained for decision whereon I am going to record myfindings.

Issue No. 5.—This issue was as follows :—Is the petitioner entitled to the relief claimed by him in

view of his plea that the nomination of opposite partyNo. 1 was wrongly accepted by the Returning Officer andin view of Baiju Ram's election not having been question-ed and having become final ?

This issue can be split up in two parts. The first partrelates to the question as to whether the nomination paperof Tara Chand was improperly accepted by the ReturningOfficer and if so, whether the result of election was mate-rially affected. The second part of the issue relates tothe question whether the petition was liable to be dismissedbecause the election being indivisible no allegations weremade and no relief was sought against Baiju Ram electedfor the reserved seat.

The first part of the issue can again be split up in twoparts—improper acceptance of the nomination paper ofTara Chand and its effect on the result of the election.

Improper Acceptance of Nomination Paper.—Before deal-ing with this point I may remark that there was someattempt at the time of arguments of side-tracking themain point in controversy. While dealing with this ques-tion the general principle of confining ourselves to thepleadings of the parties must be kept in view not onlybecause it is a salutary principle which should always beadhered to by every court of law but also because none ofthe parties should be given an opportunity of set-ting up a case which the other party was not called upon tomeet.

The main allegations are contained in paragraphs 13 to18 of the petition and answer to these allegations given bythe respondent is contained in paragraphs 13 to 18, 41 and42 of the written statement,

pT,—60

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It was alleged that there was a Beopar Mandal(Merchants' Association) at Sidhauli, that it was formed byseveral firms of the town which were its members, that TaraChand was its President at the time of his nomination,that the Mandal had a contract for supply of foodgrains tothe Government, that therefore Tara Chand was disquali-fied under section 7(d) of the Representation of the PeopleAct, 1951. It was also alleged that Tara Chand had ashare in the contract for supply of foodgrains fromKamalpur Mandi which was entered into between MessrsSabita Din Ram Parshad and the Government of UttarPradesh.

The respondent admitted that there was a loosely knitbody called Beopari Mandal at Sidhauli, that firm LachhmiNarain Chunni Lai, was one of its members, that the saidMandal had an agreement to supply foodgrains to theGovernment and that the Mandal agreed with its membersto purchase from them foodgrains and to pay the pricethereof when recovered by the Mandal from the Govern-ment. He denied all the other allegations made in thepetition including the one relating to Kamalpur Mandi.The last mentioned allegation was not pressed from theside of the petitioner at the time of arguments for thesimple reason that it could not be substantiated fromevidence.

The arguments were exclusively directed to the Mandalaffair. It may be noted that the respondent made it clearin his written statement that prior to nomination he hadresigned from the Presidentship of the Mandal and that hisfirm had resigned from the membership of the Mandal.

The points in controversy therefore were :— 1. Did Mandalenter into a contract for supply of goods to Government ?2. Did Tara Chand resign from Presidentship and firmLachhmi Narain Chunni Lai from membership of theMandal prior to nomination ? 3. If so, with what effect ?And if not, with what consequences ?

First point.—The Mandal had its own rather strangestory. It came into existence some time in 1938 for thepurpose of protection of the individual firms that were intheir individual capacity open to some sort of officialexcess, it is alleged, during the war days. It was not andis still not a registered body. It had no rules or regulations,

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Annual or periodical elections of its officials were unknownto the Mandal. The terms of its membership were curious.Only such of the firms were its members in any year as hadperformed a particular kind of 'puja' in the beginning ofthe year- A firm which performed the said 'puja' used tobecome member without any application for membershipand without any resolution having been passed by theMandal. If any member-firm did not perform the said'puja' in any year, ipso facto without any resolution of theMandal it ceased to be member. There was no annualadjustment of accounts. No balance-sheet was ever drawn.No accounts were ever made. Such was the condition ofthe Mandal which in 1946 made an agreement with theSupply Department for the supply of foodgrains. Theprocedure adopted was that the member-firms used tosupply grain to the Mandal which in turn used to supplythe same to the department concerned. When money wasrealised from the said department the Mandal used to paythe price of grain supplied by any member-firm. In factthe member-firms had no concern with any departmentof the Government. Whatever dealings they had werewith the Mandal. It is not the case of the petitionerthat the member-firms had entered into any contract forsupply of goods to the Government nor is it proved fromevidence that whatever understanding there was betweenthe member-firms and the Mandal it amounted to any con-tract for supply of goods to the Government. At best itcan be said that the firms agreed to supply grain to theMandal knowing that the latter was to supply the same toa Department of the Government. But this knowledgecannot by any means be said to have amounted to acontract. This, however, was not the petitioner's case. Hiscase was that the Mandal had a contract for supply of food-grains to Government and that Tara Chand had a share orinterest,in that contract because he was President of theMandal at the time of nomination and also because he wasa member of firm Lachhmi Narain Chunni Lai which was amember of the Mandal.

The question for decision, therefore, is whether the Mandalentered into the alleged contract. It was argued from theside of the respondent that the Mandal was incapable underthe law of entering into contract. Argument of the

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petitioner's side was that the word 'contract' used in section7(d) of the Representation of the People Act, 1951, shouldbe given a wider meaning so as -to include any agreement.But I do not agree with this argument. There is noambiguity in the language employed in section 7 (d) of thesaid Act. There is no justification at all for not giving theword the ordinary plain meaning. This being so, it is to befound whether the Mandal described above was capable ofmaking a contract. My answer is in the negative becauseneither the Mandal nor its member-firms were juristic per-sons capable of entering into contract. This position wasaccepted at the time of arguments from the side of thepetitioner but it was argued from that side that all themembers of different firms individually should under thelaw be considered as members of the Mandal. But thisposition was never accepted by any one who had any con-cern with the Mandal. Even the petitioner described theMandal as consisting of the firm-members. During the longcourse of about 13 or 14 years of the existence of theMandal individual partners of the firm members were nevercalled upon to face the aforesaid position, that the law issaid to have conferred upon them. The agreement wasentered into between the Supply Department and theMandal and during the period of six years that departmentalways treated the agreement as one between that depart-ment and the Mandal not as one between the said depart-ment and the partners of the different firms which werefrom time to time members of the Mandal. In fact it wasnot possible because of the curious and uncertain methodof membership of the Mandal. The Supply Department, itappears, did not at all bother about the internal consti-tution of the Mandal. They took a practical view of things.So long as they were getting their supply they had nothingto do with anything else. Therefore the plain facts actedupon by all concerned during the long period of good manyyears and also admitted by the petitioner in his petitionleave no room for importing any meaning to the conduct ofthe parties concerned other than that which emanates fromthe admitted and proved facts. Result, therefore is thatthe Mandal was incapable of entering into a contract withanybody. If this was so, obviously section 7 (d) referredto above does not apply even if it be assumed for the sake

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of argument that Tara Chand was President of the Mandalat the time of his nomination and his firm was member ofthe Mandal.

Second point.—This brings me to the second point. Theabove narrative and discussion about the Mandal will showthat every link of the story given above makes the threadof 'contract for supply of goods to the Government' thinnerand thinner even if all the allegations of the petitioner areconsidered in the light of evidence and circumstances.

This was the condition of the relations between theMandal and the Supply Department of the Governmentwhen elections started. Tara Chand was attempting to getCongress ticket. After hectic telegraphing and telephoningwith the Congress authorities he came to know about theend of third week of November, 1951, that he was grantedCongress ticket. There came the question of his connectionwith the Mandal and of the latter's connection with theSupply Department of the Government. As the date of nomi-nation was near, Tara Chand did everything possible tosever his connection with the Mandal. He resigned fromPresidentship of the Mandal and his firm resigned frommembership thereof. In order to be on the safe side ameeting of the Mandal was held in which the two resigna-tions were placed and were accepted. Tara Chand himselftook the copy of proceedings of the Mandal to the RegionalFood Controller and handed the same to him. The saidofficer even up to the present time did not take any excep-tion to the resignation of Tara Chand. Hence it must beassumed that he had no objection and that he accepted theposition. As said above, in fact the department concernednever bothered itself with the internal affairs of the Mandal.

It was argued from the side of the petitioner that all theshow of resignation was a camouflage and that everythingwas done after nomination but I am not prepared even fora moment to disbelieve the bona fides of Tara Chand in thisconnection. The papers summoned from the office of theRegional Food Controller and his endorsement thereon givea lie direct to this contention. I hold that Tara Chandresigned from Presidentship and his firm from membershipof the Mandal before Tara Chand's nomination.

It is not proved what duties Tara Chand was to performin his capacity as President of the Mandal except that he

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along with the Secretary used to sign cheques of the Bank.As Tara Chand was granted Congress ticket very late, hewas in a hurry to sever his connection with the Mandal.He did so by tendering the two resignations. Thus hecompletely disconnected himself with the Mandal. It was,however, not possible to elect another President in suchhurry. Time was needed for the same. But the Mandalpeople felt that it would not be possible to carry on busi-ness of the Mandal if money was not withdrawn from theBank and that could only be done with the signatures ofthe President on the cheques along with the signatiires ofthe Secretary. The Mandal, therefore, though accepting theresignation of Tara Chand unconditionally, requested himto sign cheques till his successor was elected. The successorwas elected on December 4th, 1951. Between his resigna-tion and the election of new President, Tara Chand signedsome of the cheques for withdrawal of money relating topast dues. It was argued that this amounted to continuanceof Presidentship and that therefore it must be held thatTara Chand was President on the date of nomination andwas thus disqualified under section 7 (d) of the Act.

The matter is not one in which there should be anyroom for entering into legal intricacies. The plain and simplefacts are that the resignation was unconditionallyaccepted. It became operative as soon as it was accepted.Mere signing of some of the cheques cannot by any stretchof reasoning, in my opinion, negative the force of resigna-tion and its acceptance by the Mandal. Therefore I decidethe second point in the affirmative.

Third point.—In view of the above findings it must beheld that Tara Chand was not disqualified under section 7(d) of the Representation of the People Act, 1951, at thetime of his nomination.

But if it is assumed that Tara Chand was disqualified atthe time of nomination and that his nomination paper wasimproperly accepted, it must be proved as a fact in orderto attract the provisions of section 100 (1) (c) of the afore-said Act that the result of the election was materiallyaffected by improper acceptance of the nomination paperof Tara Chand.

As there was considerable difference of opinion on thispoint, I shall at first discuss the legal aspect of the matter

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and then I shall show how far in this case it has or has notbeen proved that the result of the election was materiallyaffected by the so-called improper acceptance of thenomination paper of Tara Chand.

Section 100 of the Act so far as relevant for the presentcontroversy is as follows :—

"Section 100—Grounds for declaring election to be void :(1) If the Tribunal is of opinion :

(a) ;(b) ;(c) that the result of the election has been materially

affected by the improper acceptance or rejection of anynomination the Tribunal shall declare the election to bewholly void. "

Provisions of law in the past were exactly the same asabove.

While interpreting these provisions of law, the Commis-sioners deciding the election case in the past drew adistinction between improper acceptance and improperrejection of the nomination paper. In the latter casethey held that it should be presumed that the result ofthe election was materially affected and that it was for therespondent to rebut that presumption. But in the formercase, i.e., in the case of improper acceptance of a nominationpaper it was held that the petitioner should prove it as afact that the result of the election was materially affectedbefore the election could be held void.

I proceed to discuss in chronological order such of theold cases of improper acceptance of nomination paper, ascame to my knowledge.

The first case in the Insein case of 1923, P. D. Patel v.Maung Ba Olay and Maung Kayaw Din{1). Three personswere nominated, namely' Maung Ba Glay, the first respond-ent who secured 699 votes, P.D. Patel, the petitioner whosecured 588 votes, and Maung Kayaw Din, the second respon-dent who secured 349 votes. The Commissioners held thatthe nomination paper of the second respondent was impro-perly accepted. Parties adduced evidence to prove that theresult of the election was materially affected by improperacceptance of the nomination paper of the second respond-ent. Besides other evidence, the second respondent himsejf

(1) Hammond 411.

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was produced from the side of the petitioner and he statedthat if his nomination had been refused all the votes castfor him would have gone to the petitioner. On the otherhand, the first respondent produced evidence to show thatthe votes would have gone to him. The Commissioners afterweighing evidence of the parties came to the conclusionthat the votes of second respondent would have gone to thefirst respondent. Therefore, while dismissing the petitionthe Commissioners held that the result of the election wasnot materially affected by the improper acceptance of thenomination paper of respondent No. 2. This decision laysdown that where nomination paper of a candidate had beenimproperly accepted, it must be proved that the votesgiven to this candidate would in fact have been given topetitioner and would in number have given him majorityin order to set aside the election.

Another case on the point is C. M. Karale v. B. K. Dalvaiand 8. N. Angadi{1). In that case the only question fordecision was as to whether the nomination paper ofMr. Lathe was improperly accepted and if so whether theresult of the election was materially affected. While dealingwith the case the Commissioners remarked :

" The Commissioners think it desirable to note,particularly in view of some of the cases cited before them,that the present is not a case of improper refusal of a nomi-nation paper, but its improper acceptance. This distinctionbetween the two cases is obvious ; in the one case the wholeelectorate is deprived of its rights to vote for a candidatewho was legally entitled to stand; in the other all thecandidates including a disqualified one are put up for elec-tion and every one on the electoral roll of the constituencyhad the opportunity of voting for the candidate or candi-dates he prefers. " ,

The Commissioners then discussed the facts of the casebefore them and observed :

" Under the circumstances the Commissioners thinkthat the onus rests very heavily on the petitioner of pro-ving by affirmative evidence that all or a large number ofMr. Lathe's votes would have come to ^/Lr. Chikodi, if theformer had not been in the field. Now, has the petitionerattempted to discharge this onus ? The Commissioners areof opinion that he has entirely failed to do so. "

(1) 2 Jagat Narain 31.

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There were four candidates for election in that case, oneof them being Mr. Lathe. The Commissioners held thatMr. Lathe was disqualified and that therefore his nomina-tion was improperly accepted by the Returning Officer.They, however, held that the petitioner entirely failed toprove that the result of the election was materially affect-ed by the improper acceptance of the nomination paper ofMr. Lathe.

After drawing a distinction between section 13 of theBallot Act of England and rule 42 of the electoral rules—the latter rule was the same as section 100 of the Act citedabove—they remarked that:—

" The petitioner must satisfy the Tribunal that theresult of the election was as a fact materially affected, notmerely that it might have been affected."

Before parting with this case I may remark that thegeneral principles enunciated by the Commissioners in thejudgment were based not merely on their interpretation ofthe law on the point but also 'particularly in view of someof the cases cited before them'.

The third case on the point is Piarey Lai v. MunshiAmba Prasad^) of Agra District Non-MohammadanRural Constituency. There were six candidates for theelection which was the subject of inquiry in the case undernotice. Two of them were Mr. Amba Prasad and BabuRama. Mr. Amba Prasad objected before the ReturningOfficer to the nomination of Babu Rama on the groundthat his nomination paper was presented after 3pm. , andwas consequently invalid. His objection found favour withthe Returning Officer and the nomination paper of BabuRama was rejected as filed beyond time. The other fourcandidates withdrew their candidature and Mr. AmbaPrasad was declared duly elected.

Thereupon Piarey Lai, an elector, filed the election peti-tion for a declaration that the election of Munshi AmbaPrasad, respondent No. 1, be declared void and that BabuRama, respondent No*. 2, be declared to have been dulyelected on the ground that the nomination paper ofMunshi Amba Prasad was improperly presented and thatthese irregularities had materially affected the result of the

(1 )4 Jagat Narain 4; Hammond 29,

EL—61

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election. Mr. Amba Prasad contested the election. Therewere three main issues :—

1. Was the nomination paper of Mr. Amba Prasadimproperly presented ?

2. Was the nomination paper of Babu Rama properlypresented ?

3. Was the result of the election materially affected bythe wrongful acceptance or non-acceptance of any nomi-nations ?

After discussing the evidence the Commissioners foundthat the nomination paper of Munshi Amba Prasad was im-properly accepted and that the nomination paper of BabuRama was improperly rejected. Thus the case was bothimproper acceptance and rejection.

While giving their findings on issue No. 8, the Commis-sioners made certain remarks which became the subject ofcomment in another case to be presently noticed. Theyremarked:—

" It is now well settled that when the nominationpaper of a candidate has been improperly rejected, theordinary presumption is that the result of the election hasbeen materially affected. Improper acceptance or refusalof a nomination by the Returning Officer in our view is sograve an irregularity that this presumption would requirethe strongest and most conclusive proof for its rebuttal andit lies heavily on the respondent to rebut the presumptionso raised. We do not think that correctness of the aboveproposition is open to doubt, but in support of the generalprinciple we may refer to the following English andIndian cases ".

Then followed citation of four English and three Indiancases.

It appears from the above citation that the Commission-ers who decided that case bracketed improper acceptancewith improper rejection. This is, however, not so. TheCommissioners had both the issues before them and theirfinding of fact on both the issues was in favour of the peti-tioner. But, while dealing with the last issue their atten-tion was mainly—and I would not be wrong if I sayexclusively—centred on the question of improper rejection.I could not check the English rulings cited by them but thethree Indian cases all relate to improper rejection. In the

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beginning of their finding on issue No. 8 they remarkedthat the judicial opinion on the point was well settled. Thisalso refers to the question of improper rejection. In thisview of the matter, I am definite that improper acceptancecannot be bracketed with improper rejection so far as theburden of proof is concerned. I am also definite that theCommissioners deciding that case did not in fact intend tolay down any such principle.

This brings me to another case in which the last men-tioned two cases were discussed and referred to. That caseis ' S. Moola Singh v. Ch. Mangu Ram and Othersi1) ofHoshiarpur West General Constituency, 1946.

In that case S. Moola Singh, a Scheduled Caste candi-date, challenged the election of Ch. Mangu Ram respond-ent No. 1, and Ch. Mehar Chand respondent No. 2, who weredeclared elected to the reserved and the unreserved seatsrespectively, from the aforesaid constituency and furtherclaimed a declaration of election to the reserved seat andin the alternative that the whole election was void.

The election was assailed, inter alia, on the ground thatthe first respondent was guilty of corrupt practice of person-ation and that the nomination paper of the second res-pondent was improperly accepted as he was below 25 yearsat the time of nomination and as such was disqualified.

The Commissioners found that the nomination paper ofCh. Mehar Chand was improperly accepted. Then theyproceeded to deal with the question as to whether theresult of the election was materially affected by the improperacceptance of the aforesaid nomination paper. At the outsetthey cited the two cases which I have discussed above.As found by me, the case of Piarey Lai v. Munshi AmbaPrasad(2) is no authority on the question of burden ofproof in case of improper acceptance of the nominationpaper. The other case cited by them, i.e., Karale v. Dalvaiand Angadi (the Belgaum case)(3), laid down the very sameprinciple as was the basis of decision of the Insein casereferred to above. The Commissioners who decided S. MoolaSingh's case(1), however, did not agree with the view ofeither of the two cases. After consideration of the pro-visions of law they came to the conclusion that :

(1) Sen and Poddar 945. (3) Jagat Narain 31,(2) Jagat Xarain 4; Hammond 29.

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"what is required is that the Commissioners must, onthe material on the record and the surrounding circum-stances come to the conclusion that, but for the improperacceptance of the nomination paper of a particular candi-date the result in all probability would have beendifferent."

The Commissioners then proceeded to apply the abovetest and observed :

"We have the admissions of respondent No. I (Ch.Mangu Ram) in cross-examination that all the two votescast in favour of Ch. Mehr Chand, the disqualified candi-date, were entirely due to his having been given Congressticket, and that if S. Moola Singh had secured the Congressticket the votes cast in favour of Ch. Mehar Chand wouldhave gone to him. Further, S. Mula Singh had in 1937elections been given the Congress ticket and in all pro-ability, if Ch. Mehar Chand's disqualifications had beenknown he would have secured the Congress nomination forthe reserved seat and as such there can be no doubt thatthe result of the election would have been different."

I have purposely cited the above passage because I shallshow while dealing with the case before me that it doesnot even stand the test given above.

The last case of this category of pre-1951 days that cameto my notice is R. S. Ram Jawaya Kapur v. R. B. GcmgaSaran and Others (x), relating to the Trade Union Labour(North-Western Railway Union) Constituency, 1946,decided on May 30, 1950. In this case the petitionercontested the seat along with the eight respondents, butwas beaten by respondent No. 1 by 10 votes, while theother respondents polled very low and did not contest thepetition. The petitioner alleged malpractices on thepart of the returned candidate for invalidating his elec-tion. He prayed that the election of the respondent bedeclared void, and he be declared to have been dulyelected.

One of the grounds taken up by the petitioner was thatthe nomination paper of the first respondent was im-properly accepted by the Returning Officer. After con-sidering the evidence the Commissioners, found thattechnically the nomination paper of respondent No. 1 was

(X) Sen and Poddar 823.

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improperly accepted. Having recorded this finding, theyproceeded to consider whether the result of the electionwas materially affected by the improper acceptance of thesaid nomination paper. While considering that point theyremarked:—

"Even if there be some technical flaw in the nomina-tion of the respondent, the petitioner has still to showthat this nomination has materially affected the resultof the election, and but for this nomination he himselfwould have succeeded at the polls. If the nominationhas been improperly accepted and the electors haveexercised their right of franchise, the election cannot beset aside unless it can be proved by the petitioner thatthe result of- the election has been materially affected.In other words, he has further to prove to the satisfactionof the court by affirmative evidence that all or a majorityof the votes given to the candidate, whose nominationwas improperly accepted, would have come to him andhe would consequently have had a majority over thereturned candidate. There is a difference of proof in thecase of an improper acceptance and an improper rejection ofa nomination paper. In the latter case the whole electorateis deprived of its right to vote for a candidate who was enti-tled to stand, whereas in the former case all the candidates,even the disqualified one, are put up for election and everyone on the electoral roll has had an opportunity of voting forthe candidate or candidates he prefers. Therefore, in thecase of improper rejection of a nomination the court maypresume that the result of the election has been materiallyaffected and may avoid the election. But in the case ofan improper acceptance the petitioner must prove byaffirmative evidence that the result has been materiallyaffected".

After laying down the above principle the Commis-sioners pointed out that

"on this point the petitioner has not led any evidenceat all. There is not an iota of evidence to show that theresult of the election would have been materially affectedin his favour, had the respondent's nomination beenthrown out by the Returning Officer."

The cases cited above all relate to improper acceptance.But in numerous cases of improper rejection of nomination

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paper the same distinction has been drawn. Some ofsuch cases taken from Sen and Poddar are Basti N.E.casei1), Batala Sikh case(2)and Razzar M.R. case(3).

Moreover the principle enunciated above applies to allcases of irregularities which cannot be ground of avoidanceof election unless it was proved that the result of the elec-tion was materially affected by the irregularity. In all suchcases it has been repeatedly held that it is for the peti-tioner to prove by positive evidence that the result of theelection was materially affected.

There are good many books and commentaries on thelaw of election in our country written by eminent lawyersand jurists whose opinions have been cited with approvalby different election courts. There is consensus of opinionamong them on the point that in case of improper accep-tance of a nomination paper the election cannot be setaside unless the petitioner proves positively that theresultof the election was materially affected by the improperacceptance of the nomination paper. I may refer toJagat Narain's Law of Elections and Election Petitionspage 323, Sarin and Pandit's Indian Election Law, page434, and Nanak Chand Pandit's Law of Elections and Elec-tion Petitions, page 415.

Having shown that there was preponderance of autho-rity in support of the principle enunciated above, I proceedto find whether the petitioner has proved that the result ofthe election was materially affected by the alleged improperacceptance of the nomination paper of Tara Chand. Thereis not a word in the evidence adduced from the side ofpetitioner nor is there anything in the cross-examinationof the respondent's evidence which may throw any lighton this point. Mere speculation that the votes cast infavour of the respondent might have gone to the peti-tioner if the respondent had not been in the field cannotdo. There should have been positive evidence on thepoint from the side of the petitioner. In the com-plete absence of evidence it is impossible under the lawto hold that the result of the election was materiallyaffected and the refore the election should be avoided.

It appears from paper Ex. A2 that there were . fivecandidates in the field, namely,

(l)Ssn& Poddar 106. (2) Sen & Poddar 122. (3) Sen & Poddar 716.

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Tara Chand, respondent No. 1, who secured 26275 votes.Hanuman Prasad, petitioner, who secured 8973 votes.Lallu Ram, respondent No. 9, who secured 11938 votes.Baiju Ram, respondent No. 5, who secured 25133 votes.Raghuram, respondent No. 7, who secured 8002 votes.

There is no evidence to prove that if Tara Chandhad not been in the field the votes cast for him or asubstantial part thereof would have gone to HanumanPrasad.

There is not an iota of evidence on this point on therecord.

Even if the test given in S. Moola Singh's case(1) citedabove, be applied and probabilities and circumstances ofthe case be taken into consideration no result favourable tothe petitioner can be achieved. In that case there wereprobabilities and circumstances based on positive evidenceon the basis of which the Commissioners found that inall probability the votes of the successful candidatewhose nomination paper was improperly accepted wouldhave gone to the petitioner. But in this case there doesnot exist any evidence at all on which any probabilitiesor circumstances can be based. To assume that TaraChand'sx votes might have gone to the petitioner wouldbe mere speculation and surmise on which a findingwhich should follow from positive evidence under the lawcannot under any circumstances be based.

Therefore in view of what is said above I definitelyfind that it has not been proved that the result of theelection was materially affected by the so-called im-proper acceptance of the nomination paper of Tara Chand.I hold that the petitioner is not entitled to the reliefclaimed by him or to any other relief in view of his pleathat the nomination of the respondent No. 1 was wronglyaccepted by the Returning Officer.

The second part of issue No. 5 raises another importantquestion. While dealing with this part of the case Iwould again emphasise that the consideration of the casemust be confined to the pleadings of the parties. Aperusal of the petition leaves no room for doubt that the

(1) Sen and Poddar 945,

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petitioner questioned only the election of Tara Chandon various grounds. It is also clear that his only attemptwas to oust Tara Chand and himself to replace him. Thisis apparent from the fact that no allegation has beenmade in the whole of the petition against the election ofBaiju Ram from the reserved seat. It was argued thatno allegation against Baiju Ram was possible becausehis election was free from any illegality or irregularity.This reasoning, however, does not hold water becausethe election of the two—of Tara Chand and of BaijuRam—being indivisible, the petitioner should havealleged in the petition that because the election of TaraChand was void the election of Baiju Ram should alsobe held void. In the absence of any such allegationagainst Baiju Ram the latter kept quiet and did notput in appearance. He was, under the circumstances,justified in keeping himself away. The inference that thepetitioner never thought of challenging the whole electionincluding that of Baiju Ram is further confirmed from theprayers made by the petitioner at the end of the petition.

Under section 100 of the Act the whole election is to bedeclared void if it was proved that the nomination paperwas improperly accepted and that the result of the electionwas materially affected by the improper acceptance of thenomination paper. If the petitioner had intended challeng-ing the whole election including that of Baiju Ram hewould have made a prayer that the whole election shouldbe set aside. This prayer is, however, not made in thepetition. It is thus clear that allegations made in the petitionshow it beyond any shadow of doubt that the petitioner'sonly intention in filing the petition was to get the electionof Tara Chand alone set aside and also to get a declarationthat he himself was elected in his place. This was animpossible stand that was taken by the petitioner andmanifestly the petition was a misconceived one. I cannotreconcile myself to the idea of proceeding beyond thepleading and of permitting the petitioner to set up a caseat the time of arguments which was fundamentally differentfrom the one set up in clear and unambiguous terms in thepetition.

The petition must, in my judgment, be thrown out on theground that the petitioner does not challenge the election

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of Baiju Ram, that he does not claim a relief against him,and that he does not pray for the avoidance of the wholeelection.

During the course of arguments when the petitioner'slearned counsel was asked as to why no allegation was madeagainst Baiju Ram and no relief claimed against him, heanswered that though no relief was claimed against BaijuRam, in paragraph 12 of the petition the whole electionwas challenged. That paragraph runs as follows:—

" That the wrongful inclusion of the name of oppositeparty No. 1 in the list of validly nominated candidates hasmaterially affected the result of the election ".

It was argued that " the election" at the end of theparagraph meant the whole election including that of BaijuRam. This is without doubt a forced argument. Words" the election " were certainly not used to mean the wholeelection including that of Baiju Ram. A perusal of thewhole petition will without doubt show that the petitionernever meant to challenge his election.

Therefore, in view of what is said above, it is clear that,to grant a relief of avoidance of election would be goingbeyond the pleadings for which there is complete absenceof justification under the law.

It is true that under section 98 of the Act the Tribunal isempowered to make an order on any one of the four pointsmentioned therein including the order declaring the electionto be wholly void, but such an order must emanate fromthe pleadings supported by evidence. In this case, aspointed out above, if we confine ourselves to the pleadings,it would be found that the petition is totally silent aboutthe election of Baiju Ram and the evidence is whollywanting in respect of that matter.

Any order on the points specified in section 98 can nodoubt be made by the Tribunal but the section does not byany stretch of reasoning contemplate that the Tribunal maypass orders which do not emanate from pleadings and whichconfer on the petitioner an unclaimed and undeservedadvantage to the detriment of the right and interest of therespondents, particularly of Baiju Ram against whomno allegation is made a.nd no relief is sought by thepetitioner.

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Therefore my finding on the second part of issue No. 5 isthat the petitioner is not entitled to the relief claimed or toany relief in view of the fact that he did not challenge theelection of Baiju Ram which became final and that theelection in question being indivisible even the election ofTara Chand cannot be avoided.

To sum up—It is a well known principle of election law in India

and also in Great Britain that elections should not beset aside on flimsy grounds. The reason is obvious.Elections are conducted at enormous costs and have to becarried out at different polling stations spread out atdifferent places. Much of public time and money is spentin carrying out the elections. The law has, therefore,created clogs and hindrances. It does not contemplate thesetting aside of elections on flimsy grounds. To check thisit is provided that the irregularities in the conduct ofelections and improper acceptance or rejection of nomina-tion papers would not invalidate an election unless it isproved that the result of the same was materially affectedthereby.

The election courts also have always been reluctant toset aside an election unless and until it was fully establishedfrom evidence that the result of the election was materiallyaffected by any irregularities or by improper acceptance orrejection of the nomination paper. I have shown abovethat it is always to be proved by positive evidence, theburden of which is initially on the petitioner.

In this case the petitioner could not prove that Tara'Chand had on the material dates an interest in any con-tract for supply of goods to the Government. I have alsoheld that even if it be granted that Tara Chand had anysuch interest the same was purely of a technical and flimsynature which should not result in invoking the provisionsof section 7 (d) of the Act. I have lastly held that even ifit be granted that Tara Chand is hit by section 7(d), thepetitioner has miserably failed to establish by positiveevidence—in fact he did not give any evidence at all—thatthe result of the election was materially affected by the im-proper acceptance of the nomination paper of Tara Chand.

I have also held that the election of Tara Chand andBaiju Ram being indivisible the petitioner should ha,ve

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challenged the latter's election as well, and should havesought relief against him also. As this was not done, thepetitioner was entirely precluded from getting the relief ofavoidance of election.

Issue No. 5.—Is decided accordingly.Issue No. 6.—In view of my findings on the first part of

issue No. 5, this issue is decided in the negative.Issues Nos. 8 and 9.—I agree with the findings of my

learned colleagues in respect of these issues. Hence I neednot discuss the reasons. These issues are decided againstthe petitioner and for the respondent.

Issue No. 10.—In view of my findings recorded above,I find that the petitioner is not entitled to any relief.

Therefore I would dismiss the petition with costs.Order by the Tribunal.—In view of the opinion of the

majority of the members of the Tribunal, the Tribunaldirects that the election in respect to the general seat towhich Shri Tara Chand, respondent No. 1, has been returnedand also in respect to the reserved seat to which Sri BaijuRam, respondent No. 5, has been returned should be declaredwholly void. In the circumstances of the present case, theparties should bear their own costs.

PRELIMINARY- ORDER.

(January 17, 1953).This is an election petition filed by Sri Hanuman Prasad

Misra, who was one of the duly nominated candidates forelection to the Legislative Assembly of TJttar Pradesh fromSidhauli West Constituency for the general election held in1951-52 to get the election of the successful candidateSri Tara Chand, respondent No. 1, declared null andvoid and to get it declared that the petitioner was dulyelected.

The respondents were duly served; but only respondentNo. 1, Sri Tara Chand, and respondent No. 7, Sri Raghuram,have entered appearance and have filed their writtenstatements. Ten issues were settled in the case on the 13thof December, 1952, of which preliminary issues Nos. 1 to 4and 7, which are as follows, have been heard :—

1. Is the petition liable to be rejected for want ofproper verification ?

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2. Is the petition liable to be rejected for non-compliance with the provisions of sections 83 (2) and 117 ofthe Representation of the People Act, 1951 ?

3. Are the allegations of corrupt and illegal practicesin paragraphs 27 to 33 vague and indefinite and should notbe entertained for that reason ?

4. Can the allegations of corrupt and illegal practicesin paragraphs 27 to 33 be entertained in the absence of alist of such practices and in the absence of properverification of such list as required by section 83 (2) ofthe Act?

7. Was the nomination paper of the respondent No. 1invalid for the alleged reason that he had not appointedany election agent as contemplated by section 40 ofthe Act?

We shall take up issue No. 7 before we proceed to con-sider the other issues formulated above. We have lookedinto the nomination paper of respondent No. 1 that wasdelivered to the Returning Officer in the prescribed form asrequired by section 33 of the Representation of the PeopleAct, 1951, and we are clearly of opinion that no invalidityattaches to the nomination paper. The nomination paperhas been assailed on the ground that respondent No. 1 hadnot appointed any election agent previous to the filing ofthe nomination paper as contemplated by section 40 of theRepresentation of the People Act, 1951. That section laysdown that every 'person nominated as a candidate at anelection shall before the delivery of his nomination paperunder sub-section (1) of section 33 or under that sub-sec-tion read with sub-section (4) of section 39, as the casemay be, appoint in writing either himself or someother person to be his election agent. Sub-section (2) ofsection 40 lays down that when a candidate appoints someperson other than himself to be his election agent, he shallobtain in writing the acceptance by such person of theoffice of such election agent. Section 33 (3) of the Repre-sentation of the People Act, 1951, says that every nomina-tion paper delivered under sub-section (1) shall be accom-panied by a declaration in writing subscribed by the candi-date that the candidate has appointed as his election agentfor the election either himself or another person who is notdisqualified under this Act for the appointment and who

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shall be named in the declaration, and by such other decla-ration, if any, as may be prescribed; and no candidateshall be deemed to be duly nominated unless such declara-tion is, or all such declarations are, delivered along withthe nomination paper. In the present case, the nominationpaper was in the prescribed form : [vide rule 4 and ScheduleII of the Representation of the People (Conduct of Elec-tions and Election Petitions) Rules 1951]. It also contain-ed the declaration by which respondent No. 1 stated thathe appointed himself as his election agent and such decla-ration was signed by him. What is contended on behalf ofthe petitioner is that a declaration alone was not sufficientand that another letter should have " accompanied " thenomination paper appointing himself as his election agentin order that it should have been a sufficient compliancewith section 33 (3) and section 40 of the Representation ofthe People Act, 1951. We have looked into the provisionsof sections 33 and 40, and of the rules aforesaid and we" areclearly of opinion that the contention of the petitioner onthis point is not at.all sound. The Representation of thePeople Act, 1951, prescribes the form of nomination paper :(vide rule 4 and Schedule II of the Act). The addition ofrule 11-A and Form 5-A of the Rules confirms us in ourview that no change was effected in the form prescribed byrule 4 and Schedule II of the Rules, which would coverthe present case. Rule 4 says that every nomination papershall be completed in the form specified in Schedule II.Schedule II is what is called the " nomination paper ". Itis a comprehensive document containing 16 heads, speci-fying the name of the constituency, the name of the candi-date,, the name of the proposer, the name of the seconderand their signatures, and certain other particulars, followedby a declaration by the candidate that he agrees to thatnomination, further followed by an " appointment of anelection agent" by which the candidate has to declarethat he has appointed either himself or some one else to behis election agent. Rule 11-A of the rules lays down thatwhen a candidate appoints in the manner provided by sec-tion 40, some person other than himself to be his electionagent, such appointment shall be in Form 5-A. If we lookto Form 5-A, we would find that it is a form for appoint-ing as election agent some one other than the candidate

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himself. The Form 5-A also prescribes that the personother than the candidate, if appointed as election agent,has to give his acceptance in writing of his appointment assuch and he has to sign such acceptance. Obviously, there-fore, no separate form has been prescribed for appointingthe candidate himself as his election agent other than thedeclaration contained on the form of the nomination paperitself. Such a declaration is a declaration as prescribed bysection 33(3) of the Representation of the People Act, 1951.It is not necessary that the declaration should be con-tained on a separate chit of paper in order to fulfil themeaning of the word " accompanied" contained in section33(3). In the present case, the nomination paper that wasdelivered under sub-section (1) of section 33 was accom-panied by a declaration in writing subscribed by the candi-date that the candidate had appointed himself as his elec-tion agent for the election. Consequently, there was nobreach of any provision of the Act or of the rules ; and itcannot for a moment be contended that the nominationpaper of respondent No. 1 was invalid for the alleged rea-son that he had not appointed any election agent previ-ous to the filing of his nomination paper as contemplatedby section 40 of the Act. This ground of objection bearsno substance whatsoever and must be completely repelled.

We would now come to deal with issue No. 1, which is tothe effect as to whether the petition is liable to be rejectedfor want of proper verification. The petition of SriHanuman Prasad Misra is verified in the following terms:—

" That, I, Hanuman Prasad Misra, do hereby verify thatthe contents of paragraphs 1 to 9 above are true to thebest of my knowledge and belief, paras. 11 to 37 are trueon information received, and I affix my signature this16th day of May, 1952, at 11-30 hours.

HANUMAN PRASAD MISRA. "

It has been contended on behalf of respondent No. 1that the verification is not a proper verification. It hasbeen argued that paragraghs 1 to 9 of the petition, whichcontained matters which are admitted by the respondent,have been verified by the petitioner as true to the best of hisknowledge and belief; but since the controversial matterswhich are contained in paragraphs 11 to 37 have been

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verified as " true on information received ", and since thepetitioner has not stated in that verification that " hebelieves that information to be true ", it is a clear evasionof Order VI, Rule 15, of the Code of Civil Procedure. It hasfurther been argued that the place of verification has alsonot been mentioned, which is another defect in the verifi-cation. It is no doubt true that the place of verificationhas not been given in the verification clause ; but that byitself is not such a defect as to entail the total rejection ofthe petition. It is a trivial matter which cannot in ouropinion affect the whole of the verification. We are also ofopinion that it was not necessary for the petitioner to addin the verification clause after the words " That I,Hanuman Prasad Misra do hereby verify that the contentsof paragraphs 11 to 37 are true on information received," thewords " which I verily believe to be true. " The dictionarymeaning of the word " verify " is " to make out or show tobe true, " or " confirm the truth or authenticity of." Ifwe bear in mind this dictionary meaning of the word" verify ", the verification contained at the foot of thepetition would mean that the contents of paragraps 11 to37 were verified by the petitioner as true on informationreceived, which the petitioner believed to be true. InRajit Ram and Others v. Katesar Nath and Others^), a FullBench of the Allahabad High Court in considering theverification of the plaint which was in the following terms,namely, "the contents of the petition of plaint are true tothe best of my knowledge and belief", held that this formof verification, though not free from ambiguity, was in subs-tantial compliance with the provisions of section 52 of theCode of Civil Procedure. In our opinion, therefore, theverification of the present petition substantially complieswith the provisions of the Code of Civil Procedure and thepetition cannot be rejected on the ground that it is notproperly verified.

We would now take up issues Nos. 2 to 4 for considera-tion. These issues contain the question as to whether theallegations of corrupt and illegal practices in paragraphs27 to 33 of the petition are vague and indefinite andshould not 15e entertained for that reason, and also in theabsence of a list of such practices and proper verification

(1) T,UR. 18 All. 396,

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thereof as required by section 83(2) of the Representationof the People Act, 1951, and also for non-compliance ofsection 117 of that Act. Section 117 lays down that thepetitioner shall enclose with the petition a GovernmentTreasury receipt showing that a deposit of Rs. 1,000 hasbeen made out by him either in a Government Treasury orin the Reserve Bank of India in favour of the Secretary tothe Election Commission as security for the costs of thepetition. In the present case, the deposit that has beenmade with the petition and has been accepted by theSecretary to the Election Commission was a sufficientcompliance within the meaning of section 117 of the Act.Consequently, it cannot be suggested that the petitionshould be rejected because of non-compliance of thatsection.

Para. 27 of the petition enumerates certain irregularitieswhich are alleged to have occurred at the time of countingand on the date of polling. Except sub-clauses (ii), (iii), (iv),(ix) and (x) of that para, all the other sub-clauses areabsolutely vague and indefinite and wanting in particulars.Paragraphs 28, 29, 30, 31, 32 and 33 of the petition arealso supremely vague and indefinite. Section 83 of the Re-presentation of the People Act, 1951, has made the lawrelating to "particulars" much more stringent in Indiathan it is in England. A petitioner is obliged to disclosehis case at the very earliest opportunity. This undoubtedlyis a salutary provision and gives effect to the opinion ex-pressed by Bruce J., as far back as 1895 in the Lancastercase(x). He said : " He should much prefer to see in a peti-tion, instead of general allegation of corrupt and illegalpractices, separate paragraphs setting out the character ofthe offences charged against the respondent so that he (therespondent) may be informed from the first of the generalcharacter and nature of the charge preferred against him."It may be noted that under section 83, sub-section (2), ofthe Representation of the People Act, 1951, the petitionerhas to set forth the full particulars of any corrupt or illegalpractices which he alleges ; and it is further with referenceto name, place or date that his statement should be as fullas possible. The petitioner cannot plead that'at the timeof his presenting his petition it was impossible to get any

{\) 5 O'M. & H, 41,

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particulars at all; for, if such a plea were to be allowed,then the whole object of the Act would be frustrated. Itfollows, therefore, that if particulars are not given, thoseparagraphs in the petition which deal with corrupt orillegal practices or with illegalities should be struck off. Inthe Bulandshahr Case(1), it was urged that the words"particulars" was restricted to " corrupt practices " andthe facts alleged in two of the paragraphs of the petitionwere mere "irregularities". The Commissioners observedthat they were not prepared to dispense with the concisestatement of the material facts required by the rule, andthey were not in a position to accept the two paragraphsas they contained no statement of facts whatsoever. TheCommissioners accordingly directed that the two para-graphs which were vague and indefinite be struck off. Wewould prefer to follow the same principle and we wouldproceed to examine which of the allegations in paragraphs27 to 33 are vague and indefinite so as to merit expunc-tion. Paragraph 27 of the petition as we have already saidenumerates certain irregularities alleged to have occurredat the time of the counting and on the date of polling.Sub-clauses (i) (a), (b) and (c) and sub-clauses (v), (vi) (vii)(viii) and (xi) of that paragraph, as also the averments inparagraphs 28, 29, 30, 31, 32 and 33 have been closelyexamined by us along with the learned counsel for theparties and we are clearly of opinion that these paragraphsare entirely vague and indefinite. They must be expunged.As regards paragraphs 27 (ii), (iii), (iv), (ix) and (x), theparticulars are given to a certain extent and investigationabout these allegations may be made on the question as towhether they, if found true, materially affected the resultof the election or not. These paragraphs would thereforebe allowed to stand. We would therefore hold that the alle-gations of corrupt and illegal practices and irregularitiesin paragraphs 27 to 33 to the extent indicated above arevague and indefinite and should not be entertained thatthese paragraphs should be expunged to the extent indi-cated above. We would further hold that the petition isnot liable to be rejected for non-compliance with any pro-visions of section 83 (2) and 117 of the Representation ofthe People Act, 1951. We would decline to enter into the

(1) Hammond 219.

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question as to whether the allegations of corrupt andillegal practices in paras. 27 to 33 can be entertained inthe absence of a list of such practices and in the absenceof proper verification of such paras,, because we havealready held that the allegations contained in theseparagraphs are vague and indefinite to the extent indi-cated above and should not be entertained.

In the result, we direct that paragraphs 27 (i), (a), (b),(c), (v), (vi), (vii), (viii), (xi) and paragraphs 28, 29, 30, 31,32 and 33 of the election petition dated the 16th of May,1952, be struck off.

In view of our findings on issues Nos. 1 to 4 and 7, theissues framed are amended as follows :—

"8. Are the allegations contained in paras. 20 to 26,27 (ii), (iii), (iv), (ix), (x) and 34 to 36 true and if so wasthe result of the election materially affected by such factsOr by any of them ?

9. Are the allegations relating to corrupt and illegalpractices contained in para. 27 (ii), (iii), (iv), (ix), (x) trueand if so what is its effect ?"

Order accordingly.

[ELECTION TRIBUNAL, PATTALA.]

SHIVDEV SINGHv.

DARA SINGH AND OTHERS.V. B. SARWATE (Chairman),

RAGHUNANDAN SARAN and E. M. JOSHI (Members).April 25, 1953.

Election "petition—Dissolution of Assembly—Whether petition abates—Enquiry into corrupt practices—Necessity of- Election expenses—Alle-gation that petitioner has made false return—When to be tried—Repre-sentation of the People Act, 1951, ss. 98, 99, 140,143.

By the combined operation of sections 98 and 99 of the Representa-tion of the People Act, 1951, when an election is sought to be set asideon the ground of corrupt practices the Tribunal has, in addition to dec-laring whether the election is or is not void, to record a finding whetherany corrupt practice was proved or not. Consequently, though it hasdeclared the election void in another election petition or owing to thePresident's Proclamation dissolving the Assembly the necessity formaking a declaration of the election being void does not remain, still

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k L.B.] SHIVDEV SINGH V. DARA SINGH 497

the petitioner could insist that a finding about corrupt practices used inthe election should be given.

Carter v. Mills (9 C. P. 117), Marshall v. James (9 C. P. 702), ExeterCase (6 O'M. and H. 228) and Nurul Islam v. J/7L Bafique and Others(2 E. L. R. 70) referred to.

The petitioner cannot, however, insist that the Tribunal shouldrecord its findings about all the corrupt and unfair practices alleged inthe petition, the cumulative effect of which may have been necessaryto be considered to see if the election had to be declared void as beingmaterially affected by such practices.

The respondent is not entitled to claim an inquiry in an electionpetition into an allegation that the petitioner's return of election ex-penses is false, if the petitioner has not claimed that he should bedeclared elected.

ELECTION PETITION NO. 90 of 1952.

ORDER.

The petitioner, S. Shivdev Singh, and the respondentNo. 1, S. Dara Singh, contested the election to the PepsuLegislative Assembly.from the Bhadson Constituency andthe respondent No. 1 was declared returned. The respond-ents Nos. 2 and 3, Lala Hans Raj and Shri Mathra Dass,also filed nomination papers in this election but their nomi-nations were rejected by the Returning Officer at the timeof scrutiny and so they were not in the contest. Thepetitioner seeks to avoid the election on a number ofgrounds alleged in paragraphs Nos. 3 to 9 of the petition.These consist of allegations about several corrupt practiceson the part of the respondent No. 1 and his agents such asundue influence on voters, publication of false and defa-matory statements, procuring of vehicles for the conveyanceof electors to and from the polling stations, obtainingassistance from Government servants, systematic appeal tovote on grounds of Sikh religion along with the use of andappeal to the Sikh religious symbol and the making of thereturn of election expenses which is false in materialparticulars. The prayer in the petition is that the electionof the respondent No. 1 be declared void.

2. The respondents Nos. 2 and 3 did not appear to con-test the petition. The respondent No. 3 had filed an electionpetition himself seeking to avoid the election on the groundof the improper rejection of his own nomination by theReturning Officer. This was Election Petition No. 70 of1952, Mathra Das and Others v. Dara Singh and Others^),

(1) 4 E.JUR, 441,

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which was tried separately and has since been allowed. Therespondent No. 1 denied and controverted all the allega-tions of the petitioner and has vehemently opposed thispetition. The petitioner mainly relied on the false anddefamatory statements published by means of four posters,Exs. P-l to P-4. The publication. of these posters isadmitted on behalf of the respondent. About the posterP-l while its publication in the interest of respondent No. 1is admitted, it is added that it was published by the AkaliJatha of Bhadson Circle and the costs of its publication werepaid by the respondent No. 1 after the election was over.About the posters Exs. P-2, P-3 and P-4 also it is admittedthat they were published in support of the respondentNo. 1 by the persons or bodies whose names are printed inthem and that the expenses of printing them were paid bythe respondent, the payment, however, being said to havebeen made after the election was over. The publication ofthese posters in the constituency is not disputed but it isnot admitted that they were published at the several placesor on the dates stated by the petitioner.

3. The following were the issues framed for trial:—1. (a) Were the statements P-l to P-4 in list 1 (A)

which were issued on behalf of respondent No.' 1 and in hissupport, published as alleged by the petitioner ?

(b) Was the publication by respondent No. 1 and/orhis agents as alleged in paragraph 3 and list 1 (B) ?

(c) Were these statements false and does their publi-cation as alleged in paragraph 3 of the petition constitutea corrupt practice within the meaning of section 123 (5) ofthe Representation of the People Act, 1951 ?

2 to 6. [Not considered by Tribunal.]7. (a) Did respondent No. 1 make a return of election

expenses which was false in material particulars as allegedin paragraph 9 and list 6 of the petition ?

(b) Did the respondent No. 1 fail to keep regularaccounts of his election expenses as required by law ?

(c) Is there sufficient ground made out for disqualifi-cation of respondent No 1 under section 140 ?

8. What is the appropriate order to be made undersections 98 and 99 of the Representation of the People Act,J951, in this case ?

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k L. R.j SHIVDEV SINGH V. DARA SINGH 499

4. Some objections besides those incorporated in theabove issues had been taken on behalf of the respondentNo. 1 which were considered and disposed of as preliminaryissues. These raised questions of adequacy of the parti-culars relating to the corrupt practices as given in thepetition. One issue—preliminary issue No. 2—was relatingto the allegations made on behalf of the respondent thatthe petitioner's return of election expenses was not correctin some particulars. These preliminary issues were disposedof by an order delivered by us on 18th December, 1952. Inthe annex ure A to this order we reproduce the preliminaryissue No. 2 and our finding on the same as contained inthe order dated 18th December, 1952.*

5. A mass of evidence has been adduced on both sidesfor proof and disproof of the issues reproduced in para-graph 3 above but in view of certain happenings to whichwe may now refer and their reactions as they appear to uson the scope of the controversy in this petition, we do notthink that for adequate disposal of the petition we needdwell upon more than a few matters. The object of thepetitioner in making this petition was to have the electionof respondent No. 1 declared void on the ground that therespondent No. 1 had been able to steal a march over himby resort to a number of corrupt practices which helpedhim to influence the voters in his favour. The relief claimedby him was a declaration of the election of the returnedcandidate being void. Incidentally this relief having hadto be given upon a finding of the commission of corruptpractices, such finding would attract the operation of sec-tion 99 of the Representation of the People Act, 1951.According to that section at the time of making an orderunder section .98 the Tribunal, in a case like the presentwhere a charge of corrupt and illegal practices has been made,is to make a further order recording a finding about thecommission of the corrupt or illegal practices by or with theconnivance of the candidate or his election agent, theeffect of such finding being to disqualify the candidateor the agent concerned under section 140 of the Act. Otherpersons guilty of commission of such corrupt or illegalpractices could also be determined and named underclause (ii) of section 99 (a) for the purpose of disqualificationunder sections 141 to 143 of the Act, but before this is done

* See p. 509 infra,

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500 SHIVDEV SINGH V. DARA SINGH [VOL. V

the Tribunal has to give notice to those persons, and toallow them an opportunity to be heard, to cross-examinethe petitioner's witnesses and to adduce their evidence.All this procedure may require the trial to be protractedfor another couple of months after this, even though theinquiry between the petitioner and the candidate has nowbeen concluded.

6. On 5th March, 1953, we delivered order in Elec-tion Petition No. 70 of 1952, Mathra Das and Others v.Dara Singh and Others{1), declaring this election to bewholly void because of the improper rejection of MathraDas's nomination. As it happened, on the same day thePresident's Proclamation under article 356 of the Consti-tution was promulgated dissolving the present PepsuLegislative Assembly and ordering the Assembly to be con-stituted again after a fresh election. The effect of this wasalso to make this seat of the Bhadson constituency vacantfor re-election. The main object with which the petitionerS. Shivdev Singh made this election petition was thusdoubly achieved without the necessity of determination ofthe numerous allegations of corrupt practices herein made.The trial of this petition was however allowed to becontinued because in our view by the combined operationof sections 98 and 99 of the Representation of the PeopleAct, 1951, the order the Tribunal had to make upon apetition grounded on corrupt practices, as this is, was notonly whether the declaration about the election being voidshould or should not be made but also one of recording afinding whether any corrupt practice was proved or not.Through our own decision in the other petition and throughthe President's Proclamation the necessity for making, adeclaration of the election being void did rot remain butstill the petitioner could insist that a finding about corruptpractices used in the election should be given which wouldhelp him to vindicate his stand that he lost in the electionto the respondent No. 1 due to the resort by the latter tocorrupt or illegal practices and that the election wouldhave been liable to be set aside even if there had notexisted a technical flaw like improper rejection of a nomi-nation or there had not been the supervention by thePresident's Proclamation. This right of the petitioner wasimplicit in his making the petition grounded upon corrupt

(1) 4 E.L.R. 441,

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E. L. R.] SHIVDEV SINGH V. DARA SINGH 501

practices as the law permitted him to do and he has theright to have an adjudication of the petition to the extentnecessary to secure him the reliefs for which he made it.By what has already taken place, he has not secured a find-ing about commission of unfair practices—the proof ofwhich would not only vindicate his honour but would fur-ther give him the satisfaction of seeing his opponent in theelection disqualified under section 140 of the Act and sogetting rid of his opposition in the next election. We donot think that he can insist upon our doing more than thisfor him and this much can be achieved by him if we can beinduced to find one corrupt practice proved as may besufficient for disqualification under section 140. There isin our view, no point in his insisting that we should recordour findings about the whole bundle of unfair practices asalleged by him, the cumulative effect of which may havebeen necessary to be considered to see if the election hadto be declared void as being materially affected by suchpractices. The findings about all the practices would nowadvance the cause of the petitioner further only by ropingin persons other than respondent No. 1 or his electionagent in order that they may be disqualified under sec-tions 141 to 143. It may be that the petitioner lookedforward to this also when he made the petition since he hadmentioned the names of a number of persons as being con-nected with the unfair practices. But, as we have said, inorder to see if any of those other persons are liable to bepenalised, we will have to continue the inquiry further whenthat does not so much help the petitioner to vindicate hishonour in the election and would only make him appearvindictive. We think it is discretionary with us to say ifwe would take action under clause (ii) of section 99 (1) andsince the findings on all corrupt practices are not nownecessary for any other purpose except the naming of somepersons under that clause for which again we have to enterupon further inquiries which may take much time still, wedo not feel justified in pursuing the matter only for suchpurpose and when we do not propose to take action underthat clause, we need not record findings on the issuesraised in this case except to the extent necessary for takingaction under clause (i) of the section coupled withsection 140,

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502 SHIVDBV SINGH V. DARA SINGH [VOL. V

7. We have, however, been pressed by a petition to findthat in view of the dissolution of the Assembly by theProclamation of the President under article 356 of theConstitution the election petition has been rendered entirelyinfructuous and so liable to dismissal without inquiry intoany of the grounds made by the petitioner. We have,therefore, to consider if the petition is liable to be dismissedas being untenable by reason of the dissolution of theAssembly or if it survived that dissolution for purposes ofinquiries into the commission of corrupt practices for whichthe trial was continued in this case even after theProclamation.

8. An election petition according to section 81 of theRepresentation of the People Act, 1951, can be made onthe grounds specified in sub-sections (1) and (2) of sec-tion 100 which would be (a) on grounds of bribery, coercionor intimidation or improper acceptance or rejection of anomination making the election wholly void, or (b) ongrounds of corrupt or illegal practices committed by oron behalf of the returned candidate which will make theelection of the returned candidate void; (c) it may also bemade on grounds specified in section 101 that anothercandidate may be declared to be elected in place of thereturned candidate. The present petition is in the class (b)above. When under section 86 the Election Commissionreferred the petition to the Election Tribunal for trial, theElection Tribunal became seized of the entire responsibilityof giving decision on all matters on which it is authorisedto make orders under the provisions of the Representationof the People Act. That is a statutory obligation on theTribunal which the Tribunal is bound to perform unless itcan be shown that the determination of any matter hasbeen rendered unnecessary or the Tribunal's power to dealwith it is abrogated. By sections 98 and 99 of the Act theTribunal is not only to see if any of the reliefs that may beappropriate according to sections 100 or 101 should begranted or not, but where commission of a corrupt practiceis alleged, it may in the process of determination of theorder to be made under section 98, also record a finding ifcommission of the corrupt practice is proved and if anypersons in consequence should be disqualified under sec-tions 140 to 143 : (vide section 99).

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E. L. R.] SHIVDEV SINGH V. DARA SINGH 503

9. To what extent is then the power of the Tribunalabrogated or curtailed by reason of the dissolution of theAssembly under the President's Proclamation. The ElectionTribunal has its existence by virtue of the provision inarticle 329 of the Constitution. The President's Procla-mation, while suspending the operation of certain articlesof the Constitution in Pepsu, has not included article 329 inthem and thus the Election Tribunal are left free to func-tion as may be necessary to deal with the petitions referredto them. The question therefore is narrowed down to this.If determination of any point becomes unnecessary becausethe relief to be given by such determination has becomeavailable to the petitioner by reason of the dissolution, theinquiry to that extent may be considered to be redundant;but it may not be abandoned for determination of othermatters, the relief available from which is not to be had bythe fact of dissolution. It may be possible to say thatsince the dissolution of the Assembly with an order forholding fresh elections, has avoided the election and leftthe seat open, the necessity for making a declaration thatthe election is void in respect of the seat to which theelection petition relates, is gone. This, however, does nottake away the need for recording the finding under sec-tion 99 about commission of corrupt practice. Even as tothe first matter it may be doubted if the necessity fordeclaring the election to be void is gone irrevocably. TheProclamation itself is revocable under clause (2) of article 356and is subject to the approval of the Parliament underclause (3) of the same. The dissolution is not thereforeirrevocable until fresh elections have taken place and ifbefore such fresh elections, the Proclamation has to bewithdrawn under one of the provisions above referred to,the effect would be the revival of the Assembly and withit the necessity of considering if the election to the parti-cular seat is to be avoided on the grounds of the electionpetition-. Thus, even to that limited extent the dismissalof the petition for the relief of the avoidance of the electionmay not be ordered irrevocably.

10. If the returned candidate voluntarily resigns theseat, the seat is rendered vacant and we may think avail-able for re-election irrevocably since the resignation cannotbe withdrawn after it is accepted. In such case it is

EL— 64

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understandable that the Election Tribunal can dismissthe petition as having become infructuous and the dismissalmay completely put an end to the proceedings if the peti-tion is one falling under category (a) in paragraph 8 above,but if it is in category (b) then evidently the proceedingsshould continue for finding about commission of the corruptpractice because the returned candidate may have resignedfinding that he had no defence against the charge ofcorrupt practice and for avoiding if possible the disqualifi-cation entailing upon its proof. Would the ElectionTribunal in the latter case allow him to escape thedisqualification by dismissing the petition outright on theseat being rendered vacant due to resignation ? So alsowhere the petition is in category (c), the proceedings mustcontinue after resignation of the returned candidate to seeif the candidate for whom the seat is claimed can be allowedto go into it. For like reasons it would seem a petition isnot always treated as abated by death of the respondentbut is allowed to continue after substitution under section116 of the Representation of the People Act.

11. The respondent relied upon the order of the Hima-chal Pradesh Election Tribunal in Shri Khsota v. ShriDharam Singh^), in which the Tribunal dismissed the peti-tion as infructuous following the acceptance of resignationof the seat by the returned candidate Dharam Dass. Fromthe report of the case it is not clear if it was a petitiongrounded on commission of corrupt practices and if thepetitioner insisted upon inquiry into the corrupt practicesfor disqualification of any person or not. The order is notthus helpful for determination of the point raised herenamely, that the petition becomes infructuous by reason ofthe dissolution of the Assembly under the President's Pro-clamation. The Representation of the People Act, 1951,and the Civil Procedure Code, which regulate the procedureof the Tribunal in the trial of the election petition do notprovide for dismissal of the petition on the dissolution ofthe Assembly and, as we have seen, the necessity for deter-mination of some matters agitated by the petitioner canstill survive the dissolution which in itself is not irrevocable.In Nurtd Islam v. Muhammad Rafique and Others^), the Elec-tion Tribunal was dealing with an election petition under

(1). Not reported. (2) 2 E.L.R, 70.

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E. L. R.] SttlVDBY SINGH" V. DAftA SINGH 505

category (c) in para. 8 above and it was held that the claimof the petitioner in the election petition was left unaffectedby the resignation of the seat by the returned candidate. Ifresignation of seat has any analogy to its falling vacantbecause of dissolution of the Assembly this decision willmean that the petition can survive for determination of othermatters as may still be necessary to be determined after thenecessity for declaration of the election as void has ended.

12. The counsel for the respondent referred us to twoEnglish decisions Carter v. Mills^), and the Tanton Case :Marshall v. James(2). In those cases the effect of thedissolution of Parliament by Royal Proclamartion upon theelection petitions had to be considered. In the first casethe election petition had not come up for trial when theParliament was dissolved and the petitioner stating thatthe trial of the petition having become unnecessary, thedeposit made by him by way of security for costs shouldbe returned to him. The Judges found that the Parlia-mentary Elections Act (which applied at the time of the trialof election petitions) did not provide for the case of a dis-solution but they thought that they might guide their pro-ceedings by the old parliamentary practice. The practicethey stated was that the petition abated or dropped in sucha case. They also realized that the deposit was made byway of security for costs but the respondent not having in-curred any costs, since the trial had not commenced, noquestion of -holding the deposit for payment of his costscould arise. The respondent also consented to the applica-tion for return of deposit. The Judges accordingly treatedthe petition as dropped and ordered the return of deposit.

13. In the second case the election petition had beentried to the conclusion and order for payment of the res-pondent's costs by the petitioner had been passed and im-mediately after that, but before that order could be com-municated to the Speaker, the proclamation of dissolutionwas made. The Judges who were the same as in theExeter case found that though it could be that the peti-tion dropped by reason of dissolution as they had stated inthe previous case, that could not take away the respond-ent's right to have his costs since that right had becomevested in him by the court's order before the dissolution

(1) L.R. 9 C.P, 117, (2) L,R. 9 C.P. 702,

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506 SHIVDJSV SINGH V. IJARA SINGk [VOL. V

and the vesting was not affected by the fact that the orderhad not been received by the Speaker until after thedissolution. This second case does not therefore directlydecide what the effect of dissolution should be on the elec-tion petition but the Judges thought that even if it was tobe assumed that the petition should abate as they hadfound in the previous case, their order about costs in thiscase would still remain enforceable. They also stated thattheir view in the previous case about dropping of electionpetitions consequent upon a dissolution was based uponthe practice of the Committees of the Parliament to whomelection petitions used to be referred formerly. They fur-ther pointed out that the order in the previous case mightbe referable to the provision for withdrawal of the petitionby consent of the court which was there in the Parliament-ary Election Act.

14. We think that these decisions are not applicable tothis case and cannot also give any guidance for adoptingthe same view here. The old parliamentary practice onwhich the order of dropping off could be made in Englandcannot be availed of here as our procedure is governed bythe Representation of the People Act and the Civil Proce-dure Code. We also think that the dissolution of theParliament in those cases was perhaps irrevocable, so thatit was not necessary to consider the possibility of the peti-tion reviving upon a revocation. The withdrawal of peti-tion under the provision in the Representation of thePeople Act, even with the consent of the Tribunal, cannotalways terminate the proceedings because they might becontinued by another person under se'ction 110(3) (c) of theAct. In the Exeter CaseC) the petitioner himself desiredto withdraw the petition and as the trial had not commen-ced the respondent had not to claim any costs and had noreason to oppose an order of abatement. Before us thepetitioner has not desired withdrawal but on the otherhand insists upon an adjudication. It would also be dis-criminatory, in our view if in this case we treat the peti-tion as inf ructuous and allow it to drop off without investi-gation for disqualification when other petitions arising outof the same general elections were tried out and otherpersons who resorted to corrupt practices of like nature

(1) 6 O'M, & H, 22S,

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ifi. L. K.J StitVi)EV SINGH V. t)ABA SINGH 50*7

have been penalised. For all these reasons' we find thatthis election petition did not abate by reason of the dis-solution of the Pepsu Assembly.

15. For the limited purpose as indicated in para. 6 above,we think a finding about the alleged corrupt practice bypublication of the four posters, Exs. P-l to P-4, as we haveparticularised in para. 2, would suffice and we proceed todiscuss the same.' [After referring to the evidence in detail the Tribunalcontinued :].

44. We thus find the posters were published with, notone or two, but several statements defamatory of thecharacter of Shivdev Singh made recklessly and in verystrong and undignified language, not one of them beingtrue or believed to be true. We do not think it can be anyjustification for the making of such statement, to say thatthey were made in the heat of the election when passionsin the opposing camps ran high. Elections have to be freeand fair and it is with that object that section 123(5) of theRepresentation of the People Act makes defamatory state-ments against a candidate's character a major corruptpractice which will vitiate the election. The workers of theAkali Party and the other supporters of S. Dara Singh inthis case seem to have assumed that election had giventhem licence to say anything against a rival candidate tobring him down in the estimation of every class of peopleto whom he might possibly look for support to his candi-dature. S. Dara Singh, having chosen to be candidate of theAkali Party, was, it seems, only too willing to be left entire-ly in the hands of the workers of that party and to submitto whatever they proposed to do in the form of propagandaby issue of posters which he undertook to get printed forthem and by visual demonstrations as in the conference at

,, Laut over which he agreed to preside. He cannot now avoidthe consequences of such propaganda if it is found to beillegal by arguing that the Akali Party men in their zealwere doing it. He encouraged them by his presence and bygiving his helping hand and there is no circumstancepresent in this case which could have been used inmitigation of Dara Singh's responsibility for the corruptpractice under section 100 (3) of the Representation ofthe People Act. All the ingredients of the corruptpractice under section 123 (5) of the Act have been proved

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508 SHIVDEV SINGH V. DABA SINGH ['VOL. V

in the matter of publication of these posters and thiswould have been sufficient under section 100 (2) (b) of theAct to declare the election of S. Dara Singh to be voidthough the necessity for making that declaration does notremain. Having recorded the finding about commissionof that corrupt practice as required by section 99 (a) (i) ofthe Act, we indicate that this entails disqualification undersection 140 of the Representation of the People Act, 1951,upon S. Dara Singh, respondent No. 1.

45. This disposes of issue No. 1. We do not find itnecessary to discuss issues Nos. 2 to 6 as a finding inpetitioner's favour on any of them will not serve anyfurther useful purpose as pointed out in para 6 above. Weare however pressed for a finding on issue No. 7 relatingto return of election expenses because, if it is found falsein any material particular, the finding can result in stillanother disqualification under section 143 of the Repre-sentation of the People Act. The only point pressed aboutthe return is the omission to show therein the hire paidfor motor vehicles. The respondent admitted that fourmotor lorries belonging to his relatives and friends werebeing used for election propaganda work but stated thathe was allowed to use them on condition of using his ownpetrol and no hire was charged for loan of the vehicles.It is urged on behalf of the petitioner that thoughthe respondent may have obtained free use of the•vehicles and free services ©f the drivers, it was necessaryfor him to show the value of such free services as an itemof receipt and to debit the same as an item of expenditureunder the appropriate head in the return and this argumentis supported by the observations to this effect made inNimar M. R. Case^). Though this was the proper thingto do, the omission cannot in our view be relied on forfinding the return in this case to be false in materialparticulars. The maximum amount of election expensespermissible was Rs. 4,000 while the return of the respond-ent shows the total expended as Rs. 3,095-13-5. This lefta margin of Rs. 900 odd and we have no basis for findingthat the value of the free services could have been as muchas this amount. The omission could not therefore bedeliberate and we cannot therefore find the return to befalse in material particulars.

[1) Sen and Foddar G25,

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E.L.R.] SHIVDEV SINGH V. DARA SINGH 509

46. Under issue 8 we need not make an order, now thatthe election is void since that is already so declared uponEjection Petition No. 70. We only record a finding aboutcommission of corrupt practice under section 123 (5) of theRepresentation of the People Act, 1951, by the respondentNo. 1, S. Dara Singh, which would entail disqualificationunder section 140 of the Act. Since we have not discussedall the issues, we do not feel justified in ordering the fullcosts of the petitioner to be paid by the respondent No. 1.We order that he should pay to the petitioner half costs ofthe evidence, Us. 500 for pleader's fee or less as may becertified and other costs in full and that the remainingcosts be borne by the parties as incurred.

PRELIMINARY ORDER*18th December 1952.

5. Issue No. 2.—Is the respondent No. 1 entitled toclaim an inquiry in these proceedings before the Tribunalinto his allegations of the petitioner's return of electionexpenses being false, for purposes of disqualification undersection 143 of the Act ?

We find on issue No. 2 that no inquiry about returnof election expenses of the petitioner can be claimed inthese proceedings. The making of a return of electionexpenses which is false in any material particular isdeemed to be a corrupt practice according to section 124(4)of the Representation of the People Act. Though thusincluded in the corrupt practices, it is not regarded asvery consequential and is termed a minor corrupt practicewhich ordinarily cannot materially affect the result ofan election already over. The erring candidate is, there-fore, penalised for it by disqualification for a period undersection 143, which will have the effect of keeping himout of an election for that period. Being a corruptpractice committed in connection with the election whichthe petitioner seeks to set aside by making the electionpetition, he is permitted to point out such corrupt practicealso on the part of the returned candidate, so that in theevent of his -succeeding in getting the declaration, thereturned candidate may be penalised under section 143and not be entitled to figure in the election following suchdeclaration. From the language of section 100 it wouldappear that the petitioner has to prove allegations of

*See supra 499.

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corrupt practices against the returned candidate, only ifthey are not corrupt practices of the kind specified inclauses (a) and (b) of sub-section (1) of section 100. Thissection read with sections 31 and 63 would, therefore, showthat the allegations of what are deemed corrupt practices(which would include the making of a false return) are tobe made against the returned ^candidate only and notagainst other candidates at the election. Under section 86the Tribunal is appointed to try the election petition onlyand not for inquiry into any other matters extraneous tothe petition as the parties to the petition may think fitto agitate. Under the Representation of the People Acta respondent is allowed to urge corrupt practices on thepart of the petitioner only by way of recrimination undersection 97 when the petitioner has claimed a seat forhimself. In making such recrimination when allegingcorrupt practices on the part of the petitioner, the makingof a false return of election expenses may also be allegedas being included in the term corrupt practice and aninquiry about it by the Tribunal may be claimed in theattempt not only to thwart the claim of the petitioner toa seat as a result of that election, but to keep him out ofanother election. . The recrimination is treated as a counterelection petition and, therefore, it is inquired into by theTribunal in the same way and to the same extent as theelection petition. Under the Act, however, no inquiry isindicated by the Election Tribunal into the allegation offalse return of election expenses except in the two casesabove specified. It follows, therefore, that this allegationcannot be made against the petitioner who is notclaiming a seat for himself and the Tribunal cannot berequired to adjudicate upon it. Section 143 in referringto the finding about false return at the trial of electionpetitions under Part VI evidently refers to the two casesadverted to above, in which the Election Tribunal wouldbe called upon to make inquiry about return of electionexpenses. There is nothing in the words of that section toconfer jurisdiction on the Election Tribunal to make inquiryinto such allegations in respect of the petitioner who hasnot claimed a seat for a respondent other than the return-ed candidate. We answer issue 2 in the negative.

Order accordingly.

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ELECTION LAW REPORTSVOLUME V.

INDEXBALLOT PAPERS.1—Interchange of Assembly and

House of the People ballot papers—Bona fide mistake of officers—Votesfor House of the People cast onAssembly ballot papers—Validityof votes—Effect of rule 47(l)(c)—Election Commission—Power totreat such vote3 as valid— Countingof votes on different dates andplaces—Legality — Nomination —Electoral roll—"Certified copy"—Copy issued by Head Copyist—Proposer also standing as candidateafter filing nomination—Validity ofnomination—Eepresentation of thePeople Act, 1951, ss. 39(4), 100(2) j(c)—Eepresentation of the People !Eules, 1951, rr. 28, 47(l)(c). j

H A E I VISHNU KAMATH V. SYED |AHMED AND OTHEBS .. . 248

2.-—Official marks fixed by PresidingOfficers without authority of Elec-tion Commission—Validity.See ELECTION PETITION 9.

3.—"Tendered votes"—When to becounted—Absence of allegation ofcorrupt practice in petition, effectof—Representation of the PeopleAct, 1951, ss. 100(2)(c), 10l(a)—Eepresentation of the People (Con-duct of Elections and ElectionPetitions) Rules, rr. 29, 47.KALICHARAN SINGH V. RAMA-

CHARITAR RAI YADAVA AND

OTHERS ... 98

CORRUPT PRACTICE.1.—Duty to give particulars—Indian

and English Law.• See DISQUALIFICATION OP CANDI-

DATES 4,

CORRUPT PRACTICE.-(Coflf<i.)

2.—Enquiry into—necessity of.See ELECTION PETITION 7.

3.—False personation—Mens rea—Nature of offence.See DISQUALIFICATION OF CANDI-DATES 2.

4.—Undue influence by Governmentservants—Minister doing elec-tioneering campaign during officialtours—Manager of Court of Wards,whether Government servant—Re-presentation of the People Act,1951, s. 123(8).RAMACHANDRA CHOWDHURI v.SADASIVA TRIPATHY AND OTHERS(No. 2). ... 401

5.— See also BALLOT PAPERS 3, ELEC-TION PETITION 4.

DISQUALIFICATION OF CANDIDATES1.—Contract for execution of works

—Contractor expressing inabilityto complete contract —Payment offinal bill for work done—Whetherterminates contract—Inferencefrom conduct of parties—Mistakesin final bill, effect of—Whethercontract subsists until contractoris fully paid—Effect of relinquish-ment—Contract Act, 1872, ss. 39,63—Eepresentation of the PeopleAct, 1951, s. 7(d).

PARMATMA SINGH V. DEO SARANSINHA AND OTHERS . . . 353

2,—"Contract to perform servicesundertaken by appropriate Govern-ment"—Contracts with Governorunder food distribution and pro-curement scheme for procurementstorage, distribution, etc.—Whe-ther contracts for performance of

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512 INDEX [VOL. V

DISQUALIFICATION OF CANDIDATES.—{Contd.)

services "undertaken" by Govern-ment—"Undertake", meaning of—Contract not complying with for-malities—Validity of—Hindu joint,family—Conversion into firm— iContract by firm—Member relin- jquishing his interest before filing jnomination—Accounts with Gov- ';eminent not settled—Whether con- !tract subsists—Retiring member, •whether disqualified—Acceptance Iof relinquishment by Collector with |retrospective effect—Validity— ;Corrupt practice—False persona- Ition—Mens rea—Nature of offence j—Polling—Tampering of ballot •boxes during polling—Procedure tobe followed—Representation of thePeople Act, 1951, ss. 7(d), 9(2), 100(3)(b), 123(3)—Constitution of India,art. 299—Essential Supplies (Tem-porary Powers) Act, 1946—MadrasFoodgrains (Intensive Procure-ment) Order, 1951.SANKARA PANDIANADAR, A.S.S.S., iv. V.V. RAMASWAMI AND OTHERS

417;3.—"Contract for performance of ser-

vices undertaken by Government"—Contract to distribute rice underEast Punjab Paddy and Rice (MillControl and Procurement) Order,1948—Representation of the PeopleAct, 1951, s. 7(d)—Removal of dis- iqualification after nomination andbefore scrutiny, effect of.RAM CHAND V. WADHAWA RAMAND OTHEBS .. . 386

4.—"Contract for performance of ser-vices undertaken by Government"—"Merchants' Association—License tostore and supply food grains underprocurement and levy scheme—Member of association, whetherdisqualified—Association of firms —Capacity to enter into contract—Contract with government.

DISQUALIFICATION OF CANDIDATES.—{Contd.)

whether necessary—Procurementscheme, nature of—Resignation ofmembership—Unconditional accep-tance without settlement ofaccounts and payment of dues—Whether terminates contract—Nomination—Improper acceptance—Proof that result of election wasmaterially affected, necessity of—Double member constituency—Peti-tion for setting aside election to oneseat—Maintainability—Power toset aside whole election—Electionagent—Appointment—Mode ofdeclaration—Verification— Essen-tials—Corrupt practice—Duty togive particulars—Indian and Eng-lish Law—Representation of thePeople Act, 1951, ss. 7(d),33(3), 40,98, 100(1 Kc), 83, 84.

HANUMAN PRASAD MlSRA 1'. TARACHAND AND OTHERS .. . 446

5.—'"Contract to supply goods"—Contract with Government forquarrying stone—Stipulation toallow P. W.D. contractors to removestone required for Government pur-poses on payment of royalty—Whe-ther contract to supply goods—Re-presentation of the People Act,1951, s. 7(d).

LUMBA RAM V. RAM NARAIN ANDOTHERS . . . 319

6.—"interest in contract to supplygoods to State"—License-holder forsupply to ration shops—Whetherdisqualified—"Office of profit"—Member of ruling family of Stategetting allowance and liable torender services—Improper rejec-tion of nomination—Presumptionthat election is affected—Whetherirrebuttable—Evidence to rebut—Representation of the People Act,

| 1951, ss. 7(d), (e), 100(l)(c)—Consti--! tution, art, 191,

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E. L. R.] INDEX 513

DISQUALIFICATION OF CANDIDATES.—(Contd.)

PANDIT HARISH CHANDRA V. RAJAMAN SINGH AND OTHERS . . . 129

7.—Office of profit—Zarnindari Aboli-tion—Zamindars- appointed aspatels—Injunction by Courtagainst taking possession ofZamindaris—Whether appointeedisqualified—Eesignation afternomination but before scrutiny,effect of—Acceptance of office afterrejection of nomination—Whetherresult of election can be affected—Representation of the People Act.1951, ss. 7(d), 100(1 )(c)—MadhyaBharat Abolition of ZamindariesAct, 1951.BRTNDABAN PltASAl) TlWAEI V.SITA RAM AND OTHERS . . . 48

8.—Office of profit.Sec DISQUALIFICATION OF CANDI-DATES 6.

9.—Office of proiit—Assessor ofSessions Court.

Sec RETURNING OFFICER.10.—Removal of disqualification after

nomination and before scrutiny—Effect of.See DISQUALIFICATION OF CANDI-DATES 3.

DISQUALIFICATION OF MEMBERS.1.—Disqualification which arose be-

fore election—Jurisdiction of Elec-tion Commission to enquire—Refer-ence by President on representa-tion made by third person—With-drawal of representation—Proce-dure—Constitution of India, arts.101(3), 102, 103—Representation ofthe People Act, 1951, s. 7(o).MAHARAJA ANAND CHAND, In relE.C.l ... 197

DOUBLE MEMBER CONSTITUENCY.1.—Petition for setting aside election

to oae seat—Maintainability—Power to set aside whole election.HANUMAN PRASAD MISRA v. TAEACHAND AND OTHERS ••• 446

ELECTION AGENTS.1.—Appointment—Mode of declara-

tion.See DISQUALIFICATION OF CANDI-DATES 1.

2.—Appointment of more than oneelection agent.See HIGH COURT 2.

ELECTION COMMISSION.1.—Condonation of delay—Power of

Election Tribunal to interfere.Sen ELECTION PETITION 10.

2.—Jurisdiction to enquire intodis-'qualification of members whicharose before election.MAHARAJA AN AND CHAND, In re[E.C.] ... 197

3.—Power to regulate its own proce-dure—Power to authorise officer tosign on behalf of Commission—High Court—Power to issue writagainst Election Commission—Re-presentation of the People Act,1951, ss. 39(2), 150, 151—Constitu-tion, art. 329(b).

AMIN AHMAD C. XAND LAL SINHA40

See also BALLOT PAPERS 1, ELEC-TION PETITION 9. 16.

ELECTION EXPENSES.1.—Allegations that petitioner lias

made false return—When to betried.SHIVDEV SINGH V. DAKA SINGHAND OTHERS . . . 496

ELECTION PETITION.1.—Abatement—Dissolution of As-

sembly—Whether petition abates.See ELECTION PETITION 7.

2.—Amendment—Tribunal's powerto amend.See ELECTION PETITION 4.

3.—Amendment of pleading—Tribu-nal's power to allow amendments—Parties—Candidates who havewithdrawn—Representation of the

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514 INDEX [VOL. v

ELECTION PETITION.—(Contd.)People Act, 1951, ss. 82, 83, 90(4),92.EATAN SHUKLA v. BRIJENDEASWAEUP AND OTHERS .. . 116

4.—Corrupt practice—Particularsgiven in petition—No separate list—Maintainability of petition—Res-pondent, whether entitled to raisegrounds not alleged in petition—Amendment—Tribunal's power toamend—Eepresentation of the

. People Act, 1951, ss. 83(2), 90(4).KHUSHWAQT RAI v. KAEAN SINGHAND OTHBES ••• 93

5.—Corrupt practice—Absence of alle-gation in petition—-Effect.See BALLOT PAPERS 3.

6.—Corrupt practice.See ELECTION PETITION 7.

7.—Dissolution of Assembly—Whe-ther petition abates—Enquiry intocorrupt practices—Necessity of—Election expenses—Allegationthat petitioner has made falsereturn—When to be tried—Repre-sentation of the People Act, 1951,ss. 98, 99, 140, 143.SHIVDEV SINGH V. DAEA SINGHAND OTHERS . . . 496

8.—Grounds not alleged in petition—Whether respondent entitled toraise.See ELECTION PETITION 4.

9.—Joint petition—Joinder of severalreliefs—Polling agents—Right ofadmission to polling booths—Wrongful refusal to admit—Vali-dity of acts done in their absence—Ballot papers—Official marks fixedby Presiding Officers without autho-rity of Election Commission—Vali-dity—Representation of the PeopleAct, 1951, ss. 84, 110—Representa-tion of the People Rules, 1951, rr.20, 28, 47(l)(c).

ELECTION PETITION.—(Contd.)MARUTBAO BHAURAO ANDOTHERS V. GULABRAO DADASAHEBAND OTHERS . . . 303

10.—Limitation — Condonation ofdelay by Election Commission—Power of Election Tribunal to inter-fere—Verification—Irregularities—Effect of—Representation of thePeople Act, 1951, ss. 81, 83, 85—Representation of the People Rules,1951, r. 119.KRISHNAJI BHIMARAO ANTRO-LIKAR V. SHANKAR SHANTARAMMORE AND OTHERS . . . 34

11.—Parties—Candidates who havewithdrawn.

See ELECTION PETITION 3 ;

H I G H COURT 1;

NOMINATION OF CANDIDATES 2,5.

12.—Practice—Non-appearance ofparties—Dismissal for default—Propriety—Non-appearance of peti-tioner at adjourned hearing—Powerof Tribunal to permit ex parte res-pondent to prosecute petition-—Re-presentation of the People Act,1951, s. 90 (2)—Civil ProcedureCode, Or. IX, r. 8, Or. XVII, rr. 2 &3.

ROOT CHANDEA SOGANI ANDOTHERS V. RAW AT MAN SINGH ANDOTHERS (NO. 2) . . . 327

13.—Verification—Essentials.

See DISQUALIFICATION OF CANDI-

DATES 4.

14.—Verification —• Irregularities —effect of.

See ELECTION PETITION 10.

15.—Verification—List of corruptpractices not verified—Power toaccept verified list after limitation—Representation of the People Act,1951, ss. 83, 85, 90(4).

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E. L. B.] INDEX

ELECTION PETITION—(Cmtd.)SHIVA DUTT AND OTHEBS V-BANSIDAS DHANGAR AND OTHEBS

55

16.—Verification—Power of ElectionCommission and Election Tribunalto allow amendments—Jurisdictionof Tribunal—"Shall dismiss," mean-ing of—Eepresentation of the PeopleAct, 1951, ss. 83, 85, 90 (4).

A. S. SUBBA RAJ V. M. MUTHIAHAND OTHERS . . . 21

ELECTION TRIBUNAL.1.—Constitution—Subordinate Judges

who have merely officiated as Dis-trict Judges and retired DistrictJudges—Whether qualified for jappointment as members—Eepre-sentation of the People Act, 1951,s. 86(2)(a).

EAMACHANDRA CHOUDHURI v.SADASIVA TRIPATHY AND OTHERS(No. 2) ... 194

2.—Jurisdiction of High Court tointerfere with decisions of Tribunal—Recrimination — Conditions—Presentation of notice to memberof Tribunal—Validity—"Trial,"when commences —Eepresentationof the People Act, 1951, ss. 86 (5),97,105—Constitution of India, arts.226, 227, 329 (b).

JAMNA PRASAD MUKHARIYA v.LACHHIBAM RATANLAL JAIN ANDOTHERS ••• 1

3.-r-Question whether result of elec-tion has been materially affected-Exclusive jurisdiction of Tribunalto decide—Interference by HighCourt.

SUJANIRAM v. LAX, SHYAM SHAHAND OTHERS [H.C.] ... 183

4.—Power to amend petition.See ELECTION PETITION 4.

ELECTORAL ROLL.1.—"Certified copy"—Copy issued

by Head Copyist.See BALLOT PAPERS 1.

2.—Finality—Returning Officer'sjurisdiction to inquire whethercandidate was qualified to be enter-ed as a voter—Improper rejectionof nomination paper—Representa-tion of the People Act, 1950, s. 17.JOGINDER SINGH V.RAGBHIR SINGHAND OTHERS . . . 81

3.—Inclusion of name by ElectionCommission—Whether retrospec-tive.RAMAYAN SHARAN SINGH ANDANOTHER V. RAMESHWAR YADAVAND OTHERS . . . 296

4.—See also NOMINATION OF CANDI-

DATES 2 & 3.

ELECTORAL RULES.

1.—Amendment of Eules after Noti-fication of Governor to elect—NewEules, whether applicable—Methodof counting votes—Whether matterof substantive right or procedure.S. K. SAMBANDAM v. ELECTIONTRIBUNAL, MADRAS AND OTHERS

341HIGH COURT.

1.—Jurisdiction—Election Tribunal—Certiorari — Errors of lawWhether ground for interfer-ence—Election petition—Parties—Candidates who have withdrawn—Representation of the People Act,1951, ss. 37, 105—Constitution ofIndia, arts. 226, 329 (b).SHEO KUMAR AND ANOTHER V. V.G.OAK AND OTHERS [H.C.] ... 103

2.—Jurisdiction over Election Tribu-nal—Power to issue writs—Whenwrits will be issued—Excess orwant of jurisdiction, necessity

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516 [VOL, V-

HIGH COURT—(Conid.)of—Nomination of candidates—•Election agents—Appointment ofmore than one election agent—Election Tribunal holding firstnomination valid—Form of Nomi-nation. 1'ootnote—Representationof the People Act, 11)51, ss. 33, 40,105, 170—Constitution of India,arts. 226, 227, 329(b).HAMIBKHA ALAEKHA v. RETURNINGOFFICER. JAMNAGAR CITY ANDOTHERS '[H.O.] 230

3.—Jurisdiction to interfere withdecisions of Tribunal.See "EJECTION TRIBUNAL 2.

4.—Power to issue writ against Elec-tion Commission.See ELECTION COMMISSION 3.

NOMINATION OF CANDIDATES.1.—Election agents—Appointment of

more than one election agent— jElection Tribunal holding, firstnomination valid.HAMIBKHA ALARKHA. V. RETURN-ING OFFICER, JAMNAGAR CITY ANDOTHERS [H.C.] .. ... 230

2.—Electoral Roll —Inclusion of nameof candidate on . day of nomination—Nomination without stating rolland number in roll—Validity—Presumption that name was in-cluded before expiry of time fornomination—Rule allowing Elec-tion Commission to include names:—Whether ultra vires—Electionpetition—Parties—Candidates whohave withdrawn—Representationof the People Act, 1950, s. 28—Pre-paration of Electoral Rolls Rules,1950, r. 20 (3)—Representation ofthe People Act, 1951, ss. 36(4), 82.RAMAKBISHNA REDDY v. KAMALADEVI •-• 173

3.—Electoral roll—Rejection of nomi- jnation for omission to produce

NOMINATION OF CANDIDATES.—(Contd.)

certified extract of roll—Legality— Substantial compliance—Powerto reject—Electoral Rules—Amend-ment of Rules after Notification ofGovernor to elect—New Rules,whether applicable—Method ofcounting votes—Whether matterof substantive right or procedure—Change of rules before filing ofnomination—Effect of—Repre-sentation of the People Act, 1951,ss. 36(2)(d), 39 (4)—Representationof the People (Conduct of Electionsand Election Petitions) Rules.1951, rr. 91,96 to 102.

S. K. SAMBANDAM V. ELECTIONTRIBUNAL, MADRAS, AND OTHERS.[H.C.] ... 341

4.—Form of Nomination.. See HIGH COURT 2.

5.—Improper acceptance of nomina-tion—Effect—Burden of provingthat result of election lias beenmaterially affected—Proportionatedistribution of votes cast for unqualified candidate—Legality —Theory of "votes thrown away''—"Materially affected" and "resultof election", meanings of—Parties—Candidates who have withdrawn—Whether necessary parties—Repre-sentation of the People Act, 1951,ss. 82, 100(l)(c).

UDAINATH SINGH V, JAGAT BAHA-DUR SINGH AND OTHERS (NO. 2)

1996.—Improper acceptance—Proof that

result of election was materiallyaffected, necessity of.HANUMAN PRASAD MISBA v. TABACHAND AND OTHEBS ••• 446

7.—Improper rejection.See ELECTORAL ROLL 2.

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B. L, R.] INDEX 517

NOMINATION OF CANDIDATES.—{Contd.)

8.—Improper rejection of nomination j—Presumption that election is jaffected—Whether irrebutable— ;Evidence to rebiit.See DISQUALIFICATION OP CANDI- :

_ DATES 6.

9. —Proposer also standing as candi-date after filing nomination—Validity of nomination.See BALLOT PAPERS 1.

10.—Eejection of nomination foromission to produce certified ex-tract roll.See NOMINATION OF CANDIDATES 3. •

11.—Schedviled Tribes candidate—Declaration before Additional Ses-sions Judge—Validity—"Magis- |trate", meaning of—Election Tri-bunal—Question whether result of :

election has been materially affect- ,ed—Exclusive jurisdiction of Tri- !bunal to decide—InHterference by jHigh Court—Representation of thePeople Act, 1951, ss. 33(3), 100(l)(l)—Representation of the PeopleRules, 1951, r. 6—Constitution ofIndia, art. 226—General ClausesAct, 1897, s. 3(32)—Criminal Pro-cedure Code, 1898, s. 12.SUJANIRAM V. LAL SHYAIVI. SHAHAND OTHERS [H.C.] ... 183

POLLING.1.—Omission to give 8 hours per day

—Whether vitiates election—Burden of proof that result of elec-tion has been affected—Nature ofproof required—Value of statisticalcalculations—Representation of thePeople Act, 1951, ss. 56, 57, 100 (2)(c).KANDASAMI KANDAR v. SUBEA-MANIA GOUNDAR AND OTHBES

1562.—Tampering of ballot boxes during

polling—Procedure to be followed.

P O L L I N G . - ( )See DISQUALIFICATION OF CANDI-DATES 2.

POLLING AGENTS.1.—Right of admission to polling

booths—Wrongful refusal to admit—Validity of acts done in theirabsence.See ELECTION PETITION 9.

QUALIFICATION OF CANDIDATES.1.—Candidate's name included in elec-

toral roll after nomination but be-fore scrutiny—Validity of nomina-tion—Electoral roll—Inclusion ofname by Election Commission—Whether retrospective—Repre-sentation of the People (Preparationof Electoral Rolls) Rules, 1950, rr.20 (2) and (3)—Representation ofthe People Act, 1951, s. 5 (c).BAMAYAN SHABAN SINGH ANDANOTHER V. RAMESHWAR YADAVAND OTHERS .. . 296

RETURNING OFFICER.1.—Power to review orders rejecting

nomination—Disqualification ofcandidates—"Office of profit"—Assessor of Sessions Court—Re-presentation of the People Act,1951, s. 7 (d).NATWAB LAL v. BHARTENDBASINGH AND ANOTHER . . . 408

VOTES.1.—Counting of votes on different

dates and places—Legality.See BALLOT PAPERS l.

2.—Method of counting votes—Whether matter of substantiveright or procedure.See NOMINATION OF CANDIDATES 3.

VOTING1.—Secrecy of voting—Statements

volunteered by voter—Whetheradmissible in evidence—Repre-sentation of the People Act, 1951,ss. 94, 128.BISWANATH ROY v. TARAKDAS

BANERJEE AND OTHERS . . . 223

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518 INDEX [VOL. V

INDEX TO STATUTESCIVIL PROCEDURE CODE, 1908.

Or. IX, r. 8 327Or. XVII, r. 2 327Or. XVII, r. 3 327

CONSTITUTION OF INDIA.

Arts. 101(3) 197102 197103 197191 129226 I, 103, 183, 230227 1. 230299 417329(b) 1,40,103,230

CONTRACT ACT, 1872.Sec. 39 353

63 353CRIMINAL PROCEDURE CODE, 1898.

Sec. 12 183

EAST PUNJAB PADDY AND RICE(MILL CONTROL AND PROCUREMENT)

ORDER, 1948.386

ESSENTIAL SUPPLIES (TEMPORARYPOWERS) ACT, 1946.

417GENERAL CLAUSES ACT, 1897.

Sec. 3(32) 183MADHYA BHARAT ABOLITION OF

ZAMINDARIES ACT, 1951.48

MADRAS FOOD GRAINS (INTENSIVEPROCUREMENT ORDER, 1951.

417REPRESENTATION OF THE PEOPLE

ACT, 1950.

Sec. 28 173

REPRESENTATION OF THE PEOPLE

ACT, 1951.

39(2)39(4)40565781828383(2)848586(2)(a)86(5)90(2)90(4)9293(4)94979899100100(2)(c)100(3)(b)10l(a)105110123(3)123(8)128140143150151170

40248, 341230, 44615615634116, 173, 19921, 34, 55, 116, 44693303, 44621, 34, 55194I32755, 93, 116116212231446, 496496

98, 156, 248417981, 103, 2303034174012234964964040230

REPRESENTATION OF THE PEOPLE(PREPARATION OF ELECTORAL

ROLLS) RULES, 1950.Rule 20 2) 296

20(3) 173.296REPRESENTATION OF THE PEOPLE

RULES, 1951.(Conduct of Elections etc.)

Sac. 5(c)7(d)

7(e)9(2)173333(3)36(2)(d)36(4)37

29648, 129, 319, 353, 386, 408

417, 446.129, 19741781230183, 446341173103

Rule f,2028294747(l)(c)9196979899100101102119

183303248, 3039898248, 30334134134134134134134134134