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GOVT. OF INDIA1968

LD. 71. XXV1060

ELECTION LAW REPORTS

Containing cases on election law decided by the Supreme Courtand the High Courts of India, opinions of the Election

Commission and important decisions of the -<-;»**Election Tribunals. ';

Vol. XXV

Editor

R. K. P. SHANKARDASS, M.A. LL.B. (Cantab.)Advocate, Supreme Court.

25 E.L.R.

Published under the Authority of the Election Commission of Indiaby the Manager of Publications, Civil Lines, Delhi, andPrinted by the Manager, Govt. of India Press, Coimbatore

1968

CONTENTSPAGES

I Table of Cases Reported . . . . . (i)

II Table of Cases Cited . . . . . (ii)—(v)

III Report ol Cases . . . . . . 1—389

IV INDKX (given separately)

The mode of citation of this the twenty-fifth volume of the ElectionLaw Reports is as follows:

25 E. L. R.

A TABLE OF THE

NAMES OF THE CASES REPORTED IN THIS VOLUME

*PAGE NO.

1. Amin Lai vs. Hunna Mai (Punjab High Court) . . . 1162. Appa Rao, P. N. vs. Kumburu Suryanarayana Naidu (Andhra Pradesh

High Court) • 2203. Bhairou and another vs. Sisram and others (Rajasthan High Court

at Jodhpur) . 2394. Bhanvvar Lai vs. Hari Prasad (Rajasthan High Court at Jodhpur) . 2655. Cheugalraya Naidu, N. P. vs. G. N. Pathabhi Reddi (Andhra

Pradesh High Court) 1686. Chiranjeevulu Naidu, C. vs. E. S. Thyagarajan (Madras High Court) . 2017. Chittoori Indrayya vs. Mullapudi Harischandra Prasad (Andhra

Pradesh High Court) . . . 1928. Dattaraya Naryayan Patil vs. Dattaraya Krishnaji Khanvilkar & ors.

(Maharashtra High Court) . . . . . . . 1439. Gurucharan Banerjee vs. R. O. Burdwan, H.P. Constituency (Calcutta

High Court) • 31210. Guru Govinda Basu vs. Shankari Prosad Ghosal and others (Supreme

Court of India) 7711. Hanji Shivanna vs. T. R. Parameswariah and others (Mysore

High Court) 28112. Jabar Singh vs. Genda Lai (Supreme Court of India) . . . 32313. Kartik Oraon w. David Munzni and others (Patna High Court) . . 29114. Kidwai Hussain Kamil vs. Yadav Ram Scwak and others (Allahabad

High Court at Lucknow) . . . . . . . . 3515. Koduri Krishnarao vs. Alluri Bapineedu (Andhra Pradesh High Court) 15916. Kodur Subha Ramiah vs. Annam Chanchu Subha Reddi (Member,

Election Tribunal, Hyderabad) 9717. Madan Gopal vs. Nek Ram Sharma (Allahabad High Court) . . 6118. Manjay Lai & ors. vs. Mehesh Prasad Sinha (Patna High Court) . 13019. Mohinder Singh & another vs. Gurmit Singh (Punjab High Court) • 2720. Munichinnappa, D. vs. Basavalingappa & ors. (Mysore High Court) . 24721. Namdeo Chimnaji Taprc vs. Govinddas & ors. (Maharashtra High

Court at Nagpur) . . . . . . . . . 122. Net Ram Jat vs. The Election Commission & ors. (Punjab High Court) 8923. Rao Abhe Singh vs. Rao Nihal Singh (Punjab High Court) . . 11324. Sant Prasad Singh vs. Dasu Sinha (Patna High Court) . . . 18125. Vidya Charan Shukla vs. Khub Chand Baghel & ors. (Supreme Court of

India) 354* Indicates the page from which the judgment starts.

.0)

(ii) [VOL. XXV

TABLE OF GASES CITED

*PAGE N O .

Abdul Majced vs. Bhargavan (A.I.R. 1963, Kerala p. 18 at 25) . . 35Abdul Rahimkhan vs. Radhakrishna Biswas Roy (19 E.L.R. 278) . . 143Abdul Sattar Mohammed Hussain Jumader vs. Badri Narain Bansilal

Pallod (63 B.I.R. 563) 143Abraham vs. Abraham (9 MOO . IND. APP.199) . . . . 291Achutha Menon, C. vs. Election Tribunal, Trichur (A.I.R. 1961, Kerala 186) 281Adamala Mohan, Rcddy vs. Anug Narayan Rcddy (1963 II ANDH. W.R.

101; 159Adityan vs. Kandasvvamy, 1958 S. C. J . 1072 (A.I.R. 1958, S.C. 856, 1958,

ELR 394) 92, 116Aga Mohammed Hamadani « . Cohen [(1886) I.L.R. 13 Cal. 221] . . 354Albridge vs. Hurst (1876 I-G.P. 420) 92Ali Mohammed vs. Islak A. Khan (I.L.R. 54, All 57) . . . . 168Amin Lai vs. Hunnc Mai, (A.I.R. 1964 Punj. 213) . . . . 113Amirchand vs. Smt. Sucheta Kripalani (18 E.L.R. 209) . . . 143Andrews in North Meath (1892) 4 O' M&H 144 97Anjancya Rcddi vs. Gangi Reddi (21 E.L.R. 247) . . . . 247Baburao Tatyaji Bhosle vs. Madlio Shrihari Aney (A.I.R. Bom. 29) . 116Balakrishna Industrial Works vs. Venkatchari, (1954,2 M.L.J. 290) . 168Balwan Singh vs. Lakshmi Narain (A.I.R. 1960, S.C. 770) . . . 168Banerji, S. M. vs. Sri Krishna, (A.I.R. 1960, S.C. 368 at p . 373, para 10) 1,116Banwarilal Agarwalla vs. State of Bihar & ors. (A.I.R. 1961, S.C. 849) 35Baru Ram vs. Smt. Prasanni & ors. (A.I.R. 1959, S.C. 9 3 ) . . . 181Basappa vs. Ayyappa, 1958 S.C.J. 953 97Basavaiah vs. Bachiah, (17 E.L.R. 293 & 1959 Mys. L.J. 916) . . 192Beharilal Chaurasiya vs. Regional Transport Authority, (A.I.R 1961 MP

75, 77) 354Bengal Immunity Co. Ltd. vs. State of Bihar, 1955(2) ;S.C.R. 603) . 354Bhagwan Dutt Shastri vs. Ram Ratan Gupta, (II E.L.R. 448) . . 181BhikajiKeshaoJoshira. Brijlal Nandlal Bigani (A.I.R. 1955, S.C. 610) . 130Bhimrao vs. Ankush Rao (22 E.L.R. 385) 143Bhimsen vs. Gopali (22 E.L.R. 228) 35Bholanath Balbadra vs. Acchiram Puran (A.I.R. 1937 Nag. 91) . . 354Canara Bank Ltd. vs. Warden Insurance Co. Ltd., (I.L.R. 1952) BOM.

1083 354Chandra Kumar Sen vs. Mathura Debiya (1925) I.L.R. 52 Cal. 1009 . 354Chandra Sekhar Prasad M. Ja i Prakash Singh (17 E.L.R. 126) . . 220Chaturbhuj Chunnilal vs. E. T. & others (A.I.R. 1958, All 809) . 116Chatturbhuj Vithaldas Jasani vs. Moreshwar Parasham and others 9 E.L.R.

301 (SC) & A.I.R. 1954, S.C. 236 217, 291Chavan, Y. B. vs. K .T. Mangal Murti, (A.I.R. 1958, Bom, 397) . . 312Collector of Monghyr & Ors. w. Keshav Prasad Goenka (A.I.R. 1962 S.C.

1694) . 3 5 , 168, 181Dantu Bhaskar Rao vs. C. V. R. Rao, Sp. App. No. 52 of 1962 . . 168Dev Kama vs. Kusharam Nath, A.I.R. 1961 S.C. 1125 . . . 1Dr. John, V. K. vs. Vasant Pai, (11 E.L.R. 278) 97Dropadi rj. Hira Lai (1912) (I.L.R. 34 All. 496) 354

"Indicates the page from which the judgment starts.

E.L.R.] TABLE OF CASES CITED (iii)

*PAGE NO.

Durga Shankar « . Raghuraj Singh (A.I.R. 1954, S.C. 520) . . . 1

Durga Shankar Mehta vs. Returning Officer, 1955 (1) S.G.R. 267 . . 312

Emperor vs. A. A. Alwc, (37 B.L.R. 892) 143

Ephrayimw. Turner Morrison & Co., ( A . I . R . 1930, Bomb. 511) . . 168

Gangi Reddy vs. N . C . Anjaneya Reddy & Ors. (22 ELR, 261) . . 143,265

Ganpat Singh vs. Brijmohan Lai (A.I.R. 1959, Raj. 114) . . . 116

Gulaker Ahmed vs. The Election Tribunal (A.I.R. 1958, M. P. 224) . 116

Hari Vishnu Kamath vs. Syed Ahmed Ishaque (1955) 1 S.G.R. 1104 &

S.C. 233 35, 323

Harish Chandra vs. Triloki Singh, (A.I.R. 1957, S.C. 444) . . . 97,116,130

Hobbes vs. Morey (1904) 1, K.B. 74 312

Howard vs. Bodington (1877) 2 P.D. 203 130

Inamati Malappa Basappa vs. Desai Basavaraj Ayvappa (A.I.R. 1958

S.C. 698) ' . . . . 116

Inayathullah vs. Diwanchand Mahajan & Ors. (A.I.R. 1959, M. P. 58) 281,323

Inder Lai vs. Lai Singh, (A.I.R. 1962, (S.C.) 1156, 1159) . . . 143,265

Jagan Nathw.Jaswant Singh & Ors. (A.I.R. 1954, S.C. 210) . . 97,116,130,

168

J a g a n n a t h Da la i vs. R a m a C h a n d r a N a b a t e & Ors . ( A . I . R . 1959 O r r . 26) 116

J a g a t Dhish Bhargava vs. J a w a h a r La i Bhargava , ( A . I . R . 1961, S.C. 832) 130, 168

J e n a U r a o n vs. J o h a n U r a o n , (S. A . N o . 1573 of 1948 da ted 17-1-1951

P a t n a ) 291

J u U i u s w . Bishop of Oxford (1880) 5 A C 214 35

K a m a r a j a N a d d a r vs. Kun ju Theva r , 14 E L R 270 ( A . I . R . 1958, S C687) 61,116,130,

181

K a n d a s w a m i Pil lai vs. K a n n a p p a Chet ty , ( A . I . R . 1952 M a d . 186) . 354

K a r n a i l Singh w . Elect ion T r i b u n a l , Hissar (10 E L R 189) . . . 1

Kausha l end ra Prasad N a r a i n Singh vs. N a n d Kishore Prasad Singh (22

E L R 484) 181

Kausha lya R a n i w . G o p a l S ingh , 1964 (4) S .C .R . 982 . . . . 354

Keshav L a k s h m a n Barkar vs. Deorao Lakshman A n a n d e (A . I .R . 1960, S . C .

131 & (1960) 1 S. C . R . 902) 312

Kr i shna K u m a r vs. K r i s h n a Gopal ( I . L . R . (1963) 13 R a j . 726) . . 265

K u n c h u R a m a n , P . vs. V . R . K r i s h n a Iyer , ( A . I . R . 1961, K e r . 188) . 281

Laher i Singh vs. A t t a r Singh, 3 E . L . R . 403 (Tr) 97

I .akshmi S h a n k a r Y a d a v vs. K u n w a r Sripal Singh (22 E . L . R . 47) . . 323

Liverpool Borough Bank vs. T u r n e r (1860) 30 L . J . C h . 397 . . . 130

M a l l a p p a Basappa vs. Basavaraj S y y a p p a (A . I .R . 1958, S. C. 698) . . 97

M a r u t r a o B h a u r a o & Ors . vs. V . G u l a b r a o D a d a s a h e b and ors. (5 E . L . R .

303) 89

M a u l a n a Abdul Shakur M . R i k h a b C h a n d (1958) S .C .R . 387 . . 77

M e h a r S m g h vs. U m r a o Singh & Anr . , ( A . I . R . 1961 P u n . 244) . . 265

M o h a n R e d d y vs. N a r a y a n R e d d y , 1963 I I A n . W . R . I l l . . . 192

M o h d . B a h a d u r K h a n vs. Collector of Bareilly, 1 I . A . 167 . . . 97

Mool C h a n d J a i n vs. R u l i a R a m ( A . I . R . 1963 P u n . 516) . . . 113

M r . M a t h e w V. S. Mor ton vs. M r . Mi tche l (deceased) I I I Mal ley &Hardcas t l c Election Peti t ion page 19 at 23 . . . . . 61

Mst. Abifla Khatooim. Chore Khan (A.T.R. 1956 All. 252) . . . 354

"Indicates the page from which the judgment starts.

( i v ) TABLE OF CASES CITED [VOL. XXV

* P A G E N O .

M u t h i a h Che t t i a r , M . A . vs. Saw Ganessan ( A . I . R . 1958 M a d . 187) . 116

N a r a y a n a R a o vs. S ta te of A n d h r a Pradesh ( A . I . R . 1957, S. G. 737) . 35

N a r a y a n a s w a m y vs. K r i s h n a m u r t h i ( I . L . R . 1958 M a d r a s Page 513) . 77

N a s a r u d d i n K h a n vs. E m p e r o r (1926) ( I . L . R . 53 Cal . 827) . . . 354

P a d m a b a t i Dasi vs. Ras ik La i D h a r ( I . L . R . 37 Ca l 259) . . . 130

People vs D e R e n n a 2 N Y S (2) 694 130

P e t h u R e d d i a r vs. M u t h i a h (1963) I I M . L . J . P . I . . . . 1 5 9 , 1 9 2 , 2 8 1

P r a t a p Singh vs. Shr i K r i s h n a G u p t a ( A . I . R . 1956, S. C. 140) . . 220

Poonuswamy vs. R e t u r n i n g Officer, N a m a k a l , 1952 S. C . J . 100 . . 97 , 312

R a m G o p a l Ghose vs. D h i r c n d r a N a t h Sen ( I . L . R . 54, Ca l . 380) . . 168

R a m a l i n g a m vs. K a n d u k u r i R a g h a r u l u , 1963 1 A N . W. R . 442 . . 159

R a m a p p a vs. Sangappa , (1959) S . C . R . 1167 77

R a m a s w a m i Pillai vs. T h e D e p u t y Collector of M a d u r a (1919) I . L . R . 43

M a d . 51 354

R a m Kr i shan Singh vs. T r i b e n i Singh 1 7 E . L . R . 81 . . . . 220

R a m S w a m p Prasad vs. J a g a t Kishore , 17 E . L . R . 110 . . . . 220

Rang i l a l vs. Dahusao , (A. I . R . 1962 S.C. 1248) 1

R a n i Drigraj K u e r vs. Ra ja A. K . N . Singh, A . I . R . 1960 S. C . 444 . . 35

R o o p C h a n d Sahoni vs. R a w a i t M a n Singh, 5 E . L . R . 327 (Tr . ) . . 97

S a n k a r a G i r a d a vs. S i rur Vee ra B h a d r a p p a (A . I .R . 1963 Mys . 81) . . 247

Shanker N a n a Saheb K a r p e vs. R e t u r n i n g Officer (A.T.R. 1952 Bom. 277) 312

Satish K u m a r vs. Elect ion T r i b u n a l , (A . I .R . 1963 R a j . 157) . . . 130

S a w Ganesan vs. M . A . M u t h i a h 19 E . L . R . 16 181

Seha t AH K h a n vs. A b d u l Q a v i K h a n , ( I . L . R . (1956) 2 All . 252) . . 354

Sheopa t Singh vs. Har i sh C h a n d r a , 16 E . L . R . 103 . . . . 181

Sreenivasan A. vs. E . T . M a d r a s & Anr . , 11 E . L . R . 278 . . . 61

Srinivasan, K . S. vs. U n i o n of I nd i a ( A . I . R . 1958, S.C. 419) . . 35

Sta te of B o m b a y vs. Pu r sho t t am J o g . , ( A . I . R . 1962 S.C. 317) . . 3 5 , 1 3 0

Sta te of U . P . vs. M a n b o d h a n La i (A . I .R . 1957 S.C. 912) . . . 3 5 , 1 3 0

Sta te of U . P . vs. Smt . K a u s h a l a y a , 1964 (4) S .C.R. 1002 . . . 354

Stewa M.Jelliffe (1873-4) 9 Cour t of C o m m o n s Pleas, P . 446 . . . 35

Sudh i r L a x m a n H e n d r a »s. Shr ipa t A m r i t D a n g e (61 B . L . R . 500) . . 143

T h i p p a R u d r a p p a - G o d a vs. K u n d u r R u d r a p p a , (18 E . L . R . 97) . • 61

T h o m a s vs. Kelly, (13 A. G. 506) . . . . - . - I 3 0

Vashist N a r a i n S h a r m a o . Dev C h a n d r a (1955) 1 S .C.R. 509 . . 323

Vasviah w.-Bachiah & ors. (17 E . L . R . 293) . . • • • • 3 5

Veluswami , N . T . vs. Ra j a N a i n a r , ( A . I . R . 1959 S.C. 422) . . . 1

Wilson R e a d e at. C. S. Booth, (14 E . L . R . 480) . 2 9 1

W o o l v e r h a m p t o n New W a t e r Works Co. vs. Howksford, [6 C.B. (N.S.) 336] 97

*Indicates the page from which the j u d g m e n t s tar ts .

[IN THE HIGH COURT OF MAHARASHTRA AT NAGPUR]

NAMDEO CHIMNAJI TAPREV.

GOVINDDAS AND ORS.(KOTVAL AND ABHVANKAR Jj)

July 11, 1963.

Representation of the People Act, 1951—Ss. 33, 36, 100(/)(<r)—Variationin surname between nomination paper and voter's list—whether nomination paper "impro-perly rejected'1'' for such defect—Returning Officer's duty to ensure correction. S. 117—only one deposit when more than one petitioner —if-—compliance with section. Ss. 82,90—if petition liable to be dismissed for joining surplus parties.

The appellants, who were electors in the constituency, filed an electionpetition challenging the election of the first respondent. The principal groundtaken in the petition was that the nomination papers of respondents 8 and 9were improperly rejected by the returning officer for the reason that the sur-names of both candidates and the proposers as given in the nomination paperswere different as compared to the voters' list. The Election Tribunal recordeda finding on this issue against the appellant and dismissed the petition. OnAppeal to the High Court,

HELD:—(i) The nomination paper of the 8th respondent was improperlyrejected within the meaning of s. 100(l)(c) and therefore the election of thefirst respondent must be declared void.

The proviso to sub-section (4) of section 33 enjoins upon the returningofficer a duty to permit any clerical or technical error in the nomination papersto be corrected in order to bring them into conformity with the correspondingentries in the electoral rolls and, wherever necessary, to direct that any clericalor printing error in the said entries should be over-looked, irrespective of whetherthe candidates or proposers or any other person asked for the correction or not.

Even assuming the discrepancy as to the difference in the surname in thenomination paper as compared with the voters' list was a defect, it was nota defect of a substantial character within the meaning of sub-section (4) ofSection 36, and the returning officer was therefore in error in rejecting thenomination paper when once there was no doubt as to the identity of thecandidate and his proposer.

Rangilal v. Dahusao, A.I.R. 1962, S.C. 1248, Dev Kanta v. Kusharam Math,A.I.R. 1961, S.G. 1125, Karnail Singh v. Election Tribunal Hissar, 10 E.L.R.189, S.C; relied on.

Every ground of qualification or disqualification was open for considera-tion in deciding whether the nomination paper was improperly rejected within

3—3 ECI/ND/67

2 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

the meaning of Section 100(1) (c) and the consideration whether it was improp-erly rejected or not was not limited to the one ground which was urged beforethe returning officer.

JV. T. Veluswami v. Raja Nainar, A.I.R. 1959, S.C. 422; S. M. Banerji v.Sri Krishna, A.I.R. 1960, S.C. 368; relied on.

Durga Shankar v. Raghuraj Singh, A.I.R. 1954, S.C. 520, referred to.

(ii) Though there may be more than one petitioner, so long as one depositis made for the election petition, the election petitioners would comply withthe requirements of s. 117.

(iii) So long as the necessary party, the party who was directly and vitallyinterested, was made a party, the petition was validly constituted and main-tainable; it was not liable to be dismissed because surplus parties were joined.

Appeal against the judgment, dated 15th April, 1963,passed by D. M. Aney, Esquire, Member of Election Tribunalat Buldana in Election Case No. 1 of 1962.

V.R. Manohar, S. A. Sohoni and D. K. Khamborkar forthe Appellant.

B. R. Mandlekar, for the Respondent No. 1.

JUDGEMENT

KOTVAL, J.—This is another election appeal. It relatesto the election to the Maharashtra Legislative Assembly fromconstituency No. 164 of Khamgaon including Khamgaon Town.

The following dates out of the programme announced forthe election are material for our purposes:—

(i) The last date for filing of nomi-nations was .. . . . . 20th January 1962.

(ii) The scrutiny of nominationswas to take place on .. . . 22nd January 1962.

(iii) The date on which the poll wasto be taken was . . . . 22nd February 1962.

(iv) Counting took place on . . 26th and 27th Feb-ruary 1962.

(v) The result was declared on 27th February, 1962. Atall material times during the process of election theReturning Officer and the Election Officer under theRepresentation of the People Act, 1951, were one andthe same person, Mr. M. P. Lawale.

E.L.R.] NAMDEO-CHIMNAJI TAPRE V. GOVINDDAS

The respondents Nos. 1 to 6 to this appeal were candidatesfor election and the respondents Nos. 7, 8 and 9 had filed nomi-nation papers for election but their nominations came to berejected and several of the grounds taken in the election petitionpertain to the rejection of these nominations. As to the candidateswho stood for election the number of votes obtained by each wereas under:—

NameNumberof votesobtained

Party for whichstood

Respondent No. 1, GovinddasRatanlal Bhatia (who has givenevidence in this case as R.W. 5).

Respondent No. 2, Tukaram Gan-pat Kumar (who has given evi-dence in this case as P. W. 5)

Respondent No. 3 Bhaskar Sang-rao Deshmukh.

Respondent No. 4 KrishnaraoGanpatrao Deshmukh.

Respondent No. 5 VithalraoAmrita Wankhede.

Respondent No. 6 PurushottamSheoram Shekdar.

33,238 Congress.

21,319 Peasants andworkers (S.M.Samiti).

301 Jan Sangh.

1,730 Nag-VidarbhaAndolan Samiti.

1,047"

563

IndependentCandidates.

As a result of the poll, the respondent No. 1 Govinddas RatanlalBhatia was declared elected, and the petitioner out of which thepresent appeal arises challenged his election.

The election petition was presented by the two appellantsNamdeo Chimnaji Tapre and Namdeo Wakuji Araj. Theyclaimed to be electors within the meaning of the section 81 of theRepresentation of the People Act. They alleged several groundson which they claimed that the election of the first respondentought to be declared void. The principle ground was that thenomination papers of the respondents Nos. 7 to 9 which had beenrejected by the Returning Officer were improperly rejected andthe election was consequently liable to be set aside under section100 of the Act. The second ground was that there were several

4 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

contracts entered into with the State Government by the respond-ent No. 1 in the course of his business. One such contract wasfor the supply of printed lists of voters for this same election.The other contract was for providing transport for under-trialprisoners and/or convicts between Buldana jail and other places inthe district. According to the petitioners, the subsistence ofthese contracts worked a disqualifiction under section 7 (d) ofthe Act disentitling the respondent No. 1 from standing.

The first respondent raised a number of pleas in answerand he denied the fact that he was the owner of the particularpress known as "Dinkar Mudranalaya" of Khamgaon, in whichthe voting lists were.printed. According to the petitioners, hewas a partner along with several other persons. In connectionwith the second objection, the respondent No. I's stand was thatthe rejection of the nominations of the respondents Nos. 7,8 and 9 was proper. The respondent No. 7 did not put in appear-ance and was throughout ex parte. The respondents Nos. 8and 9 filed their written statements but it does not appear thatthereafter they took part in the trial of the election petition.

Now, it is unnecessary here to state the respective pleadingsof the parties upon all the issues which were framed by the Elec-tion Tribunal, because after some arguments Mr. Manohar onbehalf of the appellants has with discrimination confined himselfto the two important grounds which we have referred to.

The first ground argued is as to the rejection of the nomina-tion paper of the respondent No. 8 by the Returning Officer,Mr. Lawale. It is not in dispute that the nomination paperof the respondent No. 8 Bhiku Ambuji Shegaonkar was presentedby the candidate in person on 19th January 1962. There is adispute as to what happened on the date of presentation and asto whether the Returning Officer at all scrutinize the nominationpaper or asked him to appear on a subsequent day, but it isclear that he passed a written order on 22nd January 1962, whichis endorsed on the reverse of Exhibit 125. That order was asfollows:—

"In accordance with the provisions contained in section36 of the Representation of the People Act, 1951,1 examinedand scrutinised this Nomination Paper and order asbelow:—

There is a difference in the surnames of both thecandidates and his proposer as compared with the voters'list. Hence this Nomination Paper is illegal and invalidand is being declared as such "

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 5

It is that order with which we are here concerned.

The objection which was upheld to the nomination of therespondent No. 8 was that there was a difference between thesurname mentioned in the Nomination Paper and the votinglist in the case of both the candidates and his proposer. Inthe nomination paper the names were as follows:—

Candidate Proposers

The list of voters is at Exhibit 36 and according to the candidateand the respondent No. 1 these names were covered by entriesNos. 690 and 427 in the list of voters. So far as the respondentNo. 8 is concerned the relevant entries are from 682 to 691,which are as follows:—

* * * * * ** * * * * ** * * * * ** * * * * *

So far as the proposer Honaji is concerned, the entries are fromNos. 423 to 427 in the electoral role for ward No. 11, which areas follows:—

It will be noticed that the surname as mentioned in thenomination paper of the candidate as well as of the proposeris Shegokar, whereas, according to the findings, in the list ofvoters it was "Tayade" in the case of the respondent No. 8 and"Sukhale" in the case of the proposer Honaji. Now, it wasargued on behalf of the petitioner that this difference has arisenbecause of the "ditto sign", which is mentioned against the othernames of persons above the respective entries pertaining to therespondent No. 8 and the proposer. Actually there is no surnameas such mentioned in the voting list against the name of the res-pondent No. 8 or the proposer, but where the surname ought tobe there is the ditto sign.

It was also the case of the petitioner that no one had challen-ged the identity of the candidate and no one stated that the name

*In Marathi—not to be printed.

6 NAMDEO CHIMNAJI TAPRE 9. GOVINDDAS [VOL. XXV

mentioned in serial No. 690 did not pertain to the respodentNo. 8. It was alleged that the surname of the respondent No.8 is not "Tayade" and that there is no "BhkuAmbuji Tayade"in ward No. 13 in House No. 307 appertaining to the entry inthe roll. It was specifically averred that the entry No. 690in the roll related to the respondent No. 8. According to thepetitioner, the Returning Officer failed in material respects inthe performance of his duties. He should have scrutinized thenomination paper forthwith when it was presented under section33(4) of the Act, which he failed to do. Another stand whichthe petitioner has taken in the petition is that the surname is notessential to be mentioned in the nomination paper nor is it anypart of the name of the candidate as prescribed by the rule,and therefore there was no substantial error in the nominationpaper upon which it could possibly have been rejected by theReturning Officer. Paragrah 6(D) of the petition is in this respectof some importance because it was argued that it has at no stagebeen controverted in the reply filed by the first respondent, andparagraph 6(D) alleged:

"It is submitted that Shegokar is not a surname. Num-ber of residents of Shegaon call themselves Sheogaonkar orSheogakar. The mention of surname in voters' lists isredundant and is not prescribed by statute. Similarly mentionof surname in Nomination Paper is redundant and unnecessary.

In reply the respondent No. 1 dealt with these allegationsin the petition in paragraph 6 of the written statement. It wasurged that the respondent No. 1 has not specifically denied theseallegations in the petition. The respondent contended thatparagraph 6 of his written statement was sufficiently specific.Paragraph 6 begins with the statement "The contents of paragraph6(a)(b)(c) are denied", and then follows a detailed statement.Reading the paragraph it does appear that he has not contro-verted the allegations in paragraph 6(D) of the petition specifi-cally. Mr. Mandlekar on behalf of the respondent No. 1 pointedto several allegations in paragraph 6 of the written statement towhich we shall refer when we consider the arguments, but it isclear that directly paragraph 6(D) of the petition has nowherebeen denied or otherwise and answered.

Now, so far as the Election Tribunal is concerned, it foundupon a consideration of section 33(1) and (4); section 36(1),(2) and (4) and the rules that the mention of the surnames in the

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 7

nomination paper is not a requirement of the Law. The necessaryfinding is as follows:—

"There can thus be no doubt that surnames did notat all constitute an essential requirement of the descriptionof voters in the electroal roll."

But then the Election Tribunal went on to say that "if thesurnames are mentioned they cannot just be ignored as a totalsuperfluity" and that because they are mentioned in the nomina-tion form of the respondent No. 8 they "are bound to subscribeto the identity of the persons." The Tribunal thereafter held thatthe "discrepancy in the surname could not possibly be regardedas trivial or inconsequential. Indeed it pointed to the personsof different families altogether."

So far as the procedure for the receipt of the nominationpapers by the Returning Officer and his scrutiny thereafter areconcerned, the Tribunal has found that on the date of presentationthe Returning Officer did not check the nomination paper of therespondent No. 8. From its finding it is clear that it acceptedthe petitioners' contention that there was no objection taken tothe identity of the respondent No. 8 as being the correct persondescribed in the nomination paper. It also accepted as a factthat the nomination papers, Exhibits 125 and 126, were dulysigned and presented before the Returning Officer by the respond-ents Nos. 8 and 9. The Tribunal, however, held that the nomina-tion papers were properly rejected because it took the view thatthe omission to mention the correct surname was a of a substantialcharacter.

Mr. Manohar on behalf of the appellants has urged that inthe first place there was no substantial defect in the nominationpaper and that it was really a defect or an inadvertant errorwhich has crept in the voting list. Because of that it has beenmade to appear that the nomination paper was defective. In anycase he urged that a surname was not essential to the validity ofthe nomination paper either as a matter of practice or in law.He strongly criticised the action of the Returning Officer andthe procedure which he followed before he passed his order reje-cting the nomination of the respondent No. 8 According to himthe procedure followed by the Returning Officer infringed bothsections 33 and 36 of the Act and the rules and it was in conse-quence of the wrong procedure which he followed that thewrong order came to be passed.

8 NAMDEO GHIMNAJI TAPRE V. OOVINDDAS [VOL. XXV

Before we turn to the contention raised on behalf of theappellant, it is necessary to refer to certain provisions of the Re-presentation of the people Act. The objection, as it has beenpressed before us is founded on the provisions of section 100(1)(c)of the Act which says:

"100. Grounds for declaring election to be void.—(1).—Subject to the provisions of sub-section (2) if the Tribunalis of opinion—-

(c) that any nomination has been improperly rejected;

* * * * * *

the Tribunal shall declare the election of the returnedcandidate to be void."

There is nothing in sub-section (2) which affects this parti-cular clause of section 100(1). As to the nomination of candidates,provision has been made in Chapter I, Part V of the Act, andsection 32 provides that any person may be nominated as a candi-date for election to fill a seat if he is qualified to be chosen to fillthat seat under the provisions of the Constitution and the Act.Then follow the provisions of section 33, dealing with the mannerof presentation of a nomination paper and the requirements of avalid nomination, and for the purposes of the point raised beforeus, sub-sections (1) and (4) are material. They provide asfollows:—

"33 . Presentation of nomination paper and requirements fora valid nomination.—(1) On or before the date appointedunder clause (a) of section 30 each candidate shall, either inperson or by his proposer, between the hours of elevenO'clock in the forenoon and three O'clock in the afternoondeliver to the returning officer at the place specified in thisbehalf in the notice issued under section 31a nomination pa-per completed in the prescribed form and signed by thecandidate and by an elector of the constituency as proposer.

(4) On the presentation of a nomination paper, thereturning officer shall satisfy himself that the names andelectoral roll numbers of the candidate and his proposeras entered in the nomination paper are the same as thoseentered in the electoral rolls :

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 9

Provided that the returning officer shall permit anyclerical or technical error in the nomination paper in regardto the said name or number to be corrected in order to bringthem into conformity with the corresponding entries in theelectoral rolls, and whereas necessary, direct that any clericalor printing error in the said entries shall be overlooked."

Section 36 of the Act makes provision for a scrutiny of nomi-nations by the Returning Officer, and since several of theactions of the Returning Officer in this case (Mr. Lawale) havebeen challenged before us, it is worthwhile reproducing here thematerial provisions of section 36. They are sub-sections (1) (2) and(4) as follows:—

<•<•<'36. Scrutiny of nominations.—(1) On the date fixedfor the scrutiny of nominations under section 30, the candi-dates, their election agents, one proposer of each candidate,and one other person duly authorised in writing by eachcandidate, but no other person, may attend at such timeand place as the returning officer may appoint; and thereturning officer shall give them all reasonable facilities forexamining the nomination papers of all candidates whichhave been delivered within the time and in the mannerlaid down in section 33.

(2) The returning officer shall then examine the nomi-nation papers and shall decide all objections which maybe made to any nomination and may, either on such objec-tion or on his own motion, after such summary inquiry,if any, as he thinks necessary, reject any. nomination onany of the following grounds:—

(a) that on the date fixed for the scrutiny of nomina-tions the candidate either is not qualified or is disqualifiedfor being chosen to fill the seat under any of the followingprovisions that may be applicable, namely:—

Articles 84, 102, 173 and 191, and Part II of this Act, or

(b) that there has been a failure to comply with anyof the provisions of section 33 or section 34; or

(c) that the signature of the candidate or the pro-poser on the nomination paper is not genuine.

* * * * * *

(4) The returning officer shall not reject any nomina-tion paper on the ground of any defect which is not of a subs-tantial character.

4—3EC1/ND/67

10 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

The provisions of sub-section (1) of section 33 require thateach candidate shall on or before the last date for the presentationof nomination papers fixed under section 30(a) either in personor by a proposer, deliver to the Returning Officer at the placespecified in the notice issued under section 31, a nominationpaper completed in the prescribed form and signed by thecandidate and by the elector of the constituency as proposer.Sub-section (4) indicates what the Returning Officer is to do whenthe nomination paper is presented to him and it shows thathe is required to satisfy himself on several questions. Of the seve-ral duties prescribed, the first is that he shall satisfy himself thatthe names and the electoral roll numbers of the candidate andhis proposer, as entitled in the nomination paper, are the sameas those entered in the electoral roll. Then there follows a provisowhich enjoins the second duty upon the Returning Officer,and that is he "shall permit any clerical or technical errorin the nomination paper in regard to bring them into conformitywith the corresponding entries in the electoral rolls". It seemsthat this requirement of the law was expressly made in orderto obviate just such a mistake as has occurred in the present case,that is to say, a discrepancy between the names in the nominationpaper and the corresponding entries in the electoral rolls; andthe scope of the duty of the Returning Officer is indicated by thewords "shall permit". The proviso to sub-section (4) furtherprescribes a third duty in the following words:—

"and where necessary, direct that any clerical or print-ing error in the said entries shall be overlooked."

so far as this duty is concerned, it is a duty enjoined upon theReturning Officer irrespective of whether the candidates or pro-posers or any other person asks for the correction. The differencebetween the second requirement and the third is clear. Thesecond requirement is directed to correcting errors in the nomina-tion paper, whereas the third requirement contained inproviso to sub-section (4) of section 33 is directed to overlookingany clerical or printing errors in the entries in the electoralroll.

The Returning Officer has not been examined in this caseby either party and the petitioners who are mere electors couldobviously not be expected to know what transpired when thenomination papers were presented by any other candidates.Thus, there is no evidence to indicate what happened when thenomination paper of the respondent No. 8 was presented to theReturning Officer. But sub-section (4) of section 33 requires that

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 1 1

on presentation of the nomination paper the Returning Officershall satisfy himself that the names and electoral roll numbers ofthe candidate and his proposer as entered in the nominationpaper are the same as those entered in the electoral roll. Havingregard to this mandatory provision and the duty cast upon theReturning Officer to satisfy himself on these particulars we shouldordinarily have presumed that the Returning Officer performedhis duty, but we shall presently show that in this case, there areclear indications that he did nothing at all at. the time of presen-tation.

The following are the indications on the record that hecould not have performed any part of his duties under section33(1) or (4). In the first place, the nomination form whichwas admittedly presented to him on 19th January 1962 does notbear any endorsement by him that he has scrutinised it oraccepted it or rejected it. The only order he passed was threedays later on the date of scrutiny. That order was passed on 22ndJanuary, 1962 on the reverse of Exhibit 125 and he merelyobserved:

"There is a difference in the surnames of both thecandidates and his proposer as compared with the voterslist. Hence this nomination paper is illegal and invalidand is being declared as such."

No other ground of objection is mentioned for the rejectionof the nomination paper.

Now, it is clear that the only ground which the ReturningOfficer found on 22nd January 1962 for rejecting the nominationpaper was precisely the one ground on which he had to satisfyhimself under section 33 at the time of the presentation of thenomination paper i. e. on 19th January 1962. Thus, if hehad performed his duty under section 33 at the time of presenta-tion, the occasion to pass the order on 22nd January 1962 wouldnever have arisen. That in our opinion, is a sufficient indicationthat the Returning Officer did not scrutinise or look at the nomi-nation paper at all on 19th Janury 1962 at the time it was present-ed, and so failed to discharge the duty prescribed under section 33.There is also no evidence whatsoever that he performed thatduty.

Dealing with the provisions of these sections, in Rangilalv. Dahu Sao (1), Wanchoo J. observe'd:

"The result of these provisions is that the proposer andthe candidate are expected to file the nomination papers

(1) A.I.R. 1962 S.C. 1248.

12 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

complete in all respects in accordance with the prescribedform; but even if there is some defect in the nominationpaper in regard to either the names >̂r the electoral rollnumbers, it is the duty of the returning officer to satisfyhimself at the time of the presentation of the nominationpaper about them and if necessary to allow them to becorrected, in order to bring them into confirmity with thecorresponding entries in the electoral roll. Thereafter onscrutiny the returning officer has the power to reject thenomination papers on the ground of failure to complywith any of the provisions of section 33, subject however tothis that no nomination paper shall be rejected on theground of any defect which is not of a substantial character."

The decision clearly indicates that it is the duty of the Return-ing Officer to scrutinise the nomination papers on presentationand compare the entries in the nomination form with the entriesin the voters' list and permit corrections to be made. That allthis was done not at the time of the presentation of the nominationpaper in this case but subsequently on 22nd January 1962 showsthat the Returning Officer did not perform his duties undersection 33 on the presentation of the nomination paper.

So far we have assumed that there was such an error as wouldvitiate the nomination form but that has been very strongly dis-puted on behalf of the appellants by Mr. Manohar. Turning thento the merits of the controversy, it has to be noticed first of allthat the objection itself did not emanate from any of the rivalcandidates or their election agents or any third person but it wasraised suo motu by the Returning Officer himself. The Tribunalhas found that at the time the order on the reverse of Exhibit125 was passed, the respondent No. 8 was not present. As tothat we shall have something to say presently, but it was arguedbefore the Tribunal that the objection was raised suo motu bythe Returning Officer and that he was not justified in raising ithimself. That was answered by the Tribunal by observingin paragraph 15 :

"The fact that no one objected to that identity did notat all absolve the Returning Officer from his duty to see thatidentity was satisfactorily established."

In making these remarks the Tribunal overlooked two things:

(1) that the duty arose at the stage of presentation and atthat stage the Returning Officer did not peform his duty. Ifhe had performed his duty at the proper stage he would have been

E.L.R.] NAMDEO GHIMNAJI TAPRE V. GOVINDDAS 13

bound to order correction and the occasion for rejecting thenomination may not have arisen;

(2) that in this case no one had disputed the identity assuch. It was not the respondent No. l's case before the Tribunalor before that the candidate and the proposer in the disputednomination were not the very persons whose names appear in theentries in the voting list at serial Nos. 690 and 427.

Next, let us examine the view which the Returning Officertook in his order and how the Tribunal dealt with it. Theconsideration which is most important in our view we have alreadyindicated. Even the Returning Officer did not hold in his orderthat in fact the identity of the candidate and his proposer had notbeen established or that it was at all in doubt. He did nothold that the candidate and his proposer were really not thepersons mentioned in the voting list at entries Nos. 690 and 427respectively. All that he held was that the surnames did nottally. In fact there is no doubt or dispute in this case that therespondent No. 8 was the very person who was covered by theentry at serial No. 690 and the proposer was the very personwho was the person mentioned in the entry at serial No. 427.

Next, so far as the findings of the Tribunal are concerned,there does not appear to be any clear finding upon the factsgiven by the Tribunal as to whether identity was established ornot. In dealing with this point the evidence of the first respon-dent Govinddas at Exhibit 121 was referred to and the Tribunalquoted the following passage from that evidence:—

"I know respondents 8 and 9 by names. When theirnomination papers came for consideration, I had no doubtthat those nomination papers were theirs."

As to this evidence the Tribunal observed:

"But it does not appear that he so expressed to theReturning Officer. In any case, the Returning Officerwas not bound to act upon what the respondent No. 1felt about the matter. Satisfaction of identity was essentiallya subjective experience and the Returning Officer couldbe hardly blamed for his inability to obtain such satisfactionin the absence of the persons concerned."

Now, it may be noticed that this is the only finding whichthe Tribunal has given on the question of identity and it does

14 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

not amount to a finding that the person mentioned in entriesNos. 690 and 427 were not the persons who are mentioned inthe nomination form.

What is of greater importance is that the Tribunal has notdisbelieved the evidence of the respondent No. 1 Govinddas.On the other hand, it appears it has accepted it. The Tribunal'sreasoning however was that it did not appear that the respondentNo. 1 had expressed his satisfaction regarding the identity tothe Returning Officer. In other words, the respondent No. 1had not told the Returning Officer that he had no doubt aboutthe identity of the respondent No. 8 and his proposer and itwas clear to him. But what about the evidence given by Govind-das before the Tribunal ? There is no verdict upon that evidenceand its credibility. It seems to us moreover that whether therespondent No. 1 stated it or not to the Returning Officer it wasfor the Returning Officer to have ascertained it at the time ofpresentation. We have already shown that at the preliminarystage when the nomination form was presented he made no inquirywhatsoever. His order does not show that he made any inquiryas to the identity at the subsequent stage. All that the ordershows is that there was a difference in the surnames of both,the candidate and his proposer as compared with the voting list.In our opinion, that finding is a clear finding that there was onlya clerical or technical error in the nomination paper and notthat there was any substantial difference as to identity.

Upon the evidence of the respondent No. 1 as R. W. 5 it isclear that the respondent No. 8 and his proposer were the personsmentioned in the relevant entries 690 and 427. This is also borneout by the evidence of the respondent No. 3 Bhaskar Deshmukhas P. W. 6 for the petitioners. He has stated in paragraph 2:

"We had no doubt as to the correctness of the nomina-tion paper of respondents Nos. 8 and 9."

We may incidentally also point out here that in the petitionitself it is averred:

"No one had challenged the identity of the candidateand no one had stated that the person mentioned at serialNo. 690 is a different person."

and though the respondent No. 1 in his written statement wascontent to generally deny the contents of paragraphs 6(A),(B) and (C) of the petition, he did not specifically controvertthis allegation of the petitioners that no one has challenged the

E.L.R.] NAMDEO CHIMNAJI TAPRE V, GOVINDDAS 15

identity of the candidate. In that state of the pleadings andthe evidence, we can see no reason why we should not acceptthe evidence to which we have referred, of the respondent No. 1a*hd the respondent No. 3. In our opinion, there is no doubtthat the identity of the candidate as being the respondent No. 8and his proposer as being Honaji Manaji, covered by entriesNos. 690 and 427 in the voting list, is established.

In the decision of the Supreme Court in RangilaPs caseto which we have referred above, the object and purpose of theseprovisions of the law requiring the giving of the name and serialnumber in the voting list were discussed and their Lordshipsobserved in paragraph 5 :

"The purpose of this provision is that the ReturningOfficer should be able readily to check that the proposerand the candidate are voters on the electoral roll."

If that be the purpose, then it seems to us that upon theentries made in the present nomination form read with the entriesin the electoral roll that purpose had been fulfilled by the nomi-nation form filed by the respondent No. 8. It may also incident-ally be observed here that that was the only purpose to which theReturning Officer did not apply his mind when he passed hisorder on 22nd January, 1962.

Now, the relevant objection which the Returning Officerfound was that the surnames of both the candidates and hisproposer did not tally with the voters' list, and the next ques-tion that arises is whether having regard to the provisions ofsection 36(4) that was at all a defect in the nomination formand if a defect whether it was substantial. The relevant form asprescribed by the Conduct of Election Rules, 1961, is Form No.2B in Part V of the Statutory Rules and Orders. Rule 4 of theConduct of Election Rules prescribes that every nomination paperpresented under Sub-section (i) of section 33 shall be completedin such one of the Forms 2A to 2E as may be appropriate. Theappropriate form in the instant case as we have already observed,was Form No. 2B. The entries required to be filled in, in thenomination form are as follows:—

1. Full name of proposer.2. Electoral roll number of proposer.3. Name of candidate's father/husband.4. Full postal address of candidate.5. Electoral roll number of candidate.

16 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

The form has to be signed by the proposer and the candidate,and the candidate has to state the symbols which he has chosenin the order of preference. The two requirements so far as thename of the proposer and the candidate are concerned, are inentries Nos. 1 and 3 i.e., "full name of proposer" and "nameof candidate's father/husband". If these are the requirements ofthe nomination paper, then it is clear that so far as the nomina-tion form in the present case is concerned it was properly and cor-rectly filled in. The name of the candidate and his father and thefull name of the proposer have been mentioned. Nowheredoes the law require that the surname should be mentioned,and it could just as well have been deleted from the form.

The difficulty which faced the Returning Officer was appar-ently created by the entries in the electoral roll. The exactentry in the electoral roll (Ex. 36) so far as the candidate isconcerned is :

The exact entry so far as the proposer is concerned is* * * * * *

* * * * * *

* * * * * ** * * * * *

It is clear from these entries in the electoral roll that thesurname as such is also not mentioned against the entries and yetthe Returning Officer felt that the surnames were different.The reason appears to be that he relied upon the two commas", ," signifying in the English language the notation for "Ditto"and so reading the entry, he read backwards until a similar dittomark in all the entries above entries Nos. 690 and 462 were exhaus-ted, and there was a specific surname found which surname heread into the entries concerning the candidate and by the proposer.

Now, in the electoral roll (Exhibit 36) the eight entries aboveentry No. 690 also do not contain the 'surname' but only the dittomarks, and it is only when we come to entry No. 682 that we findthe surname of one Kisan Zadu mentioned as "Tayade".Therefore, the Returning Officer inferred that all the rest of thanames below containing the ditto marks were Tayades by

***In Marathi. Not to be printed.

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 17

surname. In factflf that procedure of reasoning were to be applied,a glance at the electoral roll could show that all the persons fromentry Nos. 682 to 710 would be Tayades by surname. In otherwords, all the serial entries of these 28 persons would show thatsurname as Tayade. Similarly, so far as the proposer BhikujiSambhuji is concerned, the entries above that entry go up toentry No. 455 where we find the surname actually mentionedagainst the name of one Rambhau Sampat as "Bangar" and theReturning Officer therefore held that Bhiku Sambhuji's surnamewas also "Bangar". Here again we may point out that entriesNos. 455 to 475 are all covered by the ditto marks below the sur-name "Bangar" in entry No. 455, and therefore, according tothe reasoning of the Returning Officer all these 20 persons mustbe held to have the surname "Bangar'.

There was considerable argument at the bar as to what wasthe significance of these two commas. No doubt, so far as the Eng-lish language is concerned, that is a mark which is well recognisedand connotes the word "Ditto" which, as the Oxford EnglishDictionary tells us, is an Italian word corresponding to theEnglish word "said". The example given at page 544 of Voljime3 of the Oxford English Dictionary is "il detto libro"—"thesaid book", and the Italian word "detto" is equivalent to theEnglish word "Ditto". The same dictionary also points out thatthe word "ditto" means "by extension, the aforesaid, the same,used in accounts and lists (where also abbreviated Do, or expressedby two dots or commas, or a dash) to avoid repetition of a wordor phrase appearing above; hence in commercial, office and collo-quial language." Having regard to this meaning attachadto the sign in the English language, there can be no doubt thatthe ordinary sign of two commas would signify that the same word"as above" continues to be used wherever the sign is used. But itwas argued with considerable force that it is impossible to supposethat the candidates and voters would understand the sign in thesense in which it is used in the English language. In the firstplace, the voting lists are by law required to be in the vernacularand in the instant case the voting list Exhibits 36 was actuallyin the marathi language, and it is extremely doubtful if the classand type of voters in these constituencies could have understoodby these signs that the surname on the top was continued. Ifthey had so understood there is no doubt that the candidate at thetime of presentation would have pointed it out to the ReturningOfficer, for, as we have already shown, there was absolutely

no doubt as to the identity of the Respondent No. 8 vis-a-visthe entry No. 690, nor of the proposer Honaji vis-a-vis the entryNo. 427.5—3 ECI/ND/67

18 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

Apart from this, on behalf of the petitionM the voting listsfor the same area in the previous elections to the LegislativeAssembly have been filed. They are at Exhibits 59 and 61.In the voting list Exhibit 61 which is the voting list for the GeneralElections of 1952, at serial numbers 295, 296, 297 and 298 wefind the following persons shown there:—

* * * * ** * * * *

It may be noticed that in this electoral roll the inverted com-mas have not been used so far as the surnames are concerned.All the persons shown in the above entries are shown as residingin house No. 103, and their respective ages in the two lists Exhibit36 and Exhibit 61 show that they were the same persons as arementioned in entries Nos. 690, 691, and 692 in Exhibit 36,with the exception of Ambuji Ramji Shegokar. Similarly,a comparison of Exhibit 59, with entries in Exhibit 36 will showthat the same names in the same order continued in the votinglist for the 1957 elections. They are entries Nos. 316, 317, 318and 319. On behalf of the petitioners there has also been fileda document Exhibit 79 showing that Ambuji Ramji Shegokardies-on 23rd August 1959. That is an extract from the registerof the Shegaon Municipality where all these persons reside andit certainly establishes that the father of the respondent No. 8passed away in 1959.

Now, the point which Mr. Manohar has made is that in thevoting lists for 1952 and 1957 the name of Ambuji Ramji Shegokaris shown as the first among the four names in the family, viz.,of Ambuji himself, Gunkabai, Bhiku and Sayabai. That is asit should be, because Ambuji was the head of the family. Buthe died in 1959, and the officer who corrected that entry in theelectoral roll must have merely put a line through the name ofthe deceased person in order to delete and therefore the surnamedisappeared but in doing so, the officer failed to see the drasticeffect he was thereby producing on the entries below where underthe surname "Bhegokar" the ditto marks stood. With the removalof the word Shegokar along with the name of Ambuji, the dittomarks of his son and wife below read backwards to a completelydifferent surname. We have already pointed out that in thevoting lists of 1952 and 1957 the surnames are not mentionedagainst the remaining members of the family, namely, GunkabaiBhiku and Sayabai, but only against Ambuji. Therefore, theremoval of Ambuji's name upon his death also resulted in theremoval of the surname and that surname has disappeared for thefirst time in the voting list for the 1962 elections and the sign

***In Marathi Language. Not to be printed.

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 19

of ditto came to be used. The result was that the ditto sign hadto be read upwards until any surname was reached, namely,that of "Tayade" in the case of the respondent, No. 8 and "Ban-gar", in the case of the proposer Bhikuji Sambhuji. This, in ouropinion, is a very probable explanation, for as to how the errorcrept into the voting list. But it is not necessary for our purposeto go into that explanation, for the surname was not a sine quanon under law, for the validity of the nomination paper.

It seems to us that the candidature or otherwise of a candidatestanding for election to the high office of the membership of theState Assembly should not be made to depend upon whether thetwo commas are there against his name or not and upon inferencesas to what name those two commas apply to. The previouspractice adopted in the elections of 1952 and 1957 of repeatingthe surname in every case was a sensible and wise practice, andwe can see no reason why that practice was given up only in thiselection, unless that it was for the convenience of the printers ofthe voting lists. There is also the fact that in the instant case theprinters of the voting list were none other than a partnershipfirm in which the elected candidate was himself a partner. It isthis short cut to the work of preparing voting lists which resultsin these grave errors and graver consequences to the candidates.In this case we have no doubt that the nomination paper of therespondent No. 8 came to be rejected by the Returning Officersimply because he relied upon the two commas against his nameand with the aid of those commas read backwards his surnameuntil the wrong entry was reached. In our opinion, there wasno error at all in the nomination form. The nomination formdoes not require that the surname should be mentioned, but theerror, if at all, which weighed with the Returning Officerwas an error due to the faulty printing of the voters list.

Then we turn to the question whether assuming that therewas an error, the nomination form ought to have been rejectedoutright. Having analysed the evidence and the material beforeus with a view to seeing what the error consists of, it is prettyplain to us that it is not the sort of error which is referred to assubstantial error in sub-section (4) of section 36. The injunctioncontained in section 36(4) is clear enough. It says: "The returningofficer shall not reject any nomination on the ground of any defectwhich is not of a substantial character." We have indicated what inour opinion is the true defect in this case, and it is not necessary tore-emphasise that if it all it was an error, it was not an error of asubstantial character. In fact, even the Election Tribunal itselfappears to have felt this when it held that the surname did not

20 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [vOL. XXV

at all constitute an essential requirement of the description ofvoters in the electoral roll. It has also not found that the personwho stood as candidate and the person who proposed him werenot covered by the entries in the voting lists Nos. 690 and 452.We are therefore somewhat surprised to find that though theElection Tribunal held that the "Surname did not at all constitutean essential requirement of the description of voters in the electoralroll", it still went on to hold that the "discrepancy in thesurname could not possibly be regarded trivial or inconsequential."It seems to us that there was a clear conflict in the two findingsgiven by the Tribunal—the one in paragraph 12 and the other inparagraph 13.

The argument which the Election Tribunal adopted was,to quote it in its own words :

" if the surnames are mentioned, they cannotjust be ignored as a total superfluity. They are bound tosubscribe to the identity of the persons."

Since there is no doubt in the present case as to the identityof the candidate and his proposer, this argument cannot possiblyprevail. In our opinion, therefore, the ground upon which thenomination paper of the respondent No. 8 was rejected was nota valid ground at all, having regard to the provisions of sections33 and'36 read with the rules and the nomination form. Inany event, assuming that there was a defect, that defect was notof a substantial character within the meaning of sub-section (4)of section 36. The Returning Officer, therefore, was in error inrejecting the nomination paper.

Cases of similar other errors have occurred from time totime. Two such instances are to be found in the cases mentionedbelow, one of which we have already referred to Rangilal v.DahuSao (1) and Dev Kanta v. Kusharam Math (2) where the consti-tuency was wrongly mentioned, and in both these cases theirlordships of the Supreme Court held that the defects were notsubstantial, but perhaps the more crucial observation is to befound in Karnail Singh v. Election Tribunal, Hissar (3). In thatcase the nomination paper of a candidate was rejected on theground that column No. 8 in the nomination form was not dulyfilled up and the name of the sub-division was not stated thereinin describing where the candidate lived. When the error wasput before Mahajan C. J. , he observed:

(2) A.I.R. 1961 S.C. 1125.(3) 10 E.L.R. 189.

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 21

"The only defect pointed out was that the name of thesub-division was not stated therein, but on the evidence itwas quite clear that there was no difficulty in identifyingthe candidate and the candidate himself pointed out tothe Returning Officer the entry of his name in the electoralroll. The defect, in these circumstances, was a technicalone and the Tribunal was perfectly right in holding that thedefect was not of a substantial character and that the nomi-nation paper should not have been rejected."

These weighty observations emphasised the crucial pointto be considered on the scrutiny of the nomination form, namely,that it is to be filled in, in order to identify the candidate and,therefore if the identity of the candidate is once establishedany other defects not affecting the identity would be clericalor technical defects and not substantial* In this case, as wehave already said, there is no doubt as to the identity of therespondent No. 8 or of his proposer.

We next turn to the provisions of section 100 under whichthe petitioners claim relief. Though other grounds were urgedfor the relief which the petitioners claim, viz., that the electionof the respondent No. 1 should be declared void, it does not seemnecessary here to consider those grounds. Suffice it to say thatthe other ground urged in this case was that the election of therespondent No. 1 was vitiated because he was disqualified to standunder section 1 (d) of the Act as he had a subsisting contractwith the Maharashtra State Government at the material time.That would be a ground which, according to the appellants, fallswithin section 100(1)(a) or section \00(\)(d)(iv). So far as theground which we have found vitiates the election in the presentcase is concerned, the petitioners' case falls under section 100( 1) (c).That section says:

"100. (1) Subject to the provisions of sub-section (2)if the Tribunal is of opinion—

or(c) that any nomination has been improperly rejected;

the Tribunal shall declare the election of the returned candidatebe void".

On behalf of the respondents it was urged that even assumingthat it is found that the nomination form of the respondent No. 8was wrongly rejected because of the provisions of sections 33 and

22 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

36 of the Act, still it can hardly be said that it was "improperlyrejected" within the meaning of section 100( 1) (c). Mr. Mandlekarrelied upon two decisions of the Supreme Court in JV. T. Veluswamyv. Raja JVainar (4) and Durga Shankar v. Raghurai Singh (5). Deal-ing with the expression "improperly rejected" in section 100(1) (c)in the case first mentioned, the Supreme Court held:

"Now, the whole controversy between the parties isas to what the expression 'improperly rejected' in section100(1) (c) means. According to the appellant, when thenomination paper of a candidate who is under no such dis-qualification is as mentioned in section 36(2) has been rejectedthat is improper rejection within section 100(1)(c).According to the respondent, when the nomina-tion paper of a candidate is rejected by the returning officeron the ground tha,t he is subject to a specified disqualification,the rejection is improper, if it is found that that disqualifica-tion does not exist. If the former view is correct then thescope of an enquiry before the Tribunal must extend to allmatters which are mentioned in section 36(2), and if thelatter, then it must be limited to determining whether theground on which the Returning Officer has rejected the nomi-nation is well-founded. Now, to decide what the expression'improperly rejected' in section 100(1) (c) precisely imports,it is necessary to examine the relevant provisions of theAct bearing on the question and the setting of the abovesection therein."

After examining the relevant sections the Court observed :" I n the context, it appears to us that the improper

rejection or acceptance must have reference to section 36(2),and that the rejection of a nomination paper of a candidatewho is qualified to be chosen for election and who does notsuffer from any of the disqualifications mentioned in section36(2) would be improper within section 100(1) (c), and that,likewise, acceptance of nomination paper of a candidatewho is not qualified or who is disqualified will equally beimproper under section 100(1) (af(i) Reading section100(1) (c) in the context of the whole enactment, we thinkthat an enquiry before the Tribunal must embrace all thematters as to qualification and disqualification mentionedin section 36(2), and that it cannot be limited to the parti-cular ground of disqualifiction which was taken before theReturning Officer."

(4) A.I.R. 1959 S.C. 422.(5) A.I.R. 1954 S.C. 520.

E.L.R.] NAMDEO CHIMNAJI TAPRE V. GOVINDDAS 2 3

Therefore, there is here a clear ruling of the highest Courtthat every ground of qualification or disqualification is open forconsideration in deciding whether the nomination paper wasimproperly rejected within the meaning of section 100(1) (c)and the consideration whether it was improperly rejected or notis not limited to the one ground which was urged before theReturning Officer. In that view, we think that the groundsupon which the nomination paper of the respondent No. 8 wasrejected in the instant case could well fall within the ambit of thewords "improperly rejected" and can be considered both by theElection Tribunal and by this Court. Though apparently asomewhat different view may have been taken as was argued byMr. Mandlekar, in the other case, namely, Durga Shankar v.Raghurai Singh (5) in the subsequent decision to which we havejust referred Their Lordships referred to that case and distinguish-ed it. In our opinion, therefore, the later pronouncement of TheirLordships must prevail even assuming that there is such a conflict.The case in Durga Shankar v. Raghurai Singh was also furtherconsidered in a later decision in S. M. Banerji v. Sri Krishna (6)and the observations made therein re-emphasise the view taken inJV. T. Veluswami v. Raja Nainar (4) as the correct view.

Then we turn to certain objections which Mr. Mandlekarpressed for our acceptance upon which he claims that the electionpetition filed in the instant case by the appellants should fail.One of those objections was as to the security deposit accompany-ing the election petition. The security deposit in the instantcase was an amount of Rs. 2,000 deposited by the petitionerNo. 1 Namdeo Chimnaji Tapre. Obviously, the second petitioner,who is Namdeo Wakhuji Araj, had not deposited any separateamount and it is that which is the gravemen of the objection.It is argued that each petitioner should have made a separatedeposit. The matter falls to be decided by the provisions ofsection 117 of the Representation of the People Act andsection 117 requires that "the petitioner shall enclose with thepetition a Government Treasury receipt showing that the depositof Rs. 2,000 has been made by him either in a GovernmentTreasury or in the Reserve Bank of India in favour of the ElectionCommission as security for the costs of the petition." The conten-tion is that the section says that the petitioner shall enclose aGovernment Treasury receipt for the requisite amount and thatonly the first petitioner has so enclosed it and not the second peti-tioner, and therefore, the entire election petition is liable to berejected in limine.

(5) A.I.R. 1954 S.C. 520.(6) A.I.R. 1960 S.C. 368 at p. 373, para 10.(4) A.I.R. 1959 S.C. 422.

2 4 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

In the first place, we think that when the words are usedin section 117 "the petitioner shall enclose", by any ordinarycanon of construction, the use of the singular in the section wouldinclude the plural, and therefore, mutatis mutandis where thereare two petitioners the section should be read to include both thepetitioners, and that construction is warranted upon the provisionsof the General Clauses Act itself. In that event, though theremay be more than one petitioner, so long as one deposit is madefor the election petition, we think that the election petitionerswould comply with the requirements of section 117. But apartfrom that we do not think that the objection, even if sustained,can be of any practical assistance to the first respondent, for, thecharacter and,capacity in which both the petitioners moved theElection Tribunal are the same and both sought to contest theelection of the first respondent because under section 81 ofthe Act they were electors. Therefore, even assuming that oneof the two electors had not made a deposit, his petition alonewould be liable to be dismissed. But so far as the first petitioner isconcerned he has fully complied with the provisions of section117 and he would be entitled to continue the petition. Inthat event, the petition cannot be dismissed in limine, as therespondent would have it. We do not think that this objectionaffects the maintainability of the election petition.

Another objection was that the respondents Nos. 2 to 9;who had filed nomination papers, were unnecessarily joined inthe petition. The contention is that the first respondent along isinterested in the result of the election petition and the respondentsNos. 2 to 9 (the first five of whom were the defeated candidatesand the last three of whom were candidates whose nominationswere rejected) had no interest in contesting the election petition.Therefore, there was a misjoinder of parties in the election peti-tion and the petition was liable to be dismissed on that ground. Inthe decision of election petitions section 90 prescribes that theelection petition shall be tried by the Tribunal as nearly as may be,as in accordance with the procedure applicable under the Code ofCivil Procedure to the trial of suits, and therefore the objectionwill have to be determined as if the election petition were a suit.Now, had it been a suit, we do not think that an objection of thisnature that superfluous parties were joined in the suit couldpossibly have resulted in the dismissal of the suit. At the most itmay be a matter of costs. So long as the necessary party, theparty who was directly and vitally interested namely, the firstrespondent Govinddas, was made a part, the petition was validly^constituted and was maintainable. We are unable to acceptthe objection raised.

E.L.R.] NAMDEO GHIMNAJI TAPRE V. OOVINDDAS 25

Lastly, there is an objection as to the nomination paper ofthe 8th respondent whose nomination we have held was "impro-perly rejected" on a completely different ground. It was urgedby Mr.Mandlekar that the 8th respondent had chosen the elephantas a symbol and that is clear from entry No. 2 in the latter part ofthe form in Exhibit 125. Now, the list of symbols published bythe Election Commission under Notification No. S. C. 2316dated 19th September 1962, indicates that so far as this State isconcerned, the elephant was a "reserved symbol", reserved forthe Republican Party of India, and therefore, Mr. Mandlekar hasurged that the respondent No.8 could not have adopted that as hissymbol. In the first place, it is in dispute whether the 8threspondent stood as an independent candidate or as a respresent-ative of the Republican Party of India. The respondent No. 8did not go into the witness-box and the Tribunal had occasionto remark upon that conduct of the 8th respondent who was aparty to the petition. Now is there any proof aliunde. If thereis anything significant so far as this point is concerned, it is thatnone of the parties tried to give any evidence at all. The ElectionTribunal has remarked in paragraph 16 though in connectionwith a different point but with reference to the respondents Nos.8 and 9 "Niether of those respondents went in the witness-boxthough specifically demanded by the petitioners " Wemay incidentally observe here that in the written statement filedby these respondents they have taken a somewhat extraordinarystand in that they have said that they never intended to stand forelection at all. That stand, though mentioned in their writtenstatement is contrary to their very conduct in filing the nominationpapers. If any explanation of their conduct in choosing the symbolwas due, it was due from them or from the respondent No. 1 ifhe wanted to establish his objection that the nomination paper ofthe 8th respondent was liable to be rejected on that ground. Inthe absence of evidence we are unable to hold that the 8th respon-dent incorrectly chose the symbol of elephant. It has not beenestablished that he was not a representative of the RepublicanParty of India. Rule 4 of the Conduct of Election Rules and itsproviso were invoked by Mr. Manohar and a point of ultravires was raised in answer by Mr. Handlekar but we do notthink that rule 4 would be attracted in the present case andtherefore we need not consider the point of ultra vires. Theproviso to rule 4 only deals with failure to complete, or defect incompleting, the declaration as to symbols in a nomination paperswhich is not the objection here. We hold that the nominationpaper of the respondent No. 8 could not have been rejectedupon the ground, that the "elephant", a symbol reserved for theRepublican Party of India, was used by the respondent No. 8.6—3 ECl/ND/67

26 NAMDEO CHIMNAJI TAPRE V. GOVINDDAS [VOL. XXV

The lasl contention on behalf of the respondents is as to thepresentation of the appeal in this Court. The appeal, it seems,was presented to this Court on 20th May 1963. At that timethe summer vacation of the High Court had commenced and thework in the High Court was governed by a notification which isHigh Court Notification No. X-1603/63, issued under the signat-ure of the Prothonotary and Senior Master of this Court. TheNotification was published in the Maharashtra Gazette on the 27thDecember, 1962.. The contention is that in view of the fact thatthe High Court was in vacation, the presentation of the appeal wasincompetent. So far as the presentation of the election appeal isconcerned, it is governed by the provisions of section 116-A,sub-section (3), which requires that—

"Every appeal under this Chapter shall be preferredwithin a period of thirty days from the date of the order ofthe Tribunal under section 98 or section 99:

Provided that the High Court may entertain an appealafter the expiry of the said period of thirty days if it is satisfiedthat the appellant had sufficient cause for not preferring theappeal with such period."

It does not appear that any period of limitation as suchunder the Limitation Act governs the appeal. Under sub-section (3) it is to be presented within thirty days from the dateof the order of the Tribunal and therefore the appellants couldwell have thought that they must present the appeal within 30days from the date of the order of the Tribunal which fell duringthe vacation of this Court. Mr. Manohar on behalf of the appel-lants contended upon several provisions of law that there wasno scope for extension on the ground that the summer vacationhad intervened and therefore he was bound to present it duringvacation. We do not think that we should go into that questionhere because the appeal was rightly or wrongly filed and acceptedby the office of this Court, and registered, thus even assumingthat the presentation was wrong, it does not cease to be an appealpending in this Court, nor can it possibly affect our jurisdictionto entertain, hear or dispose it of whenever we chose to do so. Ofcourse, that an appeal is filed before the expiry of the period oflimitation can hardly be a ground for its rejection. In any case,the appeal was in Court on the opening day of the High Courtwas treated as an appeal in the office and so we do not think thatthis objection can be sustained or that the appeal presented to thisCourt was not validly presented. Apart from this, we may alsopoint out that the notification issued by this Court itself justifiedthe presentation of this appeal during the summer vacation. All

E,L.R.] MOHINDER SINGH V. GURMIT SINGH 2 7

that the second paragraph of the notification says is that no work,unless of an urgent character, will be received after 1-15 p.m.There is no proof that the appeal was presented after 1-15 p.m.The appeal could always be presented before that time during thevacation. There is nothing in the other paragraphs of the noti-fication to modify paragraph 2.

In the result, therefore, we allow the appeal, set aside thefinding of the Election Tribunal and hold that the nominationpaper of the 8th respondent was improperly rejected within themeaning of section 100(1) (c) of the Representation of the PeopleAct, that as a consequence he was entitled to stand and contestthe election against the first respondent and other candidates andwas debarred from doing so by the wrong order of rejection.Therefore, the election of the first respondent must be declaredvoid under the provisions of section 100(1) (c). We set aside theelection of the first respondent and declare that there is a casualvacancy.

The respondent No. 1 shall pay half the costs in this Courtand the costs before the Election Tribunal.

Appeal allowed.

[IN THE PUNJAB HIGH COURT AT CHANDIGARH]

MOHINDER SINGH & ANR.v.

GURMIT SINGH(A.N. GROVER AND I.D. DUA, JJ)

July 22, 1963.

The Representation of the People Act, 1951—5. 36(8)—Improper rejection ofnomination papers—Omission of name in the list of contesting candidates—Rectificationof list—If improper rejection.

Practice and Procedure—Pleas not raised before tribunal cannot be allowed to beurged in appeal.

The name of the first appellant was omitted from the list of validly nominat-ed candidates required to be prepared under s. 36(8) of the Act. But themistake was rectified and his name was included in the list four days later.He contested the election and polled some votes. In the election petition

28 MOHINDER SINGH V. GURMIT SINGH [VOL. XXV

challenging the election of the respondent the appellant conceded that therewas no evidence to show that the result of the election had been materiallyaffected; but it was contended that the omission to include his name in thelist of validly nominated candidates was violative of s. 36(8) of the Act andvirtually amounted to improper rejection of his nomination papers, therebyattracting the provision of s. 100(1) (c) of the Act, according to which theelection had to be declared void without further proof that the result of theelection had been materially affected. The Tribunal dismissed the petition.On appeal to the High Court,

HELD:—The appeal must fail.1 The fact that the first appellant actually contested the election and polled

some votes conclusively shows that his nomination papers were not rejected.An order rejecting nomination papers has to be in writing and the ReturningOfficer is bound to give a brief statement of the reasons therefor. Admittedlyno such order was recorded and it is not the appellant's case the circumstanceswarranted the recording of an order. Besides, at the back of the first appel-lant's nomination paper there was a clear order accepting the same.

Please not urged before the Tribunal cannot be allowed to be raised inappeal.

First Appeal from the order of the Court of Shri H.D.Loomba, Election Tribunal, Ferozepure, dated 4th February,1963 dismissing the election petition.

Mehar Singh Chaddah, for the Petitioners.Ajit Singh Sarhadi and B. S. Wasu, for the Respondent.

JUDGEMENTThis appeal under section 116-A of the Representation of the

People Act (hereinafter called the Act) arises out of an electionpetition filed by Mohinder Singh, son of Wasawa Singh ofvillage Rehrwan, tehsil Zira and by another Mohinder Singh,son of Ajaib Singh of village Ratta Khera, tehsil Muktsar, bothof district Ferozepore (appellants in this Court) calling in questionthe election of Gurmit Singh respondent, a resident of Muktsar,district Ferozepore. The petition was grounded on a numberof allegations giving rise to not less than seven issues but issueNo. 1 alone concerns us in the present appeal, no point havingbeen sought to be made on the basis of the other issues whichwere all decided against the petitioners-appellants. Issue No.lwhich was also decided against the appellants is in the followingterms:—

" Whether the allegations made in para 5 of the elec-tion petition are correct and whether there has been a con-travention of law and rules as claimed therein and whether

E.L.R.] MOHINDER SINGH V. GURMIT SINGH 29

the result of the election petition has been materially affectedso far as it concerned the respondent and if so, what is theresult of same ?"

Before the Election Tribunal the counsel for the petitionersfrankly conceded (and in the opinion of the Tribunal rightly)that there was no evidence whatsoever to show that the resultof the election had been materially affected with the result thateven if there was any non-compliance with the provisions of theAct or of the rules made thereunder, the election of the respondentcould not be set aside. The entire emphasis, therefore, was laid bythe petitioners' learned counsel before the Tribunal on the argu-ment that the present was a case of rejection of the nominationof petitioner No. 1 and that the election was, therefore, void byreason of section 100(1) (c) of the Act. Negativing this con-tention, the Tribunal decided this issue against the petitionersand dismissed the election petition.

On appeal the learned counsel for the petitioners has, tobegin with, repeated the same contention with vehemence andforce. It is necessary at this stage to state the facts on whichthis contention is based. Mohinder Singh, son of Wasawa Singh,petitioner-appellant No. 1, was an independent candidate fora seat to the Punjab Legislative Assembly from Malout consti-tuency in the last general elections held on 24th February, 1962.Gurmit Singh, respondent was another rival candidate (a Con-gress nominee) contesting the seat. Mohinder Singh, son ofAjaib Singh, petitioner-appellant No. 2, is stated to be an electorin Malout constituency. Nomination papers for the electionin question were to be filed upto 27th January, 1962 and scrutinywas to take place on the 29th of the same month. 1st of Febru-ary, 1962 was fixed for withdrawal of candidature. On thesaid date the list of validly nominated candidates was also to beprepared and in addition election symbols were to be allotted.According to the petitioners' averments in the election petitionthere were in all 12 nomination papers out of which 4 candidateswithdrew their candidature, thus leaving 8 contestants in thefield. On the last mentioned date, however the S.D.O., Muktsarwho was the Returning Officer prepared and published a listof only seven validly nominated contesting candidates omittingthe name of Mohinder Singh, son of Wasawa Singh, petitioner-appellant No. 1 from the list. It has been asserted in the petitionthat this omission was deliberate because the petitioner-candi-date who is a Rai Sikh was in a position to claim the supportof a solid block of twenty-five thousand Rai Sikh electors whichwould have considerably reduced the chances of the respondents

30 MOHINDER SINGH V. GURMIT SINGH [VOL. XXV

success. Appellant No. 1 came to know of this omission on read-ing the Urdu Daily Milap of the 4th February, 1962 and on 5thFebruary, 1962 he sent urgent telegrams to the Chief ElectionCommissioner, Delhi, the President of India, the Prime Ministerof India, the Deputy Commissioner, Ferozepore and the ElectionCommissioner, Chandigarh, complaining about the omissionof his name from the list. He also contacted* the Deputy Com-missioner, Ferozepore and the S.D.O., Muktsar both of whomassured the appellant that his grievances would be redressed.On 6th February, 1962 the name of the petitioner-appellant No. 1was also included in the list of the validly nominated candidates.During the interval between the 1st of February and 6th ofFebruary, 1962, according to the averments contained in theelection petition, the mischief had been done with the resultthat non-compliance with the imperative provisions of lawcontributed heavily to the defeat of the petitioner-appellantNo. 1 *and S. Harcharan Singh, another contesting candidate.It is on this allegation that the result of the election has beenstated to have been materially effected. It is un-necessary torefer to paragraph 5 of the written statement in which it hasbeen denied that only seven names were included in the listprepared and published by the Returning Officer initially in asmuch as it was conceded that originally there was this mistake inthe initial list but the same to be the established position on therecord before us. A reference to Exhibit P. 15 read in the lightof Exhibit R-l makes the position absolutely clear that initiallyonly seven names were included in the list which requires to beprepared and published under section 38 of the Act read withRule 10 of the Conduct of Election Rules, 1961 and that thename of Mohinder Singh, son of Wasawa Singh was entered inthe said list only on 5th February, 1962.

The main contention urged on behalf of the appellants beforeus as stated earlier is that the omission to include the name ofMohinder Singh, son of Wasawa Singh, petitioner appellantNo. 1 in the list of validly nominated candidates on 1st February,1962, violative as it is of section 36(8) of the Representation of thepeople Act, 1961, virtually amounts to rejection of his nominationpapers and, therefore, if this omission is improper then it wouldamount to improper rejection of his nomination papers, therebyattracting the provisions of section 100(1) (c) of the Act, accordingto which the election must be declared void without provingthat the result of the election in so far as it concerns the returnedcandidate has been materially affected. The contention isundoubtedly ingeneous but otherwise it is wholly devoid of merit,in that, it finds support neither from statute nor from principle

E.L.R.] MOHINDER SINGH V. GURMIT SINGH 31

precedent or logic. The very fact that the petitioner-appellantNo. 1 actually contested the election and polled, 1,600 votes(and this is conceded before us) conclusively shows that his nomi-nation papers were not rejected, for had they been rejected hecould not have contested the election and polled votes. As amatter of fact this is not even the case as laid in the election peti-tion ; the plea raised there, as noticed earlier, is that non-com-pliance with the imperative provisions of law has very materiallyaffected the result of the election. Again, the frame of the issuessettled and tried also negatives such plea having been pressed atthe time the issues were framed. It appears that it was only atthe arguments stage before the Tribunal, that this contentionwas urged. It was negatived by the Tribunal which consideredit to be untenable on its face and, in my opinion quite rightly.An order rejecting a nomination paper has to be in writing andthe Returning Officer is bound to give a brief statement of thereasons therefor: See section 36(6) Act 43 of 1951. Admittedly,no such order was recorded and it is not the appellants' case thatthe circumstances warranted the recording of order which theReturning Officer erroneously did not record. On the contrary,at the back of Exhibit R.3 the nomination papers of appellantNo. 1 there is a clear order accepting the same which almostconclusively clinches the matter. On behalf of the appellantsexcept for a bald assertion by their learned counsel no provisionof law in support of the contention has been brought to ournotice nor has any precedent been cited. As a matter of factthe counsel was wholly unable logically to develop his contention.I have, therefore, no hesitation in repelling the submission andin agreeing with the conclusion of the learned Tribunal.

The plea of the election having been materially affected bynon-compliance with the provisions of Act 43 of 1951 or of anyrules or orders made thereunder was apparently not argued beforethe Election Tribunal, for, it is clearly stated in the order appealedagainst that "the counsel for the petitioners frankly conceded andrightly too that there was not even a whisper of any evidence toshow that the result of the election was materially affected."In the grounds of appeal in this Court, it is not asserted that theabove remark is incorrect in fact, and that the petitioners' counselhad not conceded as stated. Having conceded this point, theappellants can hardly be held entitled to agitate it on appeal.We have, however, heard the counsel on this point but he hasnot been able to show any tangible or reliable material on therecord in support of the contention. Our attention has beendrawn to the testimony of the petitioners P.W. 1, HarcharanSingh Rudiara, P.W. 2, Fateh Singh P.W. 4, Nand Singh, P.W. 5

32 MOHINDER SINGH V. GURMIT SINGH [VOL. XXV

and Teja Singh P. W. 6 but the evidence of none of them establish-es that the result of the election has been materially affectedwithin the contemplation of section 100( 1) (d) (iv) by the omissionto include the name of the petitioner-appellant No. 1 in the list ofcontesting candidates prior to 5th February, 1962. I may hereobserve that the learned counsel before us has submitted thatthere was a violation of both the provisions of section 36(8)and of section 38 of Act 43 of 1951. The name of appellantNo. 1 was not included in the list of validly nominated candidatesprepared on 29th January, 1962 under section 36(8) and hisname was equally missing from the list of contesting candidatesprepared after withdrawal under section 38 on 1st February,1962. On 5th February, 1962 the mistake in the list of contestingcandidates was rectified and his name was included in the list.

The sole argument on which the appellants' learned counselseeks to found his contention is that appellant No. 1 would havegot unstinted support of about 25,000 Rai Sikh electors butthey were lost to him as a direct result of his name having notbeen included in the list of contesting candidates from 1stFebruary to 5th February, 1962. It is admitted by appellantNo. 1 that he came to know of this omission on 5th February,1962 and that he immediately took urgent steps to have the mis-take successfully rectified on the same day. Now if this be so thenobviously he would not have stopped his election campaignand indeed it is not his case that his election campaign was inany manner interrupted or obstructed as a result of the saidomission. The appellants evidence merely is that most of hisRai Sikh supporters had in the meantime promised their votesto the Congress candidate. P.W.2, Harcharan Singh Rudiara,another contesting candidate, has appeared as a witness and statedthat it was he who told the Rai Sikh electors that the name ofpetitioner No. 1 was not in the list of contesting candidates.I am wholly unable to believe that the majority of the RaiSikh electors promised their votes to the Congress candidateon account of the non-inclusion of the name of appellant No. 1in the list of contesting candidates between 1st February to 5thFebruary, 1962 and that but for this temporary non-inclusionthey would positively have voted for appellant No. 1. There isno evidence worth the name to this effect and the witnesses men-tioned above on whom reliance has been placed do not substan-tiate the contention ; they are most unimpressive and theirtestimony on this point appears to me to be wholly valueless.I would, therefore, unhesitatingly repel this contention.

It has next been argued that the lists of contesting candidateswere corrected on 5th February, 1962 but in Exhibits P. 15 and

E.L.R.] MOHINDER SINGH V. GURMIT SINGH 3 3

P. 16 the dates were changed from 5th February 1962 to 1stFebruary, 1962. This, according to the learned counsel, amountsto forgery and should be held to vitiate the entire election. Whenconfronted with the omission of this plea from the election peti-tion, the learned counsel explained that the forgery had come tohis knowledge later without precisely disclosing when and withoutexplaining as to why amendment of the election petition was notsought from the Tribunal as soon as alleged forgery came to hisknowledge, I am expressing no opinion whether such a pointcould at all be included by amendment. It is, however, clearthat if it could not be so included it can hardly be permitted to beurged without having been pleaded. I am thus unable to accedeto this contention. It is obvious and is indeed admitted by therespondent that an unfortunate mistake did creep in at the timeof scrutiny, in that, although the nomination papers of appellantNo. 1 were in fact accepted by the Returning Officer and a formalorder accepting the same actually endorsed at their back, somehowhis name did not find place in the list of validly nominatedcandidates prepared after scrutiny on 29th January, 1962 and thisomission was apparently repeated in the list of contesting candi-dates prepared after withdrawal of some candidates on 1stFebruary, 1962. When this mistake was pointed out thenecessary correction was actually made on 5th February, 1962.Now, since the original list of contesting candidates had beenprepared on 1st February, 1962, it appears to me that presumablythe corrected list was also given the original date, namely, 1stFebruary, 1962, and 5th February, 1962 was rectified accordingly.Since this plea was not taken in the original election petitionnor sought to be included by amendment in the Tribunalbelow and was, therefore, not duly tried, I do not find it possibleto permit it to be taken for the first time on appeal even if itwere permissible under the law, a point on which I entertainmost serious doubts, as it must necessitate remand inasmuchas it is not possible to hold it proved or admitted on the existingrecord. Same must be the fate of the plea of forgery in regardto Exhibit R. 1. This plea is based on the submission that thesymbol was never allotted to appellant No. 1 and the documentis not genuine ; in any case, so contends the appellant, the dateon the endorsement of the Tehsildar is not genuine because thecorrection in the list having been made on 5th February, 1962there was no conceivable occasion for requiring appellant No. 1on 1st February, 1962 to take his symbol. Exhibit R. 1, it maybe observed, is a direction to the Tehsildar to serve appellantNo. 1 with the intimation to receive his symbol from Muktsaron 5th February, 1962. This point too was not raised in theelection petition and the explanation for this omission is against7—3 EC1/ND/67

3 4 MOHINDER SINGH V. OURMIT SINGH [VOL. XXV

the petitioners' ignorance of the document. For the reasons inregard to Exhibits P. 1<5 and P. 16 this contention is also repelled.

At this stage it is pertinent to observe that even in the groundsof appeal in this Court the ground of forgery etc. is not taken forsetting aside the election but only for urging that the ReturningOfficer, the Assistant Returning Officer and the other witnesseswho have deposed about the aforesaid documents should beprosecuted for perjury. It was only in arguments that theappellants' counsel tried to challenge the election on this accountas well, which, in my opinion, is clearly not permissible.

The contention that the petitioner-appellant No. 1 was notallotted his symbol does not require any serious notice, for, thereis the petitioner's own clear admission in his statement as P.W. 1that he was allotted a symbol though he says that this was doneafter his protest to the officials concerned, R.W. 1, BachittarSingh, A.R.O. also nagatives the appellant's contention in thisCourt. And then, it is not shown how this has materiallyaffected the result of the impugned election. This contentionthus also fails and is rejected.

This brings me to the contention that this Court shoulddirect the prosecution of the Returning Officer, the AssistantReturning Officer and the other witnesses who, according toShri Chaddah's submission, have given false evidence beforethe Tribunal. This contention, in my opinion, deserves nobetter fate. To begin with, I am not convinced that any oneof the witnesses mentioned by the Counsel have given falseevidence, secondly it is well settled that every deviation fromtruth in a sworn testimony does not necessarily call for or demandinitiation of criminal proceedings for perjury. Expediencyin the interest of justice in the opinion of the Court is an essentialpre-requisite for launching such proceedings and reasonableprobability of conviction also deserves to be taken into accountbefore finding in favour of such expediency. The case in handdoes not seem to satisfy any of these tests. I, however, mustmake it clear that I am expressing no opinion on the point whetheror not the Election Tribunal was empowered to initiate such aprosecution, and, therefore, whether an appeal under section116-A of Act 43 of 1951, this Court can do so—a point on whichthe appellants' learned counsel though pointedly asked, did notdraw our attention to any provision of law.

The last argument pressed on behalf of the appellants attacksthe order as to costs. Now just as section 35, Civil Procedure

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 35

Code, provides that costs are generally in the discretion of theCourt, section 120(1) of Act 43 of 1951 includes a similar provisionin regard to election petitions ; the proviso, however, makes itmandatory for the Tribunal to make an order for costs in favourof the returned candidate when the petition is dimissed undersection 98-A. No cogent or convincing argument has beenaddressed as to how this Court would be justified in interferingwith the order of the Tribunal in this respect. The challengeagainst the order of costs is thus without substance and is repelled.

Before finally closing the judgement, it must be borne inmind that an election is not lightly to be set aside, purity of elec-tion in a State like ours where the Government is run by theduly elected representatives of the people is undoubtedly amatter of first priority but it is equally important that when aperson has been declared duly elected according to the prescribedprocedure his election is not to be set aside by the Tribunalunless it is satisfied that the case clearly falls within the purviewof section 100 of Act 43 of 1951. That clearly is not so in the casein hand.

For the reasons foregoing this appeal fails and is dismissedbut the parties are directed to bear their own costs in this Court.

Appeal dismissed.

[IN THE HIGH COURT OF ALLAHABAD AT LUCKNOW]

KIDWAI HUSSAIN KAMILV.

YADAV RAM SEWAK & ORS.(JAGDISH SAHAI AND R.N. SHARMA, JJ)

July 23, 1963.

Representation of the People Act, s. 92 and 100—Conduct of Election Rules(1961), r. 93—Inspection of ballot papers—Discretion of Tribunal—Circumstances

justifying permission to inspect—S. 83 proviso—Allegation of corrupt practice—Notfiling affidavit—if fatal to the maintainability of petition.

The appellant filed an election petition challenging the election of thefirst respondent in which several grounds including some relating to corruptpractices were alleged. The charge relating to corrupt practice was with-drawn at the time of trial. The main ground alleged was improper reception,refusal or rejection of votes at the time of counting. The tribunal rejectedan application filed by the appellant for permission to inspect the ballot papers

36 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

on the ground that such permission had been left to the discretion of the tri-bunal and that inspection should ordinarily be refused unless the tribunalconsidered such inspection in the interest of justice. The tribunal also held thatthe petition failed to prove any fact justifying inspection of the ballot papersand that there was nothing on record to show that the first respondent waswrongly elected. In appeal the first respondent raised the preliminary objec-tion that the petition was liable to be dismissed as improperly presented inas- .much as at the time of presentation of the petition, charges relating to corruptpractices were also included and there was no affidavit filed in support of theallegations of corrupt practice.

HELD:—The appeal must be allowed and the petition remanded.

(i) The defect of the charges relating to corrupt practice not being suppor-ted by an affidavit is not fatal to the maintainability of an election petition.If the legislature intended the non-observance of the proviso to s. 83 as fataleither to the entertainment or to the maintainability of the petition it wouldhave provided either for the dismissal of the petition on that ground or for anyother penal consequence. Nothing depends on the use of the word 'May'or 'Shall' and an enactment, in form mandatory, might in substance bedirectory.

Narayana Rao v. State of Andhra Pradesh, A.I.R. 1957, S.C. 737; K. S.Srinivasan v. Union of India, A.I.R. 1958 S.C. 419; Rani Drigraj Kuer v. RajaA.K.N. Singh, A.I.R. I960, S. C. 444; Banwarilal Agarwalla v. State of Bihar& Ors. A.I.R. 1961, S.C. 849; Collec'or of Monghyr & Ors. v. Keshav PramdGoenka, A.I.R. 1962 S.C. 1694; referred to.

(ii) There is nothing in the provisions of the Act or the Rules framedthereunder which would justify the conclusion that inspection should ordinarilybe refused and the mere fact that the tribunal has been given a discretionin the matter does not mean, as has been wrongly assumed by the tribunalthat it should ordinarily be refused. An election petition can be presentedon the ground that votes had been wrongly received or wrongly rejected.When such allegations are made the matter is justiciable and it is the duty ofthe tribunal to adjudicate in respect of that matter. It is not possible to provethe allegations unless an inspection is allowed. To require a party tofirst bring in parole evidence to prove what can best be demonstrated by a lookat the ballot paper itself is neither required by the law nor rules of practice.All inspections must precede the hearing of the case.

Abdul Majeed v. Bhargavan, A.I.R. 1963, Kerala 18; Vasviah v. Bachiahand Ors. 17 E.L.R. 293; distinguished, Bhimsen v. Gopaii, 22 E.L.R. 228, referredto.

(iii) The inspection of ballot papers cannot be refused on the groundthat the affidavit was not properly verified in accordance with rules 8 and 9added by the High Court to O. 19 r. 3 C.P.C. The provisions of theRepresentation of the People Act constitute a self contained code governingthe trial of election petitions. The affidavit filed by the petitioner was in sub-stantial compliance with Form 25 even though it was not in strict comfor-mity with rules 8 and 9.

First Appeal No. 11 of 1963 under s. 116-A of the Represen-tation of the People Act,1951, against the Order of Sri S. Malik,

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 37

Election Tribunal, Lucknow, dated the 2nd March, 1963, inElection Petition No. 74 of 1962.

Iqbal Ahmad, Bishun Singh, B. C. Agarwal and S. P. Jain,for the appellant.

N. D. Srivastava and Umesh Chandra for respondent No. 1.

JUDGEMENT

JAGDISH SAHAI, J.—This is an appeal directed againstthe order passed by the Election Tribunal, Lucknow, on the 2ndof March, 1963, dismissing the election petition filed by theappellant, Kidwai Hussain Kamil (Hussain Karnil Kidwai).The Barabanki Parliamentary Constituency No. 30 (hereinafterreferred to as the Constituency) consists of the following fiveU.P. Legislative Assembly Constituencies:—

1. 148 Nawabganj.2. ,149 Kursi.3. 150 Bhitauli.4. 170 Sarju.5. 171 Tarabganj.

In the last general election the appellant Kidwai was acandidate from the constituency on Congress ticket. Opposed-to him were Yadav Ram Sewak (Ram Sewak Yadav) on theSocialist Party ticket, Sri Krishna Das on the Jan Sangh ticketKrishna Bihari on the Swatantra Party ticket and Autar on theCommunist Party ticket.

The counting of the votes took place between the 26th ofFebruary, and 28th of February, 1962. Yadav Ram Sewakwas declared elected. The number of the votes secured by eachof the candidates is as follows:—

(1) Kidwai Hussain Kamil—(Congress—Petitioner).—76,224.(2) Yadav Ram Sewak—(Socialist—Respondent No. 1).—

76,545.(3) Sri Krishna Das— (Jan Sangh—Respondent No. 2) .—38,602.(4) Krishna Bihari—(Swatantra Party—Respondent No. 3).—

18,971.(5) Autar—(Communist—Respondent No. 4).—.13,134.

The petitioner Kidwai presented the election petition givingrise to this appeal before the Election Commission on 10th of

3 8 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

April, 1962. The Election Commission constituted a singleMember Tribunal presided over by Sri S. Malik for decidingthis petition. The election petition which is dated the 6th ofApril, 1962, was published in the Gazette of India dated the5th of May, 1962. On the 1st of June, 1962, it was received bySri S. Malik, (at present Distt. Judge, Lucknow) for decision.Several grounds were taken in the petition including those relatingto corrupt practice on the part of Yadav Ram Sewak, the respon-dent No. 1. The main ground, however, was that a large numberof ballot papers had been declared to be invalid by the returningofficer, though, in fact, they were valid and that the returningofficer, committed an error in not accepting a large number oftendered votes which should have been accepted. It was alsoalleged in the petition that there was a discrepancy in the totalnumber of votes in form No. 16 prepared by the presiding officerand form No. 20 prepared by the returning officer, that therewere glaring mistakes in totalling up of the figures and that alarge number of votes, which were polled in his favour, were notso counted and many of them were counted erroneously infavour of the respondent No. 1.

A written statement was filed on behalf of Yadav Ram Sewak(hereinafter referred to as the contesting respondent) in whichall the allegations of the petitioner, including these relating tocorrupt practice, wrong inclusion of votes in favour of the con-testing respondent and wrong exclusion from those of the petitionerwere controverted. Inter alia, an objection was also taken thatthe petitioner had not complied with the provisions of Section 83of the Representation of the People Act, 1951, and that theallegations made in the petition were vague and the petition wasliable to be dismissed.

On the 8th of August, 1962, an application was made onbehalf of Kidwai for permission to inspect the ballot papers byeleven persons whose names were given in the application. Thisapplication was supported by an affidavit. This affidavit wasverified on solemn affirmation in the following manner :—

"Contents of paragraphs 1, 2, 3 and 7 were verified tobe "true on knowledge", those of paragraphs 4(a) to 4(b)and those of paragraphs 5, 6, 6(i) to 6(iii) and 8, 9, 10 and12 were verified to be "true on information received andbelieved to be true" while the contents of paragraphs 13and 14 were verified to be true on legal advice received."

An objection to this application was taken on behalf of thecontesting respondent in writing on the 18th of August, 1962.

E.L.R.] * KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 39

One of the prayers contained in this objection, which was in theform of an application, was that the preliminary issues be firstdecided so that the parties may not be put to unnecessary expensesand the Tribunal's time be also saved. It was also prayed thatthe application for inspection of the ballot papers be rejected.Paragraph 4 of this objection stated that the election petitionwas liable to be dismissed on the ground of want of proper veri-fication and also because no affidavit was filed along with itas required by the proviso to section 83 of the Act. Sri Malikafter hearing the counsel for the parties dismissed the applicationof the petitioner for permission to inspect the ballot papers,even though the same were available in court, having been sum-moned by him earlier and in spite of certified copy of the Returnclearly disclosing mistakes in totalling having been shown tohim. The petitioner made another application of the 8th ofSeptember, 1962, praying that "issues arising out of the positiveaverments contained in the election petition be framed, andin due course security of the ballot papers be made, and, at theproper stage, inspection of the ballot papers by the petitionerand his counsel be allowed as observed by this Tribunal in itsorder dated August 25, 1962". This application was foundedmainly on an observation made by the Tribunal in its earlierorder which reads as follows:—

"If in future from facts that may be brought to thenotice of the Tribunal, it appears that in the interest of justice,an inspection should be allowed, necessary orders allowingan inspection could always be passed."

This application was also contested and the prayer for per-mission to inspect the ballot papers was rejected, but the learnedmember of the Tribunal again observed as follows:—

"It may also be pointed out that while rejecting thepetitioner's application for inspection of ballot papers,the Tribunal observed that if from the evidence that maybe adduced by the petitioner, it appears that an inspectionshould be allowed for a just decision of the petition, theinspection shall be allowed. If all the grounds regardingreception and rejection of ballot papers and wrong countingare struck off, the petitioner would be deprived of an oppor-tunity of showing to the tribunal that there is substance inthe grounds taken by the petitioner justifying an inspectionor general scrutiny and recount. Under the circumstances,the objections put forward, on behalf of the respondent arehereby rejected.Let an early date be fixed for framing of issues."

40 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [vt)L. XXV

The petitioner repeated his effort for an inspection of the ballot-paper and made an application dated the 16th of November,1962, in which he prayed for either of the two following reliefs:—

(a) allow the petitioner assisted by his counsel, subject tosuch conditions and terms as appear to it to be reasona-ble, to inspect the ballot papers and the said formsand to put the result of that inspection in a conciseand tabulated form before this Hon'ble Tribunal forits scrutiny.

(b) This Hon'ble Tribunal be pleased itself to inspect andscrutinise the ballot papers in the presence of the counselof both the parties, and record the result of such exami-nation and scrutiny and then pronounce its decisionaccordingly."

This application was also opposed on behalf of the contestingrespondent by means of a written reply dated the 26th of Novem-ber, 1962, with the result that the prayer for the inspection of theballot papers either by the parties or for the scrutiny of the sameby the Tribunal was refused though the Tribunal permitted theparties to file such documents as they liked. The same dayi.e. on 26th of November, 1962, the learned counsel for thepetitioner made a statement that he did not wish to produceany documents and that the prayer of the petitioner—appellantfor the inspection of the ballot papers be reconsidered. Thelearned member of the Tribunal fixed the 3rd of December, 1962,for arguments on the question as to whether in view of the state-ment made by the petitioner, the question of inspection of ballotpapers by him should be reconsidered and in case the inspectionbe not allowed, whether the Tribunal should itself make a scrutinyof the ballot papers as prayed for.

It seems that no orders were passed on the 3rd of December,1962, and the matter was taken up by the presiding officer on the17th of December, 1962. On that date the learned counselfor the appellant formally tendered in evidence all the ballotpapers by means of an application of the same date and withdrewall allegations relating to corrupt practice on the part of thecontesting respondent. The exact words used in the applicationmade on behalf of the appellant are as follows:—

"3 of the issues, viz. issues 3, 4 and 5 do not now requiredecision in view of the statement made by the petitioner'scounsel. As regards the surviving issues, viz. issues 1, 2 and6 it is impossible for the petitioner to produce any oral evi-dence and the only evidence decisive of those issues can be

E.L.R.] . KIDWAI HUSSAIN KAMIL ZJ. YADAV RAM SEWAK 41

the ballot papers themselves. The petitioner, to set allcontroversy at rest, does hereby formerly tender in evidenceall the ballot papers. That being so, the ballot papers haveto be opened, inspected or scrutinised. It may be notedhere that all the ballot papers were summoned by an orderof the Tribunal dated 6th July, 1962, and are present in therecord room of the Tribunal."

To this application, the contesting respondent gave a writtenreply, opposing the opening of the ballot papers on the groundthat no prima facie case had been made out for their inspection.With regard to the allegation of the appellant that the certifiedcopy of the return issued to him by the returning officer clearlydisclosed totalling mistakes which affected the result of theelection, the reply on behalf of the contesting respondent wasthat "the alleged mistake in the certified copies of the return,can be tested with the original". It was also stated in the writtenreply that in fact there was no mistake in the original and thefactual position was that some mistakes had been committed inthe certified copy issued to the appellant. The Tribunal dis-missed the election petition without allowing inspection by theparties or scrutinising the ballot papers itself.

In all the following six issues were framed in the case:—(1) Whether there was improper reception, refusal or rejec-

« tion of votes at the time of counting and if so, whetherthe result of the election was materially affected due tothe same ?

(2) Is there any discrepancy between the total number ofvotes mentioned in Form No. 16 and Form No. 20 asalleged in paragraph 6 (C) and (D) ? If so, its effect ?

(3) Whether the tendered votes were wrongly rejected bythe Returning Officer and if so, was the result of theelection materially affected due to the same ?

(4) Whether at the polling station No. 29, Maigawan, inBhitauli Unit and Kurai, Polling Station in KursiAssembly Unit, the Polling Officers did not give ballotpapers to the voters as mentioned in paragraph 10of the petition ? If so, its effect ?

(5) Whether counting of votes of Bhitauli Assembly Unitwent upto 8-30 P.M. in the night and after 5-30 P.M.it was done in the failing and insufficient light in spiteof protests as alleged in paragraph 11 of the petition ?If so, its effect ?

8—3 ECI/ND/67

42 KIDWAI HUSSAIN KAMIL V. VtADAV RAM SEWAK [VOL.XXV

(6) Whether the petitioner received a majority of valid votesand is entitled to be declared duly elected ?

The Tribunal decided issues Nos. 3, 4 and 5 against theappellant and in favour of the contesting respondent, on the findingthat a heavy burden lay on the appellant which he hadfailed to discharge. On issue No. 2 it recorded the finding that"there is nothing before the Tribunal to show that the allegationsmade by the petitioner regarding these forms in paragraphs6(G) and (D) are correct" and decided that issue against theappellant and in favour of the contesting respondent. On issuesNos. 1 and 6 it recorded the finding that the "petitioner has failedto prove any fact justifying inspection of the ballot papers andthere is nothing on the record to show that the respondent No. 1was wrongly declared to have been elected". Having thus dis-posed of the six issues in the case he dismissed the petition andawarded a sum of Rs. 1,000 as costs to the respondent No. 1.

Dissatisfied with this decision, the appellant has filed thepresent appeal in this Court.

We have heard Sarvsri Iqbal Ahmad and Bishan Singh forthe appellant and Sarvsri Hargovind Dayal and Umesh ChandraSrivastava for the contesting respondent.

The submission have been made on behalf of the appellant.They are as follows :

(1) That the Tribunal was in error in having supposed thatthe effect of rule 93 of the Rules framed under theRepresentation of People Act, 1951 (hereinafter referredto as the Act) was that the policy of the law was to rejectan application for the inspection of ballot papersexcept for very strong reasons.

(2) That in any case the petitioner had given prima facieevidence and placed before the Tribunal all the materialthat any person in his position could have placed insupport of the request for the inspection of the ballotpapers and connected documents.

On behalf of the contesting respondent not only these sub-missions have been opposed, but an objection has been taken tothe maintainability of the appeal as also of the petition on theground that the petition did not fulfil the requirements of section

• 83 of the Act and consequently was not maintainable. It is urgedthat even though no cross-appeal or cross-objection has been filed,this ground is being taken in order to support the order or the

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 4 3

decree passed by the Election Tribunal on principles analogousto those enshrined in 0 :41, r. 22 C.P.C., which permits a res-pondent to raise such pleas in support of the decree of the courtbelow which would sustain the decree.

With a view to appreciate fully the submissions made at thebar it is necessary to consider some provisions of the Act. Section80 of the Act reads as follows.

"80. Election Petitions.—No election shall be called inquestion except by an election petition presented inaccordance with the provisions of this part."

Section 81 of the Act deals with the manner in which an election

Eetition is to be presented. Section 82 provides as to who woulde the parties in the petition. Section 83 of the Act deals with

jJie contents of the petition. That provision reads as follows:

"83. Contents of petition.—(1) An election petition—(a) shall contain a concise statement of the material facts

on which the petitioner relies ;(b) shall set forth full particulars of any corrupt practice

that the petitioner alleges, including as full a statementas possible of the names of the parties alleged to havecommitted such corrupt practice and the date andplace of the commission of each such practice ; and

(c) shall be signed by the petitioner and verified in themanner laid down in the Code of Civil Procedure,1908 (V of 1908), for the verification of pleadings.

(2) Any schedule or annexure to the petition shall alsobe signed by the petitioner and verified in the same manneras the petition :

Provided that where the petitioner alleges any corruptpractice, the petition shall also be accompanied by an affi-davit in the prescribed form in or support of the allega-tion of such corrupt practice and the particulars thereof."

Section 100 of the Acj provides the grounds for declaring anelection to be void.

Before we come to the merits of the submissions made onbehalf of the appellant, we would like to dispose of the submissionmade on behalf of the respondent No. 1 with regard to the main-tainability of the election petition and the appeal before us. Itwas streneously contended by the learned counsel for the contesting

4 4 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

respondent that the petition was not maintainable on account ofthe vagueness of allegations made therein and also because it wasnot properly presented. The submission is founded on twocontentions. The first contention is that in the petition chargeshad been made with regard to corrupt practice on the part of thecontesting respondent and inasmuch as there was. no affidavitin support of those charges, the petition could not have beenreceived. The second contention is that in any case the detailsof the manner in which the votes were allegedly counted infavour of the contesting respondent and allegedly wronglyexcluded from that of the appellant had not been given. We areunable to accept either of these contentions. We have alreadyreproduced section 83 of the Act earlier.*** It would be noticedthat so far as clause (a) of section 83 is concerned, unlike clause (b)it does not require "full particulars." On the other hand, all that itrequires is "a concise statement of the material facts on which thepetitioner relies." When the petition was filed, it was founded onthe ground of wrong inclusion and wrong exclusion of votes asalso on the ground of corrupt practice. Therefore, so far as thecharge of corrupt practice was concerned, full particulars of thesame had to be given without which the petition was obviouslydefective. But so far as the allegation relating to the wronginclusion and wrong exclusion of the votes is concerned, that didnot at all require full particulrs being given and the requirementof clause (a) of section 83 of the Act would have been completelysatisfied if what was given amounted to a "concise statement ofthe material facts on which the petitioner relies." A bare perusalof these provisions reveals that the Legislature has worded theclauses in distinctly different phraseology. Whereas the lawrequires emphatically that the particulars of any corrupt practiceshould be disclosed in the petition, it does not require similarparticulars to be given in respect of other matters. We havelooked into the Shorter Oxford Dictionary in order to find outthe meaning of the word 'concise'. Amongst others, the followinghave been given :—

"Brief in expression(of speech, style, person)."In short all that'concise' means is a brief though definite statement of the facts onwhich the petitioner relies. We cannot equate the requirementsof clause (a) with those of clause (b) of section 83 of the Actbecause the words used in one are so different from the wordsused in the other. Having carefully perused the allegations of theappellant contained in the petition relating to the wrong inclusionof votes in the count of the contesting respondent and wrong ex-clusion of votes from those of the appellant, we are of the opinionthat the proper compliance with the law has been made in thiscase and a concise statement of facts relied upon by the appellant

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 45

has been given. We are, therefore, unable to hold that the peti-tion as presented was defective, in respect of wrong inclusion andwrong exclusion of votes and other connected matters.

So far as the charge of corrupt practice on the part of thecontesting respondent is concerned, we have already said earlierthat during the course of the trial the same were withdrawn withthe result that no issue was even framed in respect of the same.The question, therefore, that remains to be considered is whetherthe mere fact that at the time of the presentation of the petition,charges relating to corrupt practices were also included and therewas no affidavit filed in support of it, would justify the conclusionthat the petition was improperly presented and is liable to bedismissed on the ground alone even after those charges havebeen withdrawn. Section 83 of the Act does not provide forthe dismissal of the petition for want of an affidavit to supportthe allegations relating to corrupt practice.

There are two provisions which deal with the summary dis-missal of an election petition. These are sections 85 and 90(3)of the Act. Section 85 deals with the powers of the Election Com-mission to dismiss an election petition while section 90(3) dealswith the powers of the Tribunal. Section 85 reads as follows:—

"85 . Procedure on receiving petition.—If the provisionsof section 81 or section 82 or section 117 have not been

complied with, the Election Commission shall dismiss thepetition :

Provided that the petition shall not be dismissed withoutgiving the petitioner an opportunity of being heard."

Having carefully considered the provisions of section 85of the Act, we are of the opinion that it is exhaustive of the groundson which an election petition can be dismissed by the ElectionCommission. The result is that the petition could have beendismissed by the Election Commission only on the ground ofnon-compliance with the provisions of section 81 or 82 or 117.Admittedly, the circumstance that in support of the allegationsrelating to the corrupt practice made by the appellant, there isno affidavit, is not a ground which is covered by any of thesections 81, 82 "and 117 of the Act, consequently the ElectionCommission could not have dismissed the petition on the groundthat it was not supported by an affidavit in respect of the chargesrelating to corrupt practice. Similarly, the Election Tribunalcould dismiss a petition only on the ground that it did not complywith the provisions of section 81 or section 82 of the Act. Noneof the contingencies contemplated by this provision are to befound in the present case. No other provision has been brought

4 6 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

to our notice by the learned counsel for the parties and we arenot ourselves aware of any under which a petition couldhave been dismissed, otherwise than on merits, by the Tribunal.

Consequently, we are satisfied that the defect of the chargesrelating to corrupt practice not being supported by an affidavitwas not fatal to the maintainability of the election petition andeven though its effect could be considered at the time of the finalhearing of the petition, the same could not be dismissed sum-marily on that ground either by the Election Commission or bythe Election Tribunal. The argument of the learned counselfor jthe contesting respondent, therefore, that the petition couldnot have been received or was liable to be summarily dismissedon the ground of want of an affidavit or full particulars cannot beaccepted.

Having given our anxious consideration to the relevantprovisions of the Act, specially of the proviso to section 83 of theAct, we are of the opinion that the proviso is not in the nature of amandatory provision the non-compliance of which would resultin the summary dismissal of the petition. It is not necessary to gointo the various cases which deal with the question as to whatmeaning should be given to the words 'shall' or 'may' occurringin a particular provision and whether the use of the former isconclusive of the mandatory nature of the provision and that ofthe latter only of directory. It is well-established that nothingdepends upon the use of the word 'may' or 'shall' and an enact-ment in form mandatory might in substance be directory, (seeJullius v. Bishop of Oxford (1), H. V. Katnath v. Ahmad Ishawue(2), Narayan Rao v. The State of Andhra Pradesh (3), State of U.P. v.Manbodhan Lai (4), K. S. Srinivasan v. The Union of India (5)and Rani Drigraj Kuer v. Raja A. K. N. Singh, (6). It is also settledthat in order to decide whether a provision is directory or man-datory, not only the actual words used but the scheme of thestatute, the intended benefit to public of what is enjoined by theprovisions and the material danger to the public by the contraven-tion of the same have got to be seen, (see Banwari Lai v. State ofBihar (7). In Collector of Monghyr v. Krishna Prasad (8), it was

(1) (1880) 5 AC 214. (5) AIR 1958 SC 419.(2) AIR 1955 SC 233. (6) AIR 1960 SC 444.(3) AIR 1957 SC 737. (7) AIR 1961 SC 849.(4) AIR 1957 SC 912. (8) AIR 1962 SC 1694.

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 4 7

held that the employment of the auxiliary verb 'shall' is in con-clusive and similarly the mere absence of the imperative is notconclusive either. In order to determine whether a provision isdirectory or mandatory, it has got to be seen whether any conse-quences are provided for the omission to observe the requirementand what is the purpose for which the requirement has beenindicated, having special regard to the context in which it hasbeen provided, the other provisions of the Act as also the generalscheme thereof. In Rani Drigraj Kuer v. Raja A. K. M. Singh(supra) it was held that even a directly provision is intended tobe obeyed but failure to obey does not render a thing, duly done,in disobedience of it, a nullity and that in every case the intentionof the legislature has got to be gathered from the whole of theStatute. Judging the provisions of section 83 by the test given'above, it appears to us that the proviso to section 83 of the Actmandatory. There is no provision in the Act providing for apenalty for the non-obedience of the proviso. The scheme of theAct lays insistence on giving full details of corrupt practices andon filing an affidavit in support thereof to give greater solemnityto the allegations made in the petition and to ensure that thesame were not lightly and cursorily made. If the legislatureintended the non-observance of the proviso as fatal either to theentertainment or to the maintainability of the petition, it wouldhave provided either for the dismissal of the petition on thatground or for any other penal consequence.

It is well-settled that plaints not properly verified, when pre-sented, do not entail their dismissal even if the defect is removedafter the expiry of the period of limitation. On principle, wesee no difference between a plaint and an election petition andare of opinion that if, before the hearing of a case is concluded,an affidavit is filed as required by the proviso to section 83,the Election Tribunal would not be justified in rejecting thepetition on that ground.

Having thus disposed of the preliminary objection of thelearned counsel for the contesting respondent, we proceed todeal with the submissions made by the learned counsel for theappellant. Rule 93 deals with matters relating to inspectionsand reads as follows :—

"93. Production and inspection of election papers.—(1) Whi-le in the custody of the returning officer—

(a) the packets of unused ballot papers;

(b) the packets of used ballot papers whether valid,tendered or rejected ;

4 8 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

(c) the packets of marked copy of the electoral roll oras the case may be, the list maintained under sub-section (1) or sub-section (2) of section 152 ; and

(d) the packets of the declarations by electors and attesta-tion of their signatures ;

shall not be opened and their contents shall not be inspectedby, or produced before, any person or authority exceptunder the order of a competent court or tribunal.

(2) All other papers relating to the election shall beopen to public inspection subject to such conditions and tothe payment of such fee, if any, as the Election Commissionmay direct.

(3) Copies of the returns by the Returning Officer for-warded under rule 64 or as the case may be, under sub-rule(3) of rule 84 shall be furnished by the chief electoral officerof the State concerned on payment of a fee of two rupees foreach such copy.

It is true that the provision is based upon a rule of publicpolicy, the same being that the secrecy of the ballot mustbe maintained. The rule is divided in three parts ; thefirst part deals with packets of unused ballot-papers,packets of used ballot-papers, packets of marked copy ofelectoral roll, the list maintained under sub-section (l)or (2)of section 152 and packets of declaration by electors and attes-tation of their signatures. The second part /deals with allother papers relating to elections. The third part dealswith copies of the return by the returning officer. So faras the documents mentioned in sub-rule (i), i.e., the firstpart of rule 93 are concerned, it has been clearly providedthat nobody shall be entitled to open or look into them exceptunder the order of a competent court or tribunal. Papersmentioned in sub-rule (2) of rule 93 are open to publicinspection. Copies of returns provided for in sub-rule (3),i.e., the third part of rule 93, have got to be furnished by theChief Electoral Officer on payment of a fee of Rs. 2. Thepetitioner wanted the inspection of the papers mentioned insub-rule (1) also. The question for consideration is whetherin the circumstances of the present case, the Election Tribunalshould have permitted their inspection. The Tribunalobserved as follows in this connection :

"Thus the question as to whether inspection of ballotpaper should be allowed has been left to the discretion ofthe Tribunal. If the intention of the legislature had been

E.L.R.] KIDWAI HUPSAIN KAMIL V. YADAV RAM SEWAK 49

to allow scrutiny or inspection of ballot papers easily,a rule would definitely have been framed allowingsuch inspection on certain conditions. The fact that ithas been left to the discretion of the Tribunal shows that

* inspection should ordinarily be refused unless the Tribunalconsiders such inspection necessary in the interest ofjustice."

We are unable to share the view of the Tribunal that the law isthat inspection should ordinarily be refused. There is nothing inrule 93 which warrants such a conclusion. There is no otherprovision in the Act or the Rules framed thereunder which canlead to a similar result. Rule 93 is very widely worded. Thepowers of the Court or the Tribunal have no fetters appended andthe mere fact that the Tribunal has been given a discretion in thematter does not mean, as has been wrongly assumed by theTribunal, that it should ordinarily be refused. The principleson which a judicial officer is to exercise his discretion are sowell-known and there cannot be any controversy about them.In substance the principle is that discretion should always beexercised in order to advance the cause of justice and not to defeatthe same. Whether discretion is vested in a court or a JudicialOfficer, it has got to be exercised judicially.

Having considered the facts of the case, the pleadings of theparties and the evidence on the record, we are of the opinion thatin the present case, the Tribunal exercised its discretion wrongly.The learned Member of the Tribunal was led into this errorbecause he thought that the circumstances that the matter hadbeen left to the discretion of the Tribunal indicated that normallyinspection should be refused. We have already said abovethat there is nothing in the Act or the Rules which justify sucha conclusion. We have found it difficult to see as to what bettermethod could there be of proving that votes cast in favour of theappellant were excluded from his count and a large number ofvotes had been wrongly included in the count of the contestingrespondent than allowing inspection of the ballot papers andenabling counsel to point out on the ballot papers which hethought have been wrongly excluded from the count of the appel-lant or wrongly included in the count of the contesting respondent.The appellant not only made repeated applications for inspectionbeing allowed but also tendered all the ballot-papers solemnlyand formally as evidence on his behalf. Admittedly, the ballot-papers were before the Tribunal. Under these circumstances,we have found it extremely difficult to appreciate the objectionof the Tribunal either to inspection being allowed or to himself

9—3 ECJ/ND/67

5 0 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

looking into the ballot-papers. Mr. Hargovind Dayal, whoappeared for the respondents, had to admit that no restrictionshad been placed on the powers of the Tribunal and it committeda manifest error of law in assuming that the scheme of the Ruleswas to normally refuse inspection, but he has contended thaf theaffidavit filed in support of the first application for the inspectionof the ballot-papers was not in proper form and had not beenverified in accordance with the law. It is contended that ithas not been shown in the verification clause as to on whoseknowledge paragraphs 1, 2, 3 and 7 of the affidavit have beensworn to be true. It is also complained that it has not been men-tioned in the verification clause as to on whose information thedeponent of the affidavit believed the contents of paragraphs4(a) and 4(b), 5, 6(i) to 6(iii), 8, 9, 10 and 12 to be true. It istrue that the verification clause is not very happily worded, butit must also be remembered that at the time when the affidavitwas filed, neither the Tribunal nor the contesting respondentnor his counsel objected to the acceptance of the same. It wasopen to the contesting respondent or the Tribunal to object tothe affidavit and in that case another affidavit could have beenfiled by the appellant. No prayer was also made for the cross-examination of the deponent of the affidavit by the contesting-respondent. The affidavit was not intended to be a piece of evi-dence in the case but was required only to support an applicationmade for the inspection of the ballot papers and other connecteddocuments. Consequently, we are of the opinion that the objectionnot having been raised in the trial Court, it cannot be allowed tobe raised for the first time before us. Apart from it, the Rulesprovide the form in which an affidavit is to be verified in connec-tion with election petitions. Form 25 reads as follows :

"I the petitioner in the accom-panying election petition calling in question the election ofShri/Shrimati(respondent no in the said petition) makesolemn affirmation/oath and say—

(a) that the statements made in paragraphof the accompanying election petition about the com-mission of the corrupt practice ofand the particulars of such corrupt practice mentionedin paragraphs of the same petitionand in paragraphs of the Scheduleannexed hereto are true to my knowledge ;

(b) that the statements made in paragraphsof the said petition about the commission of corruptpractice of and the particulars of

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 51

such corrupt practice given in paragraphsof the said petition and in paragraphsof the Schedule annexed thereto are true to my in-formation ;

Learned counsel for the appellant submitted that the formfor verification to be adopted in matters relating to election peti-tions should be one in conformity with form 25 of the Rules andthat the rules of the High Court contained in Chapter VI of theRules of this Court are not applicable to election petitions andconnected proceedings. In our judgement, there is substancein this submission. Learned counsel for the contesting respon-dent has invited our attention to 0.19, r.3, CPC. as amended bythis Court also and has made a reference to rules 8 to 15 added bythis Court. In our opinion, the amendment made by this Courtto the Code of Civil Procedure cannot govern a matter relatingto the conduct of election petition in derogation of the provisionsof the Act and the Rules framed thereunder. In the first place,when section 92 of the Act made the Code of Civil Procedureapplicable to proceedings before the Election Tribunal, it con-templated the Civil Procedure as passed by the Legislature andnot inclusive of local amendments. The Act is an all-Indiastatute and an election petition from whatever State it mayarise, can be sent for trial by the Election Commissioner before anyTribunal situated in any part of India. Consequently, it cannotbe said that if an election petition is tried in Allahabad, the Codewith local amendments would apply but if the same petitionwas to be tried in Madras or in Bombay or in Punjab, the local,amendments of Allahabad would not apply. There has got to bea uniform law and practice for the whole of the country in amatter like this. Consequently, we are of the opinion that whensection 9,2 of the Act made the Code of Civil Procedure applicableto proceedings in an election petition, it only made the provisionsof the Code, exclusive of the local amendments, applicable. Butquite apart from it, there is nothing in the Code or any localamendments which can apply in derogation of the Act or theRules framed thereunder. Inamati Mallappa Basappa v.Desai Basavarai Ayyappa and others (9) the Supreme Courtclearly held that the provisions of the Representation of the PeopleAct as a whole constitute a self-contained Code governing thetrial of election petitions. The Allahabad amendments cannotover-ride form No. 25. The affidavit filed by the petitioner isin substantial compliance with form No. 25 and even though it isnot in strict conformity with rules 8 and 9 of the Rules added bythis Court to 0.19, r.3, C.P.C. it cannot be said that the defect isvital and the prayer for inspection was rightly refused.

52 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

In the end, the learned counsel for the respondent citedState of Bombay v. Purshottam Jog (9) and invited our atten-tion to the following passage in the judgment :

"We wish, however, to observe that the verification ofthe affidavits produced is defective. The body of the affi-davit discloses that certain matters were known to the Secre-tary who made the affidavit personally. The verificationhowever states that everything was true to the best of hisinformation and belief. We point this out as slipshod veri-fication of this type might well in a given case lead to a rejec-tion of the affidavit. Verification should invariably bemodelled on the lines of Order 19, Rule 3 of the CivilProcedure Code, whether the Code applies in terms or not.And when the matter deposed to is not based on personalknowledge the sources of information should be clearlydisclosed."

This decision is distinguishable firstly on the ground that in thepresent case we have held that the affidavit is in conformity withform 25 and consequently not defective and secondly becausethe decision is no authority for the proposition that even thoughan affidavit is admitted, without objection, in the trial court, not asa piece of evidence in the case but only in connection with anapplication made for the inspection of the record, it should berejected on the objection made in the appellate Court long afterit had been admitted. This case, therefore, does not advance thecase of the contesting respondent.

For the reasons mentioned above, we see no force in thesubmission of the learned counsel that inspection of the ballot-papers should be refused on the ground that the affidavit wasnot properly verified and that the Tribunal was justified inrefusing to permit inspection of the ballot papers.

In this connection, we would like to point out that' thelearned counsel for the appellant had, before the Tribunal,produced a certified copy of the return from which it clearlyappeared that there was a mistake in totalling. With regard tothis certified copy, the learned counsel for the respondent in hiswritten application had not only not objected to the originalreturn being seen but had actually stated that "the allegedmistake in the certified copy of the return can be tested with theoriginal". Even though both the parties agreed that it was properto see the original return, Sri S. Malik, surprisingly enough refused

(9) A.I.R. 1962 Sc. 317.

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 53

to do so on the ground that the original return had not been sum-moned. We have found it difficult to comprehend what thelearned member of the Tribunal meant by the words that the"original return had not been summoned." The entire papersincluding the original return had not only been summoned byhim but were also before the Tribunal. Besides, he should haveappreciated that the allegations made in the affidavit filed insupport of the application and production of the certified copyof the return clearly showed that the inspection was requirednot to harass the contesting respondent but in the interest ofjustice and with a view to prove the case of the appellant. Weare constrained to say that the Tribunal erred grievously in notallowing the inspection even under these circumstances.

We have again not been able to understand as to what didthe learned member of the Tribunal mean by saying that he didnot see the original return because nobody had applied for itsinspection. Under the provisions of section 92 (a) of the Actdiscovery and inspection is permitted. It was contended thatthis provision gave the Tribunal jurisdiction to permit inspectionof the ballot-papers. The Tribunal, however, observed as followsin this connection :—-

"Order XI, rule 15 to 18 lay down under what circum-stances inspection can be allowed. It is apparent that underthe Code of Civil Procedure inspection could be allowedonly of documents referred to in the pleadings and in thepossession of any of the parties to the suit. In this case,the ballot-papers are not documents in the possession of anyof the parties to the petition. They obviously were in thepossession of the returning officer who is not a party to thecase. Therefore, the inspection prayed for cannot be allowedunder section 30 read with Order XI, C.P.C."

We have already said earlier that it is a fact which is admitted byboth the parties before us that the ballot-papers and the returnswere in the custody of the Tribunal, having been summoned fromthe returning officer. In our opinion, the provisions of theCode of Civil Procedure do not bar the inspection of the papers inthe custody of the Court. We are, therefore, satisfied that theTribunal rejected the application for inspection of the ballotpapers and the returns without any adequate reason for doing so.

Both Sarvasri Iqbal Ahmad and Har Govind Dayal, learnedcounsel for the parties, who appeared also before the Tribunal,stated that most of the autherities on which they were placingreliance before us were also cited before the Tribunal but the

5 4 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

Tribunal did not notice them. All that the Tribunal did was tomention the following three cases at the fag end of the judgmentsaying that its attention was drawn to them :

(1) Case No. LXXIV Punjab North (M) 1924 GhazanfarAli v. Chaudhary Bhawal Bux and others.—ElectionGases India and Burma (1920—35).

(2) Hammend's Election Gases 1920—35 at 307 (K. V.Krishnaswami Nayakar v. A. Ramaswami Mudalyarand,other) p. 671—V. P. P. : Pillai v. R. B. Venka-tarama Ayyar and others at p. 137 (Barcilly city case).

(3) (1952-53) 2 E.L.R. 51—R. S. Merconder v. S. Ram-lingar :

In the first place, the Tribunal did not even notice the othercases which were placed before it. Secondly, it did not say asto what the three cases mentioned above laid down and whetherit was following them or distinguishing them.

On behalf of the appellant Bhim Sen v. Gopali (10) was citedbefore us and the following passage from the judgment of theSupreme Court placed for our consideration :—

"Thus construed, the averment in the said paragraphalso indicates that according to the plea of the appellant,respondent I could get void votes because of the failure of thereturning officer to discharge his duty. In the context"could receive" really meant "did receive" and not "mighthave received". In this connection it must be borne inmind that particulars in regard to the allegation of this kindcould be more definitely supplied only after the ballot boxis opened and not till then. Rule 138 provides for the pro-duction and inspection of election papers. Until the saidpapers are produced and inspected as provided by the saidrule it would be difficult, if not impossible, for any party toallege affirmatively how many void votes had been countedin favour of the candidate declared to be duly elected. Con-siderations which apply to the allegations of misconductspecified in section 83 (1) (b) would not be relevant in thecase of the present allegations ; and so, reading the originalpetition itself, we are satisfied that the material allegationshad been made with sufficient clarity by the appellant."

Rule 138 referred to by their Lordship is rule 93 now withoutthere being any change in the language. Their Lordships were

(10) 22 ELR228at296.

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 55

also considering a case relating to wrong inclusion and wrongexclusion of votes. The Supreme Court clearly held that full-details could be given only after the inspection of all the ballot-papers a conclusion to which we ourselves have arrived at. Theelection petition was mainly founded on the allegation relatingto wrong exclusion of votes from the count of the petitioner andwrong inclusion of votes in the count of the contesting respondent.That being so, we are of the opinion that it was imminently just tohave allowed the inspection of the ballot papers and connecteddocuments. We have already said earlier that the appellanteven formally tendered all the ballot papers and asked theTribunal to look into such of them as were to be pointed out of it.The Tribunal, however, refused to do even that.

In this connection we would like to reproduce the provisionsof section 100(1) (d) of the Act which reads as follows :

"100—Grounds for declaring an election to be void.—(1)Subject to the provisions of sub-section (2), if the Tribunal isof opinion—

(d) that the result of the election, in so far as itconcerns a returned candidate, has been materiallyaffected—

(iii) by the improper reception, refusal or rejectionof any vote or the reception of any vote which isvoid, or

the Tribunal shall declare the election of thereturned candidate to be void."

The law, therefore, is that an election petition can be pre-sented on the ground that votes had been wrongly received orwrongly rejected, or that any vote was void. In other words,when such allegations are made, the matter is justiciable andit is the duty of the Tribunal to adjudicate in respect of that matter.Allegations like these can best be proved by placing the particularballot-papers which, according to a party, have been wronglyreceived or wrongly rejected or which are void. It is not possibleto do so unless an inspection is allowed. Consequently, we seeno justification on the part of the Tribunal to have refused theinspection of the ballot papers and the returns.

Learned counsel for the respondent placed before us a largenumber of cases, both English and Indian. In England therelevant provision relating to inspection of ballot-papers and otherelection papers is section 87 of the English Representation of thePeople Act, 1949. It is not necessary to reproduce that provision.

56 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

Suffice it to say that the law in England is that the ballot-paperscan be opened at two stages, i.e., in the pre-election-petitionstage and the post-election-petition stage. Before the electionpetition is filed, they can be opened only with the permissionof the House of Commons. After the petition has been filed, thesame can be opened with the permission of the Election Tribunal.In our country, the law does not permit inspection at pre-election-petition stage and no such power has been conferred either on theParliament or the local legislatures.

Learned counsel or the respondent placed reliance uponStewdv. Jelliffe (11). We have carefully seen that judgment. Inour opinion, it does not provide us any assistance in deciding thecase before us.

The next case on which reliance was placed is The Queen v.Peardsall (12). This case is also not an authority for the prepositionthat inspection of ballot-papers should not be allowed even thoughone of the grounds or the sole ground in the petition is that voteshad been wrongly excluded from the count of the petitionerand had wrongly been included in the count of the respondent.

These are two English cases that have been cited before us.

So far as Indian cases are concerned the first one relied Uponis Abdul Majeed v. Bhargavan (14). The following passagefrom that judgment was placed before us by the learned counselfor the respondent :

"It remains to dispose of the third and the last contentionadvanced for the appellant, that the prayer in the electionpetition for a recount of the ballot papers ought to have beenallowed by the Tribunal. Of course, the margin of diffe-rence in the votes secured by the appellant and the respon-dent was only 122. In the election petition the chiefground relied on for recount was that a large number ofcounting assistants employed by the Returning Officer weresympathisers of the Communist Party and since the candi -dates were allowed only one counting agent for three tablesto supervise the sorting and counting of ballot papers,manipulation by interested counting assistant was not im-possible.

The allegation against the counting assistants has notbeen sustained. On the evidence of the Returning Officer

(11) (1873-4) 9 Court of Common Pleas, p. 446.(12) (1875-6) 1 QBD452.(13) AIR 1963 Kerala, p. 18 at p. 25.

E.L.R.] KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK 57

it is seen that for every two counting assistants, to a tablethere was a superviser, and the Officer himself was seatedon a platform facing the counting assistants. The seatingarrangement was according to a plan or diagram suppliedwith instruction by the Election Commissioner. On thesame day, the same counting assistants had been engaged inthe counting of ballot papers in the Kottarakara Consti-tuency where, as sworn to by P.W.S., a P.S.P. candidatehad contested. What was pressed before us chiefly was,that the total number of counting agents sanctioned to acandidate was inadequate. Section 47 of the Act provides,that a contesting candidate may appoint one or more personsbut not exceeding such number as may be prescribed, to bepresent as his counting agent or agents at the counting ofvotes."

This case is clearly distinguishable. In the first place, itdoes not deal with an application made for the inspection of theballot papers with a view to substantiate the allegations containedin the petition that some votes were wrongly excluded from thosepolled by the appellant and some others were wrongly includ-ed in these received by the contesting respondent. It was not acase where inspection was required in order to substantiate theallegations made in the election petition and give proof in respectof the facts in issue. In that case a prayer was made for the dis-posal of the petition on the ground that inasmuch as the numberof counting agents of the petitioner were few and the countingagents belonged to a different political party chances of the resultshaving been manipulated could not be excluded. The KeralaHigh Court was considering whether in view of the material onthe record it should declare the void and not whether it shouldpermit inspection before the hearing. Secondly, it was not a casewhere it had been definitely alleged that the result had beenmanipulated. All that had been alleged was that the possibilityof its being manipulated c6uld not be excluded. We are, there-fore, of the opinion that this case too is of no assistance to us indeciding the one before us.

Learned counsel then placed before us the case of Vasaviah v.Bachiah and others (14). This case is only an authority for thepreposition that a person challenging the result of the election onthe ground of wrong inclusion or wrong exclusion of votes is notentitled to have a recount of the votes as a matter of absoluteright. He would be entitled to it only if he makes out a primafacie case that the votes were wrongly excluded and wrongly

(14) 17 ELR293.10—3 ECI/ND/67

5 8 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV*

included. In this case also, their Lordships were not concernedwith an interim application made during the trial of the electionpetition for the inspection of the ballot papers in order to subs-tantiate the allegations contained in the petition that votes hadbeen wrongly excluded from these of the applicant and wronglyincluded in those of the respondent but were dealing with thequestion as to whether on the basis of the evidence on the recordthe petitioner was entitled to get the election declared void undersection 100(1) (d) (iii) of the Act. We reprcdnce below theexact words used in the judgment :—•

"The main complaint of the petitioner is that the re-turning officer did not allow him to appoint more than onecounting agent, while under section 47 of the Act read withrule 54 of the Rules, he is entitled to appoint as many as12 counting agents It is not the case, ofthe petitioner that he appointed more than one countingagent and the Returning Officer refused them access to theplace of counting."

While dealing with the question of recount, the learned Judgesobserved as follows :—

"It is next urged that the margin of difference betweenthe petitioner and the first respondent is very narrow, beingonly 42 votes ; and that the petitioner feels that if the votesare recounted he will be able to establish that he had ob-tained more votes (valid) than the first respondent. Thepetition does not disclose the reason why the petitionerfeels that he is likely to have obtained more votes than thefirst respondent, nor does the evidence adduced by himdisclose any prima facie case, to indicate that the petitioneris likely to have obtained more votes than the first respondent.It may be noted that neither the petitioner nor his agent raisedany objection to any of the votes at the time of the counting.It is further necessary to notice that at the request of thepetitioner the returning 'officer retotalled the votes beforehe declared the result. We have not been shown anyreason why there should be a recounting, which term includesscrutiny of the votes polled. It appears as if the petitionerwants to try one more chance. But it is urged on behalfof the appellant that he has a right to demand a recount,as he has claimed the seat in his petition, irrespective of thefact whether he has made out a prima facie case or not

It is well established law that a recount

will only be granted in cases which are substantiated byspecific instances and by reliable prima facie evidence.

E.L.R.] KIDWAI HUSSAIK KAMIL V. YADAV RAM SEWAK 59

Where therefore, the application for recount rested on anebulses allegation of the agent about the counting of batchesof votes twice ever, the application was refused. (Underlinedby us).

It would be noticed that in the abovementioned case therewas no definite allegation with regard to wrong exclusion orwrong inclusion of votes. All that was contended was that themargin between the votes of the parties being so thin it may be thata recount may disclose that the petitioner had secured the majorityof votes polled. In other words, all that was contended was thatsince there was a difference of only 42 votes, the possibility of awrong counting could not be excluded. Their Lordships afterpointing out the circumstances that at the request of the petitionerin that case the returning officer had already recounted the votesbefore declaring the result of the election, there could be nojustification for repeating the request specially when the petitionerwas unable to show as to why he thought that there had been awrong counting. Actually this case clearly contemplates thepossibility of a recount if there is prima facie evidence justifyingsuch a course. No case has been brought to our notice, decidedby any of the Indian High Courts, or by the Supreme Courtwhere an inspection was prayed for in order to substantiate theallegations made in the petition and was refused on the groundthat no oral evidence had been led in order to show that somevotes had really been wrongly excluded or included. It is tritethat in all judicial proceedings only the best evidence on a pointshould be given. Whether or not a vote has been wrongly ex-cluded or wrongly included can best be proved by a look at theballot paper itself. To require a party to first being in parole evi-dence to prove what can best be demonstrated by a look at theballot paper itself, in our opinion, is neither required by the lawnor rules of practice. All inspections must precede the hearingof the case. Inspections should not normally follow the hearing.

Under the circumstances, we are of the opinion that therequest made by the learned counsel for the appellant for theinspection of the ballot papers for the lawful purpose of placingbefore the Tribunal such of the ballot papers which in his opinionhad wrongly been included in the votes of the contesting respon-dent and had wrongly been excluded from those of the appellantshould not have been refused.

We have already said above that the Tribunal neither per-mitted the appellant's counsel to inspect the ballot papers andconnected documents nor looked into them itself even thoughall of them were tendered in evidence before it and were available

60 KIDWAI HUSSAIN KAMIL V. YADAV RAM SEWAK [VOL. XXV

in the court. For the reasons mentioned above, we allow theappeal, set aside the order passed by the Election Tribunal dis-missing the election petition filed by the appellant and remand thecase to the Election Tribunal, Lucknow, for retrial. The Tribu-nal shall give a reasonable opportunity to both the parties toinspect the ballot papers and other connected documents subjectto the directions which arc given below : —

(1) The inspection must be made only between the notifiedhours of which prior notice has been given to theparties' counsel.

(2) The inspection must be made in the presence of theMunsarim and no other junior officer.

(3) At the time of making the inspection neither partyshould be allowed to handle an}' ballot papers.

(4) At one time only one bundle of ballot papers should beopened.

(5) As soon as one bundle has been inspected, it should besealed by the Munsarim in the presence of the partiescounsel such are present and if both the parties'counsel are not present the Munsarim will make a noteas regards the party which is not represented. Further,the parties' counsel should also be asked to put theirseals on the same bundle.

(6) As a further precaution all the bundles or the ballotboxes, i.e. outsider-containers must be sealed evenbefore inspection by the Munsarim and the parties'counsel if they arc present. If any party's counselis not present, a note to that effect should be made bythe Munsarim at the time of sealing.

(7) The inspection will be confined only to the ballot papersand form No. 16.

The parties will be entitled to produce such evidence as theyconsider necessary. In the circumstances of the case, we directthe parties to bear their own costs.

A substance of our decision shall be communicated to theElection Commission and the Speaker of the House of the Peopleimmediately and a copy of the order shall also be sent to theElection Commission and Election Tribunal, Lucknow. as soonas it is ready.

Appeal allowed.

E.L.R.] MADAN GOPAL V. NEK RAM SHARMA

[IN THE HIGH COURT OF ALLAHABAD]

MADAN GOPALV.

NEK RAM SHARMA

(S. S. DlIAVAN AND K . B. ASTHANA, J J )

August 6, 1963.

Representation of the People Act, Ss. 38, 52—validly nominated candidate dyingbefore the date of withdrawal—if becomes contesting candidate—poll if must be counter- x

manded.

After scrutiny of nominations, a list of valid nominations was publishedwhich included the name of M. But before the last date for withdrawal, ofcandidature, M died. After the expiry of tlie time for withdrawal, the returningofficer prepared a list of contesting candidates in which he did not include thename, of M. In the poll that took place the respondent was declared elected.The appellant challenged the validity of the election by an election petitionon the ground that on the death of M the poll was barred under s. 52 of theAct and the Returning Officer had no option but to contermand the poll.The Tribunal dismissed the petition.

In the appeal to the High Court the questions for decision were (i) whethera candidate who was included in the list of validly nominated candidatesunder s. 36(8) of the Act becomes automatically a contesting candidate beforethe list of such candidates was prepared under s. 38 of the Act and (n) whetheron the death of such a candidate before the expiry of the period for withdrawalof candidature without withdrawing his candidature and before the preparationof the list of contesting candidates, the poll must be countermanded under s. 52.

HELD:—Dismissing the appeal:

Per Dhavan, J.—The entire scheme of Part V of the Act which deals with"the Conduct of Elections" contemplates living persons as candidates.

The list of contesting candidates cannot be prepared under s. 38 untilafter the expiry of the period fixed for the withdrawal of candidature. It.means that no question of a candidate becoming a contesting candidate arisesbefore the expiry of this period and the words "who have not withdrawntheir candidature within the said period" signify that the definition is notapplicable till the period fixed for withdrawal is over. That is why the listof contesting candidates is prepared after the expiry of this period. It followsfrom the very definition of contesting candidate in s. 38 and the language ofs. 52 that no candidate can acquire the status of a contesting candidate beforethe expiry of the period prescribed for withdrawal of candidature and thats. 52 comes into effect only if a contesting candidate dies after the expiry ofthe period. These two corollaries are complementary.

introduced, by amending ActPer Asthana J.—The words "contesting candidate"' have been deliberately

ct XXVII of 1956, in the scheme of elections fora specific purpose. The list of contesting candidates is the most importantlist under the scheme of the Act. If the foct of death which is always trans-cendental could be taken notice of by the Returning Officer in drawing up

62 MADAN GOPAL V. NEK RAM SHARMA [VOL. XXV

a list of validly nominated candidats, there is no reason why it could not betaken notice of by the Returning Officer when draw ing up a list of contestingcandidates under s. 38 of the Act.

First Appeal against the order of the Election Tribunal,Aligarh (District Judge, Aligarh), dated the 29th September,1962.

JUDGEMENT

DHAVAN, F.—This is an appeal under section 116-A of theRepresentation of the People Act from the order of Election Tri-bunal, Aligarh, daftd the 29th September, 1962, dismissing theappellant's petition for the setting aside of the election of therespondent Nek Ram Sharma, as a Member of the U.P. Legisla-tive Assembly from the 378-Sikandra Rao Assembly Constituency,district Aligarh. It raises two questions of law: (1) Whethera candidate who is included in the list of validly nominatedcandidates under section 36(8) of the Repesentation of the PeopleAct becomes automatically a contesting candidate before the listof such candidates is prepared under section 38 of the Act; and(2) whether on the death of such a candidate before the expiryof the period prescribed for the withdrawal of candidature undersection 37 without withdrawing his candidature, and before thepreparation of the list of contesting candidates under section 38,the poll must be countermanded as on the death of a contestingcandidate under section 52. The admitted facts very brieflyare these. At the last general election the following dates(or last date) were fixed by the Election Commission for thisConstituency under section 30 of the Act: 20th January, 1962,for filing of nomination papers; 22nd January for scrutiny ofnominations; 25th January, 1962 (3 p.m.) as the last date forwithdrawal of candidatures; and 23rd February, 1962, for polling.It is common ground that Thakur Malkhan Singh's nominationwas accepted after scrutiny and his name included in the list ofvalidly nominated candidates prepared under section 36(8);that he died on the 24th January, 1962, at 8 p.m. before theexpiry of the period for withdrawal; and that at the time of hisdeath he had not withdrawn his candidature. There was a numberof other candidates including the respondent Nek Ram Sharma.After the usual scrutiny of nominations under section 36 a list ofvalid nominations was published which included the names ofThakur Malkhan Singh and the respondent Nek Ram Sharma.The time for withdrawal was to expire on 25th January, 1962,at 3 p. m. but Thakur Malkhan Singh died on the previous even-ing. The fact of his death was brought to the notice of the Return-ing Officer. Immediately after the expiry of the time for with-drawal, the Returning Officer prepared a list of contesting candi-

E.L.R.] MADAN GOPAL V. NEK RAM SHARMA 6 3

dates under section 38 in which he did not include the name ofMalkhan Singh. On the 1st February, 1962, the proposer ofThakur Malkhan Singii (his name is immaterial) made anapplication for the countermanding of the poll under section 52of the Act. This was rejected and the poll took place on 23rdFebruary, 1962, and the respondent Nek Ram Sharma, electedby a majority of votes. An election petition was filed by thepresent applicant Madan Gopal Singh who was not a candidatein the election but an elector. Though a number of groundswere taken in the petition the appellant pressed only one—namely,that the election was invalid because on the death of ThakurMalkhan Singh a poll was barred under section 52 and the Return-ing Officer had no option but to countermand the poll; and hisrefusal to do so was illegal and consequently both the poll onthe 23rd and the declaration of the respondent's election werevoid. This argument was rejected by the Tribunal and theappellant has come to this Court in appeal.

Mr. Khare pressed the same argument before us. He arguedthat under section 38 a candidate becomes a contesting candidateimmediately after the scrutiny when his name is included in thelist of validly nominated candidates, and he remains a contestingcandidate unless and until he withdraws his candidature by giv-ing notice of withdrawal under section 37. Thakur MalkhanSingh became a contesting candidate on 22nd January and died onthe 24th—one day before the expiry of the period for withdrawalof candidature under section 37. But as he never gave noticeof withdrawal during his life-time, his death did hot have theeffect of withdrawing his candidature during the period fixedfor withdrawal and he remained a contesting candidate through-out this period but his death made section 52 effective and the pollshould have been countermanded by the returning officer.This was not done and consequently the poll which resulted inthe election of the respondent Nek Ram Sharma was void.

This argument involves an interpretation of sections 52and 38 of the Act. Section 52 runs thus:

"52. If a contesting candidate dies and a report of hisdeath is received before the commencement of the poll,the Returning Officer shall, upon being satisfied of the factof the death of the candidate, countermand the poll andreport the fact to the Election Commission and also to theappropriate authority and all proceedings with reference tothe election shall be commenced anew in*all respects as iffor a new election.

64 MADAN GOPAI. V. NEK RAM SHARMA [VOL. XXV

Provided that no further nomination shall be necessaryin the case of a person who was contesting candidate at thetime of the countermanding of the poll.

Provided further that no person who has given a noticeof withdrawal of his candidature under sub-section (1) ofsection 37 before the countermanding of the poll shall beineligible for being nominated as a candidate for the election •after such countermanding."

This section becomes effective whenever a contesting candi-date dies before the commencement of the poll, and the questionbefore us is whether Thakur Malkhan Singh was a contestingcandidate at the time .of his death. If he was, section 52 becameeffective immediately and the poll had to be countermanded,and the poll which resulted in the election of the respondent wasillegal.

Mr. Khare contended that Thakur Malkhan Singh becamea contesting candidate before he died. He relied on section 38which contains a definition of contesting candidates, and providesfor the drawing up of a list of such candidates. It runs thus:

"38. (1) Immediately after the expiry of the periodwithin which candidatures may be withdrawn under sub-section (1) of section 37, the Returning Officer shall prepareand publish in such form and manner as may be prescribeda list of contesting candidates, that is to say, candidates whowere included in the list of validly nominated candidates andwho have not withdrawn their candidatures within the saidperiod;

(2) the said list shall contain the names in alphabeticalorder and the addresses of the contesting candidates as givenin the nomination papers together with such other particu-lars as may be prescribed."

Section 36 lays down two qualifications for a contestingcandidate namely, (1) he was included in the list of validly nomi-nated candidates; and (2) has not withdrawn his candidatureduring the period prescribed for withdrawal.. It is commonground that Thakur Malkhan Singh fulfilled the first conditionas he had been included in the list of validly nominated on 22ndJanuary. But did he fulfil the second ? This is the real questionin this appeal.

It must be*°noted that Thakur Malkhan Singh died beforethe period of withdrawal expired and before the list of contesting

E.L.R.] MADAN OOPAL V. NEK RAM SHARMA 65

candidates was prepared under section 38. This list could bemade only on the expiry of the period of withdrawal of candidature,and as he had died while this period was still running the returningofficer did not include his name in the list. Mr. Khare contestedthat he should have been included but his non-inclusionwas immaterial because he became a contesting candidate beforethe list was made. Counsel's arguments were discursive and notall of them relevant to the questions raised in this appealbut the following is a brief summary in my own words:

Mr. Khare contended that under section 38 a contestingcandidate does not derive his status as such from his inclusionin the list of contesting candidates under section 38 but, indepen-dently of the list, from the definition of contesting candidates thatis to say, from the fact that he is a candidate who was included inthe list of validly nominated candidates and has not withdrawnhis candidature during the period of withdrawal. Under thedefinition, counsel argued, every validly nominated candidateautomatically and simultaneously becomes a contesting candidateand remains one unless and until he withdraws his candidature.He contended that the words "and have not withdrawn theircandidature during the period of withdrawal" should be inter-preted as "unless they have withdrawn their candidature duringthe period of withdrawal". According to Mr. Khare,, the factthat the list of contesting candidates is prepared after the expiryof the period of withdrawal of candidature is immaterial becausethe persons included in this list became contesting candidates whenthey became validly nominated candidates, and the list onlyrecords a fait accompli. The fact that the period of withdrawalmust and before making of the list of contesting candidatessimply means, counsel argued, that some contesting candidatescease to be so on the withdrawal of their candidature; and on theexpiry of the period of withdrawal a list is made of all candidates—who were validly nominated and have not withdrawn theircandidature—in other words a sort of final list of contestingcandidates.

Applying this principle to Thakur Malkhan Singh, Mr.Khare argued that he became a contesting candidate immediatelyafter the close of the scrutiny under section 36 when his nominationwas declared valid and his name included in the list of validlynominated candidates, and he never ceased to be a contestingcandidate because he never withdrew his candidature in accord-ance with the procedure prescribed under section 37 and theConduct of Election Rules. He contended that there can be novalid withdrawal without complying with this procedure. Rule9 of the Conduct of Election Rules requires that the notice of

U—3 ECI/ND/67

66 MADAN GOPAL V. NEK RAM SHARMA [VOL. XXV

withdrawal must be in Form 5 and contain the particulars con-tained therein and it is obvious from the text of the form that itmust be signed by the candidate and countersigned by theReturning Officer. Counsel argued that section 37 must bestrictly interpreted and given a literal meaning, which is that acandidate shall not be deemed to have withdrawn his candidatureunless and until he gives express notice of withdrawal by signingForm V and delivering it to the Returning Officer. He arguedthat as the Act and the Rules provide for no alternative mode ofwithdrawal, the law does not recognise death as a valid or effectivemanner of withdrawal and a candidate's candidature is notlegally withdrawn because of his death. Counsel's argument isstartling on the face of it as it implies that candidate continuesto exist though he ceases to exist in life. I have to see whetherit is borne out by the language and scheme of the Act. In supportof his argument Mr. Khare relied on a passage in Halsbury'sLaws of England, 3rd Edition, Volume 14, on page 102, statingthat under certain circumstances "though the candidate in factdied before the poll commenced, the poll cannot be stopped andthe dead candidate if successful must be declared elected". Mr.Khare argued that if death does not prevent a candidate from beingdeclared elected it cannot result in his withdrawal from the contestin fact he must be a contesting candidate before he can be declar-ed elected. Mr. Khare pointed out that Thakur Malkhan Singhwas alive when he was included in the list of validly nominatedcandidates prepared under section 36(8). From this time hebecame a contesting candidate and could lose this status only bygiving notice of withdrawal in accordance with the prescribedprocedure. He never did so and died before the expiry of theperiod of withdrawal. Death does not result in the withdrawalof candidature under section 37 and in the eyes of the law ThakurMalkhan Singh's candidature was not withdrawn by his death,and he died as a contesting candidate. On his death section52 became effective and the Returning Officer had no optionbut to countermand the poll. His refusal to do so was illegaland consequently the poll which resulted in the election of therespondent Nek Ram Sharma was void.

The entire argument is based on a misunderstanding of themeaning of candidate and the effect of death on a candidate'scandidature, and an erroneous interpretation of the definitionof contesting candidate in section 38.

What is a candidate ? Section 79 of the Act defines the wordcandidate' but the definition is limited to Parts VI, VII, VIII,which deal respectively with disputes regarding elections,corrupt practices and electoral offences, and disqualifications.

B.L.R.j MADAN GOPAL V. NEK. RAM SHARMA 67

The definition is not strictly applicable to sections 38 and 52 whichoccur in Part V which governs 'the conduct of elections', but itmay be helpful as a guide in determining the basic idea in theword candidate. Sub-section (1) of section 79 runs thus: "S.79. Definition.—In Parts VII and VIII, unless the contextotherwise requires, (b) "candidate" means a person who has beenor claims to have been duly nominated as a candidate at anyelection, and any such person shall be deemed to have beena candidate as from the time when, with the election in prospecthe began to hold himself out as a prospective candidate. This defi-nition obviously refers to a living person, for one cannot say of adead person that he "has been" or "claims to have been" nomi-nated. Mr. Khare argued however that this definition is expresslylimited to the three parts of the Act mentioned above and cannotbe extended to any section in Part V. The argument is not with-out substance, and therefore the word 'candidate' in section 38must be given its ordinary meaning. It is based on the Latin wordcandidates which was derived from candidus for white. It was thecustom among the Romans that candidates clothed themselvesin a white tunic. To-day the word candidate is defined inBoviar's Law Dictionary as "one who offers himself and is offeredby others for an office" and also as "one who seeks office", inthe New Webster's Collegiate Dictionary as "one who offershimself and is put forward by others as a suitable person or anaspirant or a contestant for an office, privilege or honour";and in the Concise Oxford Dictionary as "one who offers himselfor is offered by others for an office". These definitions are verysimilar to the definition in section 79 and they make obviousthat only a living person can be a candidate, or it is absurd totalk of a dead person offering himself or being offered by othersfor election or seeking any office or post.

The entire scheme of Part V of the Act which deals with"the conduct of election" contemplates living persons as candi-dates. Chapter I which provides for "nomination of candidates".Section 30 which initiates this Chapter enjoins that as soon as anotification calling upon a Constituency to elect a Member orMembers is issued the Election Commission shall fix five datesrespectively for (1) nomination of candidates, (2) scrutiny of theirnominations, (3) withdrawal of candidatures, (4) the holding of thepoll (if the election is contested) and (5) the completion of theelection.

The first step is nomination. Section 32 provides that anyperson may be nominated as a candidate for election, section 33provides for the manner of filing a nomination paper and therequirements of a valid nomination, and states inter alia that the

6 8 MADAN GOPAL V. NEK RAM SHARMA [VOL. XXV

nomination paper shall be presented either by the candidate or hisproposer in person. Section 34 provides for deposits and requiresthat a candidate must deposit or cause to be deposited a prescribedsum and enjoins that no candidate shall be deemed to have beenvalidly nominated unless this deposit is made. Section 35 providesfor the giving of a notice of the scrutiny of nominations and section36 for the procedure at such scrutiny sub-section (8) of section36 is important. It enjoins that immediately after the scrutinythe Returning Officer shall prepare a list of candidates whosenominations have been found to be valid and publish the list onhis notice-board. Section 37 provides for the withdrawal ofcandidates by a certain date which under section 30(c) must bethe 3rd day after the date of scrutiny. Any candidate maywithdraw his candidature before the last date of withdrawal.Section 38 provides for the making of a list of contesting candidateswhich are defined as "candidates who were included in the listof validly nominated candidates and who have not withdrawn theircandidature within the said period." It requires the ElectionOfficer to draw up a list of such candidates which must contain"the names in alphabetical order and the addresses of the contest-ing candidates as given in the nomination papers together withsuch particulars as may be prescribed". After this stage, allcandidates other than contesting candidates are weeded out andthe subsequent provisions of the Act refer only to contesting candi-dates. Chapter IV provides for the taking of the poll.

From the foregoing summary it would appear that everycandidate must pass through1 three stages before he becomesentitled to receive votes at the poll. First he becomes a nominat-ed candidate (sections 34 and 35), next a validly nominatedcandidate (section 36), and lastly a contesting candidate.After this nothing further remains to be done to entitle him toreceive votes at the poll. But throughout these stages he mustbe a candidate. Only a living person can offer himself or agreeto be offered by others for election, file a nomination paper, ordeposit or cause to be deposited any sum as security, or with-draw his candidature in writing, or decide not to withdraw andbecome a contesting candidate. There is no escape from theordinary meaning of the word candidate in the "definition of'contesting candidates' which contemplates living persons.

Mr. Khare's entire argument is built on the absence of aspecific provision in section 37 that death terminates the candida-ture of a candidate. But this section provides for a voluntarywithdrawal by a living candidate and has nothing to do with thetranscendant effect of death on a candidate's candidature. Ininterpreting a statute creating a political function or status which

E.L.R.] MADAN GOPAL V. NEK RAM SHARMA 69

can be performed or enjoined only by a living person, the Legis-lature must be presumed to have intended that the functionor status terminates on the death of the person on whom it con-ferred. The Representation of the Peoples Act provides for theelection of the political representatives of the people to theLegislature and a procedure by which any qualified person canoffer himself as a candidate. As only living persons can offerthemselves or be offered as candidates, the statute presumesthat death will terminate the candidature of any candidate.

It must be noted that section 37, does not fix any stage forthe withdrawal of candidature, provided it is done before theexpiry of the last date fixed under section 30(c). Any candidatemay avail of the right of withdrawal at any time—either immedia-tely after nomination under section 32, or after making a depositunder section 34, or before the scrutiny of nominations undersection 36, or before the completion of the list of validly nominatedcandidates under section 36(8). In all these cases, the candidatemay withdraw by giving notice to the Returning Officer undersection 37. But as this section provides for only one mode of with-drawal, Mr. Khare's thesis that it excludes death as a legal modeof withdrawal will apply to each one of these cases. Therefore,if a candidate, without withdrawing his candidature, dies beforemaking the deposit under S. 34 (and someone makes a depositon his behalf after his death), or dies before the scrutiny, hisdeath will have no effect on his candidature and in either case adead man, or rather his ghost assuming that ghosts exist—will continue in law as a candidate. But if the Act is interpretedas Mr. Khare desire—in defence of Common sense and the laws ofnature, our electoral law will be regarded as an ass, but I thinkit is not such an ass as to make a candidate's candidature continueafter his death, like the grin of the Cheshire cat after the canhas disappeared. In the end Mr. Khare had to concede that if acandidate dies before the scrutiny his candidature is terminated,but could give no reason why the legal position should be differ-ent if he dies after the scrutiny. Thus learned counsels argument,deprived of the anchor of common sense and natural laws,was wrecked by inconsistencies and contradictions. Mr. Kharewas arguing all the time about validly nominated candidates andcontesting candidates while ignoring the word candidate. To meit is plain that candidate by its very meaning implies a livingperson and therefore a dead man cannot be a contesting candidate.Learned counsels interpretation must be rejected as leading toabsurd results.

The language of S. 38 also makes it clear that a contestingcandidate must be a living person. It requires the returning

70 MADAN OOPAL V. NEK RAM SHARMA [VOL. XXV

officer to draw up a list of contesting candidates, immediatelyafter the expiry of the period for withdrawal of candidatures.Contesting candidates are defined as "candidates who were includ-ed in the list of validly nominated candidates and who have notwithdrawn their candidature within the period fixed for with-drawal". The use of the present perfect—"who have not with-drawn" is conclusive. They relate to the time when the Return-ing Officer prepares the list of contesting candidates. At thatmoment the definition bids him include in his list only thosecandidates "who have not withdrawn their candidature"—at the timewhen the list is being made. All this clearly contemplatespersons who are alive, for one can only say of a living person thathe has not withdrawn his candidature. In the case of a dead personone would say that he had not withdrawn at the time of his death.All this is elementary, but Mr. Khare would not agree with it,and began to quote text books of English Grammer which he hadbrought with him. In the end however Mr. Khare gave upthis argument but argued instead that the Legislature had erredin using the phrase "have not withdrawn" instead of "had notwithdrawn". This was in the best tradition of Goldsmith'svillage school master and the argument connot be taken seriously.

Mr. Khare however, cited a passage (referred to above)in Halsbury's Laws of England, 3rd. edition, volume 14, at page102 which runs thus—

"If proof of death is not given to the returning officeruntil after the poll is commenced, then though the candidatein fact died before the poll commenced, the poll cannot bestopped and the dead candidate if successful must be declar-ed elected".

Counsel relied strongly on this passage to show that deathdoes not of itself result in the withdrawal of a candidate whomay be declared elected even after he is dead. I think thissentence means simply that under certain circumstances a pollcannot be stopped for reasons of convenience (and other reasons).This situation may araise when news of the death of a candidateis received after the poll has commenced. As regards the statementthat the deceased candidate must be declared elected if he is foundto have obtained the majority of votes it only means that theresult of the poll must be formally declared but it does notmean that the dead person was a contesting candidate. Therule that a poll should not be stopped after it has commenced isone of convenience. It may be very difficult to stop a pollafter it has commenced. In many constituencies polling stationsare widely scattered and separated by large distances. The poll

E.L.R.] MADAN GOPAL V. NEK. RAM SHARMA 71

is generally limited to a single day and it may be too late to stopthe poll after it has commenced. Beyond a certain stage theorder of countermand may not even reach the majority of pollingstations. There may also be additional reasons of law and orderfor not stopping the poll after large crowds have gathered to re-cord their votes. But the continuance of the poll after receiptof the news of the death of a candidate does not imply that thedeceased candidate contested the election.

Moreover, the law in England is not necessarily the same asin India. Mr. Khare was repeatedly asked to show that theEnglish Law on which the passage in Halsbury is based is similarto ours, but he was unable to do so. I am doubtful whether adead candidate can be declared elected under the Indian Law.On the death of a candidate, the authority of his election agentterminates and several provisions which require the presence ofthe candidate or his agent such—as those governing the countingof votes, re-count, and declaration of result—cannot be compliedwith. However, it is not necessary to give any final opinion, inthis matter.

If however, a contesting candidate dies before the commence-ment of the poll, S. 52 of our Act requires that there shall be nopoll and the electoral process must begin all over again, withcertain qualifications. This rule is based on the basic principlethat the death of a contesting candidate may alter the politicalsituation in a constituency so completely as to require that theelectorate should have another chance of nominating freshcandidates. Persons who would not have opposed the deceasedcandidates.—because they had no chance of success against himor for any other reason may be available after his death. If sucha situation arises in a constituency, S. 52 requires that theelectorate must be given another opportunity to select candidates,provided the poll has not actually commenced. It must beborne in mind that the Representation of Peoples' Act is not likethe Contract Act or the Negotiable Instrument Act, but a lawgoverning the conduct of political elections. An election thoughrequired to be conducted in accordance with the law is essentiallya political device by which the will of the electorate is geared tothe machinery of government. Therefore a law governingpolitical elections must as far as practicable, provide for any mat-erial change in the political situtation caused by the death of acandidate before the actual voting begins, if it does not, the verypurpose of the electoral process the ascertainment of the politicalwill of the electorate—may be frustrated. Whether the deathof a candidate before the poll has or has not altered the political

72 MADAN GOPAL V. NEK RAM SHARMA [VOL. XXV

situation in a constituency is for the electorate to decide. Hencesection 52 of our Act enjoins that the poll must be countermandedif a contesting candidate dies before the commencement of thepoll, so that the electorate can review the political situation.But countermanding a poll before it has commenced is not thesame thing as stopping it after the voting has begun. It may notbe convenient or desirable, or even possible to stop the processof recording votes after it has commenced. But even if the pollis allowed to continue, it does not mean that the dead candidatecontinues to contest the election. He cannot, because deathterminated his candidature and he ceased to be a candidate. Thisfollows from the basic meaning of candidate—"one who offershimself or is offered by others" for election. A dead man cannotoffer himself or be offered by others to fill any place.

Learned counsel was compelled to suggest a forced inter-pretation of S. 38 in order to circumvent the second qualificationof contesting candidate—"who have not withdrawn their candi-datures during" the period fixed for withdrawal. Obviously,this qualification can be fulfilled only on the expiry of the periodwhen alone it is possible to discover which candidates have andwhich have not withdrawn within the time allowed for withdrawal.That is why the Section enjoins that the list of candidates shallbe prepared after expiry of this period. But as Thakur MalkhanSingh died before the period had expired he could not become acontesting candidate. To get round this difficulty Mr. Khareadvanced the twofold argument that (1) a candidate becomesa contesting candidate before the expiry of the period of withdrawaland before the list of such candidates is prepared and (2) his deathduring this period cannot result in the withdrawal of his candida-ture. I have disposed of the second argument and shall now considerthe first. When does a candidate become a contesting candidate ?As stated above contesting candidates are defined in S. 38 ascandidates who were included in the list of validly nominatedcandidates and who have not withdrawn their candidaturewithin the period prescribed for withdrawal of candidature.The word 'and' in this definition is important. It means that acandidate must fulfil both conditions before he can become a con-testing candidate. What is the earliest moment when any candi-date can fulfil these two conditions ? While answering this ques-tion, significance must be given to the fact that the list of contestingcandidates cannot be prepared under S. 38 until after the expiryof the period fixed for the withdrawal of candidature. It meansthat no question of a candidate becoming a contesting candidatearises before the expiry of this period, and the words 'who havenot withdrawn their candidature within the said period' signify

E.L.R.] MADAN GOPAL V. NEK RAM SHARMA 73

that the definition is not applicable till the period fixed for with-drawal is over. That is why the list of contesting candidatesis prepared after the expiry of this period.

Realising this difficulty, Mr. Khare sought to give an unusualmeaning to the definition of contesting candidates. He triedto argue that every candidate who after scrutiny is included inthe list of validly nominated candidates prepared under S. 36(8)becomes automatically a contesting candidate unless and until hewithdraws his candidature during the period prescribed for with-drawal. Mr. Khare contended that the word 'and' connectingthe two conditions in the definition should be read as "unless anduntil".

There is not the slightest justification for accepting this forcedinterpretation. The definition requires that every candidatemust fulfil two conditions before he can become a contestingcandidate. But according to Mr. Khare's interpretation he neednot comply with the second condition and becomes a contestingcandidate as soon as he becomes a validly nominated candidate.Under this interpretation the list of contesting candidates willcome into existence—whether it is formally prepared or not—before the period of withdrawal of candidature is over, and infact two lists will be created simultaneously on the conclusionof the scrutiny under S. 36 one of validly nominated candidatesand the other of contesting candidates the first visible and writ-ten, the other invisible and to be written out in the future. Thetwo lists will be identical to start with but the unwritten list ofcontesting candidates will keep changing as candidates give noticeof withdrawal. This will defeat the very purpose of postponingthe preparation of the list till the expiry of the period of withdrawalwhich is that finally should attach to the list and to the contestantstatus of the candidates included in it. But there can be nofinality if everyone who survives the scrutiny is permitted to be-come a contesting candidate forthwith and withdraw from thecontest later. I see no reason to accept an interpretation whichwill result in a needlessly premature birth of the category ofcontesting candidates, and prefer to give the definition its normalmeaning which will serve the purpose of creating the categoryof contesting candidates at the proper time. A person is nomi-nated as candidate; after scrutiny he becomes a validly nominatedcandidate; he is given an interval during which he may withdrawhis candidature; and finally, if he does not withdraw he becomesa contesting candidate. This is how I would interpret the defini-tion of contesting candidate from its plain language and in thelight of the preceding sections,

12—3ECI/ND/67

74 MADAN OOPAL V. NEK RAM SHARMA t V O L -

Finally Mr. Khare argued that the words "contesting candi-date" are a surplusage. He pointed out that they did not existin the Act originally but were imported by the amending Act of1956. He contended that the use of these words was not intendedto make any material change in the status of validly nominatedcandidates. According to learned counsel the purpose of theamendment was very limited to remove the ambiguity between"duly" nominated and "validly" nominated candidates whichhad been created by the decisions of several High Courts, and theuse of the words 'contesting candidates' was not intended tointroduce any new category of candidates. According to learnedcounsel, a contesting candidate is simply a validly nominatedcandidate who has not withdrawn his candidature. I am notmuch impressed with this argument. The amending Actdid not introduce the words 'contesting candidates' as a surplusphrase. It enjoined the preparation of a list of such candidatesin addition to the list of validly nominated candidates preparedunder section 36(8). Under the unamended Act the list ofvalidly nominated candidates was required to be published,but after the amendment this list is merely to be affixed to thenotice board of the returning officer while the list of contestingcandidates is to be published instead in the Gazette under the Rules.After the stage of the publication of this list the Act uses the words'contesting candidates' only Mr. Khare's argument would meanthat the legislature introduce a meaningless phrase and requiredthe preparation of a useless list. The Court while interpretingan amendment must be guided by the well established ruleof interpretation that every word in an amending statute mustbe given significance.

Finally I think that section 52 cannot take effect before theperiod fixed for the withdrawal of candidature has expired. Itenjoins that if a contesting candidate dies the poll must be counter-manded. But a contesting candidate has been defined in section38 (I am omitting the first half of the definition) as one who hasnot withdrawn his candidature during the period prescribedfor the withdrawal of candidature. Substituting the words ofthe definition for the words 'contesting candidates', S. 52 wouldread (I am again omitting the first part), "If a candidate who hasnot withdrawn his candidature during the said period (or with-drawal) dies—-the returning Officer shall—countermand thepoll".—

Obviously the entire period fixed for withdrawal must expirebefore it can be said of any candidate that he did not withdrawduring this period; therefore, the death of the candidate mustoccur after this period is over. In my view it follows from the

E.L.R.] MADAN GOPAL V. NEK RAU SHARMA 75

very definition of contesting candidate in section 38 and thelanguage of S. 52 that (1) no candidate can acquire in status of acontesting candidate before the expiry of the period prescribedfor the withdrawal of candidature and (2) S. 52 comes into effectonly if a contesting candidate dies after the expiry of this period.These two corollaries are complementary.

Mr. Khare cited several decisions including one of theSupreme Court to show that an election contest is not a privatecontest between the candidates but one in which the entireelectorate is interested. No one will quarrel with the elementaryproposition, but I do not see its relevance in determining whetherthe death of a candidate results in the withdrawal of his candida-ture. I mention the authority cited by learned counsel though itis not necessary to discuss them :

K. Kamaraj Nadar versus Kunju Thevar 14 Election Law Reports270; A. Sreenivasan versus Election Tribunal Madras and anotherII E.L.R. 278; Thippa Rudrappagoda versus Kundur Rudrappa 18E.L.R. 97; Mr. Mathew V. S. Morton versus Mr. Mitchel {deceased)III 0 Malley and Hardcastle Election Petition—page 19 at 23.

To sum up, Thakur Malkhan Singh, was not a contestingcandidate on the 24th January when he dies, nor had the periodfixed for withdrawal of candidature expired on that date. There-fore on his death section 52 did not come into effect and the pollcould not be countermanded. The decision of the ElectionTribunal is correct and I would dismiss this appeal.

Asthana J.—While agreeing with the conclusions of mybrother Dhavan in the judgment just delivered I would like to addsome observations of my own in respect of an argument made bySri Khare based on the interpretation of section 52. As I under-stand the learned counsel's argument it appears to me that hesought to argue that the Electoral Law as contained in theRepresentation of People's Act, and as amended by Act XXVIIof 1956 takes cognizance of the death of a candidate before thepoll takes place, but the only manner in which it meets thatsituation is to countermand the poll irrespective of the date ofdeath of a candidate provided it has taken place after scrutinyof his nomination paper and there has been no withdrawal byhim. The words "contesting candidate" came on the statutefor the first time by the amending Act XXVII of 1956. Beforethat in the Representation of People's Act there was nothinglike a "contesting candidate". Mr. Khare submitted that thisamendment was necessitated on account of conflict of decisionsof various High Courts on the point whether a duly nominatedcandidate who had withdrawn before the poll took place, was a

76 MADAN GO PAL 0. NEK RAM SHARMA [VOL. XXV

necessary party to an election petition. It was only to clear thedoubt which had arisen on account of judicial decisions that thewords ','contesting candidate" was introduced by amending sec-tion 38, 52 and 82 of the Act. That may be one of the reasons andmight be the object behind the amendment but I do not agreewith Mr. Khare in his contention that the amendment has notbrought any change in the old law. To me it appears tha thewords "contesting candidate" have been deliberately introducedin the scheme of elections for a specific purpose. Indeed it appearsthat the list of contesting candidates its the most important listunder the scheme of the Act, while a. list of duly nominatedcandidates is required to be hung only at the office, but as faras the list of contesting candidates prepared under section 38 ofthe Act as amended is concerned, the law requires the ReturningOfficer by rule 11 to immediately after its preparation, causea copy of the list of contesting candidates to be affixed in someconspicuous place in his office and also to supply a copy thereofto each of the contesting candidates or his election agent, and ifthe poll becomes necessary the Returning Officer shall publishthe list of contesting candidates in the official Gazette. The impor-tant £tages now under the scheme of elections give the most promi-nent place to the stage of drawing up a list of contesting candidates.Sri Khare's contention as far as I find is based on a literal const-ruction of the various sections of the Act and though he tried togive logical meaning to the construction put by him but whencame to apply the same to the facts of life the learned counselwas at a loss to formulate his proposition in any plausiable ortenable manner. Indeed on a question having been asked byme the learned counsel had to concede that, if a candidatewho had sent his nomination paper died before the date of scru-tiny, it was open to the Returning Officer not to put him on thelist of the validly nominated candidates. If the fact of death,which is always transcendental could be taken notice of by theReturning Officer in drawing up a list of validly nominated candi-dates there is no reason why it could not be taken notice of bythe Returning Officer when drawing up a list of contesting candi-dates under section 38 of the Act. The Returning Officer wouldbe prefectly justified in law if he eliminates the candidature ofa dead candidate. Admittedly Thakur Malkhan Singh, diedalmost 24 hours before the preparation of the list of contestingcandidates. I do not think that there was any illegality perpet-rated by the Returning Officer in not including the candidatureof Thakur Malklan Singh in the list of contesting candidates.In fact Thakur Malkhan Singh was not alive on the date whenthat list was drawn up and it is obvious that a dead man would

E.L.R.] GURU OOVINDA BASU V. SHANKARI PROSAD GHQSAL 77

not be able to contest an election.

By section 38 the contesting candidate has been defined asa candidate who was included in the list of validly nominatedcandidates and who has not withdrawn his candidature withinthe period prescribed for withdrawal. If the definition as givenabove is substituted for the words "contesting candidates" insection 52 it would read thus :

"If a candidate who was included in the list of validitynominated candidates and who has not withdrawn hiscandidature within the prescribed period for withdrawaldies and the report of his death is received before the com-mencement of the poll the Returning Officer "

It is manifest from the section as it will read above thatthe death itself is contemplated after the expiry of the date ofwithdrawal. The death of a candidate who was already on thelist of the contesting candidates would impose a duty on theReturning Officer, if the report of his death is made to him beforecommencement of the poll and if he is satisfied of the fact, tocountermand it. Thakur Malkhan Singh died before the date ofwithdrawal and not after that date. To me it is clear that as Iread section 52 and interpret the same its provisions are not at allattracted on the facts and in the circumstances of the present case.

By the Court.—This appeal is dismissed with costs which weassess at Rs. 500.

Appeal dismissed.

[IN THE SUPREME COURT OF INDIA]

GURU GOVINDA BASUV.

SHANKARI PROSAD GHOSAL & ORS.(S. K. DAS AG. C. J., K. SUBHA RAO, RAGHUBAR DAYAL,

N. RAJAGOPALA AYYANGAR AND J. R. MUDHOLKAR, JJ)

August 14, 1963.

Constitution of India 1950,—Article 102(1)(a)—Office of profit—Holder ofan office of profit under the Government—meaning of— Tests for determining.

The appellant, a chartered accountant, was a partner of a firm of auditorswhich acted as auditor of two companies. The entirety of the shares in one ofthe companies was owned by the Union Government and in the other by the

78 GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL [VOL. XXV

State Government. The appellant's election to the Lok Sabha was challengedon the ground that he was at the relevant period the holder of an office ofprofit under the Government of India arid the State Government and as suchwas disqualified under Art. 102(1) of the Constitution. The Tribunal declaredthe election void and an appeal to the High Court was dismissed. In theappeal to the Supreme Court, the appellant contended that all elements show-ing subordination to the Government, namely, power to appoint, power toremove, payment of remuneration by the Government, nature of the functionsexercised and the extent of the control exercised by the Government in thedischarge of the functions, must co-exist before a person can be said to beholding an office of profit "under the Government of India or the Governmentof any State."

HELD:—The appellant held an office of profit under the Governmentof India within the meaning of Art. 102(1)(a) of the Constitution and assuch was disqualified for being chosen as a member of Parliament. Forholding an office of profit under the Government one need not be in theservice of Government and there need be no relationship • of master and ser-vant. The Constitution itself makes a distinction between "the holder of anoffice of profit under the Government" and "the holder of a post or serviceunder the Government."

There is no doubt that where the several elements, the power to appoint,the power to dismiss, the power to control and give directions as to the mannerin which the duties of the office are to be performed, and the power to deter-mine the question of remuneration, are all present, the officer in question holdsthe office under the authority so empowered. It is not necessary that all thesefactors must co-exist and each must show subordination to the Government.The circumstance that the source from which the remuneration is paid is notfrom public revenue is a neutral factor not decisive of the question.

In the instant case so far as the two companies were concerned, the appel-lant was appointed as an auditor by the Central Government, was removableby the Central Government, the Comptroller and Auditor-General of Indiaexercised full control over him and his remuneration was fixed by the CentralGovernment though it was paid by the companies concerned.

Maulana Abdul Shakur v. Rikhab Chand, 1958, S.C.R. 387; distinguished.Ramappa v. Sangappa, (1959) S.C.R. 1167, referred to.

Appeal under Article 133(1) (c) of the Constitution from thejudgment and Order dated the 27th September, 1962, of theCalcutta High Court in Appeal from original Decree No. 424 of1962, (Election Appeal) arising out of the judgment and Orderdated the 11th August, 1962, of the Court of the MemberElection Tribunal, Bankura in Election Petition No. I l l of 1962.

' S. Chaudhuri, R.C. Deb and S. S. Shukla, for the Appellant.

H. P. Mukherjee, K. G. Hazra Chaudhari and D. N.Mukherjee for respondent Nos. 1 and 2.

E.L.R.] GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL 79

JUDGEMENT

S. K. DAS, AG. C. J.—This is an appeal on a certificategranted by the High Court of Calcutta under Art. 133(1) (c)of the Constitution. No preliminary objection having been takenas to the competency of" the certificate, we have heard theappeal on merits.

The short facts giving rise to the appeal are these. Theappellant before us is Gurugobinda Basu who is a charteredaccountant and a partner of the firm of auditors carrying onbusiness under the name and style of G. Basu and Company.This firm acted as the auditor of certain companies and corpor-ations, such as the Life Insurance Corporation of India, the Durga-pur Projects Ltd., and the Hindustan Steel Ltd., on payment ofcertain remuneration. The appellant was also a Director of theWest Bengal Financial Corporation having been appointed ornominated as such by the State Government of West Bengal.The appointment carried with it the right to receive fees orremuneration as director of the said corporation.

In February—March, 1962, the appellant was elected to theHouse of the People from constituency No. 34 (Burdwan Parlia-mentary Constituency) which is a single member constituency.The election was held in February, 1962. There were twocandidates, namely, the appellant and respondent No. 3, to thisappeal. The appellant was declared elected on March, 1, 1962,he having secured 1,55,485 votes as against his rival who secured1,23,015 votes. This election was challenged by two voters ofthe said constituency by means of an election petition datedApril 10, 1962. The challenge was founded on two grounds (1)that the appellant was, at the relevant time, the holder of officesof profit both under the Government of India and the Governmentof West Bengal and this disqualified him from standing in theelection under Art. 102(1)(a) of the Constitution; and (2) thathe was guilty of certain, corrupt practices which vitiated his elec-tion. The second ground was abandoned at the trial, and weare no .longer concerned with it.

The Election Tribunal held that the appellant was holderof offices of profit both under the Government of India and theGovernment of West Bengal and was therefore disqualified fromstanding in the election under Art. 102(1) (a) of the Constitution.The Election Tribunal accordingly allowed the election petitionand declared that the election of the appellant to the Houseof the People was void. There was an appeal to the HighCourt under section 116-A of the Representation of the People

80 GURU OOVINDA BASU V. SHANKARl PROSAD OHOSAL [VOL. XXV

Act, 1951. The High Court dismissed the appeal, but granteda certificate of fitness under Art. 133(1) (c) of the Constitution.

The only question before us is whether the appellant wasdisqualified from being chosen as, and for being, a member of theHouse of the People under Art. 102(1)(a) of the Constitution.The answer to the question depends on whether the appellantheld any offices of profit under the Government of India or theGovernment of any State other than such offices as had beendeclared by Parliament by law not to disqualify their holder.It has not been seriously disputed before us that the office of auditorwhich the appellant held as partner of the firm of G. Basu andCompany was an office of profit. It has not been contended by theappellant before us that the office of profit which he held had beendeclared by Parliament by law not to disqualify the holder. There-fore the argument before us have proceeded entirely on the ques-tion as to the true scope and meaning of the expression "underthe Government of India or the Government of any State"occurring in cl. (a) of Art. 102(1) of the Constitution. Thecontention on behalf of the appellant has been that on a trueconstruction of the aforesaid expression, the appellant cannotbe said to hold an office of profit under the Government ofIndia or the Government of West Bengal. On Behalf of therespondents the contention is that the office of auditor which theappellant holds is an office of profit under the Government ofIndia in respect of the Life Insurance Corporation of India,the Durgapur Projects Ltd., and the Hindustan Steel Ltd., andin respect of the West Bengal Financial Corporation of whichthe appellant is a Director appointed by the Governmentof West Bengal, he holds an office of profit under the Governmentof West Bengal. These are the respective contentions which fallfor consideration in the present appeal.

It is necessary to state here that if in respect of any of the fourcompanies or corporations it be held that the appellant holdsan office of profit under the Government, be it under the Govern-ment of India or the Government of West Bengal then the appealmust be dismissed. It would be unnecessary then to considerwhether the office of profit which the appellant holds in respectof the other companies is an office of profit under the Governmentor not. We would therefore take up first the two companies,namely, the Durgapur Projects Ltd., and the Hindustan SteelLtd., which are 100 per cent. Government companies andconsider the respective contentions of the parties before usin respect of the office of auditor which the appellant holds in thesetwo companies. If we hold that in respect of any of these two

E.I..R.] GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL 81

companies the appellant holds an office of profit under the Govern-ment of India, then it would be unnecessary to consider theposition of the appellant in any of the other companies.

It is not disputed that the Hindustan Steel Ltd., and theDurgapur Projects Ltd., are Government companies withinthe meaning of s. 2(18) read with s. 617 of the Indian CompaniesAct, 1956. It has been stated before us that 100 per cent, of theshares of the Durgapur Projects Ltd., are held by the Governmentof West Bengal and 100 per cent of the shares of the HindustanSteel Ltd., are held by the Union Government. We may nowread s. 619 of the Indian Companies Act, 1956.

" (1) In the case of a Government Company, the follow-ing provisions shall apply, notwithstanding anything con-tained in section s. 224 to 233.

(2) The auditor of a Government company shall beappointed or reappointed by the Central Government on theadvice of the Comptroller and Auditor-General of India.

(3) The Comptroller and Auditor-General of Indiashall have power— .

(a) to direct the manner in which the company accountsshall be audited by the auditor appointed in pursu-ance of sub-section (2) and to give such auditorinstructions in regard to any matters relating to theperformance of his functions as such;

(b) to conduct a supplementary or test audit of thecompany's accounts by such person or persons as hemay authorise in this behalf; and for the purposesof such audit, to require information or additionalinformation to be furnished to any person or persons soauthorised, on such matters, by such person or persons,and in such form, as the Comptroller and Auditor-General may, by general or special order, direct.

(4) The auditor aforesaid shall submit a copy of thisaudit report to the Comptroller and Auditor-General ofIndia who shall have the right to comment upon, or supple-ment, the audit report in such manner as he may think fit.

(5) Any such comments upon, or supplement to, theaudit report shall be placed before the annual generalmeeting of the company at the same time and in the samemanner as the audit report."It is clear from the aforesaid provisions that notwith-

standing s. 224 of the Act which empowers everycompany to appoint an auditor or auditors at each13—3ECI/ND/67

82 GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL [VOL. XXV

annual general meeting, the appointment of anauditor of a Government company rests solely withthe Central Government and in making such appointmentthe Central Government takes the advice of the Comptrollerand Auditor-General of India. Under s. 224(7) of the Actan auditor appointed under s. 224 may be removed from officebefore the expiry of his term only by the company in generalmeeting, after obtaining the previous approval of the CentralGovernment in that behalf. The remuneration of the auditorsof a company is to be fixed in accordance with the provisions ofsub-s. (8) of s. 224. It is clear however that sub-s. (7) of s. 224does not apply to a Government company because the auditorof a Government company is not appointed under s. 224 of theAct, but is appointed under sub-s. (2) of s. "619 of the Act. It isclear therefore that the appointment of an auditor in a Govern-ment company rests solely with the Central Government and soalso his removal from office. Under sub-s. (3) of s. 619 the Compt-roller and Auditor-General of India exercises control over theauditor of a Government company in respect of various mattersincluding the manner in which the company's accounts shall beaudited. The Auditor-General has also the right to give suchauditor instructions in regard to any matter relating to the per-formance of his functions as such. The Auditor-General mayconduct a supplementary or test audit of the company's accountsby such person or persons as he may authorise in this behalf.In other words, the Comptroller and Auditor-General of Indiaexercises full control over the auditors of a Government company.The powers and duties of auditors in respect of companiesother than Government companies are laid down in s. 227of the Act but by virtue of sub-s. (1) of s. 619 of the Act, theprovisions in s. 227 of the Act do not apply to a Governmentcompany because a Government company is subject to theprovisions of s. 619 of the Act. Under s. 619-A of the Act,where the Central Government is a member of a Governmentcompany an annual report of the working and affairs of thecompany has to be prepared and laid before both Houses of Parlia-ment with a copy of the audit report and the comments madeby the Comptroller and Auditor-General. Under s. 620 of theAct the Central Government may by notification direct that anyof the provisions of the Act, other than ss. 618, 619 and 639,shall not apply to any Government company.

The net result of the aforesaid provisions is that so far as theDurgapur Projects Ltd., and the Hindustan Steel Ltd., are concer-ned, the appellant was appointed an auditor by the CentralGovernment; he is removable by the Central Government and

E.L.R.] GURU GOVINDA BASU V. SHANKARI I'ROSAD GHOSAL 83

the Comtroller and Auditor-General of India exercises full controlover him. His remuneration is fixed by the Central Govern-ment under sub-section (8) of section 224 of the Act thoughit is paid by the company.

In these circumstances the question is, does the appellanthold an office of profit under the Central Government? Wemay now read Article 102(1) of the Constitution.

"102. (1) A person shall be disqualified for beingchosen as, and for being, a member of either House ofParliament—

(a) if he holds any office of profit under the Govern-ment of India or the Government of any State, other thanan office declared by Parliament by law not to disqualifyits holder;

(b) * * *(c) * * *(d) * * *(e) * * *

We have stated earlier that the sole question before us iswhether the office of profit which the appellant undoubtedlyholds as auditor of the Durgapur Projects Ltd., and the HindustanSteel Ltd., is or is not under the Government of India. Accord-ing to Mr. Chaudhuri who has argued the appeal on behalf ofthe appellant, the expression "under the Government" occurringin Article 102(1) (a) implies subordination to Government. Hisargument is that ordinarily there are five tests of such subordina-tion, namely, (1) whether Government makes the appointmentto the office; (2) whether Government has the right toremove or dismiss the holder of office; (3) whether Govern-ment pays the reumneration; (4) what are the functionswhich the holder of the office ' performs and does heperform them for Government; and (5) does Governmentexercise any control over the performance of those functions.His argument further is that the tests must all co-exist and eachmust show subordination to Government so that the fulfilmentof only some of the tests is not enough to bring the holder of theoffice under the Government. According to him all the testsmust be fulfilled before it can be said that the holder of the officeis under the Government. His contention is that the ElectionTribunal and the -High Court were in error in holding that theappellant was a holder of office under the Government, becausethey misconstrued the scope and effect of the expression "underthe Government" in Article 102(1) (a) of the Constitution.He has contended that tests (3), (4) and (5) adverted to above

84 GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL fvOL XXV

are not fulfilled in the present case. The appellant gets hisremuneration from the company though fixed by Government,he performs functions for the company and he is controlled bythe Comptroller and Auditor-General who is different from theGovernment.

On behalf of the respondents it is argued that the tests arenot cumulative in the sense contended for by the appellant, andwhat has to be considered is the substance of the matter whichmust be determined by a consideration of all the factors presentin a case, and whether stress will be laid on one factor or theother will depend on the circumstances of each particular case.According to the respondents, the tests of appointment and dis-missal are important tests in the present case, and in the matterof a company which is a 100 per cent Government company,the payment of remuneration fixed by Government, the perfor-mance of the functions for the company and the exercise ofcontrol by the Comptroller and Auditor-General, looked at fromthe point of view of substance and taken in conjunction with thepower of appointment and dismissal, really bring the holder of theoffice under the Government which appoints him.

One point may be cleared up at this stage. On behalf ofthe respondents no question has been raised that the DurgapurProjects, Limited or the Hindustan Steel, Limited is a departmentof Government or an emanation of Government—a questionwhich was considered at some length in Narayanaswamy v. Krishna-murthi (1). Learned counsel for the respondents has been contentto argue before us on the basis that the two companies havingbeen incorporated under the Indian Companies Act, 1956 areseparate legal entities distinct' from Government. Even onthat footing he has contended that in view of the provisions ofsection 619 and other provisions of the Indian Companies Act,1956, an auditor appointed by the Central Government and liableto be removed from office by the same Government, is a holderof an office of profit under the Government in respect of a companywhich is really a hundred per cent Government company.

We think that this contention is correct. We agree with theHigh Court that for holding an office of profit under the Govern-ment, one need not be in the service of Government and there needbe no relationship of master and servant between them. TheConstitution itself makes a distinction between 'the holderof an office of profit under the Government' and 'the holder of apost or service under the Government'; see Article 309 and 314.

(1) I.L.R. 1958 Madras page 513.

E.L.R.] GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL 85

The Constitution has also made a distinction between 'the holderof an office of profit under the Government' and 'the holderof an office of profit under a local or other authority subject tothe control of Government'; see Articles 58(2) and 66(4). InMaulana Abdul Shakur v. Rikhab Chand and another (2) the appellantwas the manager of a school run by a committee of managementformed under the provisions of the Durgah Khwaja Saheb Act,1955. He was appointed by the administrator of the Durgahand was paid Rs. 100 per month. The question arose whetherhe was disqualified to be chosen as a member of Parliament inview of Article 102(1) (a) of the Constitution. It was contendedfor the respondent in that case that under sections 5 and 9 of theDurgah Khawaja Saheb Act, 1955, the Government of Indiahad the power of appointment and removal of members of thecommittee of management as also the power to appoint theadministrator in consultation with the committee; therefore theappellant was under the control and supervision of the Govern-ment and that therefore he was holding an office of profit underthe Government of India. This contention was repelledand this court pointed out the distinction between'the holder of an office of profit under the Govern-ment' and 'the holder of an office of profit under someother authority subject to the Control of Government'. Mr.Chaudhuri has contended before us that the decision is in hisfavour. He has argued that the appellant in the present caseholds an office of profit under the Durgapur Projects Ltd., and theHindustan Steel Ltd., which are incorporated under the IndianCompanies Act; the fact that the Comptroller and Auditor-Gen-eral or even the Government of India exercises some control doesnot make the appellant any the less a holder of office under thetwo companies. We do not think that this line of argument iscorrect. It has to be noted that in Maulana Abdul Shakur*s case(supra) the appointment of the appellant of that case was notmade by the Government nor was he liable to be dismissed by theGovernment. The appointment was made by the administratorof a committee and he was liable to be dismissed by the samebody. In these circumstances this court observed;

"No doubt the Committee of the Durgah Endowmentis to be appointed by the Government of India but it is a bodycorporate with perpetual succession acting within the fourcorners of the Act. Merely because the Committee or themembers of the Committee arc removable by the Govern-ment of India or the Committee can make bye-laws pres-cribing the duties and powers of its employees cannot in our

(2) 1958 S.G.R. 387.

86 GURU GOVINDA BASU V. SHANK A.R.1 PROSAD GHOSAL [VOL XXV

opinion convert the servants of the Committee into holdersof office of profit under the Government of India. Theappellant is neither appointed by the Government of Indianor is removable by the Government of India nor is he paidout of the revenues of India. The power of the Governmentto appoint a person to an office of profit or to continue himin that office or revoke his appointment at their discretionand payment from out of Government revenues are importantfactors in determining whether that person is holding an officeof profit under the Government though payment from asource other than Government revenue is not always adecisive factor. But the appointment of the appellant doesnot come within this test."

It is clear from the aforesaid observations that in MaulanaAbdul Shakur's case the factors which were held to be decisivewere (a) the power of the Government to appoint a person to anoffice of profit or to continue him in that office or revoke hisappointment at their discretion, and (b) payment from out ofGovernment revenues, though it was pointed out that paymentfrom a source other than Government revenues was not alwaysa decisive factor. In the case before us the appointment of theappellant as also his continuance in office rests solely with theGovernment of India in respect of the two companies. Hisremuneration is also fixed by Government. We assume for thepurpose of this appeal that the two companies are statutorybodies distinct from Government but we must remember at thesame time that they are Government companies within the mean-ing of the Indian Companies Act, 1956, and 100 per cent of theshares are held by the Government. We must also rememberthat in the performance of his functions the appellant is controlledby the Comptroller and Auditor-General who himself is undoubt-edly holder of an office of profit under the Government, thoughthere are safeguards in the Constitution as to his tenure of officeand removability therefrom. Under Art. 148 of the Constitutionthe Comptroller and Auditor-General of India is appointed bythe President and he can be removed from office in like mannerand on the like grounds as a Judge of the Supreme Court. Thesalary and other conditions of service of the Comptroller and Au-ditor-General shall be such as may be determined by Parliamentby iaw and until they are so determined shall be as specified inthe Second Schedule to the Constitution. Under cl. (4) ofArt. 148 the Comptroller and Auditor-General is not eligiblefor further office either under the Government of India or underthe Government of any State after he has ceased to hold his office.Cl. (5) of the said Article lays down that subject to the provisions

E.L.R.] GURU GOVINDA BASU V. SHANKARI PROSAD GHOSAL 87

of the Constitution and of any law made by Parliament, theadministrative powers of the Comptroller and Auditor-Generalshall be such as may be prescribed by rules made by the Presid-ent after consultation with the Comptroller and Auditor-General.Under Art. 149 of the Constitution the Comptroller and Auditor-General shall perform such duties and exercise such powersin relation to the accounts of the Union and of the States and ofany other authority or body as may be prescribed by or under anylaw made by Parliament and, until provision in that behalf isso made, shall perform such duties and exercise such powersin relation to the accounts of the Union and of the States as wereconferred on or exercisable by the Auditor-General of Indiaimmediately before the commencement of the Constitutionin relation to the accounts of the Dominion of India and of theProvinces respectively. The reports of the Comptroller andAuditor-General of India relating to the accounts of the Unionhave to be submitted to the President and the reports of theComptroller and Auditor-General relating to the accounts of aState have to be submitted to the Governor. From the aforesaidprovisions it appears to us that the Comptroller and Auditor-General is himself a holder of an office of profit under the Govern-ment of India, being appointed by the President and his adminis-trative powers are such as may be prescribed by rules made bythe President, subject to the provisions of the Constitution andof any law made by Parliament. Therefore if we look at thematter from the point of view of substance rather than of form,it appears to us that the appellant as the holder of an office ofprofit in the two Government companies, the Durgapur ProjectsLtd., and the Hindustan Steel Ltd., is really under the Govern-ment of India; he is appointed by the Government of India,he is removable from office by the Government of India; he per-forms functions for two Government companies under the controlof the Comptroller and Auditor-General who himself is appointed-by the President and whose administrative powers may be control-led by rules made by the President.

In Ramappa v. Sangappa (3) the question arose as to whetherthe holder of a village office who has a hereditary right to it isdisqualified under Art. 191 ^ f the Constitution, which is thecounter-part of Art. 102, in the matter of membership of theState Legislature. It was observed therein:

"The Government makes the appointment to the officethough it may be that it has under the statute no option butto appoint the heir to the office if he has fulfilled the statutory

(3) 1959S.C.R. 1167.

88 ' GURU GOVtNDA BASU V. SHANKARI PROSAD GHOSAL [VOL. XXV

requirements. The office is, therefore, held by reason of theappointment by the Government and not simply becauseof a hereditary right to it. The fact that the Govern-ment cannot refuse to make the appointment does not alter

(the situation."

There again the decisive test was held to be the test of appoint-ment. In view of these decisions we cannot accede to thesubmission of Mr. Chaudhuri that the several factors which enterinto the determination of this question.. . . the appointing au-thority, the authority vested with power to terminate the appoint-ment, the authority which determines the remuneration, thesource from which the remuneration is paid, and the authorityvested with power to control the manner in which the duties ofthe office are discharged and to give directions in that behalf.. . .must all co-exist and each must show subordination to Govern-ment and that it must necessarily follow that if one of the ele-,ments is absent, the test of a person holding an office under theGovernment, Central or State, is not satisfied. The cases wehave referred to specifically point out that the circumstancethat the source from which the remuneration is paid is not frompublic revenue is a neutral factor. . . . not decisiive of the question.As we have said earlier whether stress will be laid on one factoror the other will depend on the facts of each case. However,we have no hesitation in saying that where the several elements,the power to appoint, the power to dismiss, the power to controland give directions as to the manner in which the duties of theoffice are to be performed, and the power to determine thequestion of remuneration are all present in a given case, then theofficer in question holds the office under authority so empowered.

For the reasons given above we have come to the conclusionthat the Election Tribunal and the High Court were right incoming to the conclusion that the appellant as an auditor of thetwo Government companies held an office of profit under theGovernment of India within the meaning of Art. 102(l)(a) of theConstitution. Assuch he was disqualified for being chosen as,and for being a member of either House of Parliament. It isunnecessary to consider the further question whether he wasa holder of an office of profit either under the Government ofIndia or the Government of West Bengal by reason of being anauditor for the Life Insurance Corporation of India or a Directorof the West Bengal Financial Corporation.

The appeal accordingly fails and is dismissed with costs.

Appeal dismissed.

E.L.R.] NET RAM JAT V. THE ELECTION COMMISSION & ORS. 8 9

[IN THE HIGH COURT OF PUNJAB AT CHANDIGARH]

NET RAM JAT v. THE ELECTION COMMISSION &ORS.

(GURDEV SINGH J.)

August 23, 1963.

Representation of the People Act, (43 of 1951) —S. 117—Security for costs—Joint petition by two persons—Deposit by one of the petitioners, if sufficient compliance—Whether Tribunal has jurisdiction to dismiss petition in cases of non-compliance.

Respondents 3 and 4 in a joint election petition, challenged the electionof the petitioner to the Legislative Assembly and the Election Commissionreferred tr/e petition to the Tribunal for trial. Before the Tribunal, the petiti-oner in the present writ petition prayed for dismissal ot the election petitionon the ground that s. 117 of the Act had not been complied with inasmuch asthe election petition being made by two persons, it was necessary for eachone of them to deposit Rs. 2,000 as security for costs of the petition and thatin the absence of the full deposit the Election Commission was not competentto entrust the petition for trial to the Tribunal. The Tribunal rejected thecontention and the petitioner approached the High Court under Arts. 226 and227 of the Constitution.

HELD:—All that section 117 requires is that the deposit of Rs. 2,000/-be made as security for costs of the election petition. Neither the ElectionCommission nor the Tribunal is concerned with the source from which thatmoney comes. It is no part of the duty or function of the Election Commissionor the Tribunal to require whether the deposit has been made by one of theseveral petitioners or all of them, or in what proportion.

Marutrao Bhaurao and Ors. v. Gulabrao Dadasaheb and Ors. 5, E.L.R., 303,referred to.

Under the Act the power to dismiss an election petition for non-com-pliance with s. 117 vests only in the Election Commission and not in theElection Tribunal.

Petition under Articles 226 and 227 of the Constitution ofIndia praying that a writ or certiorari, mandamus or any otherappropriate writ, order or direction be issued quashing the orderof the Election Tribunal, respondent No. 2, dated the 29-4-1963and dismissing the election petition.

R. SAGHAR, for the Petitioner.

ANAND SWAROOP AND R. S. MITAL, for the Respondents.

JUDGEMENT

ORDER

GURDEV SINGH J.—The main question arising for decisionin this petition under Articles 226 and 227 of the Constitution iswhether in an election petition brought by more than one person

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9 0 NET RAM JAT V. THE ELECTION COMMISSION & ORS. [VOL. XXV

jointly, a deposit of Rs. 2,000 as security for costs of the petitionis not proper compliance with the provisions of section 117 of theRepresentation of the People Act, 43 of 1951. The matter hasarisen in the following manner :—

In the last General Elections to the Punjab Legislative Assem-bly held in February, 1962, the petitioner, Net Ram Jat, waselected from the Hissar Saddar Constituency. Indraj Singhrespondent No. 3, one of the defeated candidates, and RaghbirSingh respondent No. 4, an elector of the constituency, challengedhis election by means of a joint election petition under sections 80and 81 of the Representation of the People Act, 43 of 1951. Thispetition, when P-2 presented to the Election Commissionwas accompanied by a receipt for Rs. 2,000 deposited by thesaid Indraj Singh and Raghbir Singh' (petitioners in the electionpetition) as security for the costs of the petition. In accordancewith the provisions of section 86 of the Representation of thePeople Act (hereinafter called the Act), this election petition wasentrusted for trial to the Election Tribunal at Rohtak. Afterthe filing of the written statement and other necessary proceedings,the Tribunal framed issues and evidence in the case commenced.No isvsue regarding the adequacy of the security deposit wasclaimed.

On the 17th April, 1963, after the proceedings had beengoing on before the Tribunal for nearly a year, Net Ram made anapplication to the Tribunal praying for the dismissal of theelection petition against him without trial on merits on the soleground that the provisions of section 117 of the Act had not beenproperly complied with inasmuch as a sum of Rs. 2,000 onlyhad been deposited as security for costs of the petition. It wascontended before the Tribunal that since the petition was madeby two persons, it was necessary for each one of them to depositRs. 2,000 as security for costs of the petition, and in absenceof the full deposit of Rs. 4,000 the Election Commission was notcompetent to entruest the petition for trial to an Election Tribunal.Finding no force in this contention, the learned Tribunal rejectedthe application on 29th April, 1963, leaving the parties to beartheir own costs. Net Ram has now invoked the jurisdiction ofthis Court under Articles 226 and 227 of the Constitution prayingthat the order of the Election Commission (respondent No. 1)entrusting the election petition for trial to the Election Tribunal(respondent No. 2) and all proceedings taken subsequent theretobe quashed and a writ of certiorari be issued to the respondents.

Section 81 of the Act provides that where an election to theState legislature or the Parliament is challenged, it shall be done

E.L.R.] NET RAM JAT V. THE ELECTION COMMISSION & ORS. 91

by means of an election petition presented to the Election Com-mission by any elector or candidate at such an election. Section82 of the Act P-3 refers to the persons that have to be joinedas respondents, while section 83 lays down what the petition forelection should contain. Section 84 relates to the relief that canbe claimed. Then comes section 85, which empowers the ElectionCommission to dismiss an election petition for non-compliancewith the provisions of section 81 or 82 or section 117 of the sameAct. If the Election Commission does not dismiss the electionpetition under this provision of law, then in accordance withsection 86 the Election Commission has, after publication of thepetition and serving a copy of the same upon each of the res-pondents, to refer it for trial to an Election Tribunal appointedfor the purpose. The procedure that has to be followed by theTribunal for trial of the petition is laid down in section 90 of theAct, sub-section (1) whereof provides that subject to the provisionsof this Act and any of the rules made thereunder, every electionpetition shall be tried by the Tribunal, as nearly as may be,in accordance with the procedure applicable under the Code ofCivil Procedure, 1908, to the trial of suits. Sub-section (3) ofsection 90 of the Act empowers the Tribunal to dismiss an electionpetition which does not comply with the provisions of section 81or section 82 notwithstanding that it has not been dismissed bythe Election Commission under section 85. It may be mentionedthat non-compliance with the provisions of section 117 of theAct empowers the Election Commission to dismiss the petition,but if it does not do so, no such power vests in the ElectionTribunal.

The first contention raised on behalf of the petitioner isthat since section 85 of the Act provides that if the provisionsof section 117 of the Act are not complied with the Election Com-mission shall dismiss the petition, the failure of the Commissionto pass such an order is a violation of the mandatory provisionof law, and the Election Commission has no power or jurisdictionto refer the petition for adjudication to an Election Tribunal.

P-4. The petitioner's counsel has contended :—(i) that under the provisions of section 117 of the Represen-

tation of the People Act the deposit of Rs. 2,000 assecurity for the costs of the petition was inadequateas the election petition was made by two persons, andit was necessary for each one of them to deposit Rs.2,000.

(ii) that as there was no proper compliance with the provi-sions of section 117, the Election Commission was bound

92 NET RAM JAT V. THE ELECTION COMMISSION & ORS. [VOL. XXV

to dismiss the petition, as enjoined by section 85 of theRepresentation of the People Act, and its order referringthe Election petition for trial to the Election Tribunalwas full and void and without jurisdiction.

(iii) that since the election petition had been entrusted tothe Tribunal in disregard of the mandatory provisionof section 85, the Election Tribunal could not takecognizance of the same, and all proceedings takenby it thereon were invalid.

(iv) that, any case, the" Election Tribunal should havedismissed the election petition for noncompliance of theprovisions of section 117 of Act, and its order, dated29th April, 1963, rejecting the present petitioner'sprayer to that effect being patently wrong should bequashed by issuing a writ of certiorari or other appro-priate direction or order.

Before proceeding further, it will be convenient to deal herewith the last contention. What is to happen to the electionpetition which did not comply with the provisions of section 117of the Act is provided in section 85. It lays P-5 down that "theElection Commission shall dismiss the petition." If rightly orwrongly the Election Commission does not make such an orderthen the election petition has to be referred to an Election Tri-bunal for trial. The cases in which the Ejection Tribunal isempowered to dismiss the election petition without trial areenumerated in sub-section (3) of section 90 of the Act, which laysdown :—

"90(3). The Tribunal shall dismiss an election petitionwhich does not comply with the provisions of section 81 orsection 82 notwithstanding that it has not been dismissed bythe Election Commission under section 85".

From this it is evident that the power to dismiss an electionpetition for non-compliance of section 117 vests only in the Elec-tion Commission and not in the Election Tribunal. Prior to theamendment of the Representation of the People Act 43 of .1951by the Central Act XL of 1961 the Election Tribunal was alsoempowered to summarily dismiss an election petition which didnot comply with the provisions of section 117 of the Act. Asa result of the amendment, the words "section 117" were deletedfrom sub-section (3) of section 90. It is thus obvious that whereasoriginally the legislature had conferred power not only on theElection Commission but on the Tribunal as well to dismissan election petition for non-compliance of the provisions of

E.L.R.] NET RAM JAT V. THE ELECTION COMMISSION & ORS. 93

section 117, it subsequently in its wisdom took away that powerfrom the Election Tribunal. It is thus obvious that even if it beassumed for the sake of argument that the election petition out ofwhich these proceedings have arisen did not properly comply withthe provisions of section 117 of Representation of the People Actthe Tribunal had no power to dismiss the same, summarily,and the only course open to it was to proceed with its trialP-6 in accordance with law. On that short ground the petitioner'sprayer for quashing the Tribunal's order, dated 29th April,1963, must be refused. That order is not only in conformitywith the provisions of law but was also made in valid exercise ofits jurisdiction by the Tribunal.

This brings us to the consideration of the question whetherthe amount of Rs. 2,000 deposited by the Respondents 2 & 3as security for costs of the petition was not proper compliancewith the provisions of section 117 of the Representation of thePeople Act, and it was necessary for them to deposit Rs. 2,000each. Section 117 of the Act, the breach whereof it complained,runs as follows :—

"117. Deposit of Security.—The petitoner shall enclosewith the petition a Government Treasury receipt showing thata deposit of two thousand rupees has been made by himeither in a Government Treasury or in the Reserve Bankof India in favour of the Election Commission as securityfor the costs of the petition."

It is evident that the deposit required by this provision oflaw is to remain with the Election Commission as security for the

"costs of the petition1. The object of such a provision is to dis-courage frivolous petitions challenging an election, and the secu-rity is for "the costs of the petition". It is not disputed, and infact it cannot be in view of the provisions of section 110 and 112of the Act, that several persons who are entitled under the provi-sions of section 81 to file an election petition can join together andmake a single petition challenging the election of a successfulcandidate, and they will all be styled as "petitioners". On itsplain reading I find nothing in section 117 even to indicate thatin case of such a joint election petition each of the petitionershas to deposit the full amount of Rs. 2,000 as security for costsof the petition. If the legislature intended that in case of a jointpetition, P-7 each of the petitioners should deposit the full amountof Rs. 2,000, nothing could have prevented it from saying so oradding the words "in case where there are more petitioners thanone, each of them shall deposit Rs. 2,000 as security for costs ofthe petition", or some similar expression.

9 4 NET RAM JAT V. THE ELECTION COMMISSION & ORS. [VOL. XXV

It is true that the word "petitioner" has been used in section117, but in accordance with provisions of Section 13 of the CentralGeneral Clauses Act 10 of 1897, which lays down that the wordsin singular shall include the plural and vice versa, section 117 wouldapply even to those cases in which there is more than one peti-tioner. So construing section 117, the conclusion is irressistiblethat Rs. 2,000 which has to be deposited as security for costs of thepetition before the election petition is presented to the ElectionCommission, will cover the cases in which the election petition ismade by more than one person.

In contending against such a construction and urgingthat each of the petitioners must deposit Rs. 2,000 as security fdrcosts, Shri Sachar has argued that the construction put on theprovisions of section 117 by the Tribunal would defeat the veryobject of this provision of law, as it would encourage persons tojoin together to question the election of a successful candidatewithout incurring much risk by contributing a paltry sum ornothing. It is true that if more than one person join, theircontribution to the security deposit would be considerably reducedand even there may be cases where one of them alone may de-posit the entire amount and the others incur no risk in making theelection petition. That, however, would not make the provisioncontained in section 117 ineffective as the aggregate amount thusdeposited would still be the same which the legislature consideredsufficient to serve as security for costs of the petition.

Apart from this, the Act makes ample provision forthe protection of a respondent in cases where it is apprehendedthat the initial deposit of Rs. 2,000 made by the petitioner maynot be sufficient to defray the costs of the petition. Section 118of the Act expressly empowers the. Tribunal to call upon the

' petitioner to give such further security for costs as it may considernecessary at any stage of the proceedings and authorizes it todismiss the petition for non-compliance of its order regarding suchfurther security.

Referring to the history of section 117 of the Representationof the People Act 43 of 1951, we find that originally the amount ofsecurity deposit which is required to accompany the petition wasfixed at Rs. 1,000. Subsequently by section 21 of the Representa-tion of the People (Amendment) Act 40 of 1961, this provisionwas amended and the amount of the security deposit was raisedto Rs. 2,000. As has been observed earlier, by section 19 of thesame Act amendment was also made in sub-section (3) of section90 of the Representation of the People Act 43 of 1951, which tookaway the power of the Tribunal to dismiss an election petition for

E.L.R.] NET RAM JAT V. THE ELECTION COMMISSION & ORS. 95

non-compliance with the provisions of section 117 of Act 43 of1951. In the year 1953 long before this amendment, the ElectionTribunal, Poona, had held in Marutrao Bhaurao and others v.Gulabrao Dadasaheb and others{\) that security deposit of Rs. 1,000was sufficient for a joint election petition made by more than oneperson. This decision has held the field throughout. If it didnot correctly interpret the provisions of section 117 of the Act,the Parliament would not have hesitated to effect appropriateamendment when in the year 1961 it had expressly dealt withthis provision of law in the amending Act XL of 1961.

Shri Sachar then argued that in cases where an election peti-tion is made by more than one person and only one of them depo-sits the full amount of Rs. 2,000, difficulty would arise if the personmaking the deposit wishes to withdraw the petition, as on suchwithdrawal he would be entitled to the refund of the entireamount leaving his co-petitioners to prosecute the case but withoutany security deposit to protect the interests of the respondent incase the petition fails. This argument is based upon misunder-standing of the provisions of the Representation of the PeopleAct. The provisions regarding withdrawal of election petitionsare contained in Chapter IV of the Act. The procedure forwithdrawal of election petitions is laid down in section 110 of theAct. Sub-section (1) thereof says that if there are more peti-tioners than one, no application to withdraw an election petitionshall be made except with the consent of all the petitioners. Itis thus obvious that if an election petition has to be withdrawn,then all the petitioners must join together in making an applica-tion for withdrawal. There is no provision in the Representationof the People Act under which one of the petitioners alone canwithdraw election petition made by him jointly with others.This, the contingency which Shri Sachar contemplates cannever arise.

Learned counsel then referred to the possibility of theTribunal awarding costs only against one of the several jointpetitioners, and argued that if each one of the petitioners did notdeposit separate security of Rs. 2,000, the result would be thatthe security furnished by a petitioner other than the one againstwhom costs are allowed would not afford any protection to thesuccessful respondent. This argument again is fallacious. Onceit held that security deposit of Rs. 2,000 made in a joint petitionis on behalf of all the petitioners, there will be no difficulty in therespondent realizing his costs out of that deposit irrespective of

(1) 5 E.L.R. 303.

96 NET RAM JAT V. THE ELECTION COMMISSION & ORS. [VOL. XXV

the fact whether the deposit has been made jointly by all thepetitioners or by one of them on behalf of all.

A similar provision for deposit of security for costs is to befound in section 119A of the same Act and in the Rules framed bythis Court regarding Civil appeals to the Supreme Court. Rule 3of Chapter 8-A, Volume V, of the Punjab High CourtRules and Orders, provides :—

"3. When the Court grants a certificate, which shallbe in Form B appended to these rules, the petitioner shallbe required to deposit within ninety days, or such furtherperiod not exceeding sixty days, as the Court may, uponcause shown, allow from the date of the decree complained of,or within six weeks from the date of the grant of the certificate(whichever is the later date) a sum of Rs. 2,500 as securityfor the respondent's costs.

In any special case the Court may, if it thinks fit uponthe application of the respondent, require security to alarger amount ; but in no case exceeding rupees fivethousand."

It has never been held that in case an application forleave to the Supreme Court is made by more than one petitioner,each one'of them must deposit Rs. 2,500 as security for the res-pondent's costs.

Section 119A of the Representation of the People Act is inthese terms :—

"119-A. Security for costs of appeal : Every personwho prefers an appeal under Chapter IVA shall enclose withthe memorandum of appeal a Government Treasury receiptshowing that a deposit of five hundred rupees has been madeby him either in a Government Treasury or in the ReserveBank of India in favour of the Election Commission assecurity for the costs of the appeal".

The opening words of this section are in direct contrast withthose of section 117. Whereas the latter section provides that"the petitioner" shall deposit the security, the expression usedin section 119A is "every person who prefers an appealshall " Despite this difference in the phraseology of thetwo sections, no decision has been cited in which it may havebeen held that in a joint appeal a deposit of Rs. 500 was not proper.Even if there be such a decision, that would not affect the inter-pretation of section 117 in view of the difference in the openingwords of the two sections.

E.L.R.] K. S. RAMIAH V. A. C. SUBHA REDDI 97

That in cases where, there is more than one petitioner thedeposit of the security of costs can be made by one or more of them,and not necessarily by all of them, is apparent from the provisionsof section 121, which lays down that if any balance is left afterdefraying the costs of the respondent, the same shall be refunded"on an application made in that behalf in writing to the ElectionCommission by the person by whom the deposits have been made, or ifsuch person dies after making such deposits, by the legal repre-sentative of such person, be returned to the said person or hislegal representative, as the case may be".

All that section 117 requires is that the deposit of Rs. 2,000be made as security for costs of the election petition. Neitherthe Election Commission nor the Tribunal is concerned with thesource from which that money comes. So long as the requisitedeposit is made by one of tke petitioners, it is enough for the pur-poses of section 117, and it is no part of the duty or function ofthe Election Commission or the Tribunal to enquire whether thedeposit has been made by one of the several petitioners or by allof them, and in what proportion.

From whichever angle the matter is considered, I find thatthe contention raised on behalf of the present petitioner is untenab-le and there is no justification for interference with the proceedingsbefore the Election Tribunal. The petition must, accordingly,fail and is dismissed. By taking a frivolous objection the peti-tioner, who is a sitting Member of the Assembly, has succeededin prolonging the disposal of the election petition brought againsthim. He must, accordingly, pay the costs of these proceed-ings, which I fix at Rs. 150.

Petition Dismissed.

[BEFORE THE ELECTION TRIBUNAL, HYDERABAD]

KODUR SUBHA RAMIAH V. ANNAM CHANCHU

SUBHA REDDI

(A. SRINIVASACHARI, MEMBER ELECTION TRIBUNAL)

August 26, 1963Representation of the People Act, 1951—Sections 109, 110—Failure to prosecute

petition—sections if applicable. Interpretation of Statutes—'Casus omissus'—if canbe cured by construction.

The petitioner challenged the respondent's election and sought to haveit declared void on the ground that the latter had committed a number ofcorrupt practices. The respondent, as the successful candidate, was the only

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9 8 K. F. RAMIAH V. A. C. SUBHA REDDI [VOL. XXV

party to the petition. During the course of the trial the petitioner was negligentin the prosecution of the petition, professed complete ignorance of the stateof affairs in his examination-in-chief and in effect contradicted what he hadstated in his affidavit. The question for decision before the Tribunal waswhether the provisions contained in sections 109 and 110 which came intooperation where an application for withdrawal was made, could be extendedto cases where the petitioner iailed to prosecute.

HELD:—Dismissing the petition:

Although the policy of the law appears to be to afford an opportunityto the voters in a constituency to see that right persons are elected and personsdo not get elected by flagrant abuse of the process of law, there are loop-holesin the machinery provided for the safeguarding of the interests of the electors.The Act provides for an interested voter to come on record when he finds thatthere is collusion between the contesting election petitioner and the successfulcandidate by reason of which the election petitioner attempts to withdrawthe proceedings and in cases where the petitioner or respondent in the electioncontest dies. Bui significantly the procedure^envisaged in section 109 and 110cannot be invoked in cases where the petitioner is remiss or deliberately failsto place the evidence before the Court to enable the Court to adjudicate onthe matter arising in the conflict. There is therefore a lacuna in the Act or,in other words, it is a case of casus omissus. The Court cannot by constructioncure a casus omissus however just and desirable it might be.

Albridge v. Hurst, 1876 I. C.P. 410; Jagannath v. Jaswant Singh, A.I.R. 1954S.C 210; Mallappa Basappa v. Basavaraj Syyappa A.I.R. 1958 S.C. 698; RoopChand Sohoni v. Rawait Man Singh, 5 E.L.R. 327 (Tr); Laheri Sinqh v. Attar Singh,3 E.L.R. 403 (Tr.); Dr. V. K. John v. Vas ant Pai, 11 E.L.R. 278; Harish Chandrav. Triloki Singh, A.I.R. 1957 S.C. 444; Basappa v. Ayyappa, 1958 S.C.J. 953;Ponnusivami v. Returning Officer, 1952 S.C.J. 100; Woolverhampton New WaterWorks Co. v. Hawksford, 6 C.B. (N.S.) 336; Mohd. Bahadur Khan v. Collector ofBareilly, 1, I. A. 167; Adityan v. Kandaswamy, 1958 S.C.J. 1072; A.I.R. 1958S.C. 856; Craies on Statute Law; referred to.

Election petition No. 174 of 1962.

S. Sardar for the petitioner. G. Balaparemeswari Rao, C. KulasekharaReddy, K. V. Raghunatha Reddy and K. Kolanda Reddy, for the respondent.

ORDER

This case affords a signal example of how it is possible tocircumvent the provisions of the law. The petitioner herein,Koduru Subbaramayya filed a petition under section 81 of theRepresentation of the People Act (hereinafter referred to as theAct), challenging the election of the respondent, Subbareddion the ground that the latter had committed a number of cor-rupt practices as detailed in the Schedule attached to thepetition and further that the result of the election had been*materially affected by non-compliance with the provisions ofsection 77 of the Act. After service of notice on the respon-dent, the respondent filed a counter resisting the petition and

E.L.R.] K. S. RAMIAH V. A. C.SUBHA REDDI 99

denying the allegations made in the petition. Besides travers-ing the grounds urged in the petition, the respondent also raiseda plea to say that the statutory requirements under the Act asprescribed by section 83(1) proviso had not been complied withand that, therefore, the allegations relating to corrupt practicesshould be struck out. The further objection was that theaffidavit containing the averments relating to corrupt practiceswas not in the prescribed form and as such the petition was liableto be dismissed in limine for not conforming to an express provi-sion of law. It was also stated in the counter that the statementsrelating to the corrupt practices were vague and indefinite and,therefore, could not be looked into.

2. The petitioner was called upon to give more detailedparticulars about the corrupt practices. The respondent, itwould appear, filed an application for the striking out of thoseparagraphs of the petition which according to him were vagueand indefinite. This was by means of I.A. No. 7 of 1962. Therespondent contended that in spite of the petitioner havinghad an opportunity to supply particulars, he did not do so andas such those allegations which were vague and indefinitewere liable to be struck out. A counter was filed by the peti-tioner and after arguments were heard the Court pronouncedan Order on 19th November 1962, holding that the particularsfurnished were not vague. The respondent, I understand, hasfiled an application for the issue of a writ in the High Courtagainst the aforesaid order which is pending in the High Court.

3. The case was posted for filing documents to 7th Decem-ber, 1962. On that day the petitioner and his counsel wereabsent. The case was adjourned to the 12th December. Thepetitioner's counsel was absent even on that day. The casewas adjourned to the 17th December. On the 17th of Decem-ber the petitioner's counsel on record represented—to theCourt that a registered letter had been sent to the. petitionerand that later a telegram also was sent asking him to give ins-tructions and despite the .sending of the telegram the clienthad not come, therefore, under the circumstances, he wouldreport no instructions. On this, the Court directed notice tobe issued to the addresses given in the petition fixing the dateof appearance as 9th January, 1963. One, Mahadeviah, whoseaddress was given for purposes of notice being sent, appearedon the 9th of January and stated that as the petitioner's motherpassed away and that obsequial ceremonies were going on andas such the petitioner could not be present and that the casemight be adjourned to another date. At this stage anotheradvocate, Sri Sardar appeared and represented that he had

JOO K. S. RAMIAH U, A. C. SUBHA REDDI [VOL. XXV

received instructions to file Vakalat on behalf of the petitionerand undertook to file the vakalat on the 16th.

4. On the 16th of January, Sri Sardar filed a Vakalat onbehalf of the petitioner and undertook to file an applicationfor documents to be summoned by 21st January, 1963. In themeantime the return submitted by the respondent which hadbeen summoned by the petitioner was sent for, from the R.D.O.Mines, Gudur. It was summoned at the instance of the peti-tioner but was not received on the ground that it had been for-warded to the R.D.O., Nellore, and that they would be sentat the next hearing. Documents were called for, for the hearing11th February, 1963.

5. On 11th February, 1963, the petitioner's counsel wantedtime to examine his client and a fortnight's time was askedfor, for putting his client into the box. The petitioner wasexamined in-chief on that day. At this stage it was found thatthe records in the case had been sent for by the High Courtin Writ Petition filed by the respondent against the Orderpassed by this Court in LA. No. 7/1962. As there was nostay order passed by the High Court, the proceedings werenot stayed and an order was. passed to the effect that immedia-tely the files were received the cross-examination of the peti-tioner might be proceeded with and tentatively 6th March,1963, was fixed for cross-examination of the petitioner. Thecase was adjourned from time to time awaiting receipt of thepapers from the High Court. After the records were receivedon 1st April, 1963, the case was posted to 10th April, 1963,for the cross-examination of the petitioner. Again it was ad-journed to 16th April 1963 for his cross-examination.

6. On the 16th of April, 1963, the respondent filed an appli-cation supported by an affidavit, for leave to amend the counterraising an additional plea and the consequential framing of anadditional issue. This plea was to the effect that the petitionwas liable to be dismissed in limine for the reason that thepetitioner had not conformed to the provisions of Sec. 81(3)of the Act. The case was adjourned for the further cross-examination of the petitioner to 10th July, 1963 and again to12th July, 1963 on which day the petitioner was cross-examined.After the cross-examination was over the petitioner was askedwhether he had any further evidence to lead. He said he hadno further evidence. Learned counsel for the respondent alsosaid that he does not propose to lead any evidence.

7. It may be stated here when the case came on for hearingon the 18th of June, 1963, the petition I. A. No. 11 of 1963

E.L.R.] K. S. RAMIAH V. A. C. SUBHA REDDI 101

seeking to raise a further plea for dismissal of the petition fornon-conformity with the provisions of Sec. 81(3) was takenup and the respondent's counsel submitted that he did notpress the petition. Under the circumstances, the petition wasdismissed, but without costs.

8. Certain facts have to be mentioned in this case in regardto the prosecution of the petition by the petitioner. In theoriginal Election Petition filed before the Election Commis-sion and sent to the Tribunal for enquiry, the petitioner im-peached the election on the ground that the respondent com-mitted the corrupt practice of hiring and procuring motorvehicles, lorries and tractors for the conveyance of the electors,that the respondent had incurred or authorised the incurringof expenditure beyond the maximum amount prescribed underSec. 77 of the Act and also that the respondent's agent appealedto the electors to vote for the respondent on the ground that hewas a Reddy and to refrain from voting for his opponent on theground that he was a Kamma. The petitioner, therefore, chargedthe respondent of having committed corrupt practices comingwith in Sections 123(3), 123 (5) and 123 (6). This petition wasalso supported by an affidavit. In the course of the proceedingsthe petitioner filed an application on 29th October 1962 supportedby an affidavit praying that the account books of.a PetrolDealer in Nellore be seized alleging that he reliably understoodand believed it to be true that the respondent had authorised hisson to purchase petrol and in fact had purchased petrol to theextent of Rs. 11,000 and that the said purchase was entered in theaccount books and bill book maintained by M/s. Narasimham &Sons, Nellore. In the affidavit he swore to a statement that ifthose account books were not produced before the Tribunalimmediately, there was every chance of their being tampered withas the respondent and his election agent were powerful mencapable of doing anything. He also stated in the affidavit that ifthis important evidence were allowed to disappear he would beprejudiced in proving his allegations. On the strength of thisaffidavit, the petitioner prayed that orders be passed for the seizureof the account books of the said firm. The respondent's counsel wasgiven an opportunity to file a counter and orders were passedby this Court on 14th November 1962 on this petition, I. A.No. 12 of 1962 holding that there did not appear to be anyjustification for the seizure of the account books ; the applica-tion was belated and if there was any apprehension in the mindof the petitioner, such an application, should have been filedlong ago. The Tribunal, however, said that this order wouldnot preclude the petitioner from summoning the account booksif he so chose.

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9. The chronology of events and the record of proceedingsrequire examination. It would appear from the proceedingsthat when the stage for the filing of documents came, the peti-tioner's advocate did not put in appearance. This was thestate of affairs on two dates of hearing ; viz-, the 10th and12th December, 1962. On the 17th the Advocate (Sri Koti-reddy), who was not present at the two hearings representedto the Court that he had sent letters and a telegram to his clientand the client had not come. He, therefore, reported noinstructions. This is the stage where the Advocate reportedno instructions after putting in appearance. Notice was orderedto the petitioner^and another Advocate filed Vakalat on 16thJanuary 1963. The second Advocate asked for time to examinethe petitioner and the case was adjourned to the 25th of Feb-ruary, 1963. On that day he was examined. The statementthat he gave on that day is worth noting. With regard to eachone of the averments made by him in his petition he stated thathe did not know about those matters. He stated : "I did notsee the agent of the respondent conveying the ^voters from theabove villages to the respective polling stations." Further whenhe was aksed particularly about the averments made by him inhis petition with regard to the conveying of the voters and thepersons who conveyed the voters with the consent of the respon-dent, he flatly denied that he knew any of those people. It hasto be observed that at the initial stage when at the instance of therespondent he was asked to give further particulars of the corruptpractice relating to the hiring of motor vehicles and convey-ing the voters in those motor vehicles he gave the names ofparticular persons and the registration numbers of the vehicles.That would be evident from the statement of particulars givenby him on 29th October, 1962. Herein the petitioner statedthat motor vehicles Nos. APN 1119 and APN 1116 were hiredand used by the respondent's election agent, P. V. Subbareddion 21st February 1962, that lorries bearing APN 1628 and 1126were used and tractor owned by Jethi Balaramireddi was alsoused. He also stated that he had witnesses' to examine whoall were conveyed to the various polling stations from theirvillages and that he would do so at the stage of the trial. Likewisehe gave particulars of other vehicles and gave the names of personswho hired and procured motor vehicles with the consent of therespondent. Vide paragraph 2 of the affidavit. Strangelyenough, at the time when he gave his statement before the Tri-bunal, he stated that he did not see the agent of the respondentconveying the voters to the polling stations. He completelydenied he knew Ramanareddi, whose name he mentioned in hisaffidavit as a person who conveyed the voters. When it came

E.L.R.] K. S. RAMIAH V. A. G. SUBHA REDDI 103

to the question of the respondent having spent for the electionan amount more than what was fixed by the Statute, he saidthat he gave that statement from information given by others.When he was particularly asked about the specific statement madeby him that the respondent had obtained vouchers in the name offictitious persons in order to bring down the election expenses,he said that he did not see any voucher or vouchers thus obtained.Finallly, he said that he had no documents to prove that therespondent spent more than the statutory limit. This was thestatement of the petitioner in his examination-in-chief, that is tosay, giving the go-by to every one of the averments made in thepetition. The Court wanted to have an opportunity to furthercross-examine the petitioner and after the cross-examination by therespondent's counsel, the petitioner was interrogated by theCourt, when he stated that he gave instructions to draft thepetition, that he authorised P. Ramachandra Reddy to presentthe petition before the Election Commission, that he paid himRs. 2,000 to be deposited as security. He also stated thathe gave instructions to his advocate, Sri Kotireddy, to prosecutethe petition, that he kept himself in touch with the progressof the case by contacting his Advocate. He admitted thathe filed an application supported by an affidavit on 29th Octo-ber 1962, for the seizure of the account books of the Firmof Narsimham & Sons at .Nellore. He further stated thathaving come to know that the respondent's son had purchased petrol from the firm and had paid Rs. 11,000 and thatentries relating to the purchase were to be found in accountbooks. In effect he completely admitted every one of theaverments and the allegations made in his affidavit of 29thOctober 1962. He also stated that he filed this affidavit andapplication being apprehensive of the respondent tamperingwith the accounts. He also admitted that he instructed hislawyer to summon the return of election expenses submittedby the respondent before the Returning Officer and paid himthe process for the summoning of the documents. Not onlythis, the petitioner also stated that in the course of the pro-ceedings he was asked to furnish particulars about the respon-dent's hiring of vehicles of election purposes, that he acquiredand got these particulars and put them in the form of an affi-davit. But when further asked as to who gave him the par-ticulars, he said that he did not know the namesJe'xceptingthe fact that one was a Vysya and another a Muslim, bothdoing business. He also stated that he collected informationfrom others also who were agriculturists. The statement made

104 K. S. RAMIAH V. A. C. SUBHA REDDI [VOL. XXV

by him in answer to the question put by the Court pinned himdown to the statements made by him in his affidavit sworn toby him previously. When the question was pursued askedhim to give details as regards the persons from whom he gotthe information, the -petitioner merely stated that he did notknow the names.

10. At the time when the Election Petition was filed it doesappear that the petitioner was keen about prosecuting thepetition seriously. If it was not so, no application would havebeen filed during the proceedings for the seizure of the accountbooks wanting to preserve the evidence which would otherwisehave been destroyed. After this a stage came on when theadvocate reported no instructions. Later, when notice wasissued to the party, another advocate put in appearance andstated that he would like to examine his client. During theexamination of the client he merely stated that he did not remem-ber or that he did not know any of the facts alleged in the petition,although the petition was duly verified to say that the allegationsthat were made were true to the best of the petitioner's information.The petitioner pleaded ignorance of the facts stated in thepetition and when he was subjected to cross-examination he.was in an awkward position, viz., that he could not deny the vari-ous allegations made in his previous affidavit and application.All this would only indicate that after the filing of the petition,something had happend in consequence of which the peti-tioner ceased to have any interest in the case. He tried to avoidattending Court but when compelled to attend Court, he tookup the attitude of pleading ignorance of the facts stated by him onsolemn affirmation. One other fact also has to be mentionedin this regard. An application was filed by the respondentto say that the petition was liable to be dismissed in liminefor not conforming to the provisions of sec. 81(3) of the Actand when the matter was taken up for hearing after counterwas filed, the respondent's counsel stated that he does not pressthe petition. What is the significance of this, taken along with theother circumstances already stated ? The petitioner stated thathe had no other evidence. Scrutinizing the totality of all thesecircumstances, one is lead to the irresistible conclusion that thenon-prosecution of this petition is not at all bona fide. Puttingtwo and two together, it can only mean that both the petitionerand the respondent do not want a fair trial. They do not wantto fight but the case fairly and squarely. Everything is notabove board.

E.L.R.] K. S. RAMIAH V. A. C. SUBHA REDDI 105

11. In regard to Election Petitions the following broad prin-ciples have to be kept in the forefront :—

Election Petitions are for the benefit of the whole consti-tuency electing the candidate. The Election Petitioner aloneis not the person interested.

In a proceeding initiated on an election petition being filedthe constituency is a party although on record the petitioneralone may be a party, eo nomine.

No act by the petitioner should be allowed which wouldprejudice the rights and interests of the electors in the con-stituency.

The purity of the election process is to be safeguarded.

That the above principles govern all elections is recognisedin England also Grove J. in the case of Albridge v. Hurst (1)observed :—

"Numerous provisions of the Act have reference notmerely to the individual interests or rights of petitioners orrespondents but to rights of electors, of constituencies and ofthe public, in purity of election and in having the memberseated who was duly returned by a majority of proper votes".

Where the respondent was prepared to consent tojudgment declaring the election void without evidencebeing taken Andrews in North Meath— (2) said :

"These election petitions do not affect the parties alone.The constituencies are vitally affected by them, and theirimportance is of wide range, for the freedom of party electionsis a question which interests the entire public."

Chief Justice Mahajan as early as in the case of Jagannath v.Jaswanth Singh (3) made the observation that an election petitioncannot fail because of non-prosecution, by reason of abatement,on account of the death of the petitioner or respondent. Ampleprovision has been made in the Representation of People Act tosafeguard the interests of the constituency by providing for reme-dies to be resorted to keep the petition going.

12. The law provides for the procedure to be adopted in acase where the petitioner seeks to withdraw the petition. VideSec. 110. In a case where the petitioner wants to withdraw a

(1) (1876) I.C.P. 410 at 413. (2) (1892) 4 O'M & H. 144.(3) A.I.R. 1954 S.C. 210.

16—3ECI/ND/67

106 K. S. RAMIAH V. A. C. SUBHA REDDI [VOL. XXV

petition, there are specific provisions that if the Court thinksthat the withdrawal has been brought about by collusion bet-ween the petitioner and the respondent, then Sec. 109 and110 of the Act come into operation. Publication of such appli-cation for withdrawal is enjoined and it would be open to anyparty entitled to impeach the election to come on record aftersatisfying the conditions prescribed by law. While Sec. 109 and110 only deal with cases of withdrawal, there is no specific provi-sion as to what procedure has to be adopted where the petitionerfails to prosecute. In the case referred to above, viz., Jagannath v.Jaswant Singh (3) Mahajan, C. J. observed as follows:—

"Various provisions of the Act referred to above showthat the election petition does not necessarily abate or fail byreason of the death of the petitioner or any of the respondentsor by their ceasing to take any interest in the trial of thepetition. (Under-lining is mine) once that petition has beenreferred to the Tribunal. On the other hand, any person whocould be a petitioner could continue the petition in spite ofthe death of* either the petitioner or the respondent to thepetition and on the original parties failing to prosecute it."

These observations are of great import, Likewise BhagwatiJ. in Mallappa Basappa v. Basavaraj Ayyappa (4) stated as follows:—'-

"The above provisions go to show that an electionpetition, once filed, is not a contest only between the partiesthereto, but creates a situation which the whole consti-tuency is entitled to avail itself of. Any person who mighthimself have been a petitioner is entitled to be substituted onthe fulfilment of the requisite conditions and upon such termsas the Tribunal may think fit, in place of the party with-drawing and even the death of the sole petitioner or thesurvivor of the several petitioners does not put an end to theproceedings but they can be continued by any person whomight himself have been a petitioner. Even if the solerespondent dies or gives notice that he does not intend tooppose the petition or any off the respondents dies or givessuch notice and there is no other respondent who is opposingthe petition, a similar situation arises and the oppositionto the petition can be continued by any person who mighthave been a petitioner".

His Lordship continued:—

These provisions show that an election petition once pre-sented continues for the benefit of the whole constituency and

(4) A.I.R. 1958 S.C. 698.

E.L.R.] K. S. RAMIAH V. A. C. SUBHA REDDI 107

cannot come to an end merely by the withdrawal thereof by thepetitioner or even by his death but is liable to be con-tinued by any person who might have been a petitioner."

These observations no doubt were made in a case of with-drawal of a petition under Or. 23, Rule 1, C.P.C. The observa-tions of Mahajan, C. J. adverted to above and similar observa-tions of Bhagwati, J., in the case referred to would conclusi-vely establish that once, a petition has been filed it is no longerthe concern of the petitioner alone but it becomes the concernof the constituency as a whole. It may be that the evidencethat the petitioner leads is not enough to substantiate his casein which case the petition' would have to be dismissed and theelection allowed to stand. It would be difficult to regard thisas a case where evidence has been lead but the Court finds itinsufficient to hold that the case of the petitioner has beenestablished. In fact no attempt has been made to lead evidenceat all. Although in the early stages of the case sufficient datawas placed before the Court to show that the petitioner hadmade out a prima facie case to establish corrupt practices bythe respondent, his professing complete ignorance of the stateof affairs in his examination-in-chief and his giving a completego-by to what all he stated in his affidavit, in his subsequentcross-examination, cannot for a moment be regarded as amount-ing to leading evidence.

13. Although a case exactly analogous to the one now be-fore me has not come before any Tribunal or Court, but a caseunder aimost similar circumstances came up before the ElectionTribunal at Jaipur, vide Roopchand Sohoni v. Rawait Mansingh (5).In this case one of the issues regarding the proper constitution ofthe Tribunal was argued as a preliminary issue and it was decidedin favour of the petitioner and arguments on this issue wereaddressed by the petitioner himself. After the finding on thisissue -was given when the case was posted for trial, none of theparties had filed a list of witnesses as directed by the Tribunal.A date was given for filing the list and the petitioner filed a long listof 244 witnesses. On the date when the case was fixed for hearingthe petitioner No. 1 was absent and his counsel, two of them,who were preserit, stated that they had no instructions. Thecase was adjourned because one of the respondents had not beenserved. That respondent did not appear although served withnotice. The counsel for the petitioner asked for time to ascertainfrom his client personally as to whether he wanted to proceedwith the case. The case was adjourned to 5th. On that dayan application was presented by the petitioner to say that he can-

(5) 5 E.L.R. 327.

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celled the authority given to his advocates. This applicationwas filed by another advocate and that advocate was engagedonly for the purpose of filing the petition, cancelling the authorityto his previous advocate. At this statge respondent No. 4 inthat case entered appearance and filed a petition that he wouldhimself have filed an application but for the fact that the petitionerhad presented the Election Petition. He said he had identicalinterests with the petitioner and was desirous of prosecuting thecase and prayed that the ex parte order passed against him beset aside and he be permitted to prosecute the case. The ques-tion arose as to whether respondent No. 4 could be allowed toprosecute the case. The Tribunal held that the respondent couldbe permitted where the petitioner showed negligence in the prose-cution of the petition or deliberately wanted to defeat his petitionby non-appearance. The learned Members constituting the Tribu-nal followed the decision of another Tribunal in the case ofLaheri Singh v. Attar Singh (6). The learned Members of theTribunal therein opened that where the petitioner though notopenly withdrawing the petition is trying collusively to keepback available evidence, the Tribunal, has in order to ensure afair and effectual trial of the petition power to permit any res-pondent to the petition to support the grounds by leading evidenceto prove it. These two cases would clearly show that in a casewhere the circumstances show that there is a failure to prose-cute on the part of the petitioner it would be open to the Tri-bunal to call upon the respondent and to prove the case. Thatan Election Petition is not to be relegated to the records becauseof non-prosecution and that it does not fail because a partyfails to proceed with it, is well established by the dictumof the Supreme Court in Jagannath v. Jaswant Singh (3), alreadyreferred to, for the learned Chief Justice says that an ElectionPetition does not necessarily fail by reason of the petitioner orany of the respondents ceasing to take interest in the trial of thepetition. Balakrishna Aiyer, J. in the Madras High Court in thecase of Dr. V. K. John v. Vasant Pai (7) while discussing about theobligation on the part of the Tribunal to investigate and recorda finding on all the corrupt and illegal practices as enjoined inSec. 99 of the Act, also observed that the citizens at large havean interest in seeing that they are justified in insisting thatelections are free and not vitiated by corrupt or illegal prac-tices. The question arises as to what procedure is to be follow-ed in a case of this kind or whether the Tribunal is helplesswhere there is no express provision in the Statute to deal with

(3) A.I.R. 1954 S.C. 210 (7) 11 E.L.R. 278.(6) 3 E.L.R. 403.

E.L.R.] K. S. RAMIAH V. A. C. SUBHA REDDI 109

a situation of this kind. The leading case of Harischandra v.Triloki Singh (1957 S.C. 444) decided by the Supreme Courtlaid down that the prvisions of the Civil Procedure Code couldbe made applicable as far as possible subject to the provisionsof Representation of People Act. An Election Petition may beequated to a partnership.suit or a partition suit to a great extent.The analogy holds good in this respect that a defendant cancarry on the suit filed by the plaintiff because of the communityof interest. Just as in a partnership suit a defendant could betransposed as a plaintiff, in an Election action the respondentcould be transposed as a petitioner. The position in this caseis that there is only one respondent, who is the successful candidatewhose election is now sought to be avoided. The only questionwill be whether the provisions contained in Sec. 109 and 110 whichcome into operation where an application for withdrawal is madecould be extended to cases where the petitioner fails to prosecute.I should have called upon the respondent if there was anotherrespondent besides the successful candidate to carry on the petitionfurther and transposed him as the petitioner. That such powerexists in the Tribunal, there can be no doubt and it has beenacknowledged in a number of decided cases. The question willarise as to whether a report envisaged in Sec. 111 of the Act to theElection Commission could be made in this case, for the pur-pose of Section 111 is that the application for withdrawal shouldbe published in the Gazette so that people interested may knowabout it and any person who would like to be substitued as apetitioner could come in after satisfying the conditions laiddown by the Act.

14. Looked at from another point of view, let us examinewhat the position would be. The Tribunal has the power toimplead persons who are not already on record as parties ifthey could be regarded as necessary or proper parties. Theprovisions of Order 1, Rule 9, Criminal Procedure Code couldbe invoked. That this power the Tribunal possesses has beenheld by the Supreme Court both in Jagannath v. Jaswanth Singh(3) and Harischandra v. Triloki Singh (8). As to who should bemade parties to an election petition has been indicated in Sec.82 of the Act. It is only where the petitioner besides prayingfor a relief that the election of the successful candidate bedeclared void, claims a further relief that it be declared that hehas been duly elected, that all the contesting candidates wouldbe necessary parties, otherwise the returned candidate alone hasto be made a party. Vide Section 82 of the Act. That being theprovision in the Act there is no scope, in my opinion, to implead

(3) A.I.R. 1954 S.C. 210. (8) A.I.R. 1957 S. G. 444.

110 K. S. RAMIAH V. A. C. SUBHA REDDI fvOL. XXV

the contesting candidate in this case as the petitioner merely seeksto impeach the election of the respondent, the successful candi-date. The Representation of the People Act is a self containedenactment as has been observed by the Supreme Court inPonnuswami v. Returning Officer, JVamakal (9).

"Obviously the Act is a self contained enactment so faras elections are concerned with means that whenever we haveto ascertain the true position in regard to any matter con-nected with elections, we have only to look at the Act and theRules made thereunder."

Where there are specific provisions those alone would apply.The provisions of the Act do not warrant my impleading anyother party in the circumstances of the case. The SupremeCourt had occasion to advert to this aspect of the matter inthe case of Bassappa v. Ayyappa (1958 S. C. J. 953) (10). AsBhagwathi, J. observed:—

"The effect of all these provisions really is to constitute aself contained code governing the trial of election petitions bythe Tribunals and it would appear that in spite of Sec. 90(1)of the Act the provisions'of O. 23, R. 1, C. P. C. would not beapplicable."

Another rule of construction is that the Court is not atliberty to read words into a statute unless clear reason for itis found within the four corners of the Act. The SupremeCourt has more than once reiterated the principle that an elec-tion contest is a purely statutory proceeding unknown to com-mon law and the Court possesses no common law power—Jagannath v. Jaswant Singh and Others (1954 S.C. J. 257 at 258-259)and Inamati Mailappa Basappa v. Desai Basavari Ayyappa andothers (1958 S.C. J. 953). I might herein quote the observationsof an eminent Judge, Willes J. in Wolverhampton Mew WaterWorks Co. v. Hawksford (11).

"Where there is a liability not existing at common law iscreated by a statute which at the same times gives a specialand particular remedy for enforcing it the remedyprovided by the statute must be followed."

Although the policy of the Law appears to be to afford anopportunity to the voters in a constituency to see that right,persons are elected and persons do not get elected by

(9) 1952 S. C. J. 100. (11) 6 C. B. (N.S.) 336 at 356.(10) 1958 S. C. J. 953.

E.L.R.] K. S. RAMIAH V. A. G. SUBHA REDDI 111

flagrant abuse of the process of law, there are loop-holes in themachinery provided for the safeguarding of the interests of theelectors. The Act provides for an interested voter to comeon record where he finds that there is collusion between thecontesting election petitioner and the successful candidate byreason of which the election petitioner attempts to withdrawthe proceedings and in cases where the petitioner or respondentin the election contest dies. But significantly the procedure en-visaged in Sections 109 to 116 cannot be invoked in cases wherethe petitioner is remiss or deliberately fails to place the evidencebefore the Court to enable the Court to Adjudicate on the mattersarising in the conflict. There is, therefore, in my opinion,a lacuna in the Act or in other words it is a case of 'CasusOmissus\

15. There are well recognised principles as to what theCourt should do in cases of this kind. Omissions in a statutecannot be supplied. Even though a case is omitted from theterms of a statute though such a case fell within the obviouspurpose of the statute, the Court cannot supply the omission.The policy and object of the Representation of the PeopleAct, is as has been discussed by me in the paragraphs supra,to safeguard the interests of the electorate so that no one getselected by resorting to corrupt practices and to see that noenquiry is shut out by reason of collusion, death or remissness of theperson settling the law in motion. In the instant case where thepetitioner is trying to defeat that very object the Court findsthat there is no remedy and it cannot invoke the provisions ofsections 110 to 115 of the Act for the simple reason that theseprovisions do not relate to a case of this kind and it is not withinthe power of the Court to extend the application of the provisionsto this case. The same result would follow whether the omissionof a provision for a contingency of this kind is due to accident orinadvertence. The reason behind this Rule (Rule of CasusOmissus) according to Crawford is that if the Court attempts tosupply what is omitted by the Legislature there is the danger thatthe Courts might invade the legislative field. The Court cannotby construction cure a Casus Omissus however just and desirableit might be. Craies on Statute Law clearly says that a satutemay not be extended to meet a case for which provision hasclearly and undoubtedly not been made, (Craies Statute Law,5th Edn. Page 68). No extension of the provisions of an Actis warranted on a principle of analogy and like causes. • Theomission however fatal to the policy of the Act could not besupplied by any stretch of judicial interpretation. The fillingup of gaps is not allowed even for the purpose of doing justice

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in individual cases. The Privy Council observed in the caseof Mohd. Bahadur Khan v. Collector of Bareilly (12).

"Their Lordships however think it is impossible thatany court can add to the statute that which the Legislaturehas not done".

In the case of Adityan v. Kandaswami (13) the SupremeCourt observed that if the omission of a provision was accidentalthen it is for the Legislature to take the necessary action in thatbehalf. In that case the question arose as to whether undersection 123(1) of the R. P. Act the acceptance of a gift could beregarded as corrupt practice within the meaning of the Act.It would seem that in the Act before the amendment broughtin 1956, by Act XXVII of 1956, the offering of a bribe as a ma-jor corrupt practice and the acceptance of a gift or bribe wasconsidered a minor corrupt practice (Section 124). An amend-ment was introduced in 1956 and as a result of the amendmentwhile the making of a gift, offer or promise of any gratificationwas regarded as a corrupt practice the receipt of any grati-fication was considered to be not a corrupt practice (now after theamendment of 1958 the latter also would be a corrupt practice).The case of Adityan v. Kandaswami (1958 S. C. J. 1072) was beforethe Supreme Court when the Act as amended in 1956 was thereand their Lordships observed :—

"By omitting section 124(3) from the Act therefore theLegislature intended that the acceptance of a bribe was nolonger to be treated as corrupt practice if theomission is accidental then it is for the Legislature to take thenecessary action in that behalf. We cannot allow any consi-deration of the reason for the omission to affect the plainmeaning of the language used in section 123(1)."

16. I must make an observation here that the conduct of thetrial of an election petition1 must not be left to the capriceof the parties and the Court should endeavour to purge theelection of all corrupt practices and impurities, if any, so asto guard the political rights of citizens but I feel, as I have dis-cussed in detail in the foregoing paragraphs, that my handsare tied. The petition is dismissed.

17. Under section 120 of the Act, the contesting party isentitled to the costs incurred by him. The respondent would,therefore, be entitled to the costs incurred by him. Having

(12) 1 Ind. App. 167. (13) 1958 S.C.J. 1072, A.I.R. 1958 S.C. 856.

E.L.R.] RAO ABHE SINGH V. RAO NIHAL SINGH 113

regard to the peculiar circumstances of this case as detailedby me in the judgment. I am inclined to award nominal advo-cate's fee and fix the same at Rs. 100.

Pronounced in the Open Court, this, the 26th day of August1963.

Petition Dismissed.

[IN THE PUNJAB HIGH COURT AT CHANDIGARH]

RAO ABHE SINGHV.

RAO NIHAL SINGH

(I. D. DUA AND A. N. GROVER, JJ.)

August 27, 1963

Representation of the People Act, 1951, ss.79(b), 82(b), 99 and 123—Personwithdrawing candidature—Allegations of corrupt practices against him in electionpetition—Whether necessary party.—Whether corrupt practice alleged must have beencommitted by candidate in his capacity as such.

The appellant challenged the respondent's election to the Punjab Legisla-tive Assembly on the ground that various corrupt practices had been com-mitted. The respondent applied to the Tribunal under s.90(3) to dismissthe petition on the ground that allegations of corrupt practices were madein the petition against two persons who were also candidates and who shouldtherefore have been impleaded and were not made parties. The Tribunalallowed the application and dismissed the petition.

In the appeal to the High Court it was contended on behalf of theappellant that the definition of a "candidate" in s.79(A) did not include aperson who had withdrawn his candidature and furthermore that the allega-tions against the two persons not impleaded were not in respect of acts doneby them in their capacity as candidates ; that s. 82 (b) was therefore notattracted.

HELD, dismissing the appeal :

(i) A candidate who has withdrawn his candidature also falls withinthe purview of s. 82(b) of the Act.

Mool Chandjain v. Rulia Ram, A.I.R. 1963 Punj 516 ; referred to.

(ii) If a corrupt practice vitiates an election, it matters little whetherit has been committed by a candidate for the purpose of advancing his own

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114 RAO ABHE SINGH V. RAO NIHAL SINGH [VOL. XXV

election and in his capacity as a candidate, or for the purpose of advancingthe election of another candidate.

Aminlal V. Hunne Mai, A. I. R. 1964 Punj 213; referred to.

First Appeal from the order of Shri Man Mohan SinghGujral, Election Tribunal, Rohtak, dated the 31st January, 1963.

H. L. Sibal and Surrinder Singh, for the appellant.

H. L. Sarin and V. P. Sood, for the respondent.

ORDER

The short question which this appeal raises is whether acandidate who withdraws his candidature and against whomallegations of corrupt practice have been made is a necessary partyto an election petition under section 82 (b) of the Representationof the People Act, 1951. Shri Abhai Singh, appellant filed anelection petition calling in question the election of Nihal Singh,respondent to the Punjab Legislative Assembly in the generalelections held in February, 1962. The respondent's electionwas challenged on a number of grounds which do not concernus at this stage. After practically the whole evidence in thecase had been recorded, the respondent filed an application undersection 90(3) of the aforesaid Act praying for dismissal of thepetition on the ground that allegations of corrupt practice weremade in the petition against Ram Narain Singh and YudhvirSingh, Pleader, who were also candidates and, therefore, whoshould have been impleaded but were not made parties. Thepetition on account of this defect was, according to the prayer,liable to be dismissed. The learned Tribunal in a very well-reasoned order came to the conclusion that the allegations againstYudhvir Singh and Ram Narain Singh in the petition did amountto allegations of corrupt practice and that these allegations neednot be confined to acts done by a candidate in his capacity as such.On these findings the petition was dismissed.

On appeal, the appellant's learned counsel has drawn ourattention to the definition of the word "candidate" as containedin section 79-A, but I do not, think this definition in any manneradvances the appellant's case. On the other hand it clearlysuggests that a "candidate" means a person who has been orclaims to have been duly nominated as a candidate at any election.Applying this definition to the provisions of section 82 (b) a candi-date who has withdrawn his candidature would certainly fallwithin the purview of this provision. The matter is really conclud-ed by a Bench decision of this Court in Mool Chand Jain versus

E.L.R.] RAO ABHE SINGH V. RAO NIHAL SINGH 115

Rulia Ram etc. (1) to which our attention has been drawn onbehalf of the respondent.

Another argument urged on behalf of the appellant is thatthe allegations in the petition do not show that the corruptpractices were alleged to have been committed by the two candi-dates mentioned above in their capacity as candidates. Theappellant's learned counsel has tried to find support from theprovisions of section 79, 81, 82, 99 and 140 of the Act, but Imust confess my inability to appreciate how these sections suggestthat the allegations must be confined to the commission of actsby the candidates in their capacity as such. The definitionof corrupt practice does not postulate any such distinction noris there any other provision in the Act which supports the distinctionsought. If a corrupt practice vitiates an election, it matters littlewhether it has been committed by a candidate for the purposeof advancing his own election, and this is what is meant by theappellant's counsel when he speaks of a corrupt practice by acandidate in his capacity as such, or for the purpose of advancingthe election of another candidate. It is the purity of the electionas such which is to be maintained. The language of section 82 (b)also does not, on the face of it, support the appellant's contention.The language is clear, unambiguous and unequivocal. TheCounsel has singularly failed to point out any cogent, convincingor even plausible reason why any limitation should be placed enthe statutory language. If the Parliament had intended toconfine section 82(b) only to cases of allegations of corruptpractice by candidates in their capacity as candidates then,it could have said so clearly. It is contended that it must benecessarly implied; but for this submission except the baldassertion by the learned counsel no other basis has been showneither in the statute or otherwise. Reference has of coursebeen made to section 99(1) (a) (ii) of Act 43 of 1951, but it has notbeen possible for me to appreciate how this provision can beunderstood to suggest, on any reasonable and rational hypothesis,that under section 82 (b) only such candidates are to be impleadedagainst whom allegations of corrupt practice has been made intheir capacity as candidates. Section 99 is a general provisioncovering all cases of proved corrupt practice and by virtue of theproviso a person who is not a party to the petition has to be afford-ed an opportunity of showing cause against being named undersection 99(1)(a)(ii). This proviso would obviously excludea candidate impleaded under section 82 (b). I find no logicalreason for concluding from section 99 that section 82 (b) onlycontemplates impleading of those candidates against whom corrupt

(1) A.I.R. 1963 Punj. 516.

116 AMIN LAL V. HUNNA MAL [VOL. XXV

practice is alleged in their capacity as such. The appellant'scontention is thus unsustainable and must be negatived.

We have in another case also come to the same conclusion.See Amin Lai versus Hunne Mai, (2).

For the reasons foregoing this appeal fails and is dismissedbut with no order as to costs.

Appeal dismissed.

[IN THE HIGH COURT OF PUNJAB AT CHANDIGARH]

AMIN LALV.

HUNNA MAL

(GROVER AND DUA, JJ)—

August 27, 1963.

Representation of the People Act, 1951— Ss.82(b), 90(3), 90 (\),—non-implead-ing of candidate against whom corrupt practice alleged—subsequent petition to implead—if permissible—if liable to be dismissed under ^.90(3)—5.90(1) "subject to theprovisions of the Act and of any rules made thereunder"—effect of-—s.82(b) if confinedonly to the allegations of corrupt practice against candidate when committed by himin his capacity as candidate.

The appellant, an elector at the election in question filed an electionpetition alleging, inter alia, commission of corrupt practices by the respon-dent, his agent and by other persons with the consent of the respondent.The respondent raised a preliminary objection to the effect that the petitionoffended the provisions of s. 83,(1) of the Act inasmuch as it did not containa concise statement of the material facts nor did it set forth full particularsof the alleged corrupt practices. The Tribunal decided the preliminaryissue in favour of the respondent but allowed the petitioner an opportunityto apply for leave to amend or amplify the particulars of corrupt practices.In pursuance of this order an amended petition was filed in which it wasspecifically stated that an objectionable pamphlet was distributed by thefirst respondent and his brother S who was one of the candidates and whohad withdrawn from the election. The respondent filed an applicationfor the dismissal of the petition under s.90(3) of the Act for non-compliancewith the mandatory provisions of s.82(b) on the ground that S, against whomallegations of corrupt practices were made, was a necessary party. Theappellant then filed a petition under O.I r. 10. C.P.C. for adding S as a res-pondent or, in the alternative, for deleting the name of S from the amendedpetition. The Tribunal held that the election petition did contain allega-tions of corrupt practice against S who was a necessary party being a candi-date and therefore there being non-compliance with s.82(b) of the Act, thepetition was bound to be dismissed under s.90(3)

(2) A.I.R. 1964 Punj. 213.

E.L.R.] • AMIN LAL V. HUNNA MAL 117

In the appeal to the High Court, the appellant contended that theprovisions of s. 90(3) of the Act are applicable only to the cases in which theelection petition as presented to the Election Commission under s.81 of theAct suffers from the vice of non-compliance with s.82(b) and that if such aninfirmity creeps in only by way of an amendment lawfully allowed underthe Act by virtue of s.90(5), the operation of s. 90(3) cannot be attracted.The respondent contended that there was no ambiguity in s.90(3) and ifa petitioner chooses to amend his election petition as to attract the operationof s.90(3) literally construed read with s.82(b), the language of the formershould not to be strained so as to save the petitioner from its rigours.

HELD :—The order of the Tribunal refusing to implead S must beupheld and the appeal dismissed.

The effect of the words "subject to the provisions of this Act and of anyrules made thereunder" in s.90(l) clearly is that the provisions of the Code ofCivil Procedure become applicable to the trial of an election petition subjectto two limitations so far as the question of permitting amendments is con-cerned. One limitation is that the power of amendment under the Codecannot be exercised so as to permit new grounds oi charge to be raised orto so alter the character of the petition as to make it in substance a new peti-tion, if a fresh petition on those allegations will then be barred. The secondlimitation is that the power of amendment under the Code cannot be ex-ercised so as to defeat the mandatory provisions of the Act.

Before the amendment of Act 43 of 1951 in 1956, amendment by implead-ing other candidates was upheld ; but since the amendment including s.82in s. 90(3) of the Act made it mandatory for the Tribunal to dismiss an elec-tion petition which does not comply with the provisions of, inter alia, s. 82,the view prevailing at the present time is that such an amendment cannotbe allowed.

Chaturbhuj Chunilal v. Election Tribunal, A.I.R. 1958, All. 809; BaburaoTatyaji Bhosle v. Madho Shrihari Aney, A.I.R. 1961 Bom. 29 ; followed.

(ii) The scope of s. 82(b) is not confined only to the allegations of corruptpractice against a candidate when it is committed by him in his capacityas such.

Baburao Tatyaji Bhosle v. Madho Shrihari Aney, A.I.R. Bom. 29., InamatiMalappa Basappa v. Desai Basavarqj Ayyappa, A.I.R. 1958, S.C. 698 ; K.Kamaraja jYadar v. Kunju Thevar & Ors., A.I.R. 1958, S.C. 687 ; ChaturbhujChunnilalv. Election Tribunal and others, A.I.R. 1958, AIL 809 ; Harish ChandraBajpaiV. Triloki Singh, A.I.R. 1957, S.C. 444 ; Jagan Kathv. Jaswant Singh& Ors. A.I.R. 1954, S.C. 210 ; Jagannath Dalai v. Rama Chandra Nahak & Ors.A.I.R. 1959, Orr. 26 ; Ganpat Singh v. Brijmohan Lai, A.I.R. 1959, Raj. 114;M. A. Muthiah Chettiar v. Saw Ganesan, A.I.R. 1958, Mad. 187 ; GulaherAhmed v. The Election Tribunal, A.I.R. 1958, M.P. 224 ; S. B. Adityan v. S.Kandaswami & Ors., 1958, E.L.R. 394 ; .S'. M. Banerji v. Sri Krishna Agarwar,A.I.R. 1960, S.C. 368 ; Harish Chandra Bajpai v. Triloki Singh A.I R. 1957'S.C. 444 ; referred to.

First Appeal from the order of Shri Manmohan Singh.Gujral, Election Tribunal, Rohtak, dated 7th January, 1963.

Anand Samp and R. S. Mittal, for the Appellant.H. L. Sibbal, P. S. Jain and N. C. Jain, for the Respondent.

118 AMIN LAL V. HUNNA MAL [VOL. XXV

JUDGEMENT

I. D. DUA, J.—This is an appeal under section 116-A ofthe Representation of the People Act, 1951 (hereinafter calledthe Act) from an order of the Election Tribunal, Rohtak, dated7th January, 1963, dismissing the appellant's election petition inlimine under section 90(3) of the Act for non-compliance withthe provisions of section 82 (b) of the Act omitting to implead SurajBhan as a respondent who was considered to be a necessary party.The question raised on this appeal, therefore, is a very short onethough it cannot be described to be simple or easy to answer.

In the months of January and February, 1962 general elect-ions to the Punjab Legislative Assembly were held and the presentdispute arises out of an election relating to the Hissar CityConstituency of the Punjab Legislative Assembly. Nominationpapers were filed on behalf of 11 candidates including Hunna Mai,respondent and Suraj Bhan, his brother. I have mentioned thename of Suraj Bhan because it is the failure to implead himwhich has given rise to the controversy before us. Five out of theeleven candidates withdrew their candidature within the prescrib-ed time with the result that the names of only six candidates werepublished under section 38 of the Act. Suraj Bhan, it maybe mentioned, was one who had withdrawn his candidature. Asa result of the poll, the respondent Hunna Mai was declared dulyelected. The petitioner who claims to be an elector at the elect-ion in question filed the election petition out of which the presentappeal has arisen alleging inter alia, commission of corrupt practicesby the respondent, his agents and by other persons with the consentof the respondent. We are only concerned with the allegationscontained in para 9(c)(i) of the election petition. The petition aspresented to the Election Commission, dated 8th April, 1962contained the following allegations so far as relevant for our pur-poses in para 9:—

"9. That the election of respondent is void because ofthe various corrupt practices, having been committed by therespondent, his agents and by other "persons with the consentof the respondent the details of which are given in the varioussub-paras below:—

(~A * * * * *

(c) (i) That the respondent by himself and throughhis agents with his consent has been guilty of the corrupt

E.L.R.] AMIN LAI V. HUNNA MAL 119

practice of promoting or attempting to promote feelingsof enmity and hatred between different classes of the citi-zens of India on grounds of religion, community andlanguage. The respondent was in fact a candidatesponsored by Shri Devi Lai of Chautala a rebel PunjabCongress fold and joined hand with Professor Sher Singh,Leader of the Hariana Lok Samiti. The very creed of thisSamiti was the promotion of or attempt to promote feelingsof enmity and hatred between the residents of the Punjabiregion and residents of Hindi region. This Samiti has ina way divided the Punjab State into two Communities—Punjabis and non-Punjabis. The chief target of the leadersworkers, candidates sponsored by the Samiti and theiragents and workers were the Congress candidates whowere pitched against them in every Constituency of theHindi region whom they described as being the henchmenof Shri Partap Singh Kairon, the Chief Minister of thePunjab, who according* " to respondent and his agentswas a Staunch Sikh and Chief supporter of the causeofthe residents of Punjabi region at the cost of theresidents ofthe Hindi region and specially the non-Sikhsamong them. They described the Congress candidateShri Balwant Rai in this Constituency as being an enemyof the residents of Hindi region specially the non-Sikhresidents of his Hindi region and preached that if electedhe would be a great obstacle in the way of the non-Sikhresidents of the Hindi region and would be a cause of thedeath knell of Hindi language as well. This poisonouspropaganda on the basis of two communities— Punjabisand non-Punjabis and also on the basis of two religionsSikhs and Non-Sikhs and on the basis of two languagesHindi and Punjabi was resorted to by the respondent, hischief agent Shri Devi Lai with his consent throughoutthe constituency right from the date of the filing of thenomination paper by the respondent upto the date of pollthrough the various pamphlets, posters and the writingsin the paper titled as 'Hariana Kesri' a mouth pieceof the ideology of Shri Devi Lai rebel Congress Leader.These pamphlets, posters and newspapers containing thepoisonous propaganda were got published by the respond-ent or by the office of the group headed by Ch. Devi Laifrom the office of the 'Hariana Kesri' controlled by ShriDevi Lai with the consent of the respondent and got distri-buted by the respondent through his workers and agentsthroughout the constituency at a large scale. Thesewritings will be got produced later on when available".

120 AMIN LAL V. HUNNA MAL [VOL. XXV

In the written statement filed on 11th July, 1962 preliminaryobjection No. 3 was raised to the effect that the petition offendedthe provisions of section 83(1) inasmuch as it did not contain aconcise statement of the material facts nor did it set forth fullparticulars of the alleged corrupt practices. On the meritsparagraph 9(c)(i) was described to be vague and hence liableto be struck off. Besides denying the correctness of its contents,which denial does not concern us on appeal, it was pleaded to bevague and lacking in particulars and thus offending the provisionsof section 83'of the Act. The petitioner, according to the respond-ent's plea, had not given the names of the agents or other personswho committed the corrupt practice of promoting or attemptingto promote feelings of enmity and hatred between different classesof citizens of India on grounds of religion, community and lang-uage, nor had he given the details of the propaganda and itsnature.

In the replication filed by the petitioner in reply to prelimi-nary objection No. 3, it was asserted that all the known particulars,so far as possible in respect of the various allegations of corruptpractices, had been given in detail.

In reply to paragraph 9 of the written statement it was reite-rated that this paragraph did not suffer from any defect, of lackof known particulars and that every known particular so far aspossible had been most concisely and without any repetitiondetailed.

On 3rd September, 1962, the learned Tribunal disposedof the following preliminary issues:—

"Whether any of the allegations of alleged corruptpractice as detailed in paragraph 9 of the petition, are vague,indefinite and devoid of particulars as required by law andif so, to what effect?"

In regard to paragraph 9(c) it was found that the particularsof the pamphlet, posters and of the paper "Haryana Kesri" werenot given by means of which the corrupt pratice of promotingor attempting to promote feelings of enmity and hatred betweendifferent classes of citizens of India on ground of religion, etc.,had been committed. Neither the pamphlets and posters wereproduced nor their particulars were given and since no dates orplaces when and where they where published and distributed hadbeen incorporated in the petition the impugned paragraph washeld to offend against section 83 (b). The dates of the issue ofHaryana Kesri were also not disclosed and the names of theworkers and agents of the petitioner who distributed the

E.L.R.] AMIN LAL V. HUNNA MAL 121

pamphlets, etc., were also missing. In view of these findingsthe learned Tribunal decided the permliminary issue in favourof the respondent, allowed the petitioner an opportunity to applyfor leave to amend or amplify the particulars of the corruptpractice. In case further particulars were not supplied, thecharges on the basis of the aforesaid allegations were directed tobe struck off. The petitioner was burdened with Rs. 50 as costs.

It appears that in pursuance of the above order an amendedpetition was actully allowed to be filed in which paragraph9(c) (i) was amended. After repeating substantially the unamendedportion of the paragraph, the following plea was added:—

"This poisonous propaganda on the basis of two commu-nities—Punjabis and non-Punjabis and also on the basis oftwo religions Sikhs and non-Sikhs and on the basis of twolanguages—Hindi and Punjabi was resorted to by the respon-dent, his chief agent Shri Devi Lai with his consent throughoutthe constituency through the various pamphlets. One ofthe pamphlets titled 'Phoolonki Sej Se Kanton Ki Rah Per—Mager Kion" containing the speech of Shri Devi Lai,dated 5th February, 1962 of the type the one of which isattached with this amended petition, the title page of whichpurports to have been printed from the Half-Tone ArtsPress, Delhi by one Dr. Ganpati Singh Verma, 3-DaryaGanj, Delhi; as its publisher and the rest of which purportsto have been printed at Shivji Mudranalya, Kinari Bazar,Delhi. And the other one titled 'The case of Hariana andHindi Region' by Professor Sher Singh, President, HarianaLok Samiti presented to Dass Commission in which the caseof Hariana was put in before the Dass Commission byProfessor Sher Singh in such a way as to spread hatredbetween the Sikhs and non-Sikhs population of PunjabState through the various figures given in it of the StateGovernment servants of all ranks employed in the tworegions, were distributed by repspondent No. 1, his brotherSh. Suraj Bhan and his near relation Shri Lakshmi ChandGupta, Contractor, Gurgaon at a large scale in Hissar Townon the 11th February, 1962 and at Adampur Mandi andUklana Mandi on the 12th February, 1962 and at Barwalaon the 13th February, 1962."

In the amended written statement again a number of pre-liminary objections were raised but none of those objections relatedto the non-impleading of Suraj Bhan. In reply to paragraph 9,besides a general denial, again the allegations about the respond-ent's agents and other persons were described to be vague and

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122 AMIN LAL V. HUNNA MAL [VOL. XXV

indefinite, sub-clause (c)(i) was also pleaded to be vague and,therefore, liable to be struck.

Thereafter certain supplemental proceedings were takenbefore the Tribunal which do not concern us at this stage. On12th November, 1962 however, we find an application filed bythe respondent for the dismissal of the petition under section90(3) of the Act for non-compliance with the mandatory provi-sions of section 82 (b). The basis of this application was that thepetitioner had made allegations of corrupt practices particularlyin paragraph 9 against Shri Suraj Bhan, Shri Devi Lai and ShriSher Singh who were duly nominated candidates from differentconstituencies of the Punjab Vidhan Sabha in the general electionsheld in 1962 and that they were therefore, necessary parties. Thedefinition of the word "candidate" as given in section 79 (b) ofthe Act was reproduced and it was prayed that it being obligatoryon the Tribunal to dismiss an election petition under section 90(3)of the Act for non-compliance with the provisions of section 82,the election petition should be dismissed. Reply to this petitionwas put in on 16th November, 1962. In this reply althoughthe allegation of Suraj Bhan being a necessary party was controver-ted, it was stated that the petitioner was willing to add ShriSuraj Bhan as a party and that he had also formally applied by aseparate application for Suraj Bhan's addition as a part for thedeletion of the allegations regarding him made on paragraph9(c)(i) of the amended petition. In this reply it was also assertedthat no allegation against Suraj Bhan had been made in theoriginal application and a reference to him was made in the amend-ed petition only in pursuance of an order of the Tribunal that thepetition required further particulars. It was also asserted that thepetitioner had only a day before come to know about Suraj Bhanbeing a candidate in the election in question. The allegationsagainst, Suraj Bhan were also pleaded not to amount to allegationsof corrupt practices. On the same day the petitioner also filedanother application under Order 1, Rule 10, Civil ProcedureCode, for adding the name of Suraj Bhan as a respondent.In this application an alternative prayer was also made for delet-ing the words "his brother Shri Suraj Bhan" in paragraph 9(c)(i)of the amended petition. The respondent in his answer to thisapplication pleaded that a substantial right of having the electionpetition dismissed had accrued to him and therefore it was notpermissible to delete the words sought to be deleted by thepetitioner. The prayer for adding the name of Suraj Bhanwas also resisted and the application under Order 1, Rule 10,Civil Procedure Code, was pleaded not to be legally main-tainable.

E.LJl.] AMIN LAL V. HUNNA MAL 123

The learned Tribunal by the impugned order held that theelection petition did contain allegations of corrupt practiceagainst Suraj Bhan who was a necessary party, being a candidate;there was no occasion for allowing the application under Order 1,Rule 10, Civil Procedure Code, and that there being non-compli-ance with section 82 (b) of the Act under section 90(3) the electionpetition was liable to be dismissed. I may here observe thataccording to the order of the learned Tribunal no serious attemptwas made before it to show that Devi Lai and Professor SherSingh were necessary parties with the result that it did not considerit necessary to- decide whether the expression "candidate" asused in section 82 included candidates of other constituencies.

On appeal before us the learned counsel for the petitioner—appellant has contended that the provisions of section 90(3) of theAct are applicable only to^those cases in which the election petitionas presented to the Election Commission under section 81 of theAct suffers from the vice of non-compliance with section 82 (b) andthat if such an infirmity creeps in only by way of an amendmentlawfully allowed under the Act by virtue of section 90(5) the ope-ration of section 90(3) cannot be attracted. For this submissionreliance has been placed on the scheme of the Act and the languageof section 90(3) wherein it is laid down that the Tribunal shalldismiss an election petition which does not comply with the pro-visions of section 81 or section 82 notwithstanding that it has notbeen dismissed by the Election Commission under section 85.It is emphasised that only such an election petition can be dis-missed under this provision of law which was capable of beingdismissed by the Election Commission under section 85. Inother words, the argument is that section 90(3) merely providesa double check on election petitions which as originally presenteddo not comply with the provisions of sections 81 and 82. Thisargument has been sought to be developed by illustrating that inan original election petition it is open to the petitioner to impleada candidate against whom allegations of corrupt practices havebeen made, but in case of amendments permissible under the lawif a new party cannot be added but amendment in the particu-lars can under the law be permitted, then it would lead to anomal-ous consequences which cannot reasonably and legitimatelybe held to have been intended by the Parliament. Permissibleamendment, according to the counsel, must by necessary impli-cation be deemed to include amendments which would doaway or remedy the vice caused or attracted by virtue of the

amendment allowable and allowed under the law. If baldliteralness of the language used in section 90(3) is likely to leadto such serious consequences as dismissal of the entire petition,

124 AMIN LAL V. HUNNA MAL [VOL. XXV

throttling a judicial probe into the charges of corrupt practices,then, so argues the counsel, this Court should construe thisprovision in such a manner as to make it effective in achievingthe primary object of election petitions.

As against this contention the learned counsel for the respond-ent has submitted that this Court while construing a statutoryprovision is completely unconcenrned with the consequencesensuing therefrom provided, of course, the language is clear andunambiguous. According to him, there is no ambiguity in section90(3) and if a petitioner chooses so to amend his election petitionas to attract the operation of section 90(3) literally construedread with section 82 (b), the language of the former should notbe strained so as to save the petitioner from its rigours. In supportof his contentions, the respondent's counsel has drawn our atten-tion to a decision of the Bombay High Court in Babufao TatyajiBhosle Versus Madho Shrihari Aney (1). The facts of the reportedcase appear to be somewhat similar to those before us and accord-ing to the ratio of that decision non-impleading of Suraj Bhan inthe case in hand must attract the provisions of section 90(3).

The petitioner's counsel has, however, submitted that theBombay decision has not considered all the implications and aspectswhich arise for consideration and, therefore, it cannot be consideredto lay down good law. It has for instance not attached sufficientor due importance to the actual effect of the view adopted on othercharges of corrupt practice in election petition unconnectedwith the defect of non-compliance with section 82 (b). In thealternative the counsel has also drawn our attention to the lastportion of the last paragraph of the judgment at page 42 of thereport from which it is sought to be inferred that the BombayHigh Court was apparently of the view that the persons soughtto be impleaded as a result of amendment could be impleadedby amendment of the petition and has submitted that the learnedTribunal in the case in hand has erred in disallowing the applica-tion for making Suraj Bhan a party to the election petition. Thisbrings me to the other authorities cited on behalf of the respond-ent in support of the contention that it is not open to a Tribunalto permit impleading of necessary parties who have not beenimpleaded in the original petition presented before the ElectionCommission, particularly after the limitation for presenting' apetition has expired. In Inamati Malappa Basappa versus DesaiBasavaraj Ayyappa, etc. (2), it was observed that the Representationof the People Act is a self-contained code governing the trial

(1) A.I.R. 1961 Bom. 29. (2) A.I.R. 1958 S.C. 698.

K.L.R.] AMIN LAL V. HUNNA MAL 125

of election petitions and that the provisions of Order 23, Rule 1,Civil Procedure Code, do not apply to election petitions, with theresult that it is not open to a petitioner to withdraw or abandona part of his claim once an election petition is presented to theElection Commission, more so when such a withdrawal or abandon-ment of a part of the claim would have the effect of depriving thereturned candidate or any other party to the petition of the rightof recrimination which had accrued to him under section 97 ofthe Act. These observations, in my opinion, do not affectthe question of amendment on the facts and circumstances of thecase before us when the amendment only consists of impleading aparty whose presence has been necessitated by the amend-ment allowed by the Tribunal. The counsel has, however,also referred to K. Kamaraja Nadar versus Kunju Thevar and others(3), a judgement of the same date and of the same Bench asin Mallappa Basappa's case, but that decision also, in my opinion,does not improve the position. Chaturbhuj Chunnilal versusElection Tribunal and others (4), however, does support the contentionof the respondent's "counsel, it was observed in that judgmentthat Order 6, Rule 17, Civil Procedure Code, only deals withalteration or amendment of pleadings and not with addition ofparties or striking off the names of the parties for which purposeprovision is made in the Code in Order 1, Rule 10. This last-mentioned provision, however was considered by the Bench tobe inapplicable to an election Tribunal trying an election petition.While construing section 90(1) of the Act, the Court observed:—

"The effect of the words 'subject to the provisionsof the Act and of any rules made thereunder' in section 90(1)clearly is that the provisions of the Code of Civil Procedurebecome applicable to the trial of an election petition subjectto two limitations so far as the question of permitting amend-ments is concerned.

One limitation is that the power of amendment underthe Code of Civil Procedure cannot be exercised so as topermit new grounds of charges to be raised or to so alterthe character of the,petition as to make it in substance anew petition, if a fresh petition on those allegations will thenbe barred. The second limitation is that the power ofamendment under the Code of Civil Procedure,- cannot beexercised so as to defeat the mandatory provisions of theRepresentation of the People Act itself."

(3) A.I.R. 1958 S.C. 687. (4) A.I.R. 1958 All. 809.

126 AMIN LAL V, HUNNA MAL [VOL. XXV

For these two principles reference was made to two SupremeCourt decisions: (1) Harish Chandra Bajpaietc., versus Triloki Singhetc., (5) and (2) Jagan Math versus Jaswant Singh and others, (6).The Allahabad Court in construing Rule 10 of Order 1 was alsoinfluenced by the provisions of Rule 9 according to which nosuit is to be defected by reason of misjoinder or non-joinder of theparties which, according to the Bench, was in conflict with theprinciple laid down in section 90(3) of the Act. This decisiontoo, in my opinion, deals only with the petitions which asoriginally presented to the Election Commission suffered fromthe vice of absence of necessary parties from the record. JagannathDalai, versus Rama Chandra Nahak and others (7), deals with thenon-compliance of the provisions of section 117 of the Act and istherefore, hardly of much assistance. Ganpat Singh versus,Brijmohan Lai (8), also seems to me to be irrelevant for thepurpose of the point with which we are concerned. M. A. MuthiahChettiar versus Saw Ganessen etc. (9), too is of no assistance so faras the case in hand is concerned. Gulaher Ahmed versus The ElectionTribunal etc. (10), also does not touch the question with which weare concerned. S. B. Adityan etc. versus S. Kandaswami and another,(11), does contain an observation that as the penal consequenceof the rejection of the petition has been statutorily imposed for non-compliance with the provisions of section 82, it must now beheld that the power of the Election Tribunal to invoke the pro-cedure under Order 1, Rule 10, Civil Procedure Code can no longerapply. The Supreme Court in S. M. Banerji versus Sri KrishnaAgarwar (12), has also considered the power of amendmentconferred on the Tribunal under Order 6, rule 17, of the Code ofcivil Procedure, and has found itself bound by its earlier decisionin Harish Chandra Bajpai versus Triloki Singh (5). The Court,however proceeded to clarify the position in the following words:

"At this stage we must guard against one possible mis-apprehension, Courts and Tribunals are constituted to dojustice between the parties within the confines of statutorylimitation, and undue emphasis on technicalities or enlargingtheir scope would camp their powers, diminish their effective-ness and defeat the very purpose for which they are constituted.

(5) A.I.R. 1957 S.C. 444. (9) A.I.R. 1958 Mad. 187.(6) A.I.R. 1954 S.C. 210. (10) A.I.R. 1958 M.P. 224.(7) A.I.R. 1959 Orr. 26. (11) 1958 E.L.R. 394.(8) A.I.R. 1959 Raj. 114. (12) A.I.R. 1960 S.C. 368.

E.L.R.] AMIN LAL V. HUNNA MAL 127

We must make it clear that within the limits prescribedby the decisions of this Court the discretionary jurisdictionof the Tribunals to amend the pleadings is as extensive asthat of a Civil Court. The same well settled principleslaid down in the matter of amendments to the pleadingsin a suit should also regulate the exercise of the power ofamendment by a Tribunal".

This aspect, the Court proceeded to observe, had not beenignored in the earlier decision mentioned above. In HarishChandra Bajpai's case amendment giving for the first time instancesof corrupt practice, provided such corrupt practice had been madea ground of attack in the petition, was held permissible. Beforethe amendment of Act 43 of 1951 in 1956, amendment by implead-ing other candidates was upheld, but, since the amendmentincluding section 82 in section 90(3) of the Act made it mandatoryfor the Tribunal to dismiss an election petition which doesnot comply with the provisions inter alia of section 82, the viewprevailing at the present time is that such an amendment cannotbe allowed. Had the matter been res Integra, I, for my part,would perhaps have been inclined to hold that in the facts and cir-cumstances of the present case the Tribunal would be empoweredunder the law to allow Suraj Bhan to be impleaded along withthe amendment disclosing his name as one of the persons allegedto have committed corrupt practices, for, such a constructionappears to me to be both just and calculated to advance the statut-ory object of promoting and ensuring purity of elections and isnot clearly prohibited by the statutory language, but in view ofthe decisions of the Allahabad and Bombay High Courts I would,as at present advised, adopt the same view and uphold the orderof the Tribunal declining to implead Suraj Bhan. I must how-ever make it clear that I am doing so reluctantly and with acertain amount of diffidence and hesitation. I must also statethat I have to some extent been also influenced in so disagreeingwith the above view by the fact that the Allahabad decision wasgiven in March, 1958 and though Act 43 of 1951 was amendedin 1961 including the amendment of section 90 no change wasmade in it in this respect.

The learned counsel for the appellant next contended thatthere was no allegation against Suraj Bhan in his capacity as acandidate and, therefore, section 82 (b) is inapplicable. I amunable to appreciate the distinction between an allegation madeagainst a person in his capacity as a candidate and in any othercapacity for the purpose of attracting the above sub-section. Thestatutory provisions on their plain reading do not support thesubmission, nor does the statutory scheme or the considerations

128 AMIN LAI. V. HUNNA MAL [VOL. XXV

of achieving the legislative object lend any helpful assistance to thecontention. Where a person has withdrawn his candidature,obviously corrupt practice as a candidate, which has beenconceded to mean corrupt practice in support of his own candida-ture, can only be committed by him during the period that heheld himself out as a candidate. The sphere of such commissionof currpt practices must, from the very nature of things, be extre-mely limited, and, may seldom, if ever, except perhaps in rarestcases, actually affect the result of the election. Considered fromthis point of view also one cannot see much cogency in necessit-ating the impleading of a candidate in respect of such corruptpractices and leaving him out for other corrupt practices committedby him which may have more vitally affected the election.At the bar no convincing reason was advanced for construingsection 82(b) in the restricted sense suggested. I am, therefore,unable to hold the scope of section 82 (b) to be confined only tothe allegations of corrupt practice against a candidate whenit is committed by him in his capacity as such. This very pointhas also been raised in Rao Abhai Singh versus Rao JVihal Singh,F.A.O., 7-E of 1963 and in that case also we have taken the sameview.

The Counsel then contended that the allegations of corruptpractice contained in the petition are strictly speaking, againstthe respondent and not against Suraj Bhan. The allegation ofmere distribution of pamphlets without imputing knowledge—express or implied—of its contents to Suraj Bhan does not, accord-ing to the argument, amount to an allegation of corrupt practiceagainst him. While developing this point the counsel alsoemphasised that he had expressly submitted to the Tribunalthat no allegation of corrupt practice against Suraj Bhan was ever

* intended to be made and, therefore, if the amended plea wasconsidered to be capable of bearing such a construction, then itmay be deleted or omitted from the amended petition. Asagainst this, the learned counsel for the respondent read out tous the original petition and submitted that the allegation of corruptpractice was made against a number of undisclosed persons and onobjection having been raised the name of Suraj Bhan, amongothers, was supplied as one who had also committed the corruptpractice concerned. The counsel thus laid emphasis on thecontention that the petition actually contained allegations of cor-rupt practice against Suraj Bhan and the appellant's argument ismerely intended to cover up a fatal defect which has crept in bysupplying the name of Suraj Bhan in the amended petition.

I have devoted to the matter my most earnest thought andconsideration and after going through the record and the

E.L.R.] AMIN LAL V. HUNNA MAL 129

authorities cited in the light of the arguments addressed I amconstrained to hold that the relevant pleading urged as a wholedo seem to contain allegations of corrupt practice against SurajBhan as well. Whatever the intention of the petitioner, thepleadings have to be construed in their own language and as awhole; so construed it is not easy to hold that there is noallegation of corrupt practice against Suraj Bhan. The objec-tionable pamphlet is alleged to have been distributed by"respondent No. 1, his brother Suraj Bhan and his nearrelation Shri Lakshmi Chand Gupta." Read in its context,this sentence does seem to me to amount to an allegation ofcorrupt practice against Suraj Bhan as it is against respondentNo. 1, Pleading, as is well known, are not to be construed with toomuch technical strictness; they are required to be read liberallyand considered from a practical and common sense point of view.So considered, I am inclined to hold that the allegation of corruptpractice does, prima facie, seem to have been made against SurajBhan. I may mention that according to the Tribunal it was notseriously challenged before it that the allegations in the petitionagainst Suraj Bhan did amount to allegations of corrupt practice;we nevertheless heard the appellant on this point but I have notbeen able to persuade myself to agree with his contention.

The respondent also tried to attempt to argue that Ch. DeviLai and Professor Sher Singh were also candidates and, therefore, __necessary parties and that the conclusion of the Tribunal to thecontrary is wrong but the counsel soon realised the futility of hisattempt and dropped the point.

The result of the foregoing discussion must be against theappellant. It is of course unfortunate that on account of adefect which arose out of the amendment permitted by the Tri-bunal and which defect the Tribunal is, according to the decidedcases, unable to remedy by permitting amendment, the enquiryinto the entire election petition has been throttled. But that is amatter of policy of the law with which this Court is not concerned.Our duty is only to administer law as we find it, wholly unconcern-ed with its wisdom. In consequence, I am constrained to dismissthe appeal but without any order as to costs.

A. N. GROVER J.—I agree. Appeal dismissed.

19—3 ECI/ND/67

130 MAHESH PRASAD SINHA V. MANJAY LAL & ORS. [VOL. XXV

[IN THE HIGH COURT OF PATNA]

MEHESH PRASAD SINHAV.

MANJAY LAL & ORS.

(RAMASWAMY, C. J., AND UNTAWALIA, J)

August 30, 1963.

The Representation of the People Act, 1951, as amended by Act 40 of 1961—S. 83(1) proviso—affidavit to be in the prescribed form—requirement, if mandatory—Proper procedure to be adopted for remedying defects.

The respondent filed an election petition challenging the election of thepetitioner on the ground of corrupt practice. The petitioner took a pre-liminary objection before the Tribunal that the proviso to s.83(l) of the Actwas mandatory and therefore, in as much as the affidavit filed with thepetition was not in the prescribed form, it was no affidavit in the eye of lawand the allegation about commission of corrupt practices in the petitionought to be struck out as being unnecessary under O.VI r.16 of the Codeof Civil Procedure. The Tribunal held that the affidavit substantiallycomplied with the requirements of the proviso to s.83(l) and the defect didnot effect the jurisdiction of the Tribunal as it did not require any rectifica-tion.- The High Court's jurisdiction under Articles 226 and 227 of theConstitution was invoked against the order of the Tribunal.

HELD :—The Tribunal must be directed to require the patty to fileanother proper affidavit either in the prescribed form or in the form in whichit has already been filed after removing the defects therefrom.

The requirement of the proviso to s.83(l) that the petition shall beaccompanied by an affidavit in the prescribed form is only directory and notmandatory. Before the Amending Act 87 of 1956 the penalty for non-com-pliance with the provisions of s.83 was the dismissal of the application bythe Election Commission but no such penalty is provided after the amend-ment of 1956. The intention of the legislature in introducing the provisoby Act 40 of 1961 is to prevent the petitioner filing an election petition frommaking wild allegations about corrupt practice and that intention is sub-stantially achieved if an affidavit is filed in support of the allegations of corruptpractice and the particulars thereof.

State ofU.P. v. Manbodhan Lai Srivasta, A.I.R. 1957, S.C. 912 ; Jagannathv. Jaswant Singh, A.I.R. 1954, S.C. 210; Bhikaji Keshaojoshi v. Brij Lai NandlalBiyani, A.I.R. 1955, S.C. 610; Kamaraj Nadar v. Kunju Thevar, A.I.R. 1958,S.C. 687 ; Satish Kumar v. Election Tribunal, A.I.R. 1963, Raj. 157 ; Stateof Bombay v. Purshottam Jog Araik, A.I.R. 1952, S.C. 317 ; Padmabati Dasi y.Rasik Lai Dhar, I.L.R. 37 ; Cal. 259 ; Harish Chandra Bajpai v. Triloki Sine,h,A.I.R. 1957, S.C. 444 ; People v. De Renna 2NYS(2)694; Liverpool Borough Bankv. Turner (1860) 30 L.J. Ch 397 ; Howard v. Bodington (1877) 2 P.D. 203 ;Thomas v. Kelly, 13 A.C. 506 ; referred to.

Jagat Dhish Bhargava v. Jaivahar Lai Bhargava, A.I.R. 1961, S.C. 832,distinguished.

E.L.R.] MAHESH PRASAD SINHA V. MANJAY LAL & ORS. 131

An affidavit filed in compliance with the proviso to sub-section (1) of s. 83 cannot be allowed to be amended by a petitionof amendment filed in accordance with O. VI r. 17 C.P.C.,because it is only a statement on oath by way of evidence andis not part of the pleading. The defect can be removed by anotheraffidavit either in the prescribed form or substantially in the formin which it has been filed after removing such defects.

Miscellaneous Judicial case 455 of 1962, Petition underArts. 226 and 227 of the Constitution.

Balbhadra Prasad Singh and Nagendra Prasad Singh, forthe Petitioner.

Kanhaiya Prasad Varma, Shyam Nandan Pasad Sharma andKamendra Kumar, for the Respondents.

JUDGEMENTUNTAWALIA, J.—The petitioner has obtained a rule from this

court against the respondents to show cause why the orderdated the 10th September, .1962 passed by the 4th respondentthe Member, Election Tribunal, Patna, in Election Petition No.149 of 1962 filed by respondent No. 1 for setting aside the electionof the petitioner as a member of the Bihar Legislative Assembly,be not quashed in exercise of the powers of this Court underArticles 226 and 227 of the Constitution of India, and why thesaid Tribunal be not prohibited from recording and admittingany evidence in relation to the said election petition bearing onthe question of any corrupt practice alleged to have been com-mitted by the petitioner or his election agents. Cause hashas been shown on behalf of respondent No. 1.

Two issues were argued and pressed before the ElectionTribunal on behalf of the petitioner for decision as preliminarypoints before proceeding with the hearing of the election petition.

The said issues are—" T'No. 1. Are the petition and the annexures thereto

properly verified ?

No. 2. Has the petitioner filed with his petition anaffidavit in the prescribed form as laid down in the provisoto Sec. 83(1) of the Representation of the People Act,1951, in support of his allegations or corrupt practices? Ifnot, are the said allegations liable to be struck out from thepetition."

In respect of the first issue, the defect in the verification hasbeen allowed to be rectified by a petition for amendment and

|132 MAHESH PRASAD SINHA V. MANJAY LAL [VOL. XXV

no further grievance was made in this regard. The decisionof the Tribunal on the second issue is in favour of respondent No. 1and it has been held by the learned Member of the Tribunalthat the affidavit substantially complies with the requirementsof the proviso to section 83(1) of the Representation of the PeopleAct, 1951 (Act 43 of 1951), hereinafter referred to as to theAct. This part of the decision of the Tribunal has been attackedby Mr. Balbhadra Prasad Singh, learned counsel for the peti-tioner, by advancing a forceful argument. He submitted that theentire requirement of the proviso aforesaid is mandatory and mustbe strictly complied with; the affidavit being not in the prescribedform is no affidavit in the eye of law and the allegation aboutcommission of corrupt practices in the election petition must bestruck out as being unnecessary under order VI rule 16 of the Codeof Civil Procedure, 1908. In any event, Learned counsel sub-mitted the affidavit which has been filed by respondent No. 1is defective and not in accordance with law; it must, therefore,be ignored or rejected. A number of text books dealing with therules of interpretation of statutes and other authorities have beencited on behalf of the petitioner. I shall, in course of my judg-ment, refer to or deal with many of them. It will not be necessaryto refer to all.

Section 83 of the Act reads thus:—"(1) An election petition—

(a) shall contain a concise statement of the materialfacts on which the petitioner relies;

(b) shall set forth full particulars of any corrupt practicesthat the petitioner alleges, including as full a state-ment as possible of the names of the parties allegedto have committed such corrupt practice and the dateand place of the commission of each such practice;and

(c) shall be signed by the petitioner and verified in themanner laid down in the Code of Civil Procedure,1908 (5 of 1908), for the verification of pleadings:

Provided that where the petitioner alleges any corruptpractices, the petition shall also be accompanied by anaffidavit in the prescribed form in support of the allegationof such corrupt practice and the particulars thereof.

2. Any schedule or annexure to the petition shall alsobe signed by the petitioner and verified in the same manneras the petition."

E.L.R. MAHESH PRASAD SINHA V. MANJAY LAL 133

The proviso to sub-section (1) is now and was introduced byAct 40 of 1961 which came into force on 20-9-61. The Conductof Election Rules, 1961, were framed and published on the 15thof April, 1961. After the introduction of the proviso by Act40 of 1961, a new rule No. 94A was introduced in the Conductof Election Rules by a notification dated February 27, 1962,being Form No. 25. The material portions of the form prescribedare as follows:—

"I the petitioner in the accompanying electionpetition calling in question the election of Shri/Shrimati

(respondent No in the said petition) makesolemn affirmation/oath and say—

(a) that the statements made in paragraphsof the accompanying election petition about the commissionof the corrupt practice mentioned in paragraphs ofthe schedule annexed thereto are true to my knowlege;

(b) that the statements made in paragraphs ofthe said petition about the commission of the corruptpractice of* and the particulars of such corruptpractice given in paragraph of the said petition andin paragraphs of the schedule annexed theretoare ture to my information.

The affidavit in question filed by respondent No. 1 states:—"I Manjay Lai, son of etc., hereby solemnly affirm

and declare as follows:—(1) That I am the petitioner of the election petition

being filed against the election of Sekra Constituency ofBihar Legislative Assembly.

(2) That the contents of the election petition havebeen read over and explained to me in Hindi which Ihave understood.

(3) That the contents of paragraphs 12 and 13 readwith annexure 1 'A' are partly true to my knowledgeand are partly based on information received from agentsand voters which are believed to be true.

(4) That the contents of paragraphs 14, 15 read withannexures 'B' & 'C are based on information receivedfrom the agents and workers which are believed to be true".

The point for determination in this case is as to whether therequirement under the proviso to sub-section (1) of section 83

*Here specify the name of the corrupt practice.

134 MAHESH PRASAD SINHA V. MANJAY LAL [VOL. XXV

of the Act of the filing of the affidavit in the prescribed form ismandatory or directory. The guiding principles for determi-nation of the point in dispute are well established and wellknown and the question has got to be answered with referenceto them. "When a statute requires that something shall be done,or done in a particular manner or form, without expresslydeclaring what shall be the consequence of non-compliance, thequestion often arises what intention is to be attributed by infe-rence to the legislature?" (vide Maxwell on Interpretationof Statutes, 11th Edition page 362). At page 364 a passage runsthus:—

"It has been said that no rule can be laid down fordetermining whether the command is to be considered as amere direction or instruction involving no invalidating conse-quence if it is disregarded, or as imperative, with an imp-lied nullification for disobedience, beyond the fundamentalone that it depends on the scope and object of the enactment.It may, perhaps, be found generally correct to say that nulli-fication is the natural and usual consequence of disobedience,but the question is in the main governed by considerationsof convenience and justice, and when that result would involvegeneral inconvenience or injustice to innocent persons, oradvantage to those guilty of the neglect, whithout promotingthe real aim and object of the enactment, such an intentionis not be attributed to the legislature. The whole scope andpurpose of the statute under consideration must be regarded.The general rule is, that, an obsolute enactment must beobeyed or fulfilled exactly, but it is sufficient if a directory"enactment be obeyed or fulfilled substantially". At page367 of the book is a passage on which strong reliance wasplaced on behalf of the petition. It reads:—

"Enactments regulating the procedure in courts seemusually to be imperative and not merely directory. If,for instance, a right of appeal from a decision be givenwith provisions requiring the fulfilment of certain conditions,such as giving notice of appeal and entering into recognisance,or transmitting documents within a certain time, a strictcompliance would be imperative and non-compliance wouldbe fatal to the appeal". In Article 656 of the Halsbury'slaws of England, 3rd Edition Volume 36 at page 435, it isstated:—

"No universal rule can be laid down for determiningwhether provisions are mandatory or directory; in each casethe intention of the legislature must be ascertained by lookingat the whole scope of the statute and, in particular, at the

E.L.R.] MAHESH PRASAD SINHA V. MANJAY LAL 135

importance of the provision in question in relation to thegeneral object to be accrued

Although no universal rule can be laid down, provisionsrelating to the steps to be taken by the parties to legal pro-ceedings in the widest sense have been construed with someregularity as mandatory; and it has been observed that thepractice has been to construe provisions as no more thandirectory if they relate to the performance of a public dutyand the case is such that to hold null and void acts done inneglect of them wolud work serious general inconvenience, orinjustice, to persons who have no control over those entrustedwith the duty, without at trie same time promoting the mainobject of the legislature".

Lord Campbell's observations in Liverpool Borough Bank v.Turner (1) to the effect:—

"No universal rule can be laid down for the constructionof statutes, as to whether enactments shall be considereddirectory only or obligatory, with an implied nullification fordisobedience. It is the duty of courts of justice to tryto get at the real intention of the legislature by carefullyattending to the whole scope of the statute to be construed"has been quoted with approval in Howard v. Bodington (2).Before quoting the said passage, Lord Penzance has said atpage 210—

"In the case of statutes that are said to be imperativethe Courts have decided that if it is not done the wholething fails, and the proceedings that follow upon it areall void. On the other hand, when the Courts hold a provi-sion to be mandatory or directory, they say that, although suchprovision may not have been complied with, the subsequentproceedings do not fail."

It has been pointed out in note (b) at page 434 of volume36 of Halsbury's laws of England, 3rd Edition, that LordPenzance has used the term 'mandatory' as synonymouswith 'directory' in contradiction of the term 'imperative'.In Crawford's Statutory construction, it has been said atpage 515 in section 261—

" If the provision involved relates to some imma-terial matter, where compliance is a matter of conveniencerather than substance, or directs certain actions with a

(1) (1860) 29 L.J. Ch. 827 affd. in 30 L.J. Ch. 379.(2) (1877) 2 P.D. 203.

136 MAHESH PRASAD SINHA V. MANJAY LAL [VOI. XXV

view to the "proper, orderly, and prompt conduct of publicbusiness, the provision may be regarded as directory, butwhere it directs acts or proceedings to be done in a certainway and indicates that a compliance with such provisions isessential to the validity of the act or proceeding, or requiressome antecedent and prerequisite conditions to exist priorto the exercise of the power, or be performed before certainother powers can be exercised the statute may be regardedas mandatory". In the same book at page 516, the followingpassage from the decision of People v. De. Renna (3) has beenquoted, which has also been quoted with approval by theSupreme Court of India in State of U. P. v. Manbodhan LaiSrivastave (4):

"The question as to whether a statute is mandatoryor directory depends upon the intent ̂ of the legislature andnot upon the language in which the intent is clothed. Themeaning and intention of the legislature must govern andthese are to be ascertained not only from the phraseologyof the provision, but also by considering its nature, its design,and the consequences which would follow from construingit the one way or the other "

I would also like to quote a few passages from SutherlandStatutory Construction, 3rd Edition, volume 3, Section 5813at page 95 says—

"With respect to the question of mandatory and directoryoperation, as with any question of statutory construction, theprimary consideration is that of determining the intent of thelegislature.

"Each case stands pretty much on its own facts, to bedetermined on an interpretation of the particular languageused, various methods of attaching the problem are employed.One oft-repeated formula is that statutory requirements thatare of the essence of the thing required by statute are man-datory, while those things which are not of essence aredirectory."

In regard to statues relating to procedure, the learned authorhas said in section 826 at page 122-23:—

"The cases in which statutes regulating court procedureare construed show a considerable lack of uniformity on thequestion on mandatory and directory constitution, so that

(3) 2 N.Y.S. (2) 694, 166 Misc. 582. (4) A.I.R. 1957 S.C. 912.

E.L.R.] MAHESH PRASAD SINHA V. MANJAY LAL 137

little can be done by way of rationalising them. However,a few generalisations can be made. Where a statute specifiedacts to be done by parties litigant to entitle them to maintainaction or to perfect an appeal, it is generally mandatory.Where rights or privileges are denied to an individual becauseof his own failure to comply strictly with statutory directions,he has no cause for complaint. And statutory regulationsintended to protect the rights of litigants or of ' personaccused of crime are mandatory. On the theory that proce-dural statutes should be liberally construed to avoid setting uptechnical obstacles to the prosecution of a law suit, provisionsintended for the benefit, of the litigant, or involving onlyinconsequential matters, where no private rights are involved,should be directory."

Reading the proviso to sub-section (1) of section 83 ofthe Act in the light of the principles of interpretation of statutesstated above, it seems that the substance and the matter of theessence embodied in the proviso is that, when allegations of corruptpractices are made in the election petition, it must be accompaniedby an affidavit, but the requirement of its being in the prescribedform is not of the essence and is directory. Before the amendingAct 87 of 1956, for non-compliance with the provisions of section83 the penality provided in the Act was dismissal of the applica-tion by the Election Commissioner under section 85 or by theElection Tribunal under section 90(3) of the Act. But no suchconsequence is provided in the Act as it stands now after theamendment of 1956. It is, therefore, clear that even for the non-filing of the affidavit along with the election petition as requiredby the proviso in question, the whole of the petition cannot bedismissed in limine. It may well be that in that event the allega-tions of corrupt practices in the petition have got to be struck outas having missing under order VI of Civil Procedure or someother consequence may follow even though not specificallyprovided for in the Act. I am not called upon to decide and expressany opinion in this case in regard to such a situation. But Ihave no doubt in my mind that, if the election petition cannotbe struck out merely because the affidavit, is not in the prescribedform or is a defective one. As pointed out by a Bench of theRajasthan High Court in Satish Kumar v. Election Tribunal (5)the intention of the Legislature in introducing the proviso by Act40 of 1961—is "to prevent the petitioner filing an election petitionfrom making wild allegations about corrupt practices and toimpose on him a reasonable restraint, so that if false statementswere made he could be prosecuted for perjury."

(5) A.I.R. 1963 Raj. 157.20—3 ECI/ND/67

138 MAHESH PRASAD SINHA V. MANJAY LAL [VOL. XXV

That being so, the intention is carried out and the objectis substantially achieved if an affidavit is filed in support of theallegations of the commission of corrupt practices and the parti-culars thereof.

It was submitted on behalf of the petitioner that "a statutegrariting a "new right is mandatory; and a right which exists onlyby virtue of statutory grant comes into being only after strictcompliance with the statute and all of the conditions" (videsection 5812 at page 94 of Sutherland Statutory Construction,volume III), and that an election contest is not an action at lawor a suit in equity but is a purely statutory proceeding unknown tothe common law which creates new rights and the statutoryrequirements must be strictly complied with for getting relief bythis new remedy. I am not impressed by this argument. Ithas been said by Mahajan, C. J. at page 212 in Jagan Nath v.Jaswant Singh (6).

"If the special law itself confers authority on a Tribunalto proceed with a petition in accordance with certainprocedure and when it does not state the consequences ofnon-compliance with certain procedural requirements laiddown by it".

The principle that an election petition seeking interference with thesuccess of a candidate must strictly conform to the requirementsof law, has no application. In that case, according to the provisionof law, as it then stood in the Act, it was held that non-compliancewith the provisions of section 82 of the Act relating to the joiningof parties in an election petition is not necessarily fatal and canbe cured. In Bhikaji Kesho Joshi v. Brijlal Nandlal Biyani(l)the verifications of the election petition were defective only asregards the requirements of dates thereof and the question was asto whether the petition was liable to dismissal on that ground.Delivering the judgment of the Court, Jaganandhadas, J., saidat page 615 (column 1)—

"Though there may be cases where the date of the plead-ing and the verification may be relevant and importantit would be a wrong exercise of discretionary power to dismissan application on the sole ground of absence of date of veri-fication. In such a case the applicants should normallybe called upon to remove the lacuna by adding a supple-mentary verification indicating the date of the original verifi-cation and the reason for the earlier omission."

(6) A.I.R. 1954 S.C. 210.(7) A.I.R. 1955 S.C. 610

E.L.R.] MAHESH PRASAD SINHA V. MANJAY LAL 139

It has to be noted that it was so held by the Supreme Courteven at the time when non-compliance with the provisions ofsection 83 entailed dismissal of the application under section 85(3)of the Act.

"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 namesof the parties alleged to have committed such corrupt orillegal practice and the date and place of the commissionof each such practice."

Another objection in Bhikaji Kesho's case was that the parti-culars of the instances furnished in schedule A to the petitionwere all vague and not compliance with,the above provision.Even so, it was said—

" in the case of this kind the Tribunal whendealing with the matter in the early stages .should not havedismissed the application. It should have exercised thepowers and called for better particulars. On non-compliancetherewith, it should have ordered a striking out ofsuch of the charges which remained vague and called uponthe petitioners to substantiate the allegations in respectof those which were reasonably specific."

Considering the provisions of section 117 of the Act, as itstood before the amendment of Act 58 of 1958, the SupremeCourt has held in K. Kamaraja Nadar v. Kunju Thevar(S).

"It would be absurd to imagine that a deposit madeeither in a Government Treasury or in the Reserve Bank ofIndia in favour of the Election Commission itself would notbe sufficient compliance with the provisions of S. 117 andwould involve a dismissal of the petiton under s. 85 ors. 90(3). The above illustration is sufficient to demonstratethat the words "in favour of the Secretary to the ElectionCommission used in s. 117 are directory and not mandatory intheir character. What is of the essence of the provisionin s. 117 is that the petitioner should furnish security for thecosts of the petition, and should enclose along with thepetition a Government treasury receipt showing that adeposit of one thusand rupees has been made by him eitherin a Government Treasury or in the Reserve Bank of India, isat the disposal of the Election Commission to be utilisedby it in the manner authorised by law" and is under its

(8) A.I.R. 1958 S.C. 687 at p. 697 Col. 1.

140 MAHESH PRASAD SINHA V. MANJAY LAL [VOL. XXV

control and payable on a proper application being made inthat behalf of the Election Commission or to any personduly authorised by it to receive the same, be he the Secretaryto the Election Commission or any one else".

Mr. Balbhadra Prasad Singh placed reliance upon thedecision of the House of Lords in the case of Frederick DunbarThomas v. William John Kelly (9) where it was held confirmingthe decision of the court of appeal that the bill of sale being not inaccordance with the form in the schedule to the Bills of Sale Act(1878) as required by section 9 of the Act as amended by amend-ment Act of 1962 was altogether void. It is sufficient to pointout that section 9 of that Act provided—

"A bill of sale made or given by way of security for thepayment of money by the grantor thereof shall be void,unless made-in accordance with the form in the schedule tothis Act annexed."

In the respresentation of the People Act, 1951 howeverthere is no such provision. Mr. Singh also cited the decision ofJagat Dhish Bhargava v. Jawahar Lai Bhargava (10), with referenceto the provisions of order XLI rule 1 of the Code of Civil Procedurewhere it has been held that the requirement that certified copyof the decree should be filed along with the memorandum ofappeal is mandatory and in the absence of the decree the filingof the appeal would be incomplete, defective and incompetent.The principle decided in that case, however, has no applicationto the fact of the instant case, firstly, because as I have said above,under the present law the filing of the election petition is not"incomplete, defective or incompetent" and does not make itliable to dismissal in limine for non-compliance with the provisionsof section 83 of the Act, and, secondly, this is not a case where theelection petition was not accompanied by an affidavit. Theaffidavit was there but it was not in the prescribed form or wasdefective.

The facts of the present case are similar to those of the Rajas-than case Satish Kumar v. Election Tribunal(5). The ElectionTribunal in that case, and instead of dismissing the electionpetition, permitted respondent No. 2 to file a new affidavit inthe prescribed form according to law and this was held to be quitelegal and proper by the Bench of the Rajasthan High Court.

(9) 13 A.C. 506.(10) A.I.R. 1961 S.G. 832.

E.L.R.] MAHESH PRASAD SINHA V. MANJAY LAL 141

The defects have been pointed out in the affidavit filed byrespondent No. 1 with his election petition—(i) that the thirdparagraph of the affidavit does not specify as to which portionsof paragraphs 12 and 13 read with annexure l(a) were true to theknowledge of the deponent and which part was based upon infor-mation received from agent and voters which the deponentbelieved to be true; and (ii) that the 10th paragraph of theelection petition contains allegations as to commission of certaincorrupt practices and there is no affidavit in support of such alle-gations.

At the outset I may point out that even the form prescribedby rule 94A of the Conduct of Election Rules 1961 is defectivein that in clause (b) it is required to be stated that the state-ments made in certain paragraphs of the election petition are trueto the information of the deponent. It has been repeatedlypointed out that under order XIX rule 3 of the Code of CivilProcedure affidavit should be confined to such facts as the depo-nent is able of his own knowledge to prove, or to fact which thedeponent has been informed, which facts he believes to be true.In Padtnabati Devi v. Rasik Lai Dhar (11), Jenkins, C.J., andWoodroffe, J., have said—-

"We desire to impress on those who propose to relyon affidavits. that, in future the provisions of order XIXrule 3, must be strictly observed and every affidavit shouldclearly express how much a statement of the deponent'sknowledge and how much a statement of his belief, and thatgrounds of belief must be stated with sufficient particularityto enable the Court to Judge whether it would be able to safeset on the deponent's belief".

In the case of State of Bombay v. Purushottam Jog Naik (12),the copy of the affidavit sworn by the Secretary disclosed that cer-tain matters were known to him personally but the verificationstated that every thing was true to the best of his information andbelief. Bose, J., delivering the judgment of the Supreme Courtsaid—

"We point out as slipshod verifications of this typemight well in a given case lead to rejection of the affidavit.Verification should invariably be modelled on the lines oforder 19, Rule 3, of the civil procedure code, whether thecode applies in terms dr not. And when the matter deposed

(11) I.L.R. 37 Cal. 239.(12) A.I.R. 1952 S.C. 317.

142 MAHESH PRASAD SINHA V. MANJAY LAL [VOL. XXV

to is not based on personal knowledge the source of informa-tion should be clearly disclosed".The observations in the Padmabati Devi's case (13) were

endorsed in the above decision.

In the light of the observations referred to above, it wouldbe noticed that in the prescribed form of the affidavit in clause (b)to statements in certain paragaphs of the election petition to say forthe deponent merely that they are true to his information is notcorrect. Be that as it may, it is also clear that paragraph 3 of theaffidavit filed by respondent No. 1 is not quite in accordancewith law. The deponent had to specify as to which portions ofparagraphs 12 and 13 were true to his knowledge and whichportions were based upon information received from agents andvoters which he believed to be true. If possible, the namesof the agents and the voters should also be stated in the affidavit.I may, however, point out that it would appear from the order ofthe Election Tribunal {vide discussion under issue No. 1) that asimilar defect was there in the verification of the petition also butthat was sought to be rectified by filing a petition for amendmentwhereby it was stated that the statement contained in paragraphs12 and 13 were wholly based upon information. The verificationof the election petition has been allowed to be amended underorder VI rule 17 of the Code of Civil Procedure in accordancewith the decision of the Supreme Court in A.I.R. 1955 SupremeCourt 610 and so also in view of the decision of the Supreme Courtin Harish chandra Bajpai v. Triloki Singh (13). But a questionarises as to whether a defective affidavit can be rectified by a peti-tion of amendment under order VI rule 1 7 of the Code. Inmy opinion, the affidavit filed in compliance with the proviso tosub-section (1) of section 83 is not a part of the pleading, ie.,the election petition. It is a statement on oath by way of someevidence for the object stated above and it cannot be allowed to beamended by a petition of amendment filed in accordance withrule 17 of the Order VI of the Code. But the defect can be removedby filing another affidavit either in the prescribed form or substan-tially in the form in which it has been filed after removing suchdefects, as may be there, one of which I have referred to above.In regard to the alleged defect of there being no affidavit in supportof the alleagations of corrupt practices in paragraph 10 of theelection petition, the contention of Mr. K. P. Varma, learnedcounsel for respondent No. 1 is that those allegations are mainlyand chiefly not with reference to the' commission of any corruptpractices but have been made with reference to the commission

(13) A.I.R. 1957 S.C. 444.

E.L.R.] D. N. PATIL V. D. K. KHANVII.KAR 143

of certain illegalities in the conduct of the election on the partof the officers concerned. It is not necessary for me to decide thismatter. Respondent No. 1 while filing a fresh affidavit, mayadopt such course in regard to the allegations in paragraph 10 ofthe election petition as he may be advised to do.

In the result, while upholding the decision of the ElectionTribunal that the requirement of the proviso to sub-section (1)of section 83 of the ACT for the filing of the affidavit in the pres-cribed form is directory and not mandatory, I do not feel persuadedto uphold the whole of the order when it says that the defect or theirregularity in the affidavit filed by respondent No. 1 "should nothowever affect the jurisdiction of the Tribunal to try the case ofcorrupt practice raised by the petitioner" as it seems, in its view,the defect does not require any rectification. In exerciseof the powers of this Court under Article 227 of the Constitutionof India, I modify the order of the Election Tribunal and direct itto require respondent No. 1 to file within the time to be fixedby it another proper affidavit either in the prescribed form or inthe form in which it has already been filed after removing thedefects therefrom. The application is accordingly allowed to theextent indicated above but in the circumstances I would makeno order as to cost.

RAMASWAMI, C.J.—I agree.Petition partly allowed.

[IN THE HIGH COURT OF MAHARASHTRA]

DATTATRAYA NARAYAN PATILv.

DATTATRAYA KRISHNAJI KHANVILKAR AND OTHERS(TAMBE AND KANTAWALA, JJ)

September 2, 1963

Representation of the People Act, 1951, 5.123(4)—Scope of—Whether proofof publication of false statement enough—or whether Court to be satisfied as to prejudicialeffect on candidates prospects—Expression "calculated", meaning of.

The appellant challenged the first respondent's election mainly on theground that the respondent, who was the publisher, printer and editor of aweekly, published articles, editorials and news-items containing variousfalse statements of facts relating to the personal character and conduct of theappellant and thereby committed corrupt practices within the meaning ofs.l23(4)". The Tribunal dismissed the petition holding that the allegedcorrupt practices were not proved.

144 D. N. PATIL V. D. K. KHANVILKAR [VOL. XXV

On appeal to the High Court :

HELD : The contention that S.123(4) enacted an absolute bar andthat therefore if there was a publication of false statements of fact in relationto the personal character or conduct of a candidate with the intention ordesign of prejudicing the prospects of that candidate's election, then thecourt must hold that the publication was hit by the provisions of that section,could not be accepted. To so hold would render the concluding clauseof sub-section (4) being a statement "reasonably. calculated to prejudicethe prospects of that candidate's election, superfluous. While the othercorrupt practices mentioned in s.123 are established on proving the existencesof facts as prescribed in sub-sections (1), (2), (3), (3A), (5), (6) and (7), so faras the corrupt practice contained in sub-section (4) is concerned, the legisla-ture has added a further clause contained in the concluding portion of thesub-section mentioned above. In view of the use of the expression "calculated"instead of "designed" or "intended" in sub-section (4), it would be reason-able to hold that what is provided in that sub-section is that the publicationof false statement of fact relating to the personal character or conduct mustbe such as would in the estimation of the court, having regard to the natureof the publication, evidence tendered in Court and the surrounding cir-cumstances, have its natural and probable consequence of prejudicing theprospects of the candidate relating to whose personal character or conductthe publication has been made. In defining corrupt practices, the emphasisis not so much on the intention of a publisher of a false statement of factrelating to the personal character or conduct of a candidate, but on theprobable consequence of prejudicing the prospects of the candidate by sucha publication.

Sudhir Laxman Hendra v. Shripat Amrit Dange, 61 B.L.R. 500; Gangi Reddyv. jV. C. Anjaneya Reddy and others, 22 E.L.R. 261; Amirchand v. Smt. SuchelaKripalani, 18 B.L.R. 209 ; Emperor v. A. A. Alwe, 37 B.L.R. 892 ; Bhimraov. Ankush Rao, 22 E.L.R. 385; Abdul Rahimkhan v. Radhakrishna Biswas Roy,19 E.L.R. 278; Inder Lai v. Lai Singh, A.I.R. 1962 S.C. 1156, 1159: AbdulSattar Mohammed Hussain Jumader v. Badri JVarayan Bansilal Pallod, 63 B.L.R.563; referred to.

First Appeal against the decision of G. O. Bhejraj, EsquireMember, Election Tribunal and District Judge at Alibag, inElection Petition No. 32 of 1962.

P. D. Kamerkar, for the Appellant.

S. D. Kotwal with S. R. Chitnis, B. P. Yerurkar and G. V.Limaye, for Respondent No. 1.

S. S. Shahane, for Respondent No. 2.

JUDGEMENT

TAMBE, J.—This is an appeal under section 116-A of theRepresentation of People Act, 1951 (hereafter referred to asthe Act). In the General Election of Members to the MaharashtraLegislative Assembly from the Alibag Constituency of the KolabaDistrict, the appellant-petitioner D. N. Patil, the first respondent,

E.L.R.] D. N. PATIL V. D. K. KHANVILKAR 145

D. K. Khanvilkar, and the second and third respondents werethe contesting candidates. The appellant who belongs to thePeasants and Workers Party was candidate in the said Electionon behalf of the Samyukta Maharashtra Samiti, the first res-pondent was a candidate on behalf of the Congress Party ;respondent No. 2 was a candidate put up by the Praja-SocialistParty, and the third respondent was a candidate put up by theBharatiya Jan Sangh. The candidature of the appellant and thefirst respondent was announced some time in August 1961 ;the polling took place on 22nd February 1962, and the resultswere declared on 28th February 1962. The first respondent wasdeclared elected at the Election as a result of the counting ofvotes. The votes secured by the respective candidates were asfollows:—

(1) Petitioner (Appellant) ... . . 13,494(2) Respondent No. 1 . . . . 18,762(3) Respondent No. 2 . . . . 2,661(4) Respondent No. 3 . . . . 1,586

After the declaration of the result, the result has been duly dec-lared in the Maharashtra Government Gazette.

On the 4th July 1962, the petitioner-appellant filed an Elec-tion Petition, challenging the election of the first respondenton various grounds, inter alia, on the ground that the first res-pondent, who was the publisher, printer and editor of a weeklynewspaper "Nirdhar", had, during the election period, publishedarticles, editorials and news items containing false statements offact relating to the personal character and conduct of the peti-tioner, and thereby committed corrupt practices within the mean-ing of sub-section (4) of section 123 of the Act. The particularsof the alleged false statements were given by the petitioner inSchedule "A" of the Election Petition. The relief claimed bythe petitioner in the Election Petition was two-fold. Firstly, heprayed that the election of the first respondent be declared void,and the second relief claimed by him was that the petitionermay be declared to have been elected. The petitioner havingprayed that he be declared elected, the first respondent beingentitled under the provisions of section 97 of the Act to file recri-mination, had also filed recrimination against the petitioner,alleging therein various corrupt practices committed by the peti-tioner. The Election Tribunal held that the corrupt practicesalleged either by the petitioner or by the first respondent werenot proved. As regards the other allegations contained in the

21—3ECI/ND/67

146 D. N. PATIL V. D. K. KHANVILKAR [VOL. XXV

petition also, the Tribunal held that they were not proved. Inthe result, the Tribunal dismissed the election petition as wellas the recrimination application. The petitioner has appealedagainst the judgment of the Election Tribunal dismissing hiselection petition. The first respondent has also filed cross-objec-tions challenging the rejection of his recrimination applicationby the Tribunal.

Though various grounds have been raised in the appeal,Mr. vKamerkar, learned Counsel appring for the appellant-peti-tioner to the Election Petition, has only pressed the appellant'scontentions in respect of the corrupt practices alleged to havebeen committed by the first respondent by certain publications.The other grounds have not been pressed by Mr. Kamerkarbefore us. Mr. Kotwal, learned Counsel for the first respondent,has not pressed the cross-objections filed by the first respondent.No arguments have been advanced before us by Counsel appear-ing for the second respondent. He has only stated that thesecond respondent supports the arguments of Mr. Kamerkar.The third respondent did not put in appearance. In this appeal,we are concerned only with the certain publications in the issuesof "Nirdhar" (ftsrk) of 29th September 1961, 17th No-vember 1961, 1st December 1961, 8th December 1961, 22ndDecember 1961, 2nd February 1962 and 9th February 1962.

Before we refer to these publications to which our attentionhas been drawn by Mr. Kamerkar, it would be convenient torefer to the provisions of sub-section (4) of section 123 of the Act,under which, it has been contended, the said publications fall.Analysing the provisions of sub-section (4) of section 123, it isapparent that to bring the case under this sub-section, the peti-tioner must prove (1) that there was publication by a candidateor his agent or by any other person with the consent of the can-'didate or his election-agent, of any statement of fact which isfalse, and which he either believes to be false or does not believeto be true, (2) that the false statement is in relation to the personalcharacter or conduct of any candidate, or in relation to thecandidature or withdrawal of any candidate, and (3) that it is astatement reasonably calculated to prejudice the prospects ofthat candidate's election. The provisions of this section havebeen elaborately considered by a Division Bench of the Court inSudhir Laxman Hendra v. Shripat Amrit Dange(l). We do not,therefore, consider it necessary to go over the same ground again.Suffice it to say that with respect we concur in the propositions

(1) 61 B.L.R. 500.

E.L.R.] D. N. FATIL V. D. K. KHANVILKAR 147

laid down by this Court in this case, and which have been wellsummarised in the placitum in the following terms :—

"In order to come within the ambit of the term 'corruptpractice' under section 123(4) of the Representation of thePeople Act, 1951, there must be a false statement of fact by acandidate or his agent which is made in relation to the personal,character or conduct of any other candidate. Adverse criticismhowever severe, however undignified or illmannered, howeverregrettable it might be in the interest of purity and decency ofpublic life, in relation to the political views, position, reputationor action of a candidate, will not bring it within the mischiefof the statute. The Court in such matters cannot judge thesestatements in the light of their decency or desirability in so faras they are political statements not calculated to attack the per-sonal character or conduct of any rival candidate. What isobjectionable is a false statement of fact, and not a false statementof opinion however unfounded or however unjustified. It isonly when the person beneath the political is thought to beassailed and his honour, integrity and veracity are challengedand such a statement is false that it can be said that a false state-ment of fact about his personal character and conduct is made ;and once it is established that such a statement was made, thequestion whether there was malice or not is immaterial. Inascertaining the true nature of the statement made the Courtmust take into consideration all the surrounding circumstancesincluding the occasion when it was published or made, the personagainst whom it was made, the person publishing it or making it,the audience or readers to whom it is addressed as also theprecautions or care taken by the publisher to verify the truth orotherwise of the statement challenged."

The expression "personal/character or conduct" has been ex-plained by Their Lordships of the Supreme Court in T. K. GangiReddy v. J\f. C. Anjaneya Reddy and others, (2) in the follow-ing words :—

"The words 'personal character or conduct' are notclear that they do not require further elucidation or definition.The character of a person may ordinarily be equated withhis mental or moral nature. Conduct connects a persons'sactions or behaviour."

As regards the burden of pressing the corrupt practiceswithin the meaning of sub-section (4) of section 123 of

(2) 22 E.L.R. 261 at p. 266.

148 D. N. PATIL V. D. K. KHANVILKAR [VOI. XXV

the Act, Their Lordships in the same decision at page 263observed :—

"Burden of proof has two distinct meanings, viz., (i)the burden of proof as a matter of law and pleadings, and(ft) the burden of proof as a matter of adducing evidence.Section 101 deals with the former and section 102 with thelatter. The first remains constant and the second shifts.In the present case, the burden of proof, in the first sense,certainly lies on the first respondent (the petitioner who hadfiled an election petition, alleging corrupt practice) ; buthe has examined himself and has specifically stated in theevidence that he has neither committed the murder norhas he been guilty of any violent acts in his political carrier.He has placed before the Court the circumstances, namely,the situation created by the murder of Narayanswamy andthe possible impact of that murder on the poll which wasscheduled to take place in a few days thereafter, indicatingthereby a clear motive on the part of the appellant to makefalse allegations against him. A Court of first instance or anappellate Court is entitled to accept his evidence. If so,the onus shifts on to the appellant to prove these circum-stances, if any, to dislodge the assertions of the first respon-dent. The appellant has failed to put before the Courtany fapts to establish either that the first respondent didin fact commit the murder or any other acts of violence in thepast or to give any other circumstances which made himbonafide believe that he was so guilty. In the circumstances,the Court is entitled to say that the burden of proving thenecessary facts had been discharged by the first respondent."

From the aforesaid observations of their Lordships, it is clear thatthe burden of proving that the impugned allegations of factsare false lies on the petitioner, and that burden, is dischargedby the petitioner by examining himself and denying the allegedfacts said to have been committed by him, and if the evidenceof the petitioner is, in the circumstances, accepted by the Court,then the burden shifts on to the person publishing the statementsto prove that the alleged facts are true, or to prove some othercircumstances, which made him bona fide believe in these facts.In the light of the aforesaid observations, the impugned publica-tions will have now to be examined.

It is not in dispute that the publisher, namely, the firstrespondent was a candidate at the Election. It is also not in dis-pute that the publications were made after the candidature of thepetitioner and the first respondent had been announced. The

E.L.R.] D. N. PATIL V. D. K. KHANVILKAR 149

first respondent, as already stated, was the Publisher", Printer andEditor of the Weekly "Nirdhar" which he published at Alibag,the Headquarters of the Kolaba District. It is also not in disputethat the newspaper published by the first respondent has consider-able circulation in the Alibag taluka, and therefore, it is notdisputed that the persons addressed by these articles in the news-papers were the voters in the Alibag Constituency. In view ofthis admitted position, the points that will fall for considerationare : (1) whether the publications contained false statementof facts ? (2) whether these false statements of fact relate to thepersonal character or conduct of the petitioner ? and (3) if thefindings on the aforesaid two issues in respect of any statement isin the affirmative, whether the said statements are such as canreasonably be calculated to prejudice the prospects of the peti-tioner's election ?

The petitioner has examined himself in relation to all thesepublications and has on oath stated in the witness-box that theallegations are false. His evidence in this respect has beenaccepted by the Tribunal.

(After considering the publications complained of and theevidence, the judgement continued) :

These were the only articles which have been pressed beforeus in appeal by Mr. Kamerkar. For the reasons stated above,in our opinion, the petitioner has been able to establish that thefirst respondent has published two false statements of fact relatingto the personal character and conduct of the petitioner. Chrono-logically stated the first statement is one appearing in the issueof Nirdhar of date 17th November 1961 : (Hindi text omitted)and that statement is that he offered to the villages of Talavali andNavkhar to conduct their cases free in the event they agreed tovote for him. The second statement is contained in the issue ofNirdhar of date 22nd December, 1961 (Exhibit 84). It is a newsitem appearing at page 3 under the heading "(Hindi text omitted). . . . " . Wherein it has been insinuated that the petitioner was invillage Chinchoti on 18th November, 1961 and instigated some ofthe Samiti people to assault some congress workers, and somecongress workers including a woman were consequently assaultedwith sticks by the Samiti people on 19th November, 1961.

The next question that has to be considered is whether thesefalse statements of fact are statements reasonably calculated toprejudice the prospects of the petitioner's Election within themeaning of sub-section (4) of section 123 of the Act. Mr.Kamerkar, in the first instance, contends that sub-section (4) of

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section 123 enacts an absolute bar. If there is a publication offalse statements of fact in relation to the personal characteror conduct of a candidate with the intention or design of prejudi-cing the prospects of that candidate's election, then the Courtmust hold that the publication is hit by the provisions of section123(4) of the Act. In this connection, Mr. Kamerkar alsobrought to our notice the provisions of section 100 (1) (d) (ii)of the Act. He also referred us to certain observations inAmirchand v. Smt. Sucheta Kripalani(3). We find it difficult toaccept the contention of Mr. Kamerkar that sub-section (4) ofsection 123 contains any such absolute bar. To so hold wouldrender the concluding clause of sub-section (4) being a statementreasonably calculated to prejudice the prospects of that candidate'selection" superfluous. If the intention of the Legislature hadbeen as is contended for by Mr. Kamerkar, there would havebeen no necessity for the Legislature to incorporate the said con-cluding clause in sub-section (4). On the examination of theother provisions of section 123 it would be seen that so far as theestablishment of corrupt practices of bribery, undue influence,an appeal by a candidate or his agent or by any other personwith the consent of a candidate or his election agent to vote orrefrain from voting for any person on the ground of his religion,race, caste, community or language or the use of, or appeal to,religious symbols or the use of, or appeal to, national flag or thenational emblem.. . .etc., or the corrupt practice of promotionof, or attempt to promote, feelings of enmity or hatred betweendifferent classes of the citizens of India or the hiring orprocuring, whether on payment or otherwise, of any vehicle orvessel by a candidate or his agent, for the conveyance of anyelector etc., or the corrupt practice of obtaining or procuring orabetting or attempting to obtain or procure by a candidate orhis agent, any assistance for the furtherance of the prospects ofthat candidate's election from any person in the service of theGovernment is concerned, the corrupt practice gets esta-blished on proving the existence of these facts as prescribed insub-sections (1), (2), (3), (3A), (5), (6) and (7) of this section,and nothing more is required to be established. But so far as thecorrupt practice contained in sub-section (4) is concerned,the Legislature has added a further clause which is contained inthe concluding part of sub-section (4) of section 123. Comparingthe provisions of section 100(1) (d) (ii) with sub-section (4) ofsection 123 also does not take the case of the petitioner any further.It has to be noticed that the said provision does not define"corrupt practice", but prescribes the grounds for declaring anelection to be void, and the relevant provision provides that

(3) 18 E.L.R. 209 at p. 237.

E.L.R.] D. N. PATIL V. D. K. KHANVILKAR 151

subject to the provisions of sub-section (2), if the tribunal is ofopinion that the result of the election, in so far as it concernsa returned candidate, has been materially affected, by any corruptpractice, committed in the interests of the returned candidateby an agent other than his election agent, the Tribunal shalldeclare the election of the returned candidate to be void. Itwould be seen that the said provision deals with a case where acorrupt practice has been committed by a person other than acandidate or the election agent of the candidate without theconsent or knowledge or concurrence of the candidate or hiselection agent. Obviously the candidate or his election agentnot being privy to the commission of the corrupt practice, thelegislature requires that mere proof of commission of corruptpractice is not sufficient to set aside an election. It must furtherbe positively established by evidence that the result of the electionin so far as it concerns returned candidate has been materiallyaffected. In other words, what the Legislature has said is thatin such a case mere proof that the publication is reasonablycalculated to prejudice the prospects of that candidate is notsufficient. It must also be positively established that the resultof the election has, in fact, been materially affected. The clauseis of no assistance in ascertaining what is a corrupt practice orwhat ingredients are required to be established to enable theCourt to hold that corrupt practice has been committed. Nodoubt the following observations in Amirchand v. Smt. Sucheta Krip-alani, on which reliance is placed by Mr. Kamerkar, viz- '•—

"Coming to the last ingredient that the publication wasreasonably calculated to prejudice the election, the argumentof Shri Joshi as stated above, was that it is for the Tribunalto calculate now, whether the news which was contradicted,was calculated to prejudice the election. This argumentobviously cannot be treated as a right argument. Thewords "reasonably calculated" manifestly show that onewho got the news published gave it with the express desireand calculation that it would improve the prospects ofthe respondent."

help the appellant in his contention that what the Court has toconsider is the intention, desire or the design of the publisher at thetime of the publication, in considering whether the publicationis reasonably calculated to prejudice the prospects of that can-didate. With respect, it is not possible for us to agree with thisview. Had the Legislature intended that the deciding factorshould be the intention of the publisher and not the view whichthe Court would take in the circumstances of the case, the Legis-lature would have used the words "intended" or "designed"

152 D. N. PATIL V. D. K. KHANVILKAR [VOL. XXV

instead of using the word "calculated" in this clause. Thedifference between the two words has been pointed out by aDivision Bench of this Court in Emperor v. A. A. Alwe(4). It istrue that the question which fell for consideration was not theconstruction of sub-section (4) of section 123 of the Act, butrelated to the construction of section 16 (1) (b) of the TradeDisputes Act, relating to strike which was illegal and whichprovided that a strike is illegal, if it is designed or calculated toinflict severe, general and prolonged hardship upon the commu-nity and thereby to compel the Government to take or abstainfrom taking any particular course of action. Considering themeaning of the two expressions "designed" and "calculated",the learned Chief Justice observe at p. 897 :

"In my opinion, the word 'designed' is equivalent to'Planned'. The section does not say by whom the designis to be formed : but I take it, that must be by the personsresponsible for the s tr ike. . . . On the other hand, the word'calculated' seems to me to be directed to probable conse-quence which may be expected to follow from the strike,apart from what was in the minds of those responsible.In order to show that the strike was calculated to have theeffect referred to in sub-section (1) (b), I think the Courtmust hold, having regard to the nature of the strike and thecircumstances prevailing at the date of the instigation orother acts specified in section 17, that the natural and pro-bable consequences of the strike will be to inflict such severe,general and prolonged hardship upon the community thateither the Government of India or the local Government mayreasonably be expected in consequence thereof to be com-pelled to take or abstain from taking any particular courseof action".

In our opinion, therefore, the Legislature having in its wisdomused the expression "calculated" and not "designed" or "inten-ded", it would be reasonable to hold that what is provided insub-section (4) is that the publication of false statement of factrelating to the personal character or conduct must be such aswould in the estimation of the Court, having regard to the natureof the publication, evidence tendered in Court and the surroundingcircumstances as have its natural and probable consequence ofprejudicing the prospects of the candidate relating to whosepersonal character or conduct the publication has been made.Considering the case from another angle also lends support to the

(4) 37 B.L.R. 892.

E.L.R.] D. N. PATIL V. D. K. KHANVILKAR 153

conclusion to which we have come. In publishing certainitems, a publisher may not intend or would not think that theprospects of the candidate would be prejudiced. There may becases where the publisher may not even be aware that a publica-tion has been made in his paper. Some person may inadver-tently put something in a newspaper published by a candidatewhich would affect the personal character or conduct of acandidate. In these circumstances, it cannot be said that thepublisher did intend to prejudice the prospects of the candidate.But none the less the result might be so. Did the Legislature,in such cases, intend that the election should not be set aside ?In our opinion, in defining corrupt practice, the emphasis is notso much on the intention of a publisher of a false statement offact relating to the personal character or conduct of a candidate,but the emphasis is on the probable consequence of prejudicingthe prospects of the candidate by such a publication. Thisappears to be the intention having regard to the basic principlesthat the election should be a free election and that the electionof a person who has secured the highest number of votes at thepoll should not be disturbed without a good and just cause.Whatever be the intention of a publisher if the natural and pro-bable consequences of the publication of a false statement relatingto the personal character or conduct be of prejudicing the mindsof the voters, the election cannot be said to be a free one. If onthe other hand, the reasonable and probable consequences arenot likely to be so and yet the election has to be set aside merelybecause the publisher intended it to be so the verdict given by thevoters would be set at naught without just cause. In our opinion,therefore, the first contention raised by Mr. Kamerkar should fail.

In the alternative Mr. Kamerkar argues that even assumingthat it is for the Court to estimate the reasonable and possibleconsequences of the publication, and the intention or design of thepublisher is of little consequence, the only factors that could betaken into consideration by the Court are the occasion on whichthe publication was made, the persons to whom it is addressed,and the person who publishes it. If the occassion of the publica-tion is the election time, if the persons addressed are the voters,and if the publisher is a condidate at the election or his electionagent or some other person with the connivance of the candidateof his election agent, then the Court must hold that the publicationwas reasonably calculated to prejudice the prospects of thatcandidate. In the instant case, the publications were madeafter the candidature of the appellant and the first respondentwere announced. The publisher is respondent No. 1 himself.The persons addressed are the residents of Alibag taluka amongst

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154 D. N. PATIL V. D. K. KHANVILKAR [VOL. XXV

whom the paper has circulation ; the voters are therefore ad-dressed. These facts having been established, according toMr. Kamerkar, we must hold that the publication was reasonablycalculated to prejudice the prospects of the appellant. Mr.Kamerkar also has referred us to the following decisions:—Bhimrao v. Ankush Rao (5) ; Abdul Rahiman Khan v. RadhakrishnaBiswas Boy (6) ; and Inder Lai v. Lai Singh (7) ; where electionshave been set aside on proof of facts that false statements relatingto the personal character or conduct of a candidate bas beenpublished. He also referred us to the decision in Abdul SattarMohamed Hussain Jatnader v. Badri Marayan Bansilal Pallod (8)563. The argument is virtually the first argument in a differentgarb. In short, the argument is that merely on a proof that afalse statement of fact relating to the personal character or conductof a candidate is published by a candidate or his election agentor with his consent after the candidature has been announced,the election must be set aside. We have already discussed that,in our opinion, establishing those facts alone is by itself not suffi-cient, but the publication in the circumstances of the case mustjbe,in the estimation of the Court, such as to have the probableand reasonable consequence of prejudicing the prospects of thatcandidate. It is indeed true that the circumstances mentionedby Mr. Kamerkar are relevant circumstances which have to betaken into account. They are the basic facts. If they do notexist the question of ascertaining the consequences of the publica-tion does not arise. It is only when these basic facts are esta-blished that the Court is called upon to form its opinion as towhether the publication is such that its effect reasonably wouldbe to prejudice the prospects of the candidate. All the circums-tances that would have a bearing on the decision of the issuewould, in our opinion, be therefore relevant in considering theissue. What the Court has to decide in short is what would, inthe circumstances of the case, be the effect of the impact of thepublication left on the minds of the voters at the times they vote.Would it be such as would prejudice the voters against thecandidate relating to whom the publication has been made ?If the result of the inquiry would be that such would be thecase, then the publication would be such which could be rea-sonably calculated to prejudice the prospects of the candidate.If, on the other hand, the conclusion reached would be that theeffect of the impact would not and could not be of such a naturein the circumstance of the case then, the finding will have to be

(5) 22 E.L.R. 385.(6) 19 E.L.R. 278.(7) A.I.R. 1962 S.C. 1156 (1159).(8) 63 B.L.R, 563,

E.L.R.] D. N. FATIL V. D. K. KHANVILKAR 155

that the publication is not such which can be reasonably cal-culated to prejudice the prospects of the candidate. In otherwords, the Court has to determine what would be the effect ofthe impact of the publication left on the minds of the voters atthe time of casting their votes. The circumstances which wouldhave a bearing on the determination of this question would, inour opinion, be the relevant circumstances lor the decision of thisissue. The Court would, in the first instance, ask the questionwhat is the reaction on the candidate himself of the publication.Does he think that it is likely to prejudice his prospects or doeshe not think so. Has he published any contradiction ? Whatis the reaction of his election agent and the supporters of thecandidate ? What have they done in this matter ? What is theproximity of the date of the publication to the date of election ?What is the nature of the allegations contained in the publication ?It is indeed true that the Court would not blindly accept thecandidate's or his election agent's evidence that it affected orprejudiced his prospects, or blindly accept the statement of thepublisher that it did not prejudice the prospects of the candidaterelating to whom the publication has been made. They would,in the circumstances, be admissions in their own favour. Butthe admission or the statement of the candidate relating to whomthe publication has been made, or the conduct of the candidateor his election agent which would go to show that he or his electionagent did not consider the statement to be such as was likely toeffect his prospects at the election, would certainly be relevantfactors, it being an admission against his interest or conduct whichwould be relevant because it is an admission made against hisown interest. All these circumstances, to which we have madereference, will be material and relevant considerations, andin our opinion, the court will be justified in taking these circums-tances into account in deciding the issue as to whether a particularpublication, would reasonably be calculated to prejudice theprospects of that candidate.

The decisions to which our attention was drawn by Mr.Kamerkar render little assistance to him, inasmuch as the ques-tion which we have to consider was either not raised or did notfall for consideration. In Bhim Rao v. Ankush Rao, 22 E.L.R.385, the date of Election was 2nd February 1958, and the im-pugned publication was on the eve of the Election, i.e., 1stFebruary 1958, that being the position, there could be no doubtthat the publication would reasonably be estimated to haveadversely affected the prospects of the candidate relating towhom the publication was made. Similar was the case in lnd.trLai v. Lai Singh{l). The facts are not given in the Supreme

(7) AIR. 1962 SC-1156 (1159).

156 D. N. PATIL V. D. K. KHANVILKAR [VOL. XXV

Court decision, but that is a decision on appeal from the decisionof the Rajasthan High Court and the facts of the case have beenstated in A.I.R. 1961, Rai. 122. It would be seen that in thatcase also, the publication was continued right up to the eve of thedate of election. It may however be observed that the observa-tions to which our attention was drawn by Mr. Kamerkar lend,to some extent, support to the view taken by us. In paragraph 12of the report, Their Lordships of the Supreme Court observed :

"(12) But the position with regard to the private orpersonal character of the candidate is very different. Cir-culation of false statements about the private or personalcharacter of the candidate during the period precedingelections is likely to work against the freedom of electionitself inasmuch as the effect created by false statementscannot be met by denials in proper time and so the consti-tuency has to be protected against the circulation ofsuch false statements which are likely to affect the votingof the electors. That is why it is for the protection of theConstituency against acts which would be fatal to thefreedom of election that the statute provides for the inclu-sion of the circulation of false statements concerning theprivate character of a candidate amongst corrupt practices.Dissemination of false statements about the personal cha-racter of a candidate thus constitute a corrupt practice."

Thus it would be seen that the object of the provision is to protectthe constitutency against circulation of false statements aboutthe private and personal character of the candidate during theperiod preceding election in such manner as to leave the oppor-tunity to the other side to meet it by denials in proper times.That indicates that the proximity of the date of publication tothe date of election would be a relevant consideration in consi-dering whether the publication is such as would reasonably becalculated to prejudice the prospects of that candidate.

It is indeed true that there is a gap of about 3 weeks betweenthe date of publication and the date of poll in Abdul Rahiman Khanv. Radha Krushna Biswas Roy, 19 B.L.R. 278, but the question as tothe true import of the meaning of the last clause of sub-section (4)of section 123 of the Act was not raised in that clause.

The decision in Abdul Sattar Mohmed Hussain Jamndar v. Badri-Narayan Bansilal Pallod, (5) is distinguishable on facts. Thequestion that fell for consideration in that decision was how theCourt should determine whether a mark is a counterfeit mark ornot. In considering the question whether the accused was guilty

(5) 63. BLR-563.

E.L.R.] D. N. PATIL V. D. K. K.HANVILKAR 157

of offences under sections, 482, 483, 485 and 486 of the IndianPenal Code, it was observed that the test to be applied by theCourt is not by keeping the mark and the counterfeit mark togetherand ascertain whether the two marks are identical, but considerthe question whether an unweary purchaser would be decievedin the matter of purchasing goods by the counterfeit mark, and thisissue has to be decided without any aid or opinion of the wit-nesses. The decision, in our opinion, is not an authority forholding that in every case where the Court has to estimate aprobable consequence of an act it cannot take into considerationthe evidence relevant to the determination of that issue.

We have already referred to the circumstances which, inour opinion, are relevant for the decision of the issue with whichwe are concerned, namely, whether the two false publicationsare such as can reasonably be calculated to prejudice the pros-pects of the candidate at the election. Now, the date of theelection is 22nd February 1962. The dates of these two publica-tions are 17th November 1961 and 22nd December, 1961. Thepublications are three or two months prior to the date of theelection. Having regard to the considerable lapse of time betweenthe date of the publication and the date of the election and thenature of the publications, it is difficult to assume that it waslikely that these publications had left any effect on the minds ofthe voters influencing them at the time when they went to the poll.Further it is not in dispute that the petitioner was from time totime publishing articles in the newspaper edited and publishedby his brother Prabhakar. Similarly it is not in dispute thatfrom time to time Prabhakar also was publishing articles,contradictions and also carrying on election propaganda onbehalf of the petitioner in his paper "Nava Krishival", Exhibit166 and 100 can be referred to as illustrations wherein the petition-er himself has published contradictions about the news appearingin "Nirdhar" relating to him. Exhibit 166 deals with the standof the petitioner in the matter of Khar lands Act of Alibag taluka,and Exhibit 100 is a speech of the petitioner published, challengingthe publication that the petitioner had any hand in getting forhimself Rs. 22,000 expended on the Sambri murder case. Thereis not a single publication either by the petitioner or his brotherPrabhakar, who was also his election agent, relating to the twopublications which we have held as false statements of facts rela-ting to the personal character of the petitioner. The omissionon the part of the petitioner to publish contradictions in thematter of these two publications when he and his election agenthad ample opportunity and means of doing so, in our opinionreasonably leads to an inference that even the petitioner or hiselection agent did not consider these two statements to be such

158 D. N. PATH, V. D. K. KHANVILKAR [VOL. XXV

as would reasonably prejudice his prospects at the election. Intheir examination-in-chief, neither the petitioner for his electionagent Prabhakar has any where stated that these publications inthe Nirdhar had any adverse effect on his election. It is indeedtrue that during the course of the cross-examination, in paragraph22 of his deposition he has stated that the statement published inNirdhar and referred to by him prejudiced his prospects at theelection. But then this statement is also vague and does notparticularise any publication. We have already discussed thatexcept the aforesaid two articles the other publications in Nirdhareither related to his public conduct or related to persons otherthan the petitioner. There is no categorical statement by thepetitioner that these two statements had any prejudicial effecton his election. Apart from it, the effect of the aforesaid state-ment in paragraph 28 of the cross-examination, in our opinion,is also considerably watered down by the admissions subsequentlymade by the petitioner during the course of his cross-examination.In paragraph 30 of his deposition, the petitioner admits that on20th January 1962, he had addressed a meeting in Chikhali, andhe found that there was a general support for him amongst thevoters. He also admits in the same paragraph that on 18thFebruary 1962 he had addressed a meeting at Alibag and it wasattended by about 2,500 persons and he found that the wholeof Alibag town was moved by the propogandas made by theSamiti. Later in the same paragraph the petitioner admits thatin the issue of "Nava Krishival" of 19th March 1962, a letterwritten by his election agent of dated 16th February 1962, waspublished. The heading of the letter is "do not get irritated bythe goondaism of the Congress", and the letter concludes "thedefeat of the Congress is certain ; and the Congress as well as aretrying to collect material for an Election petition." When theconclusions mentioned in that letter were put to the petitioner,the petitioner admitted that till the date of the letter the predictionabout the result was correct. There are certain other admissions al-so, but it is not necessary to reproduce all of them here. It wouldbe seen from these admissions that both the petitioner and hiselection agent and another Prabhakar till about four to six daysbefore the date of election were sure that the prospects of thepetitioner at the election were bright and had not in any mannerbeen prejudiced by the articles appearing in Nirdhar prior to thatdate. The analysis of the failure of the petitioner has also beengiven by the petitioner's brother in Exhibit 117 in the issue of"Nava Krishival" of dated 5th March 1962, published soon afterthe declaration of the result, and in the analysis the cause givenfor the failure at the election is the show of power and wealthmade by the Congress party two days before the election. In

E.L.R.] KODURI KRISHNARAO V. ALLURI BAPINEEDU 159

our opinion, therefore, having regard to the nature of the twostatements, having regard to the dates of publication of thesestatements, and the date of the election, the omission on the partof the petitioner or his election agent to contradict those twostatements, and the admissions made by the petitioner, it is notpossible to hold that the two statements are such as would rea-sonably be calculated to prejudice the prospects of the petitionerat the election. In the circumstances we have no hesitation inholding that the election was a free election and was not vitiatedby the alleged corrupt practices.

For the reasons stated above, in our opinion, no interferencewith the decision of the Tribunal is called for. In the result,the appeal fails and is dismissed. The cross-objections are notpressed and hence no order on the cross-objections. In the cir-cumstances, there wll be no order as to costs in the appeal and inthe cross-objections.

Appeal Dismissed.

[IN THE HIGH COURT OF ANDHRA PRADESH]

KODURI KRISHNARAOV.

BAPINEEDU(SATYANARAYANA RAJU AND VENKATESAM, JJ.)

September 3, 1963.Representation of the People Act, 1951, s. 100(1) (d)(iii)—improper reception, re-

fusal or rejection of any vote.—Recount—circumstances justifying—Matter of discre-tion with the Court—necessity of protest before election officer.

The appellant challenged the validity of the election of the first respon-dent on various grounds by an election petition which was dismissed by theTribunal. In the appeal to the High Court, the only contention pressedwas that since the margin of votes by which the first respondent had won theelection was only 207 and the number of votes rejected was about 1900, theappellant was entitled to ask for a scrutiny of ballot papers by the Tribunaland a recount.

HELD :—Apart from the vague assertion that a large number of votescast for the appellant had been wrongly rejected, there was no proof in supportof the same. Further, neither the appellant nor his counting agents everprotested even orally to the Returning Officer about the rejection of the votes.

Though the Act does not provide for a recount or scrutiny as such,recount can be ordered by the Tribunal to establish improper reception,refusal or rejection of any vote. A roving enquiry to fish out materials toestablish a case for recount cannot be permitted. The demand for recount-ins; is not a matter of right but is a matter of discretion for the couit andthis cannot be invoked if the counting agent had not protested though notin writing, before the election officer.

*60 KODURI KRISHNARAO V. ALLURI BAPINEEDU [VOL. XXV

Adamala Mohan Reddy v, Anugu Narayan Reddy, 1963 II Andh. W.R. 101;relied on.

Pethu Reddiar v. Mutkiah, (1963) I I M.L.J . P . I ; Ramalingam v. KandukuriRagharulu, 1963. I An. W.R. 442; referred to.

Special Appeal against the decree of the Court of the ElectionTribunal, Eluru, in Election Petition No. 134 of 1962.

R.V. Vidyasagar and C.V. Subbarao, for the Appellant.A Sambasiva Rao and K. Ramanatham, for the Respondent

No. I.

JUDGMENT

VENKATESAM, J. This special appeal is directed against theorder of the Election Tribunal, Eluru, in Election PetitionNo. 134 of 1962, on his file. It was filed by one Koduri Krishna-rao (Petitioner) against Alluri Bapineedu (hereinafter referredto as the first respondent) and two others, under Sections 81 and83 of the Representation of the People Act, 1951, for a decla-ration that he has been duly elected to the Andhra PradeshLegislative Assembly at the General Elections held on 19-2-1962,from Kowur Constituency in West Godavari district, and that theelection of the 1st Respondent is void, or in the alternative to setaside election and order of fresh election, or to order a recountof ballot papers polled in the election, and other reliefs.

The Petitioner stood as an independent candidate andhad chosen the symbol of a cycle, while the 1st Respondent con-tested the election as a Congress candidate whose symbol wasa pair of bullocks and a yoke. Respondent 2 stood for the Re-publican party and Respondent No. 3 as an independent can-didate and they not only lost their election, but also their deposits.1st Respondent secured 27,873 votes, while the Petitioner got27,666 votes, and consequently the 1st Respondent was declaredelected by a majority of 207 votes. The validity of the electionwas challenged on several grounds, inter alia, that out of the totalnumber of votes polled, as many as 1,900 were declared invalidby the Returning Officer on insufficient and improper grounds,and that the majority of them shduld have been counted for thePetitioner. The voters whose votes had been rejected expressedtheir intention and preference unequivocally by marking with therubber stamp clearly on the Petitioner's symbol. Nonetheless,the Returning Officer unjustly rejected such votes, though therewas no other mark. Further, on account of some of the illiteratevoters refolding the ballot paper breadth-wise after putting the

E.L.R.] KODURI KRISHNARAO V. ALLURI BAPINEEDU 1 6 1

stamp, some ink might have been found in the space oppositeto the stamp mark, and such votes also were rejected as invalid.Thus, large number of votes cast in favour of the Petitionerwere improperly rejected by the Returning Officer, and if theywere taken into account, the Petitioner would have'been declaredelected. It was also alleged that in Penakanametta PollingStation some of the ballot papers on which the votes were cast infavour of the 1st Respondent did not contain the mark whichthey should have under sub-rule (1) of Rule 38 of the Conductof Election Rules, and they should have been rejected. Othergrounds also were alleged, but-it is not'necessary to advert tothem.

The petition was opposed by the 1st Respondent who deniedall the allegations, and averred that under the rules the ballotpapers had to be folded in the manner specified as otherwiseit would violate the principle of secrecy, and as such they should .be declared invalid. The Returning Officer could*reject a ballotpaper under Rule 55 if it bears any mark by which the electorcan be indentified, or if the mark indicating the vote is placedin such a manner as to make it doubtful to which candidatethe vote has been given, or if votes are given to more than onecandidate. The said rules were strictly followed by the ReturningOfficer and as such the rejection by him was not improper orinvalid. Out of the rejected votes, the 1st Respondent lost morethan the Petitioner himself. At any rate, as already stated, thePetitioner not having raised any objection to the rejection of thevotes by the Returning Officer, he is not entitled to raise thisplea in the election petition. The Petitioner had not given anyparticulars df the votes wrongly rejected, and that vague allega-tions did not deserve any scrutiny.

The Election Tribunal, in view of the contentions raisedframed as many as 22 issues, and substantially found, themagainst the Petitioner and on those findings, dismissed the petition.

Aggrieved by this order, the Petitioner filed this appealunder section 116A of the Representation of the People Act,1951 (hereinafter called "the Act").

Sri Vidyasagar, the learned counsel for the Petitionerhas not pressed all the pleas raised before the Tribunal but res-tricted his submission to the question of re-count, meaningthereby scrutiny of the ballot papers rejected by the ReturningOfficer. He argued that since the margin of votes is narrow andthe number of votes rejected is about 1,900, out of which at .least1,300 or 1,400 cast for the Petitioner sliould have been declared

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valid, his client was entitled to a scrutiny by the Tribunal. Anadditional ground was raised that the fact that some ballot paperswere missing also justified a recount.

Before examining the evidence, it may be necessary to statethe law relating to recount of rejected votes. It is well-settledthat though the Act does not provide for a re-count or scrutinyas such, re-count can be ordered by the Tribunal to establishimproper reception, refusal or rejection of any vote, or receptionof any vote which is void. A roving enquiry to fish out materialsto establish a case fon re-counting cannot be permitted. Thedemand for re-count is not a matter of right, but is a matter ofdiscretion for the Court. The Petitioner must give good reasonsor make out a prima facie case before a re-count can be ordered.A request for re-count can be made as prayer in the electionpetitions (vide RAMALINGAM V. KANDUKURI RAGHA-

.VULU, (1).

That decision was approved by a Bench of this Court inADAMALA MOHAN REDDY V. ANUGU NARAYANREDDY (2). After referring to sections 92, 98, 100 of the Act,and Rules 55, 57 and 63 of the Conduct of Election Rules, it waslaid down therein that the duty of scrutinising and rejecting theinvalid ballot papers is cast upon the Returning Officer. Theofficer is bound to reject a ballot paper if the vote is markedin favour'of more than one candidate, or the mark indicating thevote thereon is placed in such a manner as to make it doubtfulto which candidate the vote is given. But, before a bollot paperis rejected, the officer shall allow each counting agent a reasonableopportunity to inspect the ballot paper, to enable him to statewhether it has to be accepted or rejected. The Rules do notstate that an objection to the rejection of a vote should be inwriting, though it enacts that a request for re-count of votesshould* be in writing, and that the reasons for the officer for re-jecting' a ballot paper, and for refusing or granting a re-countshall be in writing. If the Tribunal comes to the conclusionthat the reasons for rejection of the votes of a particular candidateare wholly unsustainable, the benefit of those votes must be givento the concerned candidate, and to the detriment of his rival.A re-count is not granted as of right, but only on evidence of goodgrounds for believing that there has been a mistake on the part ofthe Returning Officer. Having regard to the fact that improperreception, refusal or rejection of a vote is a ground for declaringan .election void by a Tribunal an Election Tribunal can scrutinise

(1) (1963) I Andh. W.R. 44,2.(2) (1963) II Andh. W.R, 101,

E.L.R.] KODURI KRISHNARAO V. AL1 URI BAPINEEDU 163

the rejected ballot papers and examine the reasons thereon.This is not a matter of right. Nor can it be invoked if the countingagent had not protested, though not in writing, before the ElectionOfficer, At page 106, it was observed thus :

"It may be pointed out, at the outset, that in the electionpetition there is no averment that there was any protest bythe counting agent with regard to the rejection of any of thevotes, apart from alleging that a number of votes were rejectedby the election personnel without giving any considerationto the legality or otherwise of the same in any arbitrary raan-

' ner. When the respondent contended that the Rules werestrictly followed by the Returning Officer, and an opportunitywas given to the petitioner's counting agents to state theirobjections, and yet no objection was raised by them, itwas incumbent on the petitioner, by means of an additionalpleading, if necessary, to have asserted that the counting'agents objected to the rejection of some of the votes cast infavour of the petitioner, and, if so, what their .approximatenumber was. But that was not done. The endorsement ofthe Tribunal on the ballot papers does not suggest that thepetitioner requested for a scrutiny of the rejected ballotpapers. It is weil established that a re-count cannot beordered by a Tribunal except on prima facie proof of thepetitioner's case, and the proceedings before the Tribunalcannot be converted into a form for fishing out any possibledefects regarding which no objection was raised before theTribunal, or in the election petition and the same principleshould apply in the case of scrutiny. In this view, no except-tion can be taken to the Tribunal not granting scrutiny."

The Madras High Court recently held that an electiononce declared can be set aside only on the grounds referred to insection 100(1) of the Act. No election can be set aside on meresuspicion. The mere fact that a successful candidate securedonly a small number of votes over his nearest rival necessarilydoes not mean that there was something wrong about the election.Illegality or irregularity in an election or in the process of countingof votes is a matter for proof and nothing can be done on thebasis of mere suspicion. (3) (Vide PETHU REDDIAR V.MUTHIAH.

Bearing these principles in mind, we may now examinehe evidence in the case.

(3) (1963) II .ML.J.P .1.

164 KODURI KRISHNARAO V. ALLURI BAPINEEDU [VOL. XXV

It may be mentioned even at the outset, that the Petitionerhad not stated in his petition that either he or his counting agentsmade at least an oral protest to the Returning Officer that thevotes cast in his favour were rejected illegally and contrary toRules. The First Respondent in his counter categoricallydenied that suggestion and averred that no objection to therejection of the votes by the Returning Officer was raised by thePetitioner. Even thereafter, the Petitioner has not filed anadditional pleading or a rejoinder challenging the correctnessof the statement. We have, therefore to assume that there wasno protest before the Returning Officer by the Petitioner. Itremains to be seen whether at least the evidence establishes thatthere was a protest.

The Petitioner, Koduri Krishna Rao, examined as P.W. 1deposed that he along with six of his agents was present at thetime the counting of votes, that under the instructions of theReturning Officer 1,600 to 1,700 votes were rejected as invalid,and that according to him 1,300 to 1,400 votes which were castin his favour should not have been rejected, and in that case hewould" have surely won the election. Except 160 ballot papersin respect of Ponakanametta Polling Station, the ballot papers ofall other polling stations contained the seal showing the dis-tinguishing mark for the polling station. These 160 ballot papersought to have been rejected. In cross-examination he admittedthat he did not see if the Returning Officer examined the doubtfulvotes, and noted on each of them the word "rejected" or "accept-ed", and that he did not tell the Returning Officer aboutthe illegal procedure that was being adopted for rejecting thevotes at the counting tables. The witness did not protest to theReturning Officer, nor request him to scrutinise the rejectedvotes because he himself was announcing that whatever mark wasfound in the symbol of any other candidate the vote would berejected. The witness stated that his objection was confined onlyin respect of rejection of such votes in which the voter had put theX in one place, and owing to folding of the ballot paper breadth-wise the ink smeared against any other symbol. He also statedthat it is natural that a rubber stamp when put fresh from thepad is more vivid and thick in colour than when it is put subse-quently. But from the papers it can easily be seen whether amark is a reprint or a fresh mark put by the voter himself. Thewitness stated that he made a complaint to the Returning Officerin respect of 160 Penakanametta votes which did not have themthe distinguishing mark, but not in writing, and that the Re-turning Officer gave decision against him. The witness did notnotice his votes being bundled up wrongly for the 1st Respondenttill after the counting. The Petitioner had no election agent.

E.L.R.] KODURI KRISHNARAO V. ALLURI BAPINEEDU 165

He did not send a written application to the Returning Officer,because he knew that the re-counting by the same ReturningOfficer would end in the same result as before. He alsodeposed that because the Returning Officer is a Governmentemployee, and because the 1st Respondent was a continuing(meaning thereby sitting) M.L.A., he had to suspect that theReturning Officer did the irregularities with some motive. Hedid not express this suspicion in the petition because he was surethat re-counting would be ordered, and that would be sufficientfor him. He further stated thatatTanuku one Krishnam Rajutold him about the 1st Respondent promising K. Pullayya are-transfer to Tanuku, thereby suggesting that he was brought toKovvur just for this purpose. But then the witness added thatKrishnam Raju was a teacher in Tanuku area, but that he did notexamine him. He also stated that it was not correct to say thatthe 1st Respondent himself kept the order of K. Pullayya's transferto Tanuku in abeyance.

The evidence of this witness brings out very clearly that• he never objected to the alleged wrongful rejection of 1,300 to1,400 votes cast in his favour. He no doubt, stated that he orallyprotested against the 160 ballot papers of Panakanemeta PollingStation not bearing the mark. But we are not prepared to believethis statement. If really such a large number of votes cast in hisfavour were rejected unjustly and "he had six counting agents,they would have certainly made a note of the votes as and whenthey were rejected, and made a complaint, but that was not done.The witness was not even able to assert that the Returning Officershowed any partiality to the 1st Respondent. The reason forhis not examining Krishnamraju is very amazing. His explana-tion that because the Returning Officer was announcing thereasons for the rejection, he did not protest, and that in re-counting by the same officer the same result would be produced,and that he hoped that scrutiny of the rejected ballot papers wouldbe ordered by the Tribunal are too purile.

The burden of proving that as many as 1,300 to 1,400 votescast in his favour were wrongfully rejected, lay upon the Petitioner,and when there were as many as six counting agents, it is notexplained why only one of them was examined, and not the rest.

P.W. 2 is one of the counting agents of the Petitioner. Hestated that about 1,900 votes were rejected, that at each tablethere were two counting officers and one supervisor, and thatthe Returning Officer was at the table placed in frontof all the tables at which count was proceeding. He deposedthat many of the votes were rejected merely on the ground thatthere was ink mark on the papers in addition to the X mark.

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Majority of the ballot papers were folded breadth-wise. In theopinion of the witness, the ink on the papers was due to the fingerstains, and such votes were about 600. Another 600 votes wererejected because of re-print of X mark owing to folding of thepaper breadth-wise. It may be noted that according to P.W. 1the number of such votes was 1,600 or 1,700. The witness(P.W. 2) further stated that to his protest the supervisor said thatthey were following the instructions of the Returning Officerstrictly, and that they were treating them as doubt marks.In his cross-examination, the witness stated that he protestedorally to the supervisor, but did not tell „ P. W. 1 about it. Hewas not a polling agent, and as such he did not know in whatmanner the ballot papers were folded at the time of the issue.At the table at which the witness was, about 500 or 600 paperswere folded breadth-wise, and out of them only 100 were foldedbreadth-wise, and out of them only 100 were rejected. This isproof positive that each paper was being scrutinised notwith-standing the fact that it was folded breadth-wise, or that therewas a replica of the mark, and it is only in 100 cases that theywere rejected. It must be in accordance with rules. Thewitness stated that about 200 ballot papers contained ink markin addition to the X mark. The witness could not say out of100 rejected ballot papers how many were in favour of the Peti-tioner. But he was of the impression that the majority of themwere in favour of the Petitioner. In all those 100 papers, thevoters had put only one mark, but owing to wrong folding it gotdouble print.

The evidence of this witness is not at all helpful. Histestimony that he protested orally to the supervisor cannot bebelieved, as according to him, majority of the votes rejectedbelonged to the Petitioner, and he would have himself protestedor made the Petitioner protest to the Returning Officer about it iftheir case were true. But no such thing was done. The evidenceof this witness is different from that of P.W. 1 with regard to thetotal number of votes rejected on the ground of re-print of the Xmark.

This is all the evidence on behalf of the Petitioner, andwe are not prepared to find on the strength of it that the Peti-tioner protested even orally to the Returning Officer about thewrongful rejection of votes. We are also not prepared to holdon the merits that a large number of votes, cast in favour of thePetitioner were rejected by the Returning Officer.

The evidence on behalf of the 1st Respondent will nowbe considered. The suggestion made that Pullayya was retained

E.L.R.] KODURI KRISHNARAO V. ALLURI BAPINEEDU 167

at Kovvuru by the 1st Respodent only for the purpose of electionwas refuted, and Pullayya was examined as R. W. 2. The Re-turning Officer, R. W. 3, deposed that at the time of scrutinyhe saw a few cases in which the ballot papers were folded breadth-wise and he saw two impressions on a ballot paper, that he scru-tinised as to which of them was original impression and whichwas the reprint due to the folding, and allowed the vote if hewas satisfied that one mark was the original and the other wasits reprint owing to the folding, and that he had rejected thecases in which there was no marking at all, or the mark was in theblank (shaded) area, or where the marks were for more than onecandidate or when the mark on the ballot papers was mutilatedbeyond recognition. According to the witness, there were fewcases in which the distinguishing mark of the polling station wasnot found on the ballot paper. After scrutiny and verificationif he found them within the series of the ballot papers allotted tothat particular polling station, he allowed them. The witnessasserted that at no time the Petitioner or any of his agents madeany representation to him regarding the rejected votes, and thatthe rejection was done in the presence of counting agents. Thewitness also stated that after the counting was done, and after heprepared Form No. 20, he waited for some time to see if any com-plaints would come demanding re-counting, and as no such com-plaints were received, he signed the form. He stated that therewere about 200 ballot papers which were folded breadth-wise.No record was prepared to show how many votes were rejected oneach ground. The witness further deposed that if the rejectedpapers showed clear ground, the assistant Returning Officerhimself used to put the stamp on the paper as rejected, and wherethe ground was not so clear, he used to refer the paper to thewitness, and then he used to decide the category or ground of re-jection, or accept it as a valid vote. The Assistant Returning'Officer was putting the stamp of rejection or put the paper as avalid vote in the bundle of the candidate concerned as directedby him. The witness did not personally see any of the countingagents of the Petitioner except one bald-headed person (identifiedby him as P. W. 2), who was coming to him during the countingoccasionally. He was not coming to him to complain that thecounting officers were rejecting the votes on insufficient or invalidgrounds, but was coming to see the rejection of votes by the wit-ness. P. W. 2, was talking to him about the rejection, and thewitness used to tell him that some votes were improperly rejectedby the counting officers, and that he should verify them. Thewitness told P. W. 2. that doubtful cases were being decided byhim in the presence of the counting agents, two of whom were athis table also. The Petitioner was present at the time of counting-

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The witness did not remember if he complainted to him regard-ing the rejected votes.

The fourth witness for the 1st respondent is the AssistantReturning Officer, who substantially corroborated the evidenceof R.W. 3. He asserted that all the doubtful votes received by himfrom the table of counting Officers were placed before the Re-turning Officer, and the Returning Officer used to scrutinise anddecide which of such doubtful votes should be rejected, and whichshould be accepted. In cross-examination the witness statedthat he had not taken any decision on his own accord, and re-jected the votes. The witness knew the petitioner. He statedthat P. W. 1, never came and told him that a good number ofvotes were rejected unjustly.

The evidence of these witnesses R. W. 3 and 4, establishesthat they followed the rules in the matter of rejection of votes,and their testimony has not, in any way, been shaken in cross-examination. We are not inclined to disbelieve their, evidence,we, therefore, hold that apart from the vague assertion that a large

. number of votes cast for the petitioner have been wrongly rejected,there is no proof in support of the same. Further, neither thepetitioner nor his counting agents ever protested even orally to theReturning Officer about the rejection of votes. We agree withthe conclusion and findings of the Tribunal.

There is no other question argued before us. In the result,the appeal fails and is dismissed with costs. Advocate's fee,Rs. 100.

Appeal dismissed.

[IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD]

N.P. CHENGALRAYA NAIDU v. G.N. PATTABHIREDDI

(SATYANARAYANA RAJU AND VENKATESAM, JJ.)

September 4, 1963

The Representation of the People Act, 1951—$.83(1), proviso—Allegationoj Corrupt Practice—Omission to file affidavit—if fatal to the maintainability ofpetition. x

The appellant filed an election petition alleging that the respondent hadcommitted corrupt practices and claimed a declaration that this electionwas void. The respondent raised a preliminary objection that since the

E.L.R.] N. P. CHENGALRAYA NAIDU V. C. K. PATTABHI REDDI 169

petition was not accompanied by an affidavit it must be rejected. Beforethe date set for hearing of the objection, the apepllant filed an applicationrequesting the Tribunal to receive an affidavit. The Tribunal held that therequirement of law laid down by the proviso to s.83 of the Act not havingbeen complied with, there was no valid presentation of the election petitionand dismissed the petition in limine.

On appeal to the High Court,

HELD :—The omission to file an affidavit along with the electionpetition as required by the proviso to s.83(l) is not fatal to the maintainabilityof the petition.

The provisions of section 83 are not mandatory. The question whetherany requirement is mandatory or directory has to be decided not merelyon the basis of specific provision which, for instance, sets out the consequencesof the omission to observe the requirement, but on the purpose for whichthe requirement has been enacted particularly in the context ot the otherprovisions of the Act and the general scheme thereof. No penal consquenceshave been provided for non-compliance with the provisions ot s.83. It isonly non-compliance with the provisions of s. 81 or 82 that would empowerthe Election Commission or the Tribunal to dismiss a petition.

The use of the word "shall" does not make s. 83 mandatory. OrderVI r.15, C.P.C. uses the word "shall" and it is well settled that if a pleadingis not verified in the manner prescribed by the Order, the defect is one ofprocedure and not of jurisdiction.

Collector of Monghyr v. Keshav Prasad Goenka, A.I.R. 1962 S.C. 1694;Jagan Nath v. Jaswant Singh, A.I.R. 1954, S.C. 210; Balwan Singh v. LakshmiNarain, A.I.R. 1960, S.C. 770 ; relied on.

Dantu Bhaskar Rao v. C. V. K. Rao, Sp. App. No. 52 of 1962; Ram GofialGhost v. Dhirendra Nath Sen, I.L.R. 54, Cal. 380; AH Mohammad v. Islak AltKhan, I.L.R. 54, All. 57; Ephrayim v. Turner Morrison & Co., A.I.R. 1930,Bom. 511; Balakrishna Industrial Works v. Venkatachari, 1954, 2 M.L.J. 290Jagat Dhish Bhargava v. Jawahar Lai Bhargava; A.I.R. 1961, S.C. 832, referredto.

Appeal under section 116—A of the Representation ofthe People Act, 1951 (Act 43 of 1951), against the judgment anddecree of the Election Tribunal, Chittoor, dated 20-10-1962,and passed in Election Petition No. 1 of 1962.

M. Krishna Rao, for. the Advocate-General S. Parvatha Raoand A. Subba Rao, for the Appellant.

P. Ramachandra Reddy, for the Respondent.

JUDGEMENT

SATYANARAYANA RAJU J.—This is an appeal, under section116-A of the Representation of the People Act (hereinafter refer-red to as 'the Act') from an order made by the Election Tribunal,Chittoor, dismissing an election petition filed by the appellant.

24—3ECI/ND/67

170 N. P. CHENOALRAYA NAIDU V. C. N. PATTABHI REDD! [VOL. XXV

In February 1962, general elections were held for the AndhraPradesh Legislative Assembly. The appellant and respondentwere the contestants from the Vepanjeri Constituency in theDistrict of Chittoor. The poll was held in the various pollingstations of the constituency on February 19, 1962. The totalnumber of votes polled was 51,278. The respondent secured25,131 votes and the appellant, 24,798. The invalid votes were1,349. The Returning Officer, declared the respondent to havebeen duly elected by a majority of 333 votes.

Shortly thereafter, on April 6, 1962, the appellant presenteda petition to the Election Commission, at New Delhi, in whichhe alleged that the respondent had committed several corruptpractices, and claimed a declaration that his elction was void.The petition was, in due course, transmitted by the ElectionCommission to the Additional District Judge, Chittoor, who hasbeen designated as the Election Tribunal.

The respondent filed his written statement on September27, 1962, denying the allegations made against him. In para-graph 3 of his written statement, he pleaded that the aver-ments in the petition were vague and devoid of necessary parti-culars and it was therefore liable to be dismissed in limine.In paragraph 4, he raised the contention that the appellant wasin law, bound to file an affidavit in the prescribed form in supportof the allegations of corrupt practices referred to in the petition,and that this requirement not having been complied with, thepetition should be rejected.

The tribunal framed the necessary issues for trial. Thefirst issue was as follows::—

"Whether the petition is liable to be dismissed in liminefor any of the reasons stated in paragraphs 3 and 4 of thewritten statement?".

As this issue raised a substantial question of law, the Tribunalposted the petition for hearing on that issue. Before the datefixed for the hearing of the petition, the appellant filed a rejoinderand also an application, I. A. No. 2 of 1962, requesting the Tri-bunal to receive an affidavit. The respondent filed a counter onOctober 16, 1962 opposing the petition. By its order, datedOctober 20, 1962, the Tribunal held that the requirement oflaw laid down by the prioviso to section 83 of the Act, not havingbeen complied with, there was no valid presentation of the electionpetition. In this view, the Tribunal dismissed the election peti-tion under section 90 (3) of the Act.

E.L.R.] N. P. CHENOALRAYA NAIDU V. C. N. PATTABHI REDDI 171

It is contended by the learned counsel for the appellantthat the order of the Tribunal on the preliminary issue is erron-eous and contrary to the provisions of the Act. It is contendedon behalf of the respondent that the proviso to section 83 madeit obligatory on the part of the appellant, to file an affidavit inthe prescribed form and that non-compliance with the mandatoryrequirement of that proviso, rendered that petition ineffectual.

Before considering the respective contentions of the parties,it is necessary to set out the material provisions of the Act, relevantto the matters canvassed before us.

Part VI of the Act deals with disputes regarding elections.Chapter I of this part is the definition chapter. Chapter IIconsists of six sections. Section 80, which occurs in this chapter,provides that:

"No election shall be called in question except by anelection petition presented in accordance with the provisionsof this part."

Section 81 provides that an election petition calling inquestion any election may be presented on one or more of thegrounds specified in sub-sections (1) and (2) of section 100and Section 101 to the Election Commission by any candidateat such election or any elector within fortyfive days from,but not earlier than, the date of publication of the name ornames of the returned candidate or candidates. Section 82prescribes who are the necessary parties to such petition.

Section 83, which is material for the purpose of the presentappeal, reads as follows:—

"Contents of petition.—(1) An Election Petition—(a) shall contain a concise statement of the material

facts on which the petitioner relies;(b) shall set forth full particulars of any corrupt

practices that the petitioner alleges, including as fulla statement as possible of the names of the parties allegedto have committed such corrupt practice and the date andplace of the commission of each such practice; and

(c) shall be signed by the petitioner and verified in themanner laid down in the Code of Civil Procedure, 1908(V of 1908), for the verification of pleadings.

Provided that where the petitioner alleges any corruptpractice, the petition shall also be accompanied by an affidavit

172 N. P. CHENOALRAYA NAIDU V. C. N. PATTABHI REDDI [VOL XXV

in the prescribed form in support of the allegation of such practiceand the particulars thereof.

(2) Any Schedule or Annexure to the petition shall alsobe signed by the petitioner and verified in the same manneras the petition."

The proviso has been introduced by Amendment Act XL of1961.

Section 94 provides for the reliefs that may be claimed bythe petitioner. Section 85 enjoins the Election Commission todismiss the petition if the provisions of Section 81, or Section82 or section 117 have not been complied with, provided, however,that the petition is no.t to be dismissed without giving the peti-tioner an opportunity of being heard. Section 90 prescribesthe procedure to be followed by the Election Tribunal andSection 90 (3) enjoins the Tribunal to dismiss an election petitionwhich does not comply with the provisions of Section 81, or Sec-tion 82 (or Section 117), notwithstanding that it has not beendismissed by the Election Commission under Section 85. Sec-tion 117 refers to the deposit of security by the petitioner for thecosts of the petition.

Now, we have to refer to the Conduct of Election Rulesmade by the Union Government. Rule 94-A, which was addedsubsequent to the amendment of Section 83, is in the follow-ing terms:—

"Form of affidavit to be filed with election petition:—The affidavit referred to in the proviso to sub-section (1) ofsection 83 shall be sworn before a Magistrate of the FirstClass or a Notary or a Commissioner of Oaths and shall bein Form 25."

Pursuant to the rule, Form No. 25 was added, which is asfollows:—

"FORM No. 25 (AFFIDAVIT)

{see rule 94-A.)

I, , the petitioner in the accom-panying election petition calling in question the election ofShri/Shrimati (Respondent No inthe said petition) make solemn affirmation/oath and say: —

(a) that the statements made in paragraphs ofthe accompanying election petition about the com-mission of the corrupt practice of and the

E.L.R.] N. P. CHENGALRAYA NAIDU V. C. N. PATTABHI REDDI 173

particulars of such corrupt practice mentioned inparagraphs of the same petition and inparagraphs of the schedule annexed theretoare true to my knowledge;

(b) that the statements made in paragraphs ofthe said petition about the commission of the corruptpractice given in paragraphs of the saidpetition and in paragraphs of the Scheduleannexed thereto are true to my information."

Section 83, even before its amendment by Act XL of 1962,contained a specific provision that the petition should set forthfull particulars of any corrupt practice that the petitioneralleges, and should be signed by the petitioner and verified inthe manner laid down in the Code of Civil Procedure for veri-fication of pleadings. The proviso says that where the petitioncontains allegations of any corrupt practice, it shall also be accom-panied by an affidavit in the prescribed form. Therefore, inaddition to the verification required by Section 83 (1) (c), it isnow necessary that the petition should file an affidavit in con-formity with rule 94-A and Form No. 25.

The form of verification, as provided in the Civil Rules ofPractice, is as follows:—

"I declare that what is stated in paragraph ( )is true to my knowledge and that what is stated in para-graph ( ) is stated on information and belief andI believe the same to be true".The form of affidavit requires that the petitioner shall make

a solemn affirmation/oath subscribing to the allegations.

It should be remembered that charges of corrupt practiceare quasi criminal in character and involve penal consequences.It would appear that the intention of the Legislature in addingthe proviso to sub-section (1) of section 83, was to make thepetitioner realise the seriousness of making allegations of corruptpractices. We find on a reference to Section 191 of the IndianPenal Code, that a verification which implies the making of adeclaration and a statement made on affirmation which is impliedin swearing to an affidavit, both stand on the same footing.

Section 191, Indian Penal Code, reads:

"Whoever being legally bound by an oath or by anexpress provision of law to state the truth, or being boundby law to make a declaration upon any subject, makes

174 N. P. CHENGALRAYA NAIDU V. C. N. PATTABHI REDDI [VOL. XXV

any statement which is false, and which he either knowsor believes to be false or does not believe to be true, is saidto give false evidence".

From the above provision, it is manifest that the making ofa false statement or a statement which the deponent does notbelieve to be true, either on oath or by a declaration, are bothwithin the ambit of the definition of 'giving false evidence'and involve the same consequences which are provided in Sec-tion 193 of the Indian Penal Code.

Sri Ramachandra Reddy has rightly contended that theLegislature has introduced the proviso to Section 83 by meansof the Amending Act, and it must be concluded that the Legis-lature has made a purposeful addition. Even so, the questionstill remains as to whether the non-compliance with the require-ments of the proviso to Section 83 entails the dismissal of thepetition in limine.

It is argued by Sri Ramachandra Reddy that Section 80provides that no election shall be called in question except byan election petition presented in accordance with the pro-visions of the Act, and that, therefore, there can, in law be novalid presentation of a petition if it does not comply with therequirements of Section 83.

In the context of this contention, we may refer to Order VI,Rule 15, of the Code of Civil Procedure, which provides for theverification of pleadings. That Rule reads:—

"Every pleading shall be verified at the foot by the partyor by one of the parties pleading or by some other personproved to the satisfaction of the Court to be acquaintedwith the facts of the case."

Sub-rule (2) of Rule 15 says that the person verifying shallspecify, by reference to the number of paragraphs of the plead-ing what he verifies of his own knowledge and what he verifiesupon information received and believed to be true.

Section 83 (1) (c) of the Act, in fact, provides that an electionpetition shall be signed by the petition and verified in the mannerlaid down in the Code of Civil Procedure for the verificationof pleadings. This provision, therefore, incorporates by referencethe provision of Order VI, Rule 15, C.P.C.

We need only refer to three decisions which were renderedby the High Courts of Calcutta, Allahabad and Bombay. In

E.L.R.] N. P. CHENGALRAYA NAIDU V. C. N. PATTABHI REDDI 175

RAM GO PAL GHOUSE v. DHIRENDRA NATH SEN (1),Page J. Held that "when a pleading does not conform to theprovisions of Order VI, Rule 15, the defect therein is a mere irre-gularity that can be cured by amendment". The learnedJudge held that the plaint must be taken to have been presentedon the date when it was originally filed and not on the datewhen the verification was made. Quoting from a Judgment ofLindley, L. J., In SIDEBOTHAMv. HOLLAND (2) the learnedJudge observed that the right of litigants ought not be decidedupon "the splitting of a straw".

In ALI MOHAMMED KHAN v. ISHAK ALI KHAN (3)A Full Bench of the Allahabad High Court, consisting, of Sulai-

, man, Ag./C. J. Young and Sen, JJ., held that the omission tocomply with the provisions regarding the presentation of a plaintwas a mere irregularity and did not amount to an absence ofjurisdiction. A similar view was taken by the BombayHigh Court in EPHRAYIM v. TURNED MORRSON & CO (4).

From the above decisions, it is clear that a pleading whichis not verified in the manner required by Order VI, Rule 15,Civil Procedure Code, may be verified at a latter stage of thesuit, even after the expiry of the period of limitation and theomission to verify a pleading is a mere irregularity which canbe cured by allowing the matter to be rectified by a subsequentamendment. It is now well-settled that the defect is one ofprocedure and not of jurisdiction.

The present case is an afortiori case and stands on a betterfooting. It is not disputed that the election petition is in con-

o formity with the requirements of Section 83(1) (b) and (c).The petition has set out the particulars of the corrupt practicesand has been verified in the manner laid down in the code ofCivil Procedure. The only omission is that it is not accompaniedby an affidavit in support of the corrupt practices.

It is, however, argued that Section 83 is mandatory andnon-compliance with its requirements entails the dismissal ofthe petition. This contention rests "on the use of the word'shall'. As we have already indicated, even Order VI, Rule 15,C. P. C. uses the word 'shall'. That apart, as pointed out by their

(1) I.L.R. 54, Calcutta 380. (3) I.L.R. 54, All. 57.(2) (1895) 1 Q.B. 378. (4) A.I.R. 1930 Bom. 511.

176 N. P. CHENGALRAYA NAIDU V. C. N. PATTABHI REDDI [VOL. XXV

Lordships of the Supreme Court in COLLEC TOR OF MON-GHYR v. KESHAV PRASAD (5) :—

"It is needless to add that the employment of the auxi-liary verb 'shall' is inconclusive and similarly the mereabsence of the imperative is not conclusive either. The ques-tion whether any requirement is mandatpry or directoryhas to be decided not merely on the basis of any specific

* provision which, for instance, sets out the consequences ofthe omission to observe the requirement, but on the purposefor which the requirement has been enacted, particularly inthe context of the other provisions of the Act and thegeneral scheme thereof".

The following passage from the judgment of their Lordshipsof the Supreme Court in Jagan Nath v. Jawant Singh (6) isopposite:—

"It is one of the rules of construction that a provisionlike this is not mandatory unless non-compliance withit is made penal".

The next of the questions for consideration is whether anypenal consequences have been provided for non-compliancewith the provisions of Section 83. Under Section 85, the Electioncommission is given power, in express terms, to dismiss a petitionwhich does not comply with the requirements of Section 81 orSection 82 or Section 117. Even here, the proviso says that the

.petition shall not be dismissed without giving the petitioneran opportunity of being heard. So too, Section 90 (3) empowersthe Tribunal to dismiss an election petition which docs not complywith the provisions of Section 81 or Section 82, notwithstandingthat it has not been dismissed by the Election Commission underSection 85. The reason for omitting Section 117 from the pur-view of Section 90 (3) is obvious. If the necessary deposit asrequired by Section 117 is not made, the Election Commissionitself is empowered to dismiss the petition and it is only after thepetition has been entertained by the Election Commission that itis sent to the Tribunal for trial.

Now, it is plain from Sections 85 and 90 (3) that it is onlynon-compliance with the provisions of Section 81 or Section 82that would empower the Election Commission or the Tribunalto dismiss a petition. Section 81 deals with the manner of pre-sentation of an election petition. Section 82 deals with the parties

(5) A.I.R, 1962, S.C. 1694 at 1701. (6) A.I.R. 1954, S.C. 210.

E.L.R.] N. P. CHENGALRAYA NAIDU V. C. N. PATTABHI REDDI 177

to the petition. It is hereby necessary to refer to Section98, whichprovides that an election petition can only be dismissed at theconclusion of the trial and on grounds sufficient to dismiss it.It is manifest that the penalty of dismissal is not povided for in thecase of non-compliance with the terms of Section 83. We are,unable to accept the contention that the provisions of this sectionare mandatory.

There is authority even in the judgment of their Lordshipsof the Supreme Court, on which this conclusion can be sup-ported. In Jangan Nath v. Jaswant Singh (6) their Lordshipshad to consider the effect of non-observant of the provisions ofSection 82. They held that the non-joinder of a duly nomi-nated candidate, who had withdrawn his candidature, was notfatal to the maintainability of the petition. The judgment oftheir Lordships of the Supreme Court was rendered with referenceto Sections 82 and 83 as they stood before their amendment in1956. The learned Chief Justice, observed:

"It is significant that both the Election Commission andthe Tribunal have been given powers in express termsto dismiss an election petition which does not comply withthe requirements of Sections 81, 83 and 117 but no suchpowers are given to dismiss a petition in limine which doesnot comply with the provisions of Section 82. Such/ apetition can only be dismissed at the conclusion of the trialand on grounds sufficient to dismiss it".

In Balwan Singh v. Lakshmi Narain (7) the Supreme Courthad to consider the question as to the consequences of the omis-sion to comply with the procedure indicated in Section 83.It was held by their Lordships of the Supreme Court that the Act,as amended by Act XXVII of 1956, did not impose the penaltyof dismissal of a petition or the striking out of the plea of corruptpractice merely because particulars in that behalf were not setout. The following observations of their Lordships are pertinentin the present context:—

"Where an objection is raised by the respondent that apetition is defective because full particulars of an allegedcorrupt practice are not set out, the Tribunal is bound todecide whether the objection is well-founded. If the Tri-bunal upholds the objection, it should give an opportunityto the petitioner to apply for leave to amend or amplifythe particulars of the corrupt practice alleged; and in the

(6) A.I.R. 1954, S.G. 210.

(7) A.T.R. I960, S.C. 770.

25—3 ECI/ND/67

178 N. P. CHENGALRAYA NAIDU V. G. N. PATTABHI REDDI [VOL. XXV

event of non-compliance with that order, the Tribunal maystrike out the charges which remain vague".

In recent judgment in Dantu Bhaskara Rao v. C. V. K. Rao (8),a Division Bench of this Court, consisting of the Chief Justice andGopalakrishnan Nair, J., had to consider a somewhat similarquestion. There, the facts were these: The poll took place inFebruary 1962 and the defeated candidate presented an electionpetition before the Election Commission, New Delhi, on April 7,1962. The petition contained allegations of corrupt practicesfalling within the terms of the Act. It was accompanied by anaffidavit in support of the allegations of corrupt practices asrequired by the relevant statutory provisions. The petitionwas forwarded to the Election Tribunal, Eluru, in due course.Before the trial was taken up it was discovered that the affidavitdid not conform to Rule 94-A in that the affidavit was not swornto before a Magistrate of the First Class or a Notary or Commiss-ioner of Oaths. The petitioner filed an application before theElection Tribunal on August 25, 1962, more than four monthsafter the presentation of the petition, requesting the Tribunal toaccept an affidavit in the prescribed form and to condone thedelay in the filing of the affidavit. This was opposed by thesuccessful candidate, the respondent in the petition. But inspite of his opposition, the application was allowed and the trialof the petition proceeded with. It was contended before theDivision Bench that the election petition not having been present-ed in accordance with the requirements of the proviso to sub-section (1) of section 83, it was not a valid petition and should havebeen dismissed by the Election Tribunal on that ground. Thiscontention was elaborately considered by the learned Judgesand was repelled, as not sustainable.

Sri Ramachandra Reddy has, however, argued that thedecision is distinguishable for the reason that there an affidavitwas in fact filed though it was defective in form, and that theconclusion reached by the learned Judges would not applyto the present case. We may point that a defective affidavitis no affidavit in the eye of law, and, therefore, the case whereno affidavit is filed at all is not distinguishable from a case wherea defective affidavit is filed. It would be seen that the ElectionTribunal allowed the petitioner to rectify the defects in theaffidavit after the expiry of the period of 45 days provided bySection 81 (1) of the Act. In the present case also, the petitionerfiled an affidavit before the Tribunal with a petition to excusethe delay in filing the same. But the Tribunal rejected the

(8) Special Appeal No. 52 of 1962.

E.L.R.] N. P. GHENGALRAYA NAIDU V. C. N. PATTABHI REDDI 179

petition, with the consequence that the main election petitionitself was held to be not maintainable. We may observe, thatthe reasoning by which the learned Judges of the Division Benchcame to conclusion that non-compliance with the requirementsof the proviso to Sub-section (1) of Section 83 would not entailthe dismissal of an election petition, applies with equal forceto the present case. We are unable to agree with the learnedcounsel's contention that the above decision is distinguishable.

Sri Ramachandra Reddi has then contended that theomission to include Section 83 within the ambit of Sections 85and 90(3) might have been the result of inadvertence or over-sight. We do not think that we can attribute either inadver-tence or over-sight to the Legislature. Indeed in the Representa-tion of the People Act, 1951, Section 83 was one of the sections,the non-compliance with the provisions of which, entailed thedismissal of an election petition under Sections 85 and 90. Butthe Legislature has since amended the Act by Act XXVIIof 1956, substituting Section 82 for Section 83. The amend-ment was disignedly made and we are unable to agree withthe contention that the omission of Section 83 in the presentSections 85 and 90 of the Act was by inadvertence or over-sight.

It only remains to refer to the decision, which the Tribunalhas relied upon in support of the conclusion which it has reached.The first of them is Balakishna Industrial Works v. Venkatachari (9),where Subba Rao and Panchapakesa Ayyar, JJ., held that theprovisions of Order XLI, Rule 1 of the Code of Civil Procedure,were imperative and the presentation of a memorandum of CivilMiscellaneous Appeal without a copy of the decretal order appeal-ed against was not a valid presentation. It may be noted, how-ever, that in the case of the appellant filed a petition subsequentlyrequesting the Court to receive the certified copy of the decretalorder which was not originally filed. The learned Judgesheld that the delay in filing the decretal order should be condonedand the appeal should be entertained.

In the provisions of Order XLI, Rule 1, C. P. C , were alsoconsidered by their Lordships of the Supreme Court in JagatDhish Bhargava v. Jawahar Lai Bhargava (10). Their Lordshipswhile holding that the requirement of 0.41 Rule, 1, that a certi-fied copy of the decree should be filed along with the memorandumof appeal is mandatory, and in the absence of the decree the filing

(9) 1954 2 M.L.J. 290.(10) A.I.R. 1961, S.G. 832.

180 N. P. CHENGALRAYA NAIDU V. C. N. PATTABHI REDDI [VOL. XXV

of the appeal would be incomplete, defective and incompetent,observed as follows:—

"No hard and fast rule of general applicability can belaid down for dealing with appeals defectively filed under0.41, R-l. Appropriate orders will have to be passed havingregard to the circumstances of each case, but the mostimportant step to take in cases of defective presentation ofappeals is that they should be carefully scrutinised at theinitial stage soon after they are filed and the appellantrequired to remedy the defects".

These observations indicate that a defect of the present naturecan be subsequently remedied and does not warrant the dismissalof the election petition in limine.

It is not necessary to refer to the other two cases reliedupon by the Election Tribunal. They are clearly distinguishableand do not apply to the facts of the present case.

As a result of the foregoing discussion and on a considerationof the relevant sections in Part VI of the Act, we hold that theomission on the part of the petitioner to file an affidavit along withhis election petition, as required by the proviso to Section 83(1),is not fatal to the maintainability of the petition.

We may now notice a contention raised by the learnedcounsel for the respondent, that in any view of the matter,the Election Tribunal should not now be directed to receivethe affidavit, but that the question of its reception should beleft to its discretion. As we have already indicated, the appellanthad already filed an application requesting the Tribunal toreceive the affidavit in I. A. No. 2 of 1962. The Tribunal dis-missed the application as well as the main, election petition.Having regard to the conclusion which we have reached thatthe main election petition should not have been dismissed onthe ground that it was not maintainable, by reason of thenon-compliance with the provisions of Section 83 we hold that theElection Tribunal ought not to have dismissed the application forreceiving the affidavit. The order of the Tribunal in I. A. No. 2of 1962 is set aside.

The Election Tribunl, Chittoor, will now re-entertain theElection Petition on its file and after receiving the affidavit,dispose of the petition in accordance with law.

In the result, this appeal is allowed with costs, Advocate'sfee Rs. 250.

Appeal allowed.

E.L.R.] SANT PRASAD SINGH V. DASU SINHA 181

[IN THE HIGH COURT OF PATNAJ

SANT PRASAD SINGHV.

DASU SINHA

(S. C. .MISHRA AND R. J. BAHADUR, JJ)

September 5, 1963.

Representation of the People Act. 1951—S. 81(3) Requirement that copies shouldbe attested as true by the petitioner—-if mandatory or directory.

Representation of the People Act, 1951, 5.123(3)— Corrupt practice—Scopeof expression 'for any person on the ground of religion, race, caste, community orlanguage."

The appellant sought to set aside the election of the respondent on theground, among others, that the respondent published a pamphlet appealingto voters in the name of caste. The Tribunal found that the petition wasnot maintainable on account of non-compliance with sub-section (3) of section81 of the Act which lays down that every election petition shall be accom-panied by as many copies as there are respondents and every such copyshall be attested by the petitioner under his own signature to be the truecopy of the petition. The copy served on the respondent was certified astrue copy of the original by the Election Commission and not by the appel-lant. In appeal the appellant contended that since the copy forwarded tothe the tribunal by Commission tallied in all respects with the copy servedon the respondent the irregularity, if any, was only formal and not real.

HELD :—The appeal must fail :

(i) Where a specific penalty has been provided for in a statute for non-compliance with the particular provision in the Act itself no discretion isleft to the Court to determine whether such a provision is directory or manda-tory. If it were not so there would be no sense in the legislature laying downthe consequence of non-compliance.

Kamaraj Nadar v. Kunju Thevar, 14 E.L.R. 270 (S.C.) ; KaushalendraPrasad Narain Singh v. Nand Kishore Prasad Singh, 22 E.L.R. 484; distinguished.;

Collector of Monghyr v. Keshav Prasad Goenka, A.I.R. 1962, S.C. 1964;referred to.

Bant Ram v. Smt. Prasanni & Ors. A.I.R. 1959, S.C. 93 ; relied on.

(ii) The expression "for any person on the ground of his religion, race,caste, community or language" in s. 123(3) distinctly lays down that theappeal to be made by the candidate to the voters to support him should beon the ground that he belongs to a particular religion, caste, etc.

On the facts, a pamphlet issued by the respondent appealing to membersof certain castes to vote for him as their organisations supported his party,did not fall within the mischief of s. 123(3).

(iii) Where full particulars of corrupt practice are not supplied in theelection petition, but evidence on both sides is allowed to be given and taken,

182 SANT PRASAD SINGH V. DASU SINHA [VOL. XXV

the petition cannot be dismissed for want of full particulars unless the wantof full particulars has caused material prejudice.

Bhagwan Dutt Shastri. v Ram Ralan Gupta, 11, E,L,R. 448; Sheopat Singh v.Harish Chandra, 16 E.L.R. 103 ; Saw Ganesan v. M. A. Muthiah, 19, E.L.R.16, referred to.

Election appeal No. 2 of 1962 against an order of Mr.Chandrika Prasad Sinha, District Judge—Member, ElectionTribunal, Patna, dated the 1st October, 1962.

Birendra Prasad Sinha and Shyam Nandan Pasad Sharmafor the Appellant.

Dasu Sinha, Gorakh Nath Singh, B. N. Mandal and KedaNath Verma, for the Respondent.

JUDGEMENT

MISRA, J.—The appellant, Sant Prasad Singh, filed a petitionquestioning the validity of the election of the respondent DasuSinha, to the Bihar Legislative Assembly from the NaubatpurAssembly Constituency. The poll was held in the constituencyon the 25th of February, 1962 and the result was declared onthe 28th of February 1962. The appellant-petitioner made theelection petition as a voter from that constituency, the othercandidates being Bhubneshwar Sharma, Tek Narain Lai Yadav,Jugeshwar Prasad, Mahendra Dasadh and J. N. Sahai. Therelevant dates can be briefly set out as follows:—

The 20th January 1962—last date for filing the nominationpapers.

The 22nd January 1962—date of scrutiny.The 25th February 1962—date of polling.The 27th February 1962—date of counting.The 28th February 1962—date when the result was announc-

ed.

Respondent Dasu Sinha secured 16,723 votes and Bhubnesh-war Sharma obtained the next highest number of votes,being 16,422 votes. Thus, the margin between the two wasof 301 votes. The grounds mentioned in the election-petitionfor setting aside the election of the respondent were as follows:—(1) false personation of voters; (2) double voting in the sense thatsome voters were enrolled in two constituencies and they votedat both the places; (3) the names of some of the voters wereexpunged from the electoral roll and yet they voted in favourof the respondent; (4) counting of votes not properly done, some

E.L.R.] SANT PRASAD SINGH V. DASU SINHA 183

invalid votes secured by Dasu Sinha were counted and manyvalid votes of Bhubneshwar Sharma not counted, and (5) therespondent published a pamphlet appealing to the voters in thename of caste as also touching the personal character of the can-didates, both of which were corrupt practices within the meaningof section 123(3) and (4) of the Representation of the PeopleAct (hereinafter called the Act). The next ground was thedonation by the respondent of Rs. 201 to a Pustakalaya in villageShambhupur on the 18th February 1962. The respondentdenied all the allegations.

The Election Tribunal of Patna has given a finding againstthe appellant on all the points except in regard to the publicationof the pamphlet appealing in the name of caste to the voters.The Tribunal has also found that the election-petition is notmaintainable on account of non-compliance of sub-section (3)of section 81 of the Act.

Learned Counsel for the appellant has taken up the questionof maintainability of the election-petition as the first point in hisargument. He has contended that the application has beenheld to be not maintainable by the Election Tribunal on theground that it suffers from the defect of non-compliance withthe mandatory provisions of section 81(3) of the Act, inasmuchas the copy meant for the respondent who is only one in number,was not attested by the petitioner under his own signature tobe the true copy of the original; secondly it was also not accom-panied by an affidavit in the prescribed form in support of theallegation of corrupt practice and the particulars thereof asrequired by the proviso to sub section (1) of section 83 of the Act.It is admitted that in the original, which was filed before theElection Commission, there is no defect, but in the copy whichwas attached to it for being served on the respondent as requiredunder section 81 (3) of the Act, the petitioner did not mentionthat it was a true copy of the original nor were the particularsin support of the allegation of corrupt practices mentioned inthe petition. The respondent filed before the Election Tribunalon the 6th September 1962, the copy of the election petition alleg-ing it to be the copy which was received by him from the ElectionCommission. A technical objection was, however, raised onbehalf of the petitioner that this copy was inadmissible, allegingthat it was not the genuine copy and it was not formally provedto have been the copy served on him. The copy, however,Exhibit M has been held by the Election Tribunal to be admissibleon the grounds that the respondent Das Sinha stated on affidavitthat this was the copy which was served on him through theElection Commission. But the petitioner could not swear an

184 SANT PRASAD SINGH V. DASU SINHA [VOL. XXV

affidavit to controvert the allegation. The stamp marks onExhibit M were compared with the original election-petitionwhich was forwarded to the Tribunal by the Election Commissionand, on a detailed comparison of the two, the Election Tribunalcame to the conclusion that this was the copy which was satis-factorily shown by the respondent to have been served on him.It contained the entry that it was a true copy of the original whichwas certified to be so by the Election Commission and not by thepetitioner. Section 81(3) lays down that every election-petitionshall be accompanied by as many copies thereof as there are resp-ondents mentioned in the petition and one more copy for the useof the Election Commission, and every such copy shall be attestedby the petitioner under his own signature to be the true copyof the petition. Since there was only one respondent in thiscase one copy would have been sufficient. The certification ofthe copy served on the respondent Dasu Sinha, being a true copyof the original was given by Sri K. K. Sethi Under-Secretaryof the Election Commission, on the 16th April, 1962. Mr.Birendra Prasad Sinha appearing for the appeallant has contendedthat assuming that the copy served on the respondent was thecopy marked Exhibit M, and even assuming that the petitionerdid not attest it in his own handwriting or under his authorityto be a true copy of the original, it was the mere irregularityinasmuch as the copy forwarded to the Election Tribunal bythe Election Commission tallies in all respects with the copy servedon the respondent and as such the irregularity, if any, is onlyformal and not real. Section 85, no doubt, lays down that theElection Commission shall dismiss the election-petition if it hasfailed to comply with the provisions of section 81, and similarpower has been given to the Election Tribunal under section 9 (3)of the Act, providing that the Tribunal shall dismiss the election-petition which does not comply with the provisions of section 81even though it has not been dismissed by the Election Commisionunder section 85. The mere fact, therefore, that the ElectionCommission has not dismissed it, prima facie, would not precludethe Election Tribunal from exercising that power. Taking thatview of the defect, the Election Tribunal has held the election-petition to be not maintainable.

Mr. Sinha has urged that the Election Tribunal has erred inproceeding on this footing. It is true, no doubt, that sections 85and 90(3) provide the penalty for non-compliance with the provi-sions of section 81(3), but that however, should be confined to asubstantial defect and not a formal defect which has not prejudicedthe respondent in the sense that he has not been misled by suchomission. The provision to the effect that the election-petition

E.L.R.] SANT PRASAD SINGH I1. DASU SINHA 185

shall comply with the requirement of section 81(3) is merely direc-tory and not mandatory. He has drawn our attention in supportof this contention to a decision of the Supreme Court in the caseof Kamaraj Madar vs. Kunju Thevar (1), in which the chalanaccompanying the election-petition showing the desposit of theamount required was made in favour of the Election Commis-sion and not Secretary of the Election Commission as requiredunder section 117 of the Act prior to its amendment in 1958.It was urged on behalf of the respondent that the penalty fornon-compliance with the provision being the rejection of theelection-petition and fulfilment of the requirement of the mannerin which the election-petition was to be drafted and deposit of theamount of security in a particular manner to be made beingmandatory, failure to put in the description of the deposit in termsof section 117 vitiated the election-petition and rendered it liableto rejection. Their Lordships of the Supreme Court in theabove case, however, held this provision to be directory and notmandatory. The same principle should apply to this case inasmuchas although the original filed before the Election Commissioncontained the attestation of the petitioner and although thecopy to be served on the respondent was not mentioned as truecopy of the original under the signautre of the petitioner butunder the signature of the Under-Secretary of the Election Com-mission, the contents of the two petitions being the same, therespondent was not in the least prejudiced in his defence bythis irregularity and, as such, the Tribunal was not correct inholding that the application was not maintainable on accountof this defect. The consideration arising in reply to this contentionis based on the mandatory provisions of sections 85 and 90(3)of the Act and it is urged that where a provision has been madein the statute itself laying down the penalty for non-compliancewith a mandatory provision, it leaves no scope for interpretationby the Court of Law as to whether the mandatory provision is assuch or directory only although mandatory in form as came in fordiscussion in course of the argument. Maxwell on the inter-pretation of statutes (11th edition) at page 362 has made thefollowing statement of the legal position:—

"When a statute requires that something shall be doneor done in a particular manner or form without expresslydeclaring what shall be the consequence of non-compliance,the question often arises: What intention is to be attributedby inference to the Legislature?"

It is thus clear that where a specific penalty has been providedfor in a statute for non-compliance with the particular provision

(1) 14 E.L.R. 270 at p. 292.26—3 ECI/ND/67

[ 9 9 SANT PRASAD SINGH V. DASU SINHA [VOL. XXV

in the Act itself, no discretion is left to the Court to determinewhether such a provision is directory or mandatory. LearnedCounsel for the appellant has urged, however, that the SupremeCourt has taken a different view of the matter. In my opinion,the principle of interpretation governing a case where a mandatoryprovision is incorporated in the Act, accompanied by the conse-quence of non-compliance in the self-same Act, leaves no roomfor interpretation as to whether the mandatory provision canalso be directory and this proposition is settled beyond reasonabledoubt. If it were not so, there would be no sense in the Legis-lature laying down the consequence of non-compliance. Inthe above case, however, the correct position was that puttingdown the words "Election Commission" in the form of chalaninstead of "the Secretary, Election Commission" did not makeany difference at all, because the Secretary, Election Commission,had no independent status of his own and the amount wasdeposited in his favour on behalf of the Election Commission.If the petitioner, therefore, put down in his election-petition theexpression "in favour of the Election Commission" instead of"the Secretary, Election Commission", it did not make anymaterial difference at all and the expression actually used amount-ed to the Secretary, Election Commission, and vice versa. Thequestion as to whether section 117 was directory or mandatoryas such with reference to sections 85 and 90 (3) did not arise andthe view of the Court that it was directory and not mandatorywas merely in the nature of an obiter dictum. The position hasbeen made clear beyond doubt in the case of Shri Baru Ram versusSrimati Prasanni and others (2), wherein Gajendragadkar, J.,has stated the legal position as follows:—

"There is no doubt that in the present case there wasfailure on the Part of Jai Bhagawan to comply with section33(5) and prima facie section 36 (2) (b) seem to justify therejection of his nomination paper on that ground. Section33(5) requires the candidate to supply the prescribed copyand section 36 (2) (b) provides that on his failure to complywith the said requirement, his nomination paper is liable to berejected. In other words, this is a case where the statuterequires the candidate to produce the prescribed evidenceand provides a penalty for his failure to do so. In such acase it is difficult to appreciate the relevancy or validity ofthe argument that the requirement of section 33(5) is notmandatory but is directors', because the statute itself hadmade it clear that failure to comply with the said require-ment leads to the rejection of the nomination paper. When

(2) A.I.R. 1959 S.C. 93 at p. 100.

E.L.R.] SANT PRASAD SINGH V. DASU SINHA 187

ever the statute requires a particular act to be done in aparticular manner and also lays down that failure to complywith the said requirement leads to a specific consequenceit would be difficult to accept the argument that the failureto comply with the said requirement should lead to anyother consequence".

This view has been further clarified as follows:—"Where however, the statute requires specific facts to

be proved in a specific way and it also provides for the conse-quence of non-compliance with the said requirement it wouldbe difficult to resist the application of the penalty clause onthe ground that such an application is based on a technicalapproach. Indeed it was precisely this approach whichwas adopted by this Court in the case of" 1955-1 SCR481: (A.l.R. 1954 SC 510—Rattan Anmol Singh v. AlmaRam)."

Their Lordships of the Supreme Court have in this casecarefully analysed all aspects of the question relating to the techni-cality involved in an election contest and it is unnecessary tolabour this point further. No doubt in the case of Collectorof Monghyr v. Keshav Prasad Goenka(3), occurs the followingpassage:—

"It is needless to add that the employment of the auxi-liary verb 'shall' is inconclusive and similarly the mereabsence of the imperative is not conclusive either. Thequestion whether any requirement is mandatory or directoryhas to be decided not merely on the basis of any specificprovision which for instance, sets out the consequences of theomission to observe the requirement but on the purposefor which the requirement has been enacted, particularlyin the context of the other provisions of the Act and thegeneral scheme thereof."

Mr. Gorakh Nath Singh has rightly contended that thispassage should be construed to mean only this much that whetherthe provision is directory or mandatory will depend not merelyon the insertion of a penalty for failure to observe the provisions inquestion but also the general scheme of the Act. But it does notgo to the length of the laying down that where a penalty has beenprovided for failure to comply with a certain provision, it can beconstrued, in any case, as directory and not mandatory. Theposition, however, would be quite different where there is in factno violation of the spirit of the provision with reference to a

(3) A.l.R. 1962 S.C. 1694 at p. 1701.

188 SANT PRASAD SINGH V. DASU SINHA [VOL. X X V

verbal departure or inexactitude as in Kamaraj Nadar's case.It may be stated that the decision of the Supreme Court in thecase of Kaushalenda PrasadNarain Singh v. Nandkishore PrasadSingh(4:)was a case of verbal inexactitude as in the case of Kamaraj Nadar.In view of the statement of law as contained in Maxwell referredto above, and as laid down by the Supreme Court in the abovecase (1959 Supreme Court 93), it must be held that the provisionin clause (3) of section 81 of the Act laying down that "Everyelection petition shall be accompanied by as many copies thereofas there are respondents mentioned in the petition and onemore copy for the use of the Election Commission, and everysuch copy shall be attested by the petitioner under his sig-nature to be a true copy of the petition", is a mandatory provisionso that the respondent may be certain that the contents of thepetition cannot be departed from on any plea and failure to complywith this makes the petition liable to dismissal in terms of clause(3) of section 90 of the Act. The Election Tribunal was, therefore,right in coming to that conclusion and the appeal would fail evenon this solitary ground.

Learned Counsel for the appellant has, however, urgedfurther that the election of the respondent was liable to be setaside on the ground that he published a pamphlet a copy of whichis Annexure B to the petition, in which he made systematic appealto'the voters to support him on the ground of caste. The respon-dent is a Kurmi by caste and in the pamphlet he appealed to theKurmis, Jadavas, Koeris and Harijans to vote for him on accountof his affinity with them. The respondent denied the allegationand brought on record a leaflet (Exhibit J) to show that whathe published and circulated among the voters was ExhibitJ and not Annexure B, a copy of which was exhibited as Exhibit9 on behalf of the petitioner. It was urged further that evenif Exhibit 9 was taken to have been circulated by him, it wouldnot amount to a corrupt practice, because it did not contain anyappeal to the voters of any particular caste to cast their votes inhis favour. The Tribunal did not accept the plea of the res-pondent so far as the publication of Exhibit 9 was concerned.Exhibit J has been held by the Tribunal as having been broughtinto existence subsequently to counteract the case of the petitioner.It may be stated that both the leaflets are headed as jftzter r̂rfer qi%:According to the petitioner, Exhibit 9 was printed at the Sahaja-nand Smarak Press, Kadam Kuan, Patna, and Sri KeshwarMishra (P.W. 42) was examined to prove its printing in that Press.He said that he was a compositor in the Sahajanand SmarakPress at the time when 4,000 copies of the leaflet were printed

(4) 22 E.L.R. p. 484.

E.L.R.] SAKT PRASAD SINGH V. DASU SINHA 189

in that Press the manuscript of which was made over to the Pressby the respondent Dasu Sinha himself. The petitioner alsoexamined P.Ws. 2, 3,8, 11,15 to 20, 27 to 30, 32, 37 to 41, 43 to 45,48 to 50, 54 and 51, the last being the petitioner himself insupport of the printing and circulation of the leaflet. The res-pondent, however, examined also a large number of witnesses insupport of his case that no such pamphlet was circulated. In myopinion, the Election Tribunal appears to be correct in assessingthe evidence of Keshwar Misra (P. VV. 42), who came to prove theorder placed by the respondent and the printing of 4,000 copiesof Exhibit J by the Press. Exhibit 3 (a) is the bill of SahajanandSmarak Press for doing certain Printing work for the respondentand refers under item No. 9 to the printing of 4,000 noticesdescribed as ^tiW ^1% Ttf̂ r and Exhibit 3, the receiptrefers to the payment of the entire dues of the Press by therespondent. In my opinion that shows that in fact Exhibit 9

—was published by respondent no. 1 and circulated among thevoters. I also agree with the conclusion of the Tribunal thatExhibit J, copy of which was filed before the Electoral Officer,as provided under section \27A(2)(b) of the Act is not a genuinedocument, as it was improbable that the respondent would havefailed to do so if Exhibit J had been duly printed and circulatedby him. The Election Tribunal has not attached any importanceto the evidence of R.Ws. 2, 3, 4, 5, 12, 13, 17, 20, 21, 28, 30 and33 who came to deny their signatures borne on Exhibit 9. TheTribunal also rejected the evidence of Doman Ram (P.W. 2),who in course of his deposition, stated that Exhibit 9 was a forgeddocument. In my opinion, the Tribunal was correct in holdingthat in view of Exhibits 3 and 3 (a) in the circumstances referredto above not much value could be attached to the evidence ofDoman Ram although he was not declared a hostile witness by thepetitioner.

The contents of the leaflet run as follows:—

qffir % ̂ r*r *r aft? *fart ?rr?ff ?r

! ^Tranr!!!

^ f t t?T "FT

190 SANT PRASAD SINGH V. DASU SINHA [VOL. XXV

itrrcr

3TR

f % faf^ ^ T ^ 5 fell I I ^ f c p r 5R^^ ffer-T *TT§ ^ Sff%?TT

An analysis of the leaflet shows that the first paragraph isgeneral in so far as it lauds the activities of the Congress which setup respondent no. 1 as a candidate from this constituency.No objection has been raised to paragraph one. Objection has,however, been taken to paragraph 2. The sentence occurring inthat paragraph is "prfr arfer n̂xfTJT 3p!T3Tfr T^rem ^nfa % wm | i

Learned Counsel for the appellant has contended that therespondent being a Kurmi by caste, this line refersto appeal by him to his castemen to support his candi-dature because the All India Kushwaha Mahasabha supportedthe Congress. Learned Counsel for the respondent has urgedthat the respondent is not a Kushwaha, which refers to Koeri,but an Awadhia Kurmi, an altogether different caste, and refer-ence therefore to "fHTRt arf%̂ r ?rRcfta" spr̂ T̂ r *rfrcraT" cannotrefer to the caste to which the respondent belongs. Similar appealhas been made to the Jadav community on the ground that theAll India Jadav Mahasabha supported the Congress and thesame thing occurs in the last paragraph where appeal has beenmade to the Dusadhas and the Harijans in general. So far asparagraph 2 is concerned, respondent is a Kurmi and Kushwaharefers to Koeris and there is no inter-marriage between the Koerisand the Kurmis. I am therefore, unable to accede to argumentof the Mr. Birendra Prasad Sinha that the respondent referredto his castemen when he said "fpnrt srfer sTRfifa ^Mi^l ^TCnrr"Confronted with this difficulty learned Counsel has contendedthat, in any case what section 123 prohibits as a corrupt practiceis appeal to voters in the name of caste and creed. Even if

E.L.R.] SANT PRASAD SINGH V. DASU SINHA 191

the respondent did not belong to the Kushwaha community,and appeal was made to the Jadavas and Harijans as well tovote for him because their caste organisations approved of hiscandidature, which would amount to appealing for votes inthe name of caste and would bring this case within the ambitof sub-section (3) of section 123. That sub-section is worded asfollows:—

"The appeal by a candidate or his agent or by any otherperson with the consent of a candidate or his election agentto vote or refrain from voting for any person on the ground ofhis religion, race, caste, community or language or the use of,or appeal to, religious symbols, or the use of, or appeal to,national symbols, such as the national flag or the nationalemblem, for the furtherance of the prospects of the electionof that candidate or for prejudicially affecting the election ofany candidate."

It is clear that the expression "for any person on the ground ofreligion, race, caste, community or language. . . . " distinctlylays down that the appeal to be made by the candidate to thevoters to support him should be on the ground that he belongs toa particular religion, caste, etc. In the present case, there is noreference at all to the Kurmis. If the respondents had appealed tothe Kurmis to support him on the ground that he was an AwadhiaKurmi and that his castemen should support him on that ground,the case might have been one hit by sub-section (3). As it is,however, reference to Kushwahas, Yadavas, Dusadhs and otherHarijans to support him because their caste organisation supportedthe Indian National Congress does not appear to me to be coveredby sub-section (3) of section 123. Moreover, whether the leaflet,Exhibit 9, would bring the case within sub-section (3) woulddepend upon the construction to be put upon the documentread as a whole and not a sentence here and there.After having referred to the various castes in the leaflet it wasmentioned that the voters must not cast their votes in favourof those who demanded their votes on the ground of caste.Such people were out to damage the cause of the country. Avoidingthe trap laid by castists, public should caste their votes exclusivelyin favour of the Congress. In my opinion, even if paragraphs 2,3 and 4 were construed as asking for votes in the name of castes,the last paragraph of which distinctly exhorted the people not tocast their votes on the ground of castes, etc. would nullify the effectof the appeal in the three preceding paragraphs and, therefore,read as a whole, this document would have the effect of warning-voters against exercising their franchise under the influenceof caste-feeling and not inviting them to do so on that ground. In

192 OHITTOORT INDRAYYA V. MULLAPUDI HARISCHANDRA PRASAD [VOL. XXV

my opinion, therefore, the Tribunal came to the correct conclusionin holding that the content of Exhibit 9 could not be regarded as acorrupt practice within the meaning of sub-section (3) of section123 of the Act. Mr. Gorakh Nath Singh has urged that fullparticulars of the corrupt practice in respect of this pamphlethaving not been disclosed in the election petition, it was not opento the appellant to agitate this question by leading evidence onpoint in course of the proceedings before the Election Tribunal.Mr. Birendra Prasad Sinha has referred, in reply, to the decisionsin Bhagwan Dutt Shastri v. Ram Ratan Gupta (5), Election LawReport 448 Sheopat Singh v. Harish Chandra (6), Election LawReports 103; and Saw Ganesan v. M. A. Muthiah chettiar, (7)Ele-ction Law Reports 16 for the proposition that where full parti-culars of a corrupt practice are not supplied in the election peti-tioner, but evidence on both sides is allowed to be given and takenthe petition cannot be dismissed for want of full particulars unlessthe want of full particulars has caused material prejudice. In myopinion, there is no dispute on this matter and the proposition oflaw contended for on behalf of the appellant by Mr. BirendraPrasad Sinha must be accepted. This, however, is immaterialso far as the decision of this appeal is concerned. Thus issuesnos. 1 and 7 alone having been pressed by Mr. Birendra PrasadSinha and my conclusion being in agreement with the finding ofthe Tribunal, it must be held that the appeal has no merit andis accordingly dismissed.

BAHADUR, J.—I agree Appeal dismissed

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

CHITTOORI INDRAYYA v. MULLAPUDI HARIS-CHANDRA PRASAD

(K.UMARAYYA AND S H A R F U D D I N AHMED, J J . )

September 17, 1963

Representation of the People Act. 1951 sA00(l)(d)(iii)—Improper reception,refusal or rejection of votes—Application for scrutiny by Tribunal of rejected ballotpapers—Whether can be granted unless prima facie case made out.

Conduct of Election Rules, 1961 Rule 63—Whether includes scrutiny of tlectedballot papers—Whether scrutiny can be made by Tribunal despite absence of expressprovision.

(5) 11 E.L.R. 448.(6) 16 E.L.R. 103.(7) 19 E.L.R. 16.

E.L.R.] CHITTOORI INDRAYYA V. MULLAPUDt HARISCHANDRA PRASAD 193

The appellant challenged the election of the first respondent to whomhe had lost by a majority of 111 votes on the ground, inter alia, of improperrejection of certain valid votes caste in his own favour and the acceptanceof invalid votes in favour of the first respondent. The appellant also made anapplication before the Tribunal for a scrutiny by the Tribunal of the ballotpapers complained of. The Tribunal rejected the petition as well as theapplication.

On appeal to the High Court :

HELD : dismissing the appeal : It was clear from the material onrecord that apart from a general and vague allegation that certain voteswere improperly received and others were improperly rejected, no specificinstances of either kind had been brought to the notice ot the Tribunal oreven mentioned in the election petition. It is well settled that a re-count orscrutiny cannot be claimed as a matter of right and a direction in that behalfcannot be given on mere suspicion or on the ground that a successful candidatehad secured only a small number of votes over his rival. The appellant hadfailed to make out a prima facie case for a re-scrutiny and the Tribunal wastherefore justified in refusing his application.

Pethud Reddiar v. Muthiah, 1963 II M.L.J. 1 ; and Basavaiah v. Bachiah,XVII E.L.P. 293 ; relied upon.

Rule 63 of the Conduct of Election Rules, 1961, onlv provides for re-count of votes upon an application in writing to the Returning Officer anddoes not include re-scrutiny in its ambit. The absence of any rule providingfor re-scrutiny does not mean that the decision of the Returning Officer inregard to the rejection or acceptance of ballot papers is final and cannot becalled in question, for such re-scrutiny can be secured upon a direction fromthe Election Tribunal provided a prima facie case is made out.

Mohan Reddy v. Narayan Reddy, 1963 II An. W.R. 101; referred to.

Appeal against the Order of the Court of the ElectionTribunal, West Godavari At Eluru in Election Petition No. 49of 1962.

P. Ramachandra Reddy, for the appellant.A. Sambasiva Rao and P. Raja Rao, for the respondent.

JUDGEMENTSHARAFUDDIN AHMED J.—This special appeal arises out of

the judgment of the Election Tribunal, Eluru, dated 31st Jan-uary 1963, made in Election Petition No. 49 of 1962, on its file.The appellant herein Chittoori Indrayya filed a petition undersection 81 of the Representation of Peoples Act (Act 43) of 1951(hereinafter called the Act), calling in question the election of therespondent Mallupudi Harischndra Prasad from the TanukuConstituency to the Legislative Assembly of Andhra Pradeshin the General Elections held in February 1962. The appellantwas an independent candidate while the respondent belonged to

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194 CHITTOORI INDRAYYA V. MULLAPUDI HARISCHANDRA PRASAD [VOL. XXV

the Congress Group and they were the only contestants forthe seat. The respondent succeeded by a majority of 111 votes.Thereupon, the appellant filed the election petition challengingthe return of the respondent on various grounds. The reliefsought by him was for a declaration that the election of the res-pondent is void and that the appellant is duly elected under sec-tion 101 of the Act, or in the alternative to set aside the election,order fresh election and to order recounting of the ballot paperspolled in the election.

The allegations contained in the election petition covereda wide field commencing from the preparation of electoral rollsto the termination of proceedings by declaration of the result.It was stated that the electoral rolls contained the names of400 persons who had not attained the required age by the qualify-ing date and this has been brought about by influencing the en-quiry officer. The counting was also found fault with inasmuchas sufficient number of votes that were polled for the respondenthad been incorrectly taken into account. It was urged that therespondent had subsisting contracts with the Government andwas, therefore, disqualified for being elected as a member of theLegislative Assembly. With reference to the fact that the appel-lant was running a sugar factory it was stated that the votes ofsugarcane growers were obtained in his favour under threatand coercion and, therefore, the respondent was guilty of corruptpractice as contemplated under section 123(2) of the Act. Hisfurther objection was that on the eve of election the respondentconvened a public meeting at Pattipadu and promised the votersthat he would contribute Rs. 50,000 for the construction of abridge for them if they voted for him. On these grounds, it isalleged that the result of the election has been materially affectedand the appellant was entitled to be declared as elected settingaside the election of the respondent.

The respondent filed his counter denying all the allegationscontained in the petition. It was stated by him that the materialparticulars were not furnished and, therefore, the relevant para-graphs had to be struck off. On this objection, further clarifica-tion was made by the appellant and a fresh counter was fileddenying the allegations.

On these averments, the Election Tribunal framed as manyas 20 issues and after an elaborate enquiry examining 25 witnesseson behalf of the appellant and 10 on the side of the respondentbesides marking numerous documents on either side, negativedalmost all the contentions raised by the appellant and accordingly

E.L.R.] GHITTOORI INDRAYYA V. MULLAPUDI HARISCHANDRA PRASAD 195

dismissed the petition with costs. This Special Appeal arisesout of the said order.

The learned counsel for the appellant stated at the outsetthat he was canvassing the finding of" the lower court in respectof issues No. 6, 7 and 8 only, and in particular issues 7 and 8.It would be convenient, therefore, to reproduce them here :

Issue No. 6.—Whether there is any arithmetical error inthe counting of votes as alleged ?

Issue No. 7.—Whether any votes secured by the petitionerare improperly invalidated as alleged ?

Issue No. 8.-—Whether any invalid votes have been countedfor the respondent as alleged ?

The averments in paragraph of the petition and para-graph 13 of the counter have given rise to these issues. It hasbeen mentioned in paragraph 9 that the counting has not beendone in accordance with the rules prescribed. A substantialnumber of votes that were polled for the respondent shouldhave been invalidated on the ground that stamping on ballotpaper had not been done by the prescribed instrument. Theballot papers on which there were writings, markings or impres-sions by which the votes could be identified, had not been invali-dated and they were counted for the respondent. If all thesevotes were excluded from counting, the case of the appellant is,that the respondent would not have got a majority. Furherin counting the intention of the voters has been observed andseveral ballot papers polled for the appellant had been improperlyrejected by the Returning Officer at the time of counting. Ac-cording to the appellant a careful examination of those voteswould have revealed that they should not have been invalidatedand ought to have been counted for him. Besides it is urgedthat there were also arithmetical errors in the counting of votes.

In paragraph 13 of the counter filed by the respondent theallegations in paragraph 9 of the petition have been stated to betotally false. It was further averred that no arithmeticalerror was involved in the counting that all the ballot paperswere carefully scrutinised and the counting took place in thepresence of the counting agents of the appellant. The ballotpapers were found to be valid or invalid on their respectivemerits in accordance with rules and there was no illegality orirregularity in validating or invalidating the ballot papers.No objection either as to any arithmetical error or othermistakes was filed and no recounting even was asked for. All

196 CHITTOORI INDRAYVA V. MULLAPtJDl HARISCHANDRA PRASAD [VOL. XXV

the ballot papers were scrutinised with care by the ReturningOfficer in the presence of the parties and the parties were thensatisfied both as to the decision of the validity and the countand that this belated false allegation questioning these matterswas not tenable.

The Election Tribunal dealt with this aspect of the casein paragraphs 11 to 16 and on a consideration of the evidenceadduced in this behalf came to the following conclusion :

"Examination in this light, in the instant case there isno application made before the Returning Officer underRule 63 of the Conduct of Elections Rules, 1961. Noconvincing explanation is furnished for not making suchan application. There is no evidence that there wasinfringement of any rules in counting of the votes. Thereis no material to infer that there was any mistake in thecounting and there is also no evidence whatsoever to subs-tantiate the allegation that any void vote was received or avalid vote was refused or rejected. Under these circums-stances, applying the propositions laid down above, thereis no option but to reject the prayer of the petitioner forrecount. Authorities are not wanting to support the view-that recount cannot be allowed merely for the sake of askingor merely because the respondent has won the election by anarrow majority over the petitioner. The petitioner has notmade out any case to induce the Tribunal to order recount.Hence, LA. 22/1962, is dismissed and issues 6 to 8 are heldagainst the petitioner."

It is to be borne in mind that LA. No. 22 of 1962, wasfiled by the appellant on 18-12-1962, i.e., after the evidencewas closed and the case was ripe for arguments, praying toorder a careful scrutiny and recount of the votes rejected atthe several polling stations and also of the last bundles creditedto the respondent in which new additions had been made. Thegrievance of the appellant is that the Tribunal did not bear inmind the distinction between scrutiny and recount and while themain objection of the appellant was in regard to the improperrejection and acceptance of the ballot papers, it focussed itsattention on the question of irregularities in the process of countingetc., and gave a finding against the appellant. A reference wasmade by way of illustration to the observations of the Tribunalmade in paragraph 12 of its judgement, which runs as under :

"The witness says that P.W. 1 was raising objectionsregarding the ballot papers on the ground that the votingmark was not put properly, that there were some marks

E.L.R.] CH1TTOORI INDRAYYA V. MULLAPUD1 HARISCHANDRA PRASAD 197

like dots and thumb impressions and contending that suchvotes could not be accepted. But the Returning Officerwas rejecting all the objections. Witness again says thatthe Returning Officer accepted the objections in one ortwo instances. This evidence also does not speak aboutany irregularity. If P.W. 1 was raising objections and theReturning Officer was deciding them in one way or theother, it was quite in accordance with the Rules. Thus,it can be seen that the evidence of the three counting agentsof the petitioner does not reveal any irregularity and does notsupport the allegations made in the petition to any extent."

No doubt there is some force in the contention, but on acareful perusal of the entire judgment it is difficult to say thatthe distinction between scrutiny and recount has been completelyoverlooked and that the finding is vitiated on account of any erro-neous approach.

In the Conduct of Election Rules, 1961 (hereinafter calledthe Rules), the scrutiny and rejection of ballot papers is a stepprecedent to the counting of votes. Under Rule 56 it is providedthat :

"(1) The ballot papers taken out of each ballot boxshall be arranged in convenient bundles and scrutinised.

(2) The Returning Officer shall reject a ballot paper—(a) if it bears any mark or writing by which the

elector can be identified, or(b) if no vote is recorded therein,"

Sub-rules (3) and (4) provide that :

"(3) Before rejecting any ballot paper under sub-rule(2), the Returning Officer shall allow each counting agentpresent a reasonable opportunity to inspect the ballot paperbut shall not allow him to handle it or any other ballot paper.

(4) The Returning Officer shall record on every ballotpaper which he rejects the letter 'R' and the grounds ofrejection in abbreviated form either in his own hand or bymeans of a rubber stamp."Rule 57 lays down :

"(1) Every ballot paper which is not rejected underrule 56 shall be counted as one valid vote."

Rule 63 provides for recount of votes and sub-rules (2)and (3) thereof lay down the procedure of submission of application

198 CHITTOORI INDRAYYA V. MULLAPUDI HARISHCHANDRA PRASAB [VOL. XXV

in writing to the Returning Officer for a recount of the ballotpapers stating the grounds on which the recount is demanded.There is, however, no provision for any application for re-scrutiny,and it would not be correct to urge that recounting under Rule 63includes re-scrutiny in its ambit. A plain reading of sub-rule (2)to Rule 63 would show that a candidate or his election agent mayapply in writing to the Returning Officer for recount of all orany of the ballot papers 'already counted', stating the grounds onwhich he demands such recount. The scrutiny, on the otherhand, would be in respect of the rejected ballot papers, i.e.,which had not been counted in accordance with Rule 67. Thisis also the view taken by a bench of this Court in MOHANRFDDY v. NARAYAN REDDY (1) 1963 II An. W. R. P-101wherein it has been observed :

"Counting, according to the scheme of the Rules, there-fore, means counting of valid votes, but does not include thescrutiny of ballot papers".

Thus it is clear that the rules do not provide for a rescrutinyof rejected papers. This, however, does not mean that thedecision of the Returning Officer in regard to the rejection oracceptance of ballot papers is final and cannot be called in ques-tion, for under Section 100 of the Act an improper refusal orrejection of any vote for reception of any vote which is void hasbeen made a ground for declaring the election to be void. Asstated above, before rejecting any ballot papers under sub-rule (2)to Rule 56(a) the Returning Officer has been directed to allowthe counting agents present a reasonable opportunity to inspect theballot papers. The intendment of this rule appears to be toenable the parties or their agents to lodge a protest in appro-priate cases and maintain a record of the rejected ballot papers,so that it might be a ground for election petition in case an occa-sion arises for it. However, to secure a direction from the Elec-tion Tribunal for scrutiny of the rejected ballot papers at leasta prima facie case has to be made out and the Election Tribunalwould not be justified in the exercise of its power unless theaggrieved party makes out a case for the scrutiny. This is theview that has been consistently taken by this Mohan Reddyv. Narayan Reddy (1) and also in an unreported decision(Special Appeal No. 419 of 1962). The ratio deciding ofthese cases is that a scrutiny cannot be ordered by Tribunalexcept on prima facie proof of the petitioner's case, and the pro-ceedings before the Tribunal cannot be converted into a formfor fishing out any possible defects regarding which no

(1) 1963 II An. W. R. 101.

E.L.R.] CHITTOORI INDRAYYA V. MULLAPUD1 HARISCHANDRA PRASAD 199

objections was raised before the Tribunal, or in the electionpetition.

Bearing this in mind it has to be determined whether theappellant has been successful in making out a case for scrutiny.A reference to para 9 of the election petition cited supra wouldshow that apart from stating that a substantial number ofvotes had been improperly rejected or accepted the number ofsuch votes was not mentioned nor it was indicated whether thecounting agent, who was admittedly present, had lodged anyprotest in that behalf. This omission gains significance in viewof the definite averment in the written statement in para 13that no objection either as to any arithmetical mistake orother mistakes was filed and no protest was made to the ReturningOfficer. In the rejoinder this fact was not controverted. It isonly in the evidence of the counting agent, examined as P.W. 1in the case, that for the time it has been stated that he objectedto the rejection and improper acceptance in certain cases.According to him his objections were based on the ground that—

(i) there were no rubber stamp marks on the ballot paperto show exercise of franchise and

(ii) there was improper rejection holding that there were twoimpressions on the symbols though it was a case ofsmudging and not two separate marks.

The Returning Officer, however, overruled these objectionswith the result that some of the valid votes were not countedfor the petitioner and some improper votes were received forthe respondent. The witness, however, was not able to giveany further details either as to the number of ballot papersaccepted or rejected or with reference to any particular serialnumber. He merely surmised that the number of votes vali-dated for the respondent in spite of objection would be 400to 500 while about 100 votes were improperly rejected. Para 9of the election petition does not give even the approximatenumber and it is not clear how the witness was able to arriveat this figure when admittedly the number of votes rejected at thesaid decision was 1640. The witness conceded that he had main-tained some rough notes regarding the improper rejection andacceptance and that he has given the note to the election agent(P.W. 24), but no attempt was made to produce the same.In fact no explanation has been offered as to why it was not possibleto produce the rough note to substantiate the contentions ofthe appellant. With reference to counting also it was found thathis statement did not tally with the averments in the electionpetition. The Election Tribunal commenting on the conduct

200 CHITTOORI INDRAYYA V. MULLAPUDI HARISCHANDRA PRASAD [VOL. XXV

of this witness and having regard to the circumstances of thecase came to the conclusion that he was not totally an independentor disinterested witness and it was not safe to rely on his testimony.In that view, it held him to be an unreliable witness and on acareful perusal of his deposition we find it difficult to arrive at adifferent conclusion.

The only other witness who has spoken about this aspectthe case is P.W. 21 another counting agent who was posted atthe time of counting votes. According to him P.W. 1 wasobjecting to the acceptance of ballot papers on which there weresome marks like dots and thump-impressions, saying that suchvotes could not be accepted, but all the objections raised byhim were rejected by the Returning Officer. The ReturningOffices allowed the objection only in one or two instances. Thewitness was, however, not able to indicate in how many casesthere was improper reception or rejection and the ElectionTribunal has found that it was not possible to rely on his vaguestatement.

It is clear from the material on record that apart from ageneral and vague allegation that certain votes were improperlyreceived and others were improperly rejected no specific instancesof either kind have been brought to the notice of the ElectionTribunal or at least mentioned in the election petition. Thenumber of votes rejected and accepted has been a matter ofsurmises and conjectures, whereas it has been found that somerough notes prepared by the counting agents contained thenecessary details, No attempt was made to produce the saidrough notes or to explain why it was not possible to produce thesame before the Election Tribunal. The witnesses examined toprove that there has been protest with the Returning Officerwere found to be unreliable. There was an attempt at a latestage to have the rejected ballot papers scrutinised which, however,did not find favour with the Tribunal obviously as it would haveled to a roving enquiry in an attempt to fish out any possibledefects. Having regard to these circumstances, it is difficultto hold that the appellant has been successful in making out aprima facie case for the scrutiny of the rejected ballot papers.It is well settled that a recount or scrutiny cannot be claimed as amatter of right and a direction in that behalf cannot be givenon mere suspision or on the ground that a successful candidatehad secured only a small number of votes over his rival. Thisis the position even under the English Law where recount canonly be granted in cases which are supported by specific instancesand reliable prima facie evidence vide the decisions in Pethu

E.L.R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 201

Reddiar v. Muthiah{2) and Basavaiah v. Bachiah{?>). As the appel-lant has not been able to substantiate his case the lower Courtwas justified in refusing to direct a scrutiny of ballot papers.

In regard to recounting it has been conceded by the learnedcounsel for the appellant that as no petition before the Return-ing Officer as contemplated under conduct of Election Rideswas filed the order of the Election Tribunal rejecting a recountcould not be canvassed.

The appeal, therefore, fails and is accordingly dismissed.The respondent will get Rs. 100 by way of costs from the otherside.

Appeal Dismissed.

IN THE HIGH COURT OF MADRAS

C. CHIRANJEEVULU NAIDU v. E.S. THYAGARAJAN(S. RAMACHANDRA IYER, C.J. AND RAMAKRISHNAN, J.)

September 18, 1963

Code of Civil Procedure, 1903—0;-. A7./, r.22—Whether applicable tn proceed-ings of appeal under s. 116-/4 of Act 43 of 1951—if High (.ovrt can uphold order ofTribunal on grounds decided by Tribunal in favour of appellant.

Representation of the People Act. 1951. 5.123(7)—Scope of.

Evidence—Handwriting expert's vieu—Valve of.

The respondent challenged the election of the appellant on the groundthat he was guilty ol several corrupt practices either by himself or throughhis agents or through other persons with his consent and knowledge. TheTribunal found some of the charges proved and declared the election void.In the appeal against this order, die respondent also urged by way of amemorandum that even if the findings of the Tribunal in respect of the corruptpractices proved were to he set aside by the High Court, it should still up-hold the order declaring the election invalid after examining the other chargesand reversing the findings of the Tribunal on those charges. After examin-ing the entire evidence documentary, and oral, the Court.

HELD :—Allowing the appeal : The finding of the tribunal cannot besupported in regard to the specific charges it had found against the appellantand its findings on the rest of the charges must be upheld.

(2) 1963 II M.L.J. P-l.(3) XVII E.L.P. P-293.

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2 0 2 C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN [VOL. XXV

It is open to the High Court to uphold the order of the lower court evenon any of the grounds decided in favour of the appellant if the court is in-clined on an examination of the evidence to reverse that finding and holdthe charge proved by the election petitioner.

Section 123(7) refers to a series of acts described as "obtaining" "pro-curing" "abetting" or "attempting to obtain or procure" assistance fromthe class of persons mentioned in that section by a candidate of his agent orby any other person with the consent of the candidate, or his election agent.All these acts imply some initiative taken by the candidate or his agent tosecure the assistance of the persons referred to.

Comparison of handwriting, unlike the case of comparison of fingerprints, can at best provide a tentative method of judging the authorship ofthe signature. The safe course is to test such a comparison with the surround-ing circumstances and the probabilities.

Appeal against the order of the Court of the Election Tribunal(District and Sessions Judge), Chingleput, Madras, dated 22ndMarch 1963 and made in Election Petition No. 70 of 1962.

Mohan Kumaramangalam, for the Appellant.

V. P. Raman, for the Respondent.

JUDGMENTRAMAKRISHNA J.—In Election Petition No. 70 of 1962, one

E.S. Thyagarajan applied under sections 81 and 100 of theRepresentation of the People Act, 1951, before the ElectionTribunal, Chingleput, to declare the election of Chiran-jeevulu Naidu, as a member of the Legislative Assembly of theState of Madras from Tiruttani Constituency, as void and to ordera fresh election. At the election, E. S. Thyagarajan, standing asa Congress candidate obtained 34,176 votes, while ChiranjeevuluNaidu standing as an Independent candidate, obtained 36,884votes, with the result that the latter was declared elected bymajority of 2,708 votes. There was a third candidate, whoalso stood as an Independent candidate, but he got less than 2,000votes and his deposit was forfeited. But we are not concernedwith him in the present appeal. Before the Tribunal, the defeatedcandidate, who was the election-petitioner, sought reliefon two main grounds : (1) that the appellant was disqualifiedto be a candidate under section l(d) of the Act : and (2) thathe was guilty of several corrupt practices either by himself orthrough his agents or through other persons, with his consentand knowledge. At the hearing, the first ground was not pressedbut several specified items falling under the second ground formedthe subject matter of contest. The details of these corrupt prac-tices are succinctly given in eleven issues as well as in an addi-tional issue framed by the Tribunal in its judgment. After an

E.L.R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 203

elaborate enquiry, the Tribunal found only issues 5, 6 and thesecond part of is me 9 proved against the respondent therein,while the rest of the issues were found not proved. On thefinding on the three issues mentioned above, the Election Tribunalfound that the respondent therein (appellant in the appeal)was guilty of the three corrupt practices comprised in the threecharges mentioned above, and declared his election void underthe relevant provisions of the Act. The appeal is filed by therespondent before the Tribunal, against the above order. Itmay also be pointed out that the respondent in the appeal,namely the election-peitioner, urged, by way of a memorandumthat, even if the finding of the Tribunal in respect of the threecorrupt practices mentioned, were to be set aside by this Courtit should still maintain the order declaring the invalidity of theelection, after examining the other corrupt practices mentionedin the charges, and reversing the finding of the Tribunal, andfinding them to be proved. We will refer to this point at a laterstage in the course of this judgment.

Initially, we are concerned with the appellant's contentionbefore us, that the three corrupt practices, which the lowerCourt has found to be proved, have not been proved, satis-factorily or convincingly, and that therefore the order of theTribunal requires to be reversed and the election upheld. Thesethree items of corrupt practices are :

(1) (This is comprised in issue 6 of the Tribunaljudgment) .Did appellant write a letter, dated 17th February1962, to S. G. Sadayappa Mudali of Sorakapet, an elector,offering inducements for voting in his favour ?

(2) (This is comprised in issue 5). Did the appellantwrite a letter, dated 17th February 1962 to one Kari OorappaMudali of Ammavarikuppam promising to get employment forhis son as an inducement to vote for the respondent in the elec-tion ? and

(3) (This is comprised in the second part of issue 9).Did Guruvayya Naidu, village munsif of G.C.S. Kandigai, useundue influence and threats to secure votes in favour of theappellant, as alleged in paragraph 8(b) of the petition ?

Item (1).—The letter mentioned in this charge is markedas Exhibit A-18. It is alleged to have been written by the appel-lant and sent by post in the envelope marked as Exhibit A-19to S. G. Sadayappa Mudali, P.W. 3 in the case. The letter

204 C. CHIRANJEEVULU NAIDU V. E. F. THYAGARAJAN [VOL, XXV

is in Telugu and purports to bear the signature of the appellant.The translation reads as follows :—

"As I told you already in person, please work hard inconnection with the forthcoming elections without being care-less and make necessary arrangements to see that voters votefor me. In this connection, 1 request you to arrange thatthey vote for me even by giving money. I shall come in twoor three days in person and see that all arrangements aremade regarding money."

The envelope of this letter contains three postal scales, namely,those of Pallipet Sub-Office, Poddaturpet Sub-Office and Sora-kayapet Branch Office. P.Ws. 3, 5 and a Handwriting Expert(P.W. 58) were examined on the election petitioner's side toprove his allegation about the despatch of this incriminatingletter. The request in the letter, involves an offer by the candi-date, of money to the voters, if they would vote for him and if thesending of this letter by the candidate is proved, it would amountto a corrupt practice within the meaning of section 123(1) of theAct. The appellant denied that he wrote the letter, and assertedthat the letter and the envelope were fabrications. It is, therefore,necessary to examine the circumstances surrounding the issueof this letter and the evidence adduced in regard to it, very care-fully, for the purpose of coming to a conclusion as to whether theappellant can be fastened with the authroship of this incriminatingletter. So far as the internal appearances of this letter are con-cerned, the date on the top of the letter 1 7 th February 1962 is in adifferent ink from the body of the letter, and the signature pur-porting to be that of the appellant, is again in different ink fromthe body of the letter. The address written on the envelopappears to be also in different ink, from the ink used in thewriting of the letter.

Next, the purport of the first part of the letter would indicatethat the appellant had been already in dose touch with theaddressee, even prior to the correspondence, and had securedhis consent to work hard for the appellant in the electionThe purport of the second part is that it was only in pursuanceof such a prior arrangement, that the appellant was instructingSadayappa Mudali to make arrangements for the purpose ofsecuring voters with bribes if necessary, and that the necessarymoney for bribing them would be provided by the appellant intwo or three days, when he would contact Sadayappa Mudaliin person. Normally, a letter like this amounting to a writtenecord of the intended offer of bribes to voters, is one which no

E.L.R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 205

sensible candidate would commit to paper, unless it is a communi-cation to a person in his intimate confidence and whose loyaltyto him could to implicitly trusted. If he was a person of doubtfulloyalty, or for example, if he was an adherent of some other party,and who had recently been secured to assist the appellent, itwould be a piece of utmost recklessness for the appellent toprovide for in advance of the election, such a damaging recordagainst himself by committing such a communication to paper.

P.W. 3, even according to the finding of the election Tri-bunal, is not a picture of honesty. He admitted that in 1955,when the respondent herein stood for election and also in 1962,when the present election took place, he used to work consistentlyfor the Congress party. There were six votes in his house, andall the members of his house voted for the Congress party. Des-pite this strong partisanship of the Congress party, this witnesswould say that twenty days before the election (the election beingon 24th February 1962, this would be on or about 4th February1962), he met the appellant at Tiruttani, when the appellanttold him that he was standing for the election, and asked for hishelp. Without any further ado or parley, arising out of this sur-prising request by an Independent candidate, made to a staunchpartisan of the Congress party, the witness immediately said," Alright, do visit our village. I shall make arrangements."This is the version which P.W. 3 gave to the Court regarding thepreliminary discussion mentioned in the first part of the letter.The next contact which the witness had with the appellantwas the receipt of the incriminating communication, Exhibit A-18on 19th February 1962, and a little later on the very same day,the appellant arrived in Sorakayapet village, accompanied by anadvocate of the Communist party (Dasappa Mudali). anotheradvocate and a third person Thangavelu Mudali, P.W. 5, whois the President of a Weavers' Co-operative Society. The firstquestion the appellant put to the witness was whether he hadreceived his letter, and this was in the presence of the largenumber of persons, present including P.W. 5. On the witnessreplying in the affirmative, they both went into a room, when theappellant again reiterated his offer to pay money for the purposeof bribing the voters. The witness said that he needed no money.

P.W. 5 corroborates P.Wr. 3. He is also a staunch partisanof the Congress party. On the day when the above conversa-tion took place, he was approached and he flatly declined tovote for the appellant, but the Panchayat Board President,Desappa Mudali told him that in any event he could accompanythe appellant as well as some other persons to the house ofP.W. 3. This is very surprising, because, if P.W. 5 had declared

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his firm intention to vote for the Congress candidate, there wouldbe no occasion for him to accompany Desappa and the appellant,who were obviously on an errand to canvass votes for the appellant.It looks as if P.W. 5 was too ready to accompany the party ofDesappa Mudali and others to the house of P.W. 3, just to be ina position to be a witness to what happened between the appellantand P.W. 3 in the latter's house subsequently. The evidence ofP.W. 5. having been a witness as to what happened in P.W. 3'shouse on the day in question, appears to be extremely artificial.He corroborates P.W. 3, regarding the receipt of the letter andthe subsequent conversation, which took place inside the roomin the house, between P.W. 3 and the appellant. After theappellant and others left, P.W. 5 remained in the house of P.W. 3and asked him about the letter. It was read out to him by P.W. 3.The impression one gets from the evidence of P.Ws. 3 and 5 isthat the version of the entire set of happenings in the house ofP.W. 3 on that day, is an artificial version built round the allegedwriting of the letter, designed for no other purpose than to givea plausible setting to the letter. In the normal course of events,would expect the contrary to have taken place. The letterwould at best be a secret document hardly likely to be the subjectof talk between the appellant and P.W. 3, especially in the presenceof other persons, who were admittedly present at the earlier stageof the conversation. One would very well ask the question,if the appellant had followed up the letter by a personalmeeting with Exhibit P.W. 3, when the question of supplyingbribes to the voters could very well be secretly discussedwhat was the necessity for the appellant to ask P.W.3pointedly about the receipt of the letter in the hearing of a largenumber of persons.

There is a curious sequel to this in the post-card ExhibitA-25, which P.W'. 5 claims to have written to the respondenton 20th February 1962. It purports to be a report of the con-versation on 19th February 1962, which the evidence of P.Ws.3 and 5 relates to. It reads :

"Yesterday Chiranjeevulu Naidu, President DesappaMudali and several others went from house to house can-vassing votes. I understand that they asked SadayappaMudali to secure votes even by bribery. ChiranjeevuluNaidu has also written a letter to Sadayappa Mudali.Wrhen they left, I asked Sadayappa Mudali to show the letterand he showed the letter to me. In that letter, it is writtenthat vote should be obtained even by giving bribes. It isnot proper for you to keep quiet even after this."

E. L. R.] C. CHIRANJEF.VlII.il NAIDU V. E. S. THYAOARAJAN 207

It may be pointed out that this post-card was not producedby the witness at the first hearing before the Tribunal. Butit was produced on 12th December 1962, when the Court recalledhim and examined him to testify to the receipt of the letter.This post-card bears the postal seals of Sorakayapet and Padda-turpet.

It is necessary to consider, in this connection, the evidenceof R.W. 3, the Inspector of Post Offices, Tiruttani. He refersto a significant circumstance about the change of post officeseals in this area, which formerly belonged to Chittoor districtof the Andhra State, but was subsequently tacked on to theMadras State after the Pataskar Award. When the area cameinto the Madras State, it was tacked on to Chingleput district.The Inspector of Post Offices, R.W. 3 deposed that followingthe charge-over, only on 9th January 1963 the postal seals bearingthe name of Chingleput district, were introduced in the Podda-turpet Sub-Office. For Sorakayapet Office, the change wasintroduced on 8th December 1962. But in the case of Ammavari-kuppam, this change was introduced on 2nd April 1962 itself.There is a letter, Exhibit A-16, dated 17th February 1962 sentin the envelope, Exhibit A-17 marked in the case and, which re-lated to charge 5. It is alleged to have been sent to Karia DorappaMudali (P.W. 2) a resident of Ammavarikuppam by the appel-lant. In the ordinary course, according to the evidence of R.W.3, this letter should bear the postal seals of Sorakayapet, Podda-turpet and Ammavarikuppam. But Exhibit A-17 contains thepost seals of Sorakayapet and Poddaturpet, but not that of Amma-varikuppam. According to R.W. 3, AmmavarikuppamBranch Office had the seal changed on 2nd April 1962, so as tomention Chingleput district instead of Chittoor district. TheElection Petition is dated 7th April 1962. It is alleged by thelearned counsel for the appellant before us, that the reason whyExhibit A-17 did not bear the Ammavarikuppam postal seal,was that it would not have been possible to fabricate the postseal, after the change of the name of the district on 2nd April 1962from Chittoor to Chingleput, whereas, in the other letters likeExhibit A-16, Exhibit A-18 and Exhibit A-25, since the nameof the old district (Chittoor) continued for, the seals maintainedin Poddaturpet and Sorakayapet, it was possible to fabricate thepostal seals and to bring into existence the letters with the en-velopes. To support this argument further, it was elicited in thecourse of the evidence, that the sister of the postmaster of Podda-turpet was given an appointment by the election-petitioner

as a teacher in the school in which he was the appointing authority.It was also elicited that one Sambasiva Pillai was the Post-master of Sorakayapet Sub-Office and he was a manager of a

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Co-operative Society, of which P.W. 5 Thangavelu Mudali wasthe President. Now these two witnesses, P.Ws. 1 and 5 reveal acurious ignorance about this Sambasiva Pillai, the Postmaster ofSorakayapet. P.W. 1 would not admit that Sambasiva Pillai apostmaster or that he was a manager of the Society, of whichP.W. 5 was the President. P.W. 5 admitted that SambasivaPillai was a worker in his Society. R.W. 3, the Inspector ofPost Offices stated that Sambasiva Pillai was the Postmaster ofSorakayapet. In our opinion, for appraising the effect of thepostal seals found on the envelope, Exhibit A-17 and in the post-card Exhibit A-25, the situations of these postmasters in thatlocality, who seem to be persons interested, will be a relevantcircumstance, which cannot be ignored. We cannot also ignorethe circumstances, that, when it came to the envelope, ExhibitA-17, the Ammavarikuppam seal was left out. Though theInspector of Post Offices had deposed that accidentally thepostal seal might be omitted to be affixed in an envelope, it ismore than a coincidence, that the postal seal omitted in a parti-cular correspondence produced as evidence in the case, shouldrelate to a particular post office, where there was a significantchange in the seal, substituting one district in the place of anotherwhich took place after the election and just before the electionpetition was filed. This would show that there was everyprobability that interested partisans, to support the documentary,evidence they produced in the shape of communications sentby post, should have used their influence to fabricate the postalseals also. But they refrained from resorting to this procedurein the case of the communication sent to Ammavarikuppam,because it would have revealed a tell-tale circumstance about thechange of the name of the district.

We have devoted some time to the discussion of the effectof the postal seals, because, according to the opinion of thetribunal, as the evidence of the witnesses, P.W. 3 and P.W. 5appeared to be unreliable and interested, the tribunal wouldnot have accepted their evidence but for the corroborationprovided by the letters sent by post. In our opinion, theseletters sent by post, in the background of the circumstances wehave referred to, do not have the value of unimpeachable docu-mentary evidence, or the great weight which the lower Courthas given to them, for the purpose of corroborating the oral testi-mony. We may also point out that the lower Court has ob-served that Pallipet was the strong-hold of the appellant herein,because it was his native place, and because he was the Presidentof the Panchayat Samiti, and therefore it would not be possiblefor the opposite candidate, namely, the election-petitioner to

E. L. R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 209

secure the date-stamp of the Pallipet Sub-Office, which is foundin one of the envelopes, Exhibit A-19 is unfortunately, we haveno information about the Pallipet postmaster. But merelybecause the appellant was the President of the Panchayat Samitiof Pallipet, it would not follow that the postmaster was under hisinfluence, or that he would not be influenced by the election-petitioner unlike the Post Masters of Sorakayapet and Poddaturpet.We are unable to make such an inference, and to give ExhibitA-19 the value of unimpeachable documentary testimony,merely because, it bears the postal seals of Pallipet besidesthose of the other post offices.

But what we have discussed earlier would show that thevery purport of these items of documentary evidence togetherwith the oral evidence supporting them appear on their faceto be unreal and artificial. The very person selected as the ad-dressee of such a self-incriminating communication and the veryperson selected as on instrument for the offer of the bribe tovoters is unlikely to be a person selected for the purpose, and isreally a partisan of the election petitioner. We are inclined tohold that the letter is a fabrication, as contended the appellant.

As regards the signature, it is in evidence that at the timeof the elections, several appeals were sent out by the appellantwith his signature to voters, and documents bearing his signaturewere in circulation in the locality. As against the Hand-writingExpert, P.W. 58, examined on the side of the election-petitioner,the respondent examined another Hand-writing Expert, R.W. 17,who gave a dimetrically opposite opinion in regard to the agree-ment between the handwriting of the signature in Exhibit A-19,and that of the admitted signature of the appellant. It is well-known that comparison of handwriting, unlike the case of com-parison of finger prints, can at best provide a tentative methodsof judging the authorship of the signature, and the safe courseis to test such a comparison with the surrounding circumstances,and the probabilities. In our opinion, it will be profitless to enterinto a recapitulation of the reasons given for and against, by thetwo Handwriting Experts, for the support of their rival andcontradictory conclusions. But it will be safe to apply, in thiscase, the test of realiability of the surrounding circumstances,to hold whether the letter, Exhibit A-19 is a genuine communica-tion emanating from the appellant. For the reasons mentionedabove, we are of the opinion, that it is a fabricated communica-tion, and which, in the circumstances of the case, would not havebeen sent by the appellant to P.W. 3.

Item (2) {Issue No. 5).—While discussing issue No. 6, wehave already referred to the letter Exhibit A-16. for the purpose

29—3 ECI/ND/67

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of referring to the postal seals therein, and for evaluating, in thecontext of this letter, as well as the context of the letter ExhibitA-19 of the same day, the weight to be given to the affixture ofpostal seals, to correspondence that passed in relation to theelection matters, in this factious area. Under this issue, thecontents of the letter Exhibit A-16 and relied upon, for the pur-pose of supporting a charge of a corrupt practice by the offerof gratification to a voter for securing his vote. The translationof Exhibit A-16 is this :

"To Karia Oorappa Mudali of Ammavarikuppam, inthe forthcoming election, please arrange to the best of yourability to see that the voters of the entire village cast theirvotes in the box of the Elephant symbol. Your vote and thevotes of the members of your family should be cast likewise.The employment about which I have already mentionedto you, the employment for your son, will be given as soonas the election is over."

The envelope of this letter is Exhibit A-17. We have alreadyreferred, while discussing the previous charge, how this envelope,though addressed to Ammavarikuppam, lacks the seal of the postoffice of that village, while retaining the seals of Sorakayapetand Poddaturpet. We have also referred to a very probablereason for the omission, namely, the change in the interval,of the name of the district in the postal, seal of AmmavarikuppamPost Office from Chittoor to Chingleput. In the circumstancesof this case, we are inclined to treat this omission not as an acci-dental slip, but as one which was the consequence of interestedparties not being able to get the earlier seal affixed to the latercorrespondence, by securing the help of the local postal authoritieslike branch postmasters and the like. The circumstances sur-rounding the despatch of this letter are also as suspicious as thosewhich surround the letter, Exhibit A-19 already discussed. Theaddressee, Karia Oorappa Mudaliar, is P.W. 2. The evidence ofP.W. 2 is this. About four months before the election, he wason the look-out for an appointment for his son in the PanchayatSamiti, of which the appellant was the Chairman. The peonof the Samiti advised him that, if the appellant could be in-fluenced, a job could be obtained. When he met the appellant,the appellant told him that, if Rs. 50 or Rs. 60 were expended, thematter could be done. About 20 or 25 days before the election,when the appellant came to his village for canvassing votes, andrequested the witness to vote for him, the witness referred to hisearlier attempt to secure a job for his son. Thereupon, the appel-lant told him that, if he won the election, he would get a job forthe son of the witness. The witness thereupon promised to

E. L. R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 211

work for the appellant. The bargain, to all intents and purposes,was concluded by this conversation, which would have takenplace about the first week of February 1962. There wastherefore no necessity for the appellant to write a communicationlike Exhibit A-16 reiterating the offer of a job on the completionof the election. Another curious thing is that the witness is anilliterate person and there was no necessity therefore to write thisself-incriminatory letter to an illiterate witness. P.W. 2 statedthat as soon as the letter arrived, P.W. 10, Govindasami Mudali,who was passing along that way, was called to read out the con-tents to him. After the election was over, the election-petitionermet P.W. 10, and P.W. 10 mentioned about the letter to theelection-petitioner. To give a colour of plausibility to the evi-dence P.W. 10 added that, when he and the election-petitionerasked him to give the letter, P.W. 2 refused to do so and agreed toproduced it, only if summoned by the Court, and therefore thisprocedure was adopted, in the first place, P.W. 10 is admittedlya strong partisan of the election-petitioner, as he worked for thepetitioner in the election. It is more than a coincidence thatP.W. 10 should be present as soon as the letter was received, to beconveniently at hand, for the purpose of reading out the contentsto P.W. 2. Admittedly this is the only letter which the appellantever wrote to P.W. 2. As already mentioned, there was abso-lutely no reason to follow up the oral offer to provide employmentfor the son of the witness, which was finalised on an earlier date,by communicating a letter of this description to an illiterate person.It was also elicited that P.W. 2, according to an earlier depositionof his in a Criminal Court marked as Exhibit B-2, used to deposein Courts on several occasions. There is, therefore, every proba-bility, in regard to him, that he is a professional witness. Asthe Election Tribunal has observed that, if the testimonyof P.W. 2 or P.W. 10 had stood alone, it would have given consi-derable weight to the criticisms against their evidence. But theTribunal was prepared to accept their evidence, because of theletters which were exchanged and which contained postal sealson their envelopes. We have already pointed out that, in thecircumstances of the keen rivalry prevalent in the locality overthe matter of the elections, it could not have been very difficultto bring into existence ante-dated postal seals. It would cer-tainly be a very unsafe procedure to accept the interested artificialand suspicious testimony regarding the letters alleged to have beensent by the appellant, solely on the ground that the envelopesare found to contain appropriate postal seals. As already men-tioned, even the corroboration of postal seals is significantly absentin the case of Exhibit A-16. We are of the opinion that it isnot safe to accept the evidence also in regard to this charge. As

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regards the signature, the appellant has stoutly denied it to be his;and for a comparison of the writing, there is the testimony ofone hand-writing expert pitted against the rival testimony,of another handwriting expert. Here again, it will be profit-less to enter into an elaborate discussion of the similarity of thewriting, when the surrounding circumstances are wholly againstthe genuineness of such a letter being sent in the context of theelection. We, therefore, set aside the finding of the Tribunalunder this charge.

Item (3)—(Issue No. 9, second part).—The allegation madein paragraph 8 (b) of the petition, which forms the basis ofthis charge, is this. One Guruvayya Naidu, the village munsifof G.C.S. Kandigai is a relation and friend of the appellant.Both this village munsif and the appellant came together andcanvassed for votes in G.C.S. Kandigai on 19th February1962. On 24th February 1962 the date of the election, thevillage munsif came to the polling booth in his village andthreatened the electors with dire consequences if they did notvote for the Elephant symbol. In the altercation that ensuredthereafter between some of the electors and the village munsifand his men, there was pelting of stones, and many voters be-came afraid and returned home without casting their votes.Thus, there has been an interference with the free exercise ofelectoral rights by the electors. The above threat and undueinfluence exercised by the village munsif was with the consentof the appellant and in furtherance of his election. ScheduleIII of the election petition repeats the incident above mentionedat the polling booth on the date of the election.

The Tribunal has proceeded on the basis that this chargecomprises of the use of undue influence by the village munsif,that is, an attempt on the part of a person other than the can-didate, but with his consent, to interfere with the free exerciseof an electoral right, mentioned in section 123(2) of the Act. Thecounsel of the respondent contended that charge No. 9 would .alsofall under section 123(7) of the Act, which refers to obtainingby a candidate, for the furtherance of the candidate's election,assistance from specified classes of Government servants, namely,Revenue Officers, who include village munsif in this State.But before considering the proper section of the Act, under whichthis alleged corrupt practice would fall, it is necessary to considerwhether the evidence itself establishes the charge. P.Ws. 12, 13,23, 24, 31 and 56 were examined to prove this part of the charge.

P.W. 12 is the Manager of a Co-operative Weavers' Societyand is of the same caste as that of the election-petitioner. He

E. L. R.] C. CHIRANJEEVULU NA1DU V. E. S. THYAGARAJAN 213

is an active worker of the Congress Party to which the election-petitioner belonged. He saw the canvassing for votes by theelection-petitioner, the Village Munsif and others at Sanjeevi-puram.

P.W. 23 is a resident of Vanganoor. He is a fellow caste-man of the petitioner. He saw the Village Munsif, GuruvayyaNaidu and the appellant along with the others canvassing activelyfor the appellant. He saw them only for five minutes. He deniedthe suggestion that he is related to the election-petitioner.

P.W. 24 is also a resident of Vanganoor. He also spoke tothe canvassing at Sanjeevipuram by the village munsif and theappellant along with others. He is also of the same caste as theelection-petitioner. He could not explain how the election-petitioner had come to know of what he had observed.

P.W. 31 also refers to the canvassing of votes at Sanjeevi-puram. The evidence about this canvassing for votes centresround P.W. 12, who is a resident of Vanganoor like the otherwitnesses, P.Ws. 23, 24 and 31. P.W. 12 is the Manager of theSanjeevipuram Co-operative Weavers' Society. P.W. 12 is anactive partisan of the election-petitioner, and he worked outsidethe polling booth of G.C.S. Kandigai, on the election day to assistthe Congress. It is not unlikely that these witnesses from Vanga-noor, who all belonged to the same community as the election-petitioner, have come forward to give on one-side version tosupport him, in regard to the canvassing of votes by the VillageMunsif and the appellant. Without any independent testimony,it will not be proper to act on the interested evidence of this kind,especially in a matter where partisan rivalry has been so keen.

We next come to the incident at the polling booth at G.C.S.Kandigai, on the polling day. There is a certain amount ofconfusion in the evidence, as to what part the Village Munsif,Guruvayya Naidu played at the polling booth. The witnesseson the side of the election-petitioner have given somewhatconfuting evidence. P.W. 12 stated that when the votersfrom Sanjeevipuram came to the polling booth for voting, theVillage Munsif obstructed them and there was rioting. Stoneswere thrown and some persons sustained injuries. When P.W. 12went to the Police station to make a report, there was nobody.When the Tahsildar arrived, he made representations to him.On account of the obstruction of the Village Munsif, the votersfrom Sanjeevipuram were annoyed and returned to their villagepresumably without casting their votes. The witness in cross-examination admitted that he was a partisan of the election-petitioner, and that he did not complain about the obstruction

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to the polling officer, but the polling agent of the election-petitionerreported the matter to the polling officer. But P.W. 31 givesa different version of the incident. The Village Munsif broughtcertain people at 5 a.m. to the polling booth and made themstand in a queue. P.W. 31 arrived at the booth at 6 a.m.There was a complaint that the Village Munsif was not allowingSanjeevipuram people to cast their votes. P.W. 31 suggestedthat two queues might be formed for the two sets of rival voters,but the Village Munsif did not agree, and there was confusion.Thereupon, P.W. 31 reported the matter to the PresidingOfficer, who informed the Block Development Officer and theTahsildar. Order was restored and polling progressed till8 p.m. If the evidence of P.W. 31 is to be believed, it wouldappear that even if some confusion took place, order was restoredimmediately afterwards, on the interference of the authorities.But, in cross-examination, he would add that some people wentaway without voting, because of the trouble.

In the first place, there is no evidence that the incident atthe polling booth at G.C.S. Kandigai on the polling day, wherethe Village Munsif was said to have caused obstruction to thevoters from Sanjeevipuram, even if it amounted to a direct orindirect interference, or an attempt to interfere with the freeexercise of their electoral right by the voters, on the part of theVillage Munsif, took place with the consent of the candidate orhis election agent. What happened at the polling booth,even if the version of the election-petitioner's witnesses is to beaccepted, was a spontaneous incident in which the VillageMunsif played a part. To show that the Village Munsif did sowith the consent of the candidate or his election agent, there isno evidence, and it appears to be quite unlikely that the candidateinduced the Village Munsif to act in the manner he is alleged tohave done. Further the evidence regarding this incident at thepolling booth is given either by interested witnesses or witnessesof the same community as the election-peitioner. The best wayof corroborating such testimony will be to examine the PresidingOfficer at the polling booth, to whom, a complaint, according toP.W. 31, was given immediately. In the absence of such dis-interested evidence, it is unsafe to accept the interested testimonyof partisan witnesses.

The Tribunal pointed out that it would accept the evidenceof P.W. 12, regarding the incident at the polling booth, becauseit was largely corroborated by documentary and oral evidence.Now this documentary evidence is the complaint, ExhibitA-26, made by P.W. 13 at the police station. The complaint,Exhibit A-26 given by P.W. 13, was not with reference to the

E. L. R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 215

incident at the polling booth on the election day. Accordingto P.W. 13, the Village Munsif came subsequently to Sanjeevi-puram the day after the election, with a large body of persons,who were armed, and challenged the residents to a fight; and itwas thereupon that the witnesss went to the police station andgave a complaint. The Head Constable, P.W. 57 refers to thiscomplaint on which he made enquiries, and in the course of theenquiry, the Village Munsif Guruvappa Naidu and other gavean undertaking to keep the peace. The Head Constable didnot make any enquiry into the incidents at the polling booth.Therefore the report, Exhibit A-26, cannot be treated as corrobo-rating the incident on the polling day. As already mentioned,there is no evidence that, what happened at the polling boothwas done with the consent of the candidate. Therefore, weare of the opinion that this charge also cannot be sustained.

We will next consider the arguments advanced before us bySri V. P. Raman, learned counsel for the election-petitioner,respondent in the appeal. Learned counsel has filed a memo-randum of objections purporting to be under Order XLI, Rule22 of the Civil Procedure Code. Strictly, that provision of theCivil Procedure Code will not apply in terms to the presentproceedings. But as argued by the learned counsel for the res-pondent, it is open to us to uphold the order of the lower Courteven on any of the grounds decided in favour of the appellant.if we are inclined on an examination of the evidence to reversethat finding, and hold that they are proved by the election-petitioner.

We will take up first issue 11, because of the special attacklevelled by the respondent herein, against the finding on it, on theground that the Tribunal had failed to take into account certainrelevant points. This charge is that the appellant utilized theservices of Munuswami Raju, Subramania Reddi and HemadriNaidu, three Village Munsifs, to further the prospects of hiselection. As the aforesaid Village Munsifs are Revenue Officerswithin the meaning of section 123(7) (/) of the Act, consequentlythis will amount to a corrupt practice within the meaning of sec-tion 123(7) of the Act. There was no serious challengebefore us, of the finding of the Tribunal that the Village Munsifsemployed under the relevant provisions of the Village Officers'Act, in force in the State, are Revenue Officers as mentionedin the above section. The attack against the finding was basedon other considerations. The Tribunal observed that one of theVillage Munsifs Munuswami Raju issued appeals for supportingthe appellant in Exhibits A-14 and A-15 at a time when theappellant had not been adopted as a candidate for the election.

216 C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN [VOL. XXV

According to the learned counsel, Sri V. P. Raman, appearing forthe respondent in this appeal, it would suffice if, at the time whenthese appeals were issued, the election was in prospect and theperson held himself out as a prospective candidate ; and evenin that event, he would fall within the definition of a "candidate"in section 79 (b) of the Act, and that it is not necessary to wait tillthe name of the candidate has been actually proposed, secondedand his nomination accepted. There was also a further argu-ment that to bring the conduct of the candidate within themischief of section 123(7) of the Act, it wotild suffice to make outan attempt on the part of the village officer to assist the candidate,other than giving of a vote, and that proof of actual assistancewas not necessary.

The gist of the complaint against Munuswami Raju, who isthe Village Munsif of Nochili, is this. Exhibits A-14, A-15and A-22 are postcards addressed to different persons on 11thDecember 1961 (in the case of Exhibits A-14 and A-15) and on17th December 1961 (in the case of Exhibit A-22). In Exhi-bit A-14, it is stated that a meeting would be called to considerthe adoption of a suitable candidate, on 14th December 1961.The meeting was held on that day and it was decided to requestthe appellant to contest the election. The printed signatoriesto Exhibits A-14 and A-15 include Munuswami Raju. ExhibitA-22 is a printed postcard, in which it is mentioned that theappellant had been nominated as an independent candidate ;and that a meeting would be called on 20th December 1961to decide about the further steps to be taken in the matter.This card also bears the name of Munuswami Raju in print.The addressees have given evidence as P.Ws. 52, 50 and 49.These addressees could give no information, as to whether theoriginal of these cards were actually signed by Munuswami Raju.On the other hand, Munuswami Raju deposed that he didnot take part in the sending of these appeals. It was R.W. 27Sriramulu, a prominent supporter of the appellant, who thinkingthat the Village Munsif was a prominent man and a close friendof some of the supporters of the appellant, included his name inthese appeals, but it was done without the consent of MunuswamiRaju. When Munuswami Raju came to know of this fact, hisname was subsequently not included, and he did not participatein the election campaign. The Tribunal was inclined to acceptthe evidence of R.W. 27 Sriramulu, that he used the names ofsome of his close friends as sponsors of the meetings even withoutconsulting them, because he thought they would subsequentlyagree for the same. In the case of Exhibit A-8 also, a printed

217E. L. R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN -*1

pamphlet announcing an election meeting to be held at Tiru-ttani on 21st February 1962. The Tribunal accepted the pleaof the appellant that the name of Munuswami Raju might havebeen included without consulting him and there was also evidenceadduced on the side of the appellant by respectable witnessesthat Munuswami Raju did not actually attend the meeting.

There was also one other witness, P.W. 49, on behalf of theelection-petitioner. He is Venkatanarasu Raju, an Advocateof Chittoor. He deposed that Munuswami Raju was not osten-sibly interested in the election. When questioned MunuswamiRaju told the witness that he was a Village Munsif and was notinterested in the election. But the Advocate also hastened toadd that he actually noticed Munuswami Raju interesting himselfin the election. The oral evidence, is somewhat vague andinterested on both sides ; we are of the opinion that the viewof the Tribunal is correct that the evidence about MunuswamiRaju actually assisting or attempting to assist the candidate inthe manner mentioned in section 123 (7) of the Act is not satis-factorily established. As pointed out by the learned counsel,Sri Mohan Kumaramangalam, appearing for the appellant,there is also no evidence that Munuswami Raju even if he hadacted in the above manner, did so at the instance of the candidate.It is prossible that there might be influential persons who mighthave come forward on their own intitiative to support a candidate.Section 123 (7) refers to a series of acts described as 'obtaining',' procuring' 'abetting' or 'attempting to obtain or procure'assistance from the classes of persons mentioned in that sectionby a candidate or his agent, or by any other person with theconsent of the candidate, or his election agent. All these seriesof acts imply some initiative taken by the candidate or his agentto secure the assistance of the persons referred to. Even theword 'obtain', according to standard English dictionaries has themeaning of "procuring or gaining, as the result of purpose andeffort "—vide the Shorter Oxford English Dictionary.

There was also one part of the evidence on this aspect of thecase in which Munuswami Raju is said to have gone about inthe company of the appellant for canvassing votes. If thisevidence is accepted, it would also fall within the mischief ofsection 123 (7) of the Act. But the Tribunal has discussed thisevidence and has come to the conclusion—in our opinion rightly—that the evidence adduced on the side of the election-petitionerhas been either by interested witnesses, who are of the same casteas the election-peitioner, or by supporters of the Congress Party.Though P.W. 40 is a Raju, he admits that he voted for the CongressParty at the election, and it was suggested that there were

30—3ECI/ND/67

2 1 8 - C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN [VOL. XXV,

disputes between the Village Munsif, Munuswami Raju and him-self, and that was the reason why lie came to support the election-petitioner. That this Ilaju is'a supporter of the Congress isplain from his own admission : he also admitted that MunuswamiRaju is a distant relation of his.

Another witness is a Harijan, P.W. 48. He is said to be afarm-servant of P.W. 40 ; he too admits that he voted for theCongress.

As regards Subramania Reddi, another Village Munsif, hisname is found in the copies of certain pamphlets announcingan election meeting at Pallipet on 7th February 1962, and ameeting at Tiruttani on 21st February 1962. This witness deniedthat he took any part in these pamphlets or in the election meet-ings. Here again, the Tribunal appears to have been right inits view, that it is not unlikely that the name of this Village Munsifmight have been included by R.W. 27 as a signatory to the pam-phlet without the consent of the Village Munsif. The questionwhether the Village Munsif actually spoke at the meeting, andthe further question whether he did so at the request of the can-didate are all matters in regard to which there is no convincingevidence. Regarding his participation at the meetings, there isoral evidence for and against. In the above state of evidence, weagree with the Tribunal's opinion that the participation ofthis Village Munsif is not proved.

So far as Hemacri Naidu is concerned, his case came underthe first part of issue 9, he is said to have threatened the votersof a Harijan colony to cast their votes for the appellant. Theevidence regarding this has been found by the Tribunal to becontradictory and unreliable and this finding is not seriouslyattacked before us at the hearing. We, therefore, see on reasonsto differ from the finding of the Tribunal under this issue.

The rest of the charges found against the election-petitionercan be briefly touched upon. Issue 1 was given up. Therewas no proper evidence for issue 2. Issue 3 relates to distri-bution of paddy by Kuppa Naidu, the agent of the appellant,to the voters in Korakuppam village, for inducing them to votefor the appellant. The oral evidence on this aspect of the casehas several contradictions, and the existence of these contradictionsis clear from both the cross examination of the witnesses, and theevidence on the side of the appellant. After going through theevidence carefully, we see no reason to disturb the finding of theTribunal on this issue.

E. L. R.] C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN 219

A similar conclusion will hold good in respect of issue 4relating to distribution of money by Paradesi Mudali, thepolling agent of the appellant. There is a finding that Para-desi Mudali, from the very circumstance win which he wasplaced, could not have worked for the appellant in the elec-tion. The documentary evidence, Exhibit A-23 would onlygo to the extent of showing that Paradesi Mudali was an agentof the appellant, but would throw no light on the crucial allegationagainst him.

As regards issue 7, there is a letter, Exhibit A-20, allegedto have been written by Paradesi Mudali to one Balasubra-maniam, which makes a reference about distribution of moneyto voters. Paradesi Mudali has given evidence as P.W. 56,stating that his uncle Sivalingam introduced him to the appellant,and it was decided that he should organise the election campaign.This uncle, Sivalingam (R.W. 18), denied his relationship withParadesi Mudali and also denied his introducing Paradesi Mudalito the appellant to work on his behalf. His evidence was that,on the day previous to the election, someone has to be fixed aspolling agent, and Parasesi Mudali was pitched upon on thebasis of a chance meeting, and his name was filled in the PollingAgent Form. Merely because he was a polling agent, it wouldnot, without further evidence, show that he was an active agent,and according to the Tribunal such an inference could not bedrawn from the evidence in the case. The evidence of this wit-ness appears to be unreliable, and the Tribunal has given reasonstherefore in paragraphs 37 and 38 of its judgement. The findingon this issue calls for no interference.

The next issue is issue 8 in which two persons, as agentsof the appellant, were alleged to have fed the voters, for thepurpose of inducing them to vote for the appellant. Thisagain rests on interested oral testimony, whih is met by counteroral estimony, and we find no grounds to interfere with thefinding of the Tribunal under this issue.

In regard to issue 10, declining with defamatory allegationsmade by the appellant at election meeting of the election petition,the Tribunal found that the oral testimony of both sides made itunsafe to accept the charge as proved and thus the sole documentfiled a placard Exhibit A-2 threw no light on the charge. Wehold this finding to be correct.

Under the additional issue the same Paradesi Mudali afore-said is alleged to have offered illegal gratification to non-votersto vote in the name of four dead voters to the knowledge and

2 2 0 C. CHIRANJEEVULU NAIDU V. E. S. THYAGARAJAN [VOL. XXV

in the interests of the appellant. The evidence regarding thischarge is both discrepant and incomplete, as pointed out bythe Tribunal in paragraph 30 of the judgment. We see no reasonto differ from that finding.

For the aforesaid reasons, we are of the opinion that thefinding of the Tribunal cannot be supported in regard to thespecific charges, which it has found against the appellant. Weuphold the Tribunal's finding of the election petition on therest of the charges. As a consequence, it must be held thatthe allegations made by the election-petitioner to invalidatethe election of the appellant have not been made out. Theappeal is allowed and the election petition is dismissed with coststhroughout. The result is that the election of the appellant for theconstituency in question is upheld Cost before Election Tribunalwill be Rs. 500.

Appeal Allowed

IN THE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD

P. N. APPA RAOv.

KUMBURU SURYANARAYANA NAIDU

(SATYANARAYANA RAJU AND VENKATESAM, JJ.)

September 19, 1963

Representation of the People Act, 1950—Section 22—Correction of entry inElectoral Roll—Electoral Registration Officer, powers of—Entry regarding house number—Whether mandatory. Registraion of Electors Rules, 1960, Rule 26(3)—if manda-tory.

The appellant filed a petition challenging the respondent's electiolson the ground that the latter was not a registered voter on the Electoral roluof the Constituency though he purported to claim serial No. 357 in theelectoral roll as the one relating to him; and that the correction of the entryby the Electoral Registration Officer was illegal, irregular and withoutjurisdiction. The Tribunal found that the entry in the electoral roll, aftercorrection, related to the respondent and upheld his election. In appealit was contended (i) the respondent was not included in the electoral rolland therefore he should have applied for inclusion under section 23(1) andnot for correction under section 22 (a); (ii) the order of the Electoral Registra-tion Officer directing the correction to be made was illegal and vitiated bynon-compliance with the mandatory provision as to notice laid down insub-r. (3) of Rule 26 of the Registration of Electors Rules, 1960 ; and (iii)the order of the electoral Registration Officer was not incorporated in theelectoral roll before the date fixed for the scrutiny of nominations and thattherefore the Returning Officer had no jurisdiction to accept the respondent'snomination.

E.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 221

HELD :—The entry against serial No. 357 related to the respondent.The Electoral Registration Officer therefore had jurisdiction to direct thecorrection and the case was not a matter of inclusion but one of correction.

Under s.22(a) of the Act of 1950, the electoral Registration Officer isempowered to order correction of any entry if he is satisfied that it relatesto the appellant and is erroneous or defective in any particular. An errorwhich the Electoral Registration Officer can amend under the section neednot necessarily be a mere clerical or printing error.

The entries required to be made in the Electoral Roll as per Rules 6and 8 are for the purpose of establishing the identity of an elector. It cannotbe said that the entry with regard to the door number is one of the mandatoryrequirements. It is only directory and part of the description of the elector.It does not go to the root of the matter so long as there is enough materialin the entries to identify the voter beyond doubt.

(ii) Section 22(a) itself reserves power to the Electoral RegistrationOfficer and for the exercise of this power there is no limitation of time pro-vided by the section. Therefore the correction of the entry within the periodof seven days prescribed by sub-sec. (3) of Rule 26 is not invalid. The appel-lant had not shown that any prejudice had been caused to him.

Pratap Singh v. Shri Krishna Gupta, A.I.R. 1956, S.C. 140 ; referred to.

(iii) The acceptance of the nomination paper of the respondent by theReturning Officer was valid. If an Electoral Registration Officer exerciseshis power under sub-sec. (3) of s.23 of the Act of 1950, and directs a person'sname to be included in the roll, he becomes immediately entitled to exercisethe right of franchise and that he is not deprived of such a right merely becausethe office staff of the Electoral Registration Officer did not pass or stitch thecorrection to the electoral roll.

Ram Swarup Prasad v. Jagat Kishore, 17 E.L.R. 110 ;Ram Krishan Singh v. Tribeni Singh, 17 E.L.R. 81 ; followed.Chandra Sekhar Prasad v. Jai Prakash Singh, 17 E.L.R. 126 ; referred to.

Appeal against the decision of the Court of the ElectionTribunal (District Judge), Rajahmundry, in Election PetitionNo. 14 of 1962.

D. V. Reddi Pantulu and D. Srirama Shastry, for the Appel-lant.

K. Ramachandra Rao, K. Venkateswara Rao and E.Manohar, for the Respondent.

JUDGMENT

SATYANARAYANA RAJU, J.—This is an appeal under section116-A of the Representation of the People Act, 1951 (herein-after referred to as the "ACT" of 1951), against an order of theElection Tribunal, Rajahmundry.

222 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

In the 1962 General Elections, the appellant and the res-pondent were the contesting candidates for Election to theAndhra Pradesh Legislative Assembly from the PalakondaConstituency. The appellant was the Congress candidate andthe respondent was the candidate of the Swatantra Party. Thetotal number of votes polled was 41,358 out of which the res-pondent secured 22, 555, and the appellant 17,126. The invalidvotes were 1,677. The respondent was declared dulyelected on February 26th, 1962. On March 29,1962, therespondent presented to the Eelction Commission a Petition,being Election Petition No. 14 of 1962, under S.80 of the Act,wherein, besides claiming a declaration that the Election of theRespondent was void, he claimed a further declaration that hehad been duly elected. The Election Petition was publishedin the Official Gazette and was then referred to the ElectionTribunal, Rajahmundry, for trial.

The material allegations in the Election Petition are asfollows : The respondent is not a registered elector on theelectoral rolls of the Palakonda constituency though he purportedto claim serial No. 357 in the electoral roll of Devudala villageas the one relating to him. Serial No. 357 relates to one Mada-gana Suryanarayana Naidu, son of Papi Naidu, who was aresident of a non-residential building bearing door No. 2/22in that village. The entry relating to serial No. 357 in theelectoral roll of Devudala village, mentions the residentialhouse bearing door No. 2/22, whereas the respondent isresident of the house bearing door No. 2/23. The entry in theelectoral roll against serial No. 357 refers to 'SuryanarayanaNaidu' whereas the respondent filed his nomination paper,signing it as 'Suryanarayana'. On January 9, 1962, the res-pondent filed an application before the Electoral Registrationofficer in Form No. 8, for correction of the entry then existingin the electoral roll.

The officer allowed that application on January 16, 1962.His order is without jurisdiction, illegal, erroneous and irregular.Even after the correction of the entry, the name and descrip-tion entered in the nomination paper filed by the respondent,does not tally with corrected entry.

The appellant further alleged that the respondent wasguilty of corrupt practices by reason of the fact that he hadpamphlets published making allegations against him that "hewas freely using alcoholic drinks in the election campaign andpropaganda, and that he was using the name of the TirupathiDevasthanam for securing success in the election". It was

6.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 223

also alleged that the respondent invoked and incited castefeelings of the constituents.

The respondent contested the petition. He denied thematerial averments contained in the Election Petition. Heaverred that the correction of the entry in the electoral rollagainst Serial No. 357 was valid and that the acceptance ofhis nomination by the Returning Officer was proper.

Initially, it may be mentioned that the allegations regardingcorrupt practices made by the appellant were not supportedby an affidavit, as required by the proviso to S. 83 (1) of theAct. The alleged corrupt practices were too general anddevoid of particulars. The Tribunal, therefore, refused toframe an issue with regard to the alleged corrupt practices.But with regard to the other matters in controversy between theappellant and the respondent, the Tribunal framed the follow-ing Issues :—

"(1) Whether the Election Tribunal can go into thequestion concerning the validity, legality, and proprietyof entering the name of K. Suryanarayana Naidu, thereturned candidate, in the electoral roll as finally correctedagainst Serial No. 357 in the Electoral Roll of Devudalavillage ?

(2) Whether the entry relating to Serial No. 357in the electoral roll for Devudala village against the nameof K. Suryanarayana Naidu, the returned candidate, doesnot, in fact, relate to K. Suryanarayana, who is the re-turned candidate for the Constituency of Palakonda ?

(3) Whether the orders of the Electoral RegistrationOfficer, dated 16-1-1962, and the order of the Chief Elec-toral Officer, dated 20-3-1962, are not legal and valid ?

(4) Whether the acceptance of the nomination paperof K. Suryanarayana Naidu by the Returning Officeris vitiated ?

(5) Whether Suryanarayana Naidu, Kemburi, son ofPapinaidu, as entered in the electoral roll after final correc-tion, is not the same person as the Respondent who is thereturned candidate ?

(6) Whether the election of the Respondent is notvalid ?

(7) Whether the Petitioner has satisfied the conditionsrequired under section 101, Representation of the People

2 2 4 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

Act, 1951, and whether he can be declared as the returnedcandidate in the event the election is set aside."

Besides voluminous documentary evidence, the partiesadduced oral evidence. The appellant examined three witnessesincluding himself, and the respondent besides himself, examinedthree witnesses. The Returning Officer, of the PalakondaAssembly Constituency, the Tahsildar of Palakonda and thethen Electoral Registration Officer, Parvathipuram, were ex-amined as Court witnesses 1 to 3, respectively.

It will be convenient at this stage to indicate the findingsrecorded by the Tribunal on the issue. On issue No. (1) theTribunal held that it had jurisdiction to consider the validity,legality and propriety of the order of the Electoral RegistrationOfficer. On issue No. (2) the finding was that the appellanthad (failed) to prove that the entry against Serial No. 357related to Madagani Suryanarayana Naidu, and not to therespondent. On issue No. (3), it was held that the orders ofthe Electoral Registration Officer and the Chief ElectoralOfficer were valid. The Tribunal held on issue No. (4) thatthe acceptance of the nomination paper of the respondent bythe Returning Officer was not improper. On issue No. (5),the finding was that the entry in the electoral roll, after itscorrection, related to the respondent. As a result of the abovefindings, the Tribunal held that the election of the respondentwas valid. On issue No. (7) the Tribunal held that the appel-lant was not entitled to the declaration that he was duly elected.In the result, the Election Petition was dismissed.

In support of this appeal, the learned Advocate-Generalhas raised the following points :—

(1) Prior to the date when the respondent made the applica-tion for correction, the entry against Serial No. 357in the electoral roll of DEVUDALA village did notrelate to him. The application which he made tothe Electoral Registration Officer was under S. 22(a) of Act, 43 of 1950 which deals with the correctionof particulars. The Application was professedly notone for inclusion under S. 23 (1) of the Act of 1950.

(2) The order of the Electoral Registration Officer direct-ing the correction was illegal and was vitiated by non-compliance with the mandatory provisions, as tonotice.

E.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 225

(3) Apart from the question as to whether the order ofthe Election Registration Officer was valid or in-valid, it was not incorporated in the electoral rollon the date on which the nominations were scrutinizedand the Returning Officer had no jurisdiction toaccept the nomination on the basis of the unamendedelectoral roll.

For a proper appreciation of the contentions raised onbehalf of the appellant, it is necessary to state the materialfacts.

On January 9, 1962, the respondent filed an application,certified copy of which is Ex. A-l [the same as Ex. A-15 (e)]before the Electoral Registration Officer, Palakonda AssemblyConstituency, in Form No. 8. It read as follows :—

Sir,

"I submit that the entry relating to myself whichappears at Serial No. 357 in part Devudala-1 of the Devu-dala Electoral Roll as (2-22) Suryanarayana Naidu (PapiNaidu) -M-48 is not correct. It should be corrected toread as follows : Suryanarayana Naidu, Kemburu (PapiNaidu) M-52".

On the same date, the Electoral Registration Officer (C.W.3) sent an express memo, to the Tahsildar, Palakonda (C.W.2), who was the Assistant Electoral Registration Officer, alongwith a notice, inviting objections, if any for carrying out thecorrection, C.W. 2 was asked to conduct an enquiry and submithis report within a week. It is in the evidence of the ElectoralRegistration Officer, C.W. 3 that he had issued instructionsto his staff to put up a copy of the application, Ex. A-18 (e)on the notice board of his office. The Tahsildar, C.W. 2, gotaffixed the copy of the notice in his office on January 13, 1962.After examining the village officers, the Tahsildar submittedhis report to C.W. 3 along with the record of enquiry, on January16, 1962.

In his proceedings, dated January 16, 1962, the ElectoralRegistration Officer made the following order :

"Under Rule 13 (3) and Rule 26 of the Registrationof Electors Rules, 1960, the following correction is orderedto be carried out in the Electoral Roll against the Serial

31—3 ECI/ND/67

2 2 6 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

No. 357 relating to Devudala village of Palakonda taluk,as follows:—

SerialNo.

357

Name

SuryanarayanaKemburu

Naidu,

Father'sname

(PapiNaidu)

Male orFemale

Male

Age

52

2. The Tahsildar, Palakonda, is requested to carryout the amendments in the roll relating to Devu-dala village of Palakonda taluk."

The Appellant filed his nomination before the Return-ing Officer on January 17, 1962 ; and the respondent filedhis nomination on January 18, 1962. The scrutiny of thenomination papers was held by the Returning Officer on January22, 1962. On that date, the appellant raised an objectionthat the entry against Serial No. 357 in the electoral roll ofDevudala village did not relate to the respondent. After over-ruling the objection raised by the appellant, the ReturningOfficer accepted the respondent's nomination.

Now, there is no dispute about the fact that before thecorrection was made by the Electoral Registration Officer,the entry against Serial No. 357 read as follows :—

Door Suryanarayana Papi Male 48No. Naidu2-22

Before the correction, the entry did not contain the surname'Kemburu', and the voter to which that entry related wasshown as a resident of house bearing door No. 2/22. Whenthe respondent made his application on January 9, 1962, hedid not ask for correction of the door number, with the resultthat the door number remained as it was. It is contendedby the learned Advocate-General that the respondent is nota resident of the house bearing door No. 2/22; that he madeno request for correction of the door number and that hedeliberately refrained from asking for the correction.

At this stage, it will be convenient to refer to the rele-vant provisions of the Constitution, the Representation of thePeople Act and the Rules made thereunder, which have abearing on the contentions raised before us.

E.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 227

Article 173 of the Constitution read as follows :—

"QUALIFICATION FOR MEMBERSHIP OF THE STATELEGISLATURE

A person shall not be qualified to be chosen to fill a seatin the Legislature of the State unless he—

(a) is a citizen of India ;

(b) is, in the case of a seat in the Legislative Assembly,not less than twenty-five years of age and, in thecase of a seat in the Legislative Council, not less thanthirty years of age and ;

(c) possesses such other qualifications as may be prescribedin that behalf by or under any law made by Parliament".

This article insists on a two-fold qualification : that fora person to be qualified to become a member of the State Legisla-ture, he must be a citizen of India ; and that he must be over25 years of age in the case of a seat in the State LegislativeAssembly and over 30 years in the case of a seat in the Legisla-tive Council. There is a further requirement which is providedby clause (c) that he must also possess such other qualificationsas may be prescribed in that behalf by or under any law madeby Parliament.

The Representation of the People Act, 1951, is the lawwhich enumerates the further qualifications prescribed byParliament. Section 5 (c) of the Act of 1951 prescribes thefurther qualification that a person intending to contest a seatin the State Legislative Assembly must be an elector for anyAssembly Constituency in the State. The Expression 'elector'is defined in S. 2 (e) as meaning a person whose name is enteredin the electoral roll of that constituency for the time being inforce and who is not subject to any of the disqualificationsmentioned in S. 16 of the Representation of the People Act,1950. Section 19 of the former act lays down the conditionsfor registration of a person as an elector. Section 19 (b) re-quires that an elector shall be ordinarily resident in a consti-tuency. Therefore, the basic requirement is that a person whowishes to be registered in the electoral roll of a constituencyshould ordinarily be resident in that constituency.

The respondent is a resident of Devudala village in Pala-konda Constituency and he is above the age of 25 years. Thereis therefore no difficulty so far as the respondent's eligibility isconcerned.

228 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

It is, however, argued that the relevant rules relating tothe registration of electors, made in pursuance of the Representa-tion of the People Act, 1950, contain certain mandatory require-ments. Part II, of the Registration of Electors Rules, 1960,published in the Gazette of India on November 10, 1960 providefor the preparation of electoral rolls for Assembly Constituencies.Rule 6 provides that the names of electors in each part of theroll shall be arranged according to house number. Rule 8 saysthat the Registration Officer may, for the purpose of preparingthe roll, send letters of request to the occupants of dwellinghouses in the constituency, and every person receiving any suchletter shall furnish the information called for therein to thebest of his ability. Sub-rule (1) of Rule 13 provides the modeof preferring claims and objections. It says that every claimshall be in Form 6, signed by the person desiring his name tobe included in the roll. Sub-rule (2) of Rule 13 deals withobjections to the inclusion of a name in the roll. Sub-rule(3) of Rule 13 provides that every objection to a particularor particulars in an entry in the roll shall be in Form No. 8.Form No. 8 relates to correction of any particular or particularsin an entry and not to inclusion. Rule 26 lays down the pro-cedure for correction of entries and for inclusion of names inelectoral rolls.

The learned Advocate-General has contended that therespondent was not included as a voter in the electoral roll ofDevudala village and that, therefore, he should have appliedfor inclusion, and not for correction. The fundamental question,therefore, is whether the instant case was a case of inclusionor correction.

Section 22 of the Representation of the People Act of 1950,which provides for correction of entries in electoral rolls, in sofar as it is material, reads :

"If the Electoral Registration Officer for a constitu-ency, on application made to him or on his own motion, issatisfied after such inquiry as he thinks fit, that any entry inthe electoral roll of the constituency—

(a) is erroneous or defective in any particular** ** ** **

the Electoral Registration Officer shall, subject to suchgeneral or special directions if any, as may be givenby the Election Commission in this behalf, amend

the entry".

E.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 2 2 9

Section 23 of the same Act provides for inclusion of namesin electoral rolls. That Section is in the following terms :—

"(1) Any person whose name is not included in theelectoral roll of a constituency may apply in the mannerhereinafter provided for the inclusion of his name in thatroll.

(2) Where an application under sub-section (1) ismade at any time after the issue of a notification callingupon that constituency or the Parliamentary Constituencywithin which that constituency is comprised, to elect amember or members and before the completion of thatelection, it shall be made to the Chief Electoral Officer,and in any other case, it shall be made to the ElectoralRegistration Officer of that constituency.

(3) The Chief Electoral Officer or, as the case maybe, the Electoral Registration Officer shall, if satisfiedthat the applicant is entitled to be registered in the electoralroll, direct his name to be included therein."

Rule 26 of the Registration of Electors Rules, 1960, pre-scribes the procedure to be followed when an application ismade under S. 22 or sub-S. (1) of S. 23. An application forcorrection has to be made in Form No. 8. An applicationfor inclusion has to be made in Form No. 6. In the case ofan application for correction, the Electoral Registration Officeris empowered to amend entries in the electoral roll. Wherethe case involves inclusion of a name in the electoral roll, if theapplication is made at any time after a notification calling uponthe constituency to elect a member is issued, the applicationmust be made to the Chief Electoral Officer. In' any othercase, the application has to be made to the Electoral Registra-tion Officer.

The application of the respondent was admittedly madeafter the notification calling upon the constituency to elect amember was issued. Admittedly the respondent applied inForm No. 8, for correction, on January 9, 1962, to the ElectoralRegistration Officer, Palakonda Constituency. This applica-tion would be a proper application if what was sought by the res-pondent was really a correction of any particular or particularsin the entry relating to him in the electoral roll. It would notbe a proper application if it was really one for inclusion. Somuch is conceded.

The question then, is, whether the respondent was evenprior to the date of his application, entered as a voter in the

230 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

electoral roll though the particulars relating to him were not,in all respects, complete or correct. Before considering thisaspect of the matter, it is necessary to mention two facts. Accord-ing to the case pleaded by the appellant, the entry against SerialNo. 357, viz.,

Door No. Suryanarayana Papi Male 382-22 Naidu Naidu

did not really relate to the respondent but related to one Mada-gani Suryanarayana Naidu. The Tribunal found as a factthat the entry against Serial No. 357 did not relate to MadaganiSuryanarayana Naidu, but that it related only to the respon-dent.

It is significant to note that the appellant and respondentwere the rival candidates for election from the PalakondaAssembly Constituency in the last General Elections held inthe year 1955. Ex. B-27 is the electoral roll of 1953, withamendments up to 1955. The entries in Ex. B-27 againstSerial Nos. 343, 344 and 345 were as follows :—

Serial House Name Name of father, Male AgeNo. No. mother or husband or

Female

"343 2/22 Ademma Madagana (Papayya) F. 41344 . . Chilakamma (Surannaidu) F. 37

Kemburu345 ... Suryanarayana (Papinaidu) M. 43"

Naidu KemburuIn the electoral roll prepared for the year 1958 the entries

were as follows :—355 (2-22) Ademma (Papaiah) Female 46

Madagana356 . . Chilakamma (Surannaidu) Femle 42

Kemburu357 . . Suryanarayana (Papi Naidu) Male 48

Naidu.

Ex. B-27, which was the electoral roll on the basis of whichthe General Elections in the year 1955, were conducted, con-tained the surname of the respondent though the door numberwas wrongly noted as 2/22. It was on the basis of this electoral

E.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 231

roll that the respondent's nomination was then accepted. Thisis clear from Ex. B-15, which is the list of candidates validlynominated for the election held on February 18, 1955. Theappellant then raised no objection to the nomination of therespondent. The appellant was the successful candidate inthat election while the respondent was the defeated candidate.

From the foregoing facts, it is clear that the name of therespondent was entered as a voter in the electoral roll on thebasis of which the last General Elections were conducted. Inthe electoral roll for the year 1958, already extracted, the sur-name of the respondent was omitted, but the other particulars,including the door number, remained the same. But it isworthy of note that in both the electoral rolls the name of therespondent appears in the same order though the serial numberrelating to him, which was 345 in Ex. B-27, became Serial No.357.

It is, however, contended by the learned Advocate-Generalthat the door number is an essential particular in the entryrelating to a voter in the electoral roll, and that the respondenthad deliberately refrained from asking for a correction of thedoor number. It was in this context that reliance was placedby him on the finding of the Tribunal that "the enquiry madeby the Tahsildar was a farce and that in fact, no enquiry wasmade by him in person."

It may be observed that the appellant himself had notraised any objection before the Electoral Registration Officerwith respect to the application of the respondent for correc-tion of the entry against Serial No. 357. Against the orderof the Electoral Officer allowing the respondent's applica-tion for addition of his surname 'Kemuburu' in the entry againstSerial No. 357, one are G. Krishna Murthi of Palakonda pre-ferred an appeal to the Chief Electoral Officer. By his order,dated March 20, 1962 (Ex. A-11 is a certified copy of the order)the Chief Electoral Officer, after hearing the contentions of theAdvocate for Shri G. Krishnamurti, the appellant therein,held that the amendment of the entries against Serial No. 357was rightly made, and on this conclusion the appeal was rejected.Shri G. Krishnamurthy then filed a petition under Article226 of the Constitution in W.P. No. 315 of 1962, on the fileof the High Court to quash the order of the Chief ElectoralOfficer. The writ petition was dismissed on the ground thatthe correctness of the order could be challenged in the ElectionPetition which the appellant had even by then filed.

232 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

In this context, the material fact to be noted is that therewas no other person by that name and description except therespondent in Devudala village. Moreover the entries imme-diately following Serial No. 357 in the electoral roll, viz., 358to 362, undoubtedly related to the family members of the res-pondent.

The specific case pleaded by the appellant was that oneMadagani Suryanarayana Naidu was residing in the housebearing door No. 2/22 and that the entry against Serial No.357 related to him and not to the respondent. As has alreadybeen stated, this case was rightly rejected by the Tribunal.It is in evidence that Madagani Suryanarayana Naidu was not,at the material time, a resident of Devudala village. Theappellant made no attempt to examine Madagani SuryanarayanaNaidu before the Tribunal, nor did he examine MadaganiAdemma whose name appears against Serial No. 355. Itcannot be denied that the entries required to be made in theelectoral roll, as per Rules 6 and 8 are for the purpose of establish-ing the identity of an elector. It is by the particulars enu-merated under the relevant heads of the entries that an electoris identified. We are unable to agree with the learned Advo-cate-General's contention that the entry with regard to thedoor number is one of the mandatory requirements. We areclear that this is only directory and part of the description ofthe elector ; it does not go to the root of the matter so long asthere is enough material in the entries to identify the voterbeyond doubt. We are of the opinion that there could by nopossible mistake about the identity of the respondent.

Now with regard to the enquiry held by the Tahsildar,it may be noted that the respondent filed his application be-fore the Electoral Registration Officer on January 9, 1962.The Electoral Registration Officer gave evidence as C.W. 3.He deposed that on that date, the appellant presented an applica-tion for correction of the entry against Serial No. 357. TheTahsildar gave evidence as C.W. 2. It is no doubt true thatthere arc discrepancies in the evidence of the Karnam, theVillage Munsif and the Tahsildar with regard to the recordingof the statements of the Village Officers. The report of theTahsildar, Ex. A-6, states that no objections were received forthe correction applied for by the respondent and that the entryagainst Survey No. 357 related to the respondent and to noneelse. The report further states that there was no other personbearing the name of Kemburu Suryanarayana Naidu, son ofPapi Naidu, in the village. The statements made by theVillage Officers were recorded by the Deputy Tahsildar. On a

E.L.R.] P. N. APPA RAO 0. KUMBURU SURYANARAYANA NAIDU 233

consideration of all the material on record, there can be nodoubt that the entry in Serial No. 357 related to the respondent.

Under sub-section (1) of S. 22 of the Act of 1950, theElectoral Registration Officer is empowered to order correctionof any entry if he is satisfied that it relates to the applicant andis erroneous or defective in any particular. An error whichthe Electoral Registration Officer can amend under this sectionneed not necessarily be a mere clerical or printing error. TheElectoral Registration Officer, if he is satisfied that the entryrelated to the applicant, and there is no doubt about his identity,can direct that the correction should be carried out. Havingregard to the conclusion reached by us, that the entry againstSerial No. 357 related to the respondent and to none else, wehold that the Electoral Registration Officer had jurisdictionto direct the correction and that the case was not a matter ofinclusion but one of correction, pure and simple.

The next of the contentions raised before us is that theorder of the Electoral Registration Officer, dated January16, 1962, directing the correction to be made was illegal andvitiated by non-compliance with the mandatory provisionas to notice laid down in sub-rule (3) of Rule 26 of the Registra-tion of Electors Rules, 1960. These sub-rules are as follows:

"26. Correction of entries and inclusion of names inelectoral rolls :—

(1)(2)

(3) The Chief Electoral Officer or, as the casemay be, the Registration Officer shall, immediatelyon receipt of such application, direct that one copythereof be posted in some conspicuous place in his officetogether with a notice inviting objections to such applica-tion within a period of seven days from the date of such posting."

These rules were framed under S. 28 (2) (h), of the Actof 1950, which reads :—

28. Power to make rules.—

(1)(2) In particular and without prejudice to the

generality of the foregoing power, such rules may pro-vide for all or any of the following matters, namely :—

*** *** ***32—3 ECI/ND/67

2 3 4 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

0

(H) the revision and correction of electoral rolland inclusion of names therein."

The evidence of the Electoral Registration Officer is that hereceived the application for correction on January 9, 1962,and immediately he ordered his office to put up on the noticeboard a notice calling for objections to that application. Hedeposed that four copies of the notice were put up by his officefor his signature. Though he did not go to the notice boardto verify whether the notice was in fact affixed, he was positivethat it must have been affixed pursuant to his orders. Theorder directing the correction of the entry was made by himon January 16, 1962. It is argued by the learned Advocate-General that Rule 2 (2) of the Registration of Electors Rulemakes the provisions of the General Clauses Act (X of 1897),applicable for the interpretation of the rules and that underthat section, the day of publication of the notice has to be ex-cluded and if it is so done, the order was passed not after theexpiry of the period of seven days specified in sub-rule (3) ofRule 26 but before the expiry of that period, and that, there-fore, the order of the Electoral Registration Officer is invalid.

The question is whether sub-rule (3) of Rule 26 whichspecified the period, is directory or mandatory. In PRATAPSINGH v. SHRI KRISHNAGUPTA (1) their Lordships of the SupremeCourt observed:

"We do not think that is right and we deprecate thistendency towards technicality ; it is the substance thatcounts and must take precedence over mere form. Somerules are vital and go to the root of the matter ; they can-not be broken ; others are only directory and a breachof them can be overlooked provided there is substantialcompliance with the rules read as a whole and provided noprejudice ensues ; and when the legislature does not itselfstate which is which judges must determine the matterand, exercising a nice discrimination, sort out one classfrom the other along broad based, commonsense lines."

Section 22 (1) of the 1950 Act empowers the Electoral Regi-stration Officer of a constituency, on his own motion, to amendany entry in the electoral roll of the constituency if he is satified,after such enquiry as he thinks fit, that the entry is erroneousor defective in any particular. The section itself reservespower to the Electoral Registration Officer and for the exerciseof this power, there is no limitation of time provided by the

(1) A.I.R. 1956 S.C. 140.

E.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 235

section. We are, therefore, satisfied that the correction ofthe entry within the period of seven days prescribed by sub-rule(3) of Rule 26, is not invalid. The appellant has not shownthat any prejudice has been caused to him. We hold thatthis contention cannot be accepted.

There remains the last of the points raised in this appeal,which is, that apart from the question whether the orders ofElectoral Registration Officer is valid or invalid, the orderwas not incorporated in the electoral roll before the date fixedfor the scrutiny of the nominations and that, therefore, the-Returning Officer had no jurisdiction to accept the respondent'snomination. As we have already indicated in an earlier partof this judgement, the respondent filed his nomination onJanuary 18, 1962 and the scrutiny took place on January 22,1962. Before the Returning Officer an oral objection wasraised by the Advocate for the appellant. The note madeby the Returning Officer is Ex. A-13. It reads as follows :—

"An oral objection has been raised by the Avdocateof Sri P. Narasimhapparao the other candidate that thename of this candidate (i.e.) Sri K. Suryanarayana Naiduis not properly registered in the electoral roll and that thenomination paper cannot be accepted. Thereupon therelevant entries in the electoral roll of the village as amendedby the Assistant Collector, Parvathipuram, in his order,dated 16-1-1962 have been shown to him and he is satisfiedas they are tallied.

2. He next raised another oral objection that anycorrection so made should be done before the date ofpublication of notice of election but not subsequently.Thereupon it has been explained to him that the date ofscrutiny only is the criterion for deciding the qualificationor disqualification of the nominations and the relevantrule has also been shown to him and he is satisfied. Thenomination of Sri K. Suryanarayana Naidu is accepted."

As is manifest from the above note, the exact objectionraised by the appellant's advocate was that as the respondent'sname was not properly registered in the electoral roll, thenomination paper should not be accepted. It appears from thenote that the relevant entries in the electoral roll of the villageof Devudala, as amended by the Assistant Collector, were there-upon shown to the Advocate and that he was satisfied as theytallied. It is in the evidence of the Returning Officer thatthe appellant's Advocate raised the objection that becausethere was no surname 'Kemburu' in the electoral roll, the

2 3 6 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

nomination paper of the respondent should not be accepted.He says that he then addressed the Tahsildar to send him theelectoral list and the Tahsildar then sent him a printed copyof the roll relating to Devudala village, in which the surname'Kemburu' was written in the entry against Serial No. 357.If this evidence is to be accepted, the electoral roll incorporatedthe correction made by the Electoral Registration Officer. Butit is stated that what was available on the date of the scrutinywas only the order of the Electoral Registration Officer directingthe correction and that correction had not, in fact, been car-ried out. It is no doubt true that in the record the copy ofthe electoral roll said to have been sent by the Tahsildar tothe Returning Officer is not available. Assuming that theamendment had not, in fact, been carried out in the electoralroll, the question is whether the acceptance of the respondent'snomination by the Returning Officer was valid.

We may at the outset refer to S. 33 of the Act of 1951which provides for presentation of a nomination paper andthe requirements for a valid nomination. Sub-section (4)of S. 33 enjoins the Returning Officer to satisfy himself, on thepresentation of a nomination paper, that the name and electoralroll number of the candidate and his proposer as entered inthe nomination paper are the same as those entered in theelectoral rolls. The proviso to sub-section (5) of S. 33 reads asfollows:—

"Provided that the Returning Officer shall permit anyclerical or technical error in the nomination paper inregard to the said names or numbers to be corrected inorder to bring them into conformity with the correspond-ing entries in the electoral rolls; and where necessary,direct that any clerical or printing error in the said entriesshall be overlooked."

Under the first limb of the proviso, any clerial or technicalerrors in the nomination paper may be corrected so as to bringthem in conformity with the entries in the electoral rolls. Thesecond limb empowers the Returning Officer to overlook anyclerical or printing error in the entries in the electoral roll.

The absence of the words 'Kemburu' in the electoral rollagainst the entry in Serial No. 357 was no more than a printingerror. The previous entry reads : "Chilakamma Kemburu".The following entry against Serial No. 357 need have only 'two'to indicate that the surname was the same as in the above entry.If so construed, it was no more than a printing error and couldhave been overlooked by the Returning Officer.

B.L.R.] P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU 237

As pointed out by a Division Bench of the Patana HighCourt in Chandra Sekhar Prasad v. Jai Prakash Singh (2) the rulesmake no provision for the procedure to be followed after a direc-tion has been given by the Electoral Registration Officer formaking a correction.

It is, however, argued that Rule 2 (1) (e) of the Resistra-tion of Electors Rules uses the word 'entered' which presupposesthat an entry should be made in the electoral roll before a per-son becomes qualified as an elector. It may be observed thatas soon as a notification calling upon a constituency to electa member is issued, the Election Commission fixes the last datefor filing nomination which shall be the tenth day after thedate of the publication of the notification, or if that day is apublic holiday, the next succeeding day which is not a publicholiday. Now, S. 23 of the Act of 1950, contemplates an applica-tion for correction or inclusion of a name after the notificationmentioned in S. 30 of the Act of 1951 has been published. There-fore, the entire procedure indicated by S. 23, read with Rule26 of the Rules, has to be completed within a period of tendays. Rule 26 also contemplates that the application must benotified for a certain period so that objections, if any, couldbe filed and determined. On a consideration of these provi-sions, it was held by the Division Bench of the Patana HighCourt that the reasonable interpretation of the words, 'enteredin the electoral roll' contained in S. 2 (1) (e) of the 1951 Act,should be 'included in the electoral roll', and that when anorder has been passed directing that a particular correctionshould be carried out, it ought to be sufficient for the purposeof holding that a person, whose entry has been ordered to becorrected, becomes an elector on the date on which the cor-rection was ordered to be made. We may also add that underS. 36 (2) {a), which has been amended by Act XL of 1961,the date fixed for the scrutiny of nomination is the date on whichthe candidates' qualification or disqualification must be deter-mined. The Electoral Registration Officer directed the correc-tion on January 19, 1962, and the scrutiny was made on January22, 1962 and on that date the correction of the entry with regardto the respondent was, in fact, made though it might not havebeen carried out in the electoral roll.

In Ramswaroop Prasad Tadav v. JagatKishore Prasad NarainSingh (3) a Division Bench of the Patna High Court,consisting of Sahai and Untwalla, JJ., held that if an Electoral

(2) 17 E.L.R. 126 at p. 135.(3) 17 E.L.R. 110.

2 3 8 P. N. APPA RAO V. KUMBURU SURYANARAYANA NAIDU [VOL. XXV

Registration Officer exercises his power under sub-S. (3) ofS. 23 of the Act of 1950, and directs a person's name to be in-cluded in the roll, he becomes immediately entitled to exercisethe right of franchise, and he is not deprived of such a rightmerely because the office staff of the Electoral RegistrationOfficer did not paste or stitch the correction to the electoralroll.

In Ramakishun Singh v. Tribeni Singh (4) which is also adecision of a Division Bench of the Patna High Court, thelearned Judges repelled an identical contention that correctionor inclusion of name directed by the proper authority mustbe ignored until it was actually made or integrated with theoriginal electoral roll. The learned Judges pointed out thatonce the Electoral Registration Officer has passed an orderunder S. 22 or 23 of the Act of 1950, the elector whom it con-cerns immediately gets the right to exercise his franchise, andthat the order becomes fully effective immediately after it ispassed.

We are in respectful agreement wih the view taken inthe above decisions. On the basis of the reasoning in theabove decisions, we hold that the acceptance of the nominationpaper of the respondent by the Returning Officer was valid.

The learned Counsel for the appellant has contendedthat the Tribunal was wrong in disallowing costs. We donot think that the Tribunal in disallowing costs to the respon-dent before it, exercised its discretion improperly. On thebasis of the conclusion reached by the Tribunal that the evidenceadduced by the respondent was unsatisfactory, it disallowedcosts to him. We do not think that there is any ground forinterfering with this direction.

As a result of the conclusions reached by us, we hold thatthe appeal must fail, and it is accordingly dismissed with costs.Advocate's fee Rs. 250.

Appeal dismissed.

(4) 17E.L.R. 81 at p. 94.

E.L.R.] BHAIRON AND ANOTHER V. SISRAM & OTHERS 239

IN THE HIGH COURT OF RAJASTHAN AT JODHPUR

BHAIRON & ANR.v.

SISRAM & ORS.

(I.N. MODI AND P. N. SHINGHAL, JJ)

October 13, 1963

Representation of the People Act, 1951, s. 100(l)(rf)(m)—Recounting,—Primafacie case to be made out—cannot be demanded as of right.

A recount cannot be demanded as of right. The election Tribunalshould allow an inspection of the ballot papers only on being satisfied that aPrima facie case has been made out that if the ballot papers had been properlyscrutinised and counted, the party applying for inspection would have gota majority of votes.

Election Appeal No. 31 of 1963 against the judgment ofthe Member Election Tribunal, Jhunjhunu, dated January 31,1963, in case No. 22 of 1962.

R. K. Rastogi, J. S. Rastogi and C. K. Garg, for theAppellant.

Brij Sunder Sharma, for the Respondent.

JUDGEMENTSHINGHAL J.—Bhairon and Ganpatram, who are voters

of the Kherti constituency of the Rajasthan Legislative Assembly,have preferred this appeal against the order of Election Tribunal,Jhunjhunu, dated January 31, 1963, dismissing the petitionwhich they had filed to challenge the election of respondentShri Sisram from that constituency. The counting of votestook place on February 26 and February 27, 1962 and theresult of the election was declared on February 27, 1962, accord-ing to which Shri Sisram was declared as he secured 10,626votes as against Shri Chunnilal (respondent No. 2) who secured10,562 votes. The other three candidates secured a lesser numberof votes.

The appellants filed the election petition in question onApril 1, 1962. They alleged in para 4 of the petition that (i)about 500 valid votes cast in favour of respondent Shri Chun-nilal were held void and were improperly rejected at the timeof the counting of the votes, (ii) about 500 void votes whichwere cast in favour of respondent Shri Sisram were improp-erly accepted, (iii) many ballot papers which should have been

2 4 0 BHAIRON AND ANOTHER V. SISRAM & OTHERS [VOL. XXV

counted in favour of Shri Chunnilal were wrongly countedfor the other candidate on account of the improper decisionof the officer concerned, (iv) the counting officers used waterwith their fingers to count the ballot papers so that their finger-prints caused ink blots on many ballot papers in which voteshad been cast in favour of respondent Shri Chunnilal andthose ballot papers were improperly rejected at the time of thecounting, (v) the rubber of the seals which were provided forthe marking of votes was damaged at several polling stationsso that the voters either put the seals without the rubber markor put the marks with the reverse side of the seals while castingtheir votes in favour of Shri Chunnilal and all those votes wereimproperly rejected at the time of the counting, (vi) there wasan arithmetical mistake in drawing up the total in as muchas the votes cast in favour of Shri Chunnilal were mixed upand counted for the other candidate, and (vii) although themethod of putting cross-marks on the ballot papers of ShriChunnilal was good according to law, those ballot papers wererejected illegally while many ballot papers which were in factvoid for bad marking were improperly accepted and countedin favour of Shri Sisram. Thus the petitioners alleged that theresult of the election in so far as it concerned the returnedcandidate, was materially affected by the improper recep-tion, refusal or rejection of the aforesaid votes and the recep-tion of votes which were void, within the meaning of section100 (l)(d)(iii) of the Representation of the People Act, 1951,hereinafter referred to as the Act. The petitioners furtheralleged that but for these defects in the counting of votes,respondent Shri Chunnilal would have obtained a majority ofthe valid votes, and they therefore prayed that the election ofrespondent Shri Sisram may be declared void and respondentShri Chunnilal may be declared elected instead.

In his written statement, respondent Shri Sisram deniedthe allegation regarding the improper receiption, refusal andrejection of votes referred to above and he also took the pleathat the allegations of the petitioners were vague and theirpetition was liable to be dismissed because they had not givenspecific instances or particulars in regard to the votes whichwere alleged to have been wrongly accepted or rejected at thecounting. Further Shri Sisram pleaded that although the co-unting of the votes too, place in the presence of the candi-dates and their counting agents, no objections of the naturementioned in the election petition were raised by Shri Chunni-lal or his counting agents. It was also pointed out that a partof the ballot-papers were re-counted at Shri Chunnilal's request

E.L.R.] BHAIRON AND ANOTHER V. SISRAM & OTHERS 241

and that it was only when he and his counting agents weresatisfied about the correctness of the counting that the resultwas declared by the returning officer.

It appears that on July 7, 1962, the election petitionersmade an application before the Election Tribunal that it wasnecessary to examine and recount the ballot papers so thatthe correct position might come to the Tribunal's notice. TheTribunal was therefore requested to call for all the ballot pa-pers from the returning officer concerned. The learned Tri-bunal heard the counsel for the parties in regard to that appli-cation, overruled the objections of the counsel for respondentShri Sisram and passed an order on July 16, 1962, that"the ballot papers of Khetri constituency would be summonedwhenever required". The same day, the Tribunal framed 9issues covering the various defects in the counting of voteswhich were alleged in the election petition. The case thenproceeded to trial and the parties led their evidence. Duringthe course of the hearing of arguments, an application wasmade on behalf of the election petitioners on January 24, 1963alleging that some of the irregularities at the counting of voteshad been admitted by respondent Shri Sisram and that in or-der to show that this was so it was necessary that the peti-tioners should be allowed to inspect the rejected and acceptedballot papers, as well as the voters lists. The learned Tribunalrejected their application by its order dated January 25, 1963for the reason that it was presented at a late stage after thecase had been argued by the learned counsel for the peti-tioners and it only remained for the respondents to reply tothose arguments. The Tribunal however observed that if itreached the conclusion that "scrutiny and recounting" of theballot papers was necessary, it would undertake it in the pre-sence of both the parties. Ultimately the Tribunal dismissedthe election petition with costs holding that none of the allega-tions had been proved by the petitioners. It is in these cir-cumstances that the election petitioners have now come up inappeal under section 116A of the Act.

The learned counsel for the appellants has submittedthat the order of the learned Tribunal is defective for tworeasons. Firstly, it is urged that the learned Tribunal erredin rejecting their application for inspection of the ballot papersand, secondly, that the learned Tribunal failed to make a re-count of the ballot papers although the difference between thevotes secured by Shri Sisram and Shri Chunnilal was only of64 votes and the petitioners had led their evidence to makeout a prima facie case for a recount.

33—3 ECI/67

242 BHAIRON AND ANOTHER V. SISRAM & OTHERS [VOL. XXV

As a matter of fact, both the arguments of the learnedcounsel for the petitioners are inter-connected because, forobvious reasons a recount of the ballot papers necessarily in-volves their inspection and scrutiny for it is only the validvotes which can be counted at an election. Even so, it may bementioned that the petitioners cannot justifiably counted thatthe learned Tribunal rejected their application dated July 7,1962 for obtaining the ballot papers for examination. As hasbeen mentioned, that application was expressly allowed bythe Tribunal's order dated July 16, 1962 by which it was directedthat the ballot papers would be summoned " wheneverrequired ", It is not in dispute before us that the appellantsdid not apply to the Tribunal to obtain the ballot papers untilJanuary 24, 1963, and by that date the election petitionershad argued their case and the Tribunal was hearing the argu-ments of the learned counsel for respondent Shri Sisram. Theelection petitioners can not therefore justifiably make a grie-vance on the ground that they were not allowed an opportu-nity to inspect the ballot papers. They applied for inspectionat the fag end of the trial when only they had a right to replyto the arguments which were advanced by the learned counselfor respondents Shri Sisram and it cannot therefore be saidthat the learned Tribunal was unjustified in rejecting thatrequest, and if therefore the appellants were not able to obtainan inspection of the ballot papers earlier, the fault was entirelytheirs.

This, however, is only by the way, for, as has been men-tioned above, an inspection of the ballot papers could havebeen allowed by the Tribunal only if it decided to order arecount. In this connection Mr. Rastogi learned counsel forthe appellants, has frankly conceded that the Tribunal couldnot have ordered a recount unless it came to the conclusion thata prima facie case had been made out for it by the electionpetitioners. In fact this point stands concluded by a benchdecision of this court in Brij Sunder Sharma v. Shri Ram Dutt andothers (1) in which it has been held that the ElectionTribunal should allow an inspection of the ballot papersonly on being satisfied that a prima facie case has been madeout that if the ballot papers had been properly scrutinisedand counted, the party applying for inspection would havegot a majority of votes, and that a recount cannot be demand-ed as of right. We are in respectfully agreement with thatview and there is in fact no dispute about its correctness. Theremaining point therefore, for consideration is whetherthe election petitioners had succeeded in making out a prima

E.L.R.] BHAIRON AND ANOTHER V. SISRAM & OTHERS 243

facie case for a recount of the votes. We have already enume-rated the grounds which were mentioned that there was animproper reception, refusal or rejection of votes or the recep-tion of votes which were void. The question is whether anyof these allegations could be said to have been establishedprima facie.

Mr. Rastogi has argued that the statements of GanpatRam P. W. 1, Mahaveer P. W. 2 and Ramji Lai P. W. 3 weresufficient to make out a prima facie case for a recount. Hehas also invited attention to that portion of the statement ofrespondent Shri Sisram P. W. 1 in which he has statedthat those ballot papers in which more than one mark wasplaced for recording the vote were rejected as invalid, andhas urged that this admission of the respondent should havesatisfied the Tribunal that there had been a serious mistake inrejecting such ballot papers because a ballot paper could nothave been rejected even if a voter had placed more than onemark against the name of a candidate as long as those marksclearly and, in unmistaken terms, showed that the voter casthis vote only in favour of the candidate against whose name hehad placed those marks. Learned counsel has also referredto the statement of Jugall Singh R. W. 2, who was the countingsupervisor, to show that some of the ballot papers were rejectedsimply because the marks of voting were on the dividing linebetween the names of two candidates. Our attention hasalso been invited to the statement of Rajeshwar Prasad TiwariR. W. 6, who was the returning officer, and it has been pointedout that the witness did not even know what was done by himin respect of those ballot papers which were marked by thevoters otherwise than by the use of the seals which were providedfor the purpose. Further, it has been urged that the witnessdid not remember whether he counted or rejected, the ballotpapers which were marked by the use of the tops of the sealswhich had been provided for marking the votes.

We have gone through the statements of the witness ref-erred to above. Ganpatram P.W. 1 has no doubt mentionedthe irregularities or illegalities which, according to him, werecommitted at the counting of the votes, but his state-ment is inadmissible in evidence because it is based on hear-say. The witness has admitted that he remained outside thetents where the counting was going on at a distance of about30 yards and that he did not even know in which particulartent the votes were counted for the election to the Khetri Le-gislative assembly constituency. The witness had admittedthat when it began to rain, the polling parties shifted to the

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main building of the police lines while he himself kept stand-ing outside, under the shade of a tree. Ganpatram has furth-er admitted that he did not see the counting himself and thathe merely heard from Mahaveer and other counting agentsabout the irregularities in the counting. Thus the statementof Ganpatram is completely useless. Mahaveer P. W. 2 wasthe counting agent of Shri Chunnilal and was present at thetime of the counting. He has deposed about the irregularitieswhich are alleged to have been committed in the counting ofthe votes of respondent Shri Chunnilal, but the witness hasadmitted that he did not even inform Shri Chunnilal aboutthose irregularities and did not make a written complaintabout them to the returning officer. Further the witness hasstated that he noted down all the irregularities on a piece ofpaper as and when they were committed, but that he toreoff that paper and threw it away. It is difficult to believe thatMahaveer is a witness of truth, for if the alleged irregularitiesat the counting of votes had come to his notice he would undo-ubtedly have reported them to Shri Chunnilal, who was theconcerned candidate, as they were bound to affect the resultof the poll. At any rate, a complaint in respect of them wouldhave been made to the returning officer, but this was also notdone. There is no explanation why the piece of paper on whichthe witness claims to have noted the irregularities, was des-troyed by him. Then there are some other defects in the testi-mony of Mahaveer. He has deposed that even 40 or 45 votesof Shri Sisram were bundled up as 50 votes, while 60 votes ofShri Chunnilal were bundled up as 50 votes. This would havebeen a serious mistake, but then we find the witness has ad-mitted that he did not count the votes in any of the bundlesin order to ascertain their number. It is obvious, therefore,that he has made a reckless statement. Then there are certaininconsistencies in the statements of Mahaveer and Ganpatram.As has been pointed out, Ganpatram has stated that he re-mained outside the police lines, under a tree, where as Maha-veer has stated that Ganpatram went inside the police lines.For all these reasons we have no hesitation in rejecting Maha-veer's testimony as unreliable.

So far as the remaining witness Ramji Lai P. W. 3 isconcerned he is the brother of respondent Shri Chunnilal andwas his counting agent. He also deposed about the allegationswhich were made in the election petition about the mistakein the counting of the votes but he admitted that he did notreport them to Shri Chunnilal and did not make a complaintto the returning officer. His statement docs not also inspire

E.L.R.] BHAIRON AND ANOTHER V. SISRAM & OTHERS 2 4 5

confidence. Curiously enough Shri Chunnilal had not beenexamined by the petitioners in support of their case.

It would thus appear that the petitioners had failed to makeout a prima facie case for a recount of the votes.

It may be pointed out in this connection that respondentShri Chunnilal admittedly made application Ex. A beforethe returning officer at the time of counting of the votes stat-ing that he had a doubt about the correctness of the countingof the votes in respect of 13 polling stations mentioned in thatpetition and praying that the counting in respect of them maybe checked up. He also prayed that the tabulation of the votesmay similarly be scrutinised. It has been stated by returningofficer Rajeshwar Prasad Tiwari R. W. 6 that Shri Chunnilalmade application Ex. Al for a recount, after the counting wasover, that a recount was accordingly made by him and thatShri Chunnilal later on made application Ex. A2 express-ing his satisfaction with the counting. The genuineness ofboth these documents is not in dispute. It is therefore obviousthat the statements of Mahaveer P. W. 2 and Ramjilal P. W.3 about the alleged irregularities and mistakes in the countingof the votes do not deserve to be accepted and have rightlybeen rejected by the learned Tribunal.

It is true that Shri Sisram R. W. 1 made a statementduring the course of his long cross-examination, that ballotpapers were rejected because of the placing of two or moremarks against a single name and Mr. Rastogi has tried toargue on the basis of that statement that Shri Siyram had therebyadmitted on that a serious mistakes was committed in the count-ing of the votes because the votes could not have beenrejected because of such multiple marks. We are not persuadedthat this statement can properly lend to such an inference.The statement of Shri Sisram was cryptic, for it was not clarifi-ed what type of multipic marks were meant by the witnessin that statement. At any rate, there is the clear statement ofreturning officer Rajeshwar Prasad Tiwari R. W. 6 that ifthere were multiple marks of voting in the column againstthe name of the same candidate, that vote was considered tobe valid. This statement of the returning officer has not beenshaken during the course of his cross-examination and we haveno reason to doubt its correctness. The argument of Mr. Rastogiis therefore of no consequence and must be rejected.

Juglal Singh R. W. 2, who was the counting supervisorat the election, has stated that he did not remember the num-ber of the ballot papers of Shri Chunnilal and Sri Sisram which

246 BHAIRON AND ANOTHER V. SISRAM & OTHERS [VOL. XXV

were rejected because the marking of vote was on the line.From this Mr. Rastogi has tried to argue that the witness hasadmitted that even if the mark of voting touched the line ofthe column against the name of the candidate for whom thevote was cast, the vote was rejected as invalid. A reading ofthe statement of Juglal Singh R. W. 2 shows that Mr. Rastogihas tried to place a construction on it which is not justified.At any rate, it was not the duty of the counting supervisor toreject a ballot paper for even Juglal Singh has admitted thatall doubtful votes were delivered to the returning officer forhis decision, and the returning officer has stated that all thosevotes were counted as valid in which there was a mark at anyplace in the column against the name of the candidate.

The other argument of Mr. Rastogi is that the retur-ning officer did not remember whether he counted or rejectedthe ballot papers which were marked by 'thappa' i.e. by theuse of the tops of the seals (which had been provided for mark-ing the votes at the polling stations) and that this should besufficient to show that the counting was unsatisfactory.This argument is also futile because we find that the returningofficer Rajeshwar prasad Tiwari has clearly stated in anotherpart of his statement that he counted as valid all those votesin which a 'thappa' mark was placed against the name of thecandidate on the ballot paper. It is futile to argue that thereturning officer did not know how he treated those votes andthis argument of Mr. Rastogi is also, therefore, of no consequ-ence.

It would thus appear that the evidence of the petition-ers was not at all sufficient to make out a prima facie casefor a recount of the votes. We have also given out reasons forholding that Mr. Rastogi's contention that such a prima faciecase is made out from certain portions in the statements ofthe witnesses of the respondent is also not tenable. In thisview of the matter, there is no force in the argument that thepetitioners-appellants are entitled to a recount of the votesit is true that in cases where a candidate succeeds at an electionby a small majority of votes, the courts are inclined to takethat fact into consideration in deciding whether to order arecount or not but that circumstance cannot, by itself, justifyan order for a recount of the votes.

No other point has been urged by Mr. Rastogi and theappeal is dismissed with costs which we fix at Rs. 150. Asubstance of our decision may be intimated to the Election

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPPA. & OTHERS 247

Commission and the Speaker of the Rajasthan LegislativeAssembly and thereafter an authenticated copy thereof maybe sent to the Election Commission of India.

Appeal dismissed.

IN THE HIGH COURT OF MYSORE AT BANGALORE

D. MUNICHINNAPPA

V.

B. BASAVALINGAPPA & ORS.

(K. S. HEDGE AND AHMED AI.I KHAN, JJ)

October 14, 1963

Constitution (Scheduled Castes) Order, 1950—Bovi, if voddar caste.

Representation of the People Act, 1951—.r.123—corrupt practice—Burden ofproof. Representation of the People Act, 1951—s. 12 7-A—proper declaration* ivhatis.

The appellant's election to the legislative assembly was challenged onthe grounds that (i) he was not qualified to be a candidate as he was not amember of any of the castes mentioned in the Constitution (Schedule Castes)Order, 1950, as amended in 1956; (ii) he was disqualified because he hada subsisting contract with the City Improvement Trust Board; and (iii) hewas guilty of corrupt practices within the meaning of s. 123. The Tribunalrejected the last two contentions but set aside the election of the appellant,on the ground that he was not a member of any of the castes mentioned inthe "Order". The Tribunal held that the appellant was a voddar by casteand belonged to the sub-caste Kallu vode; the only sub-caste amongst thevoddars included in the "Order" was the Bovi. The petitioner's case inthe election petition was that voddars or any sub-caste among them were notincluded in the "Order" and nowhere was it stated that the caste Bovi referredto in the "Order" was a sub-caste among the voddar. In appeal from theTribunal's order.

HELD :—The appellant was a member of one of the Scheduled Castesmentioned in the "Order" and therefore qualified to be a candidate. Theconclusion of the Tribunal that lihovi mentioned in the "Order" is a sub-caste among voddar was neither supported by the pleadings in the case norby the evidence on record. The "Order" refers to a Scheduled Caste knownas Bovi. There is ample evidence to show that vodda community is knownas Bovi and that ever since the "Order" was issued the vodda communityhas been treated as a Scheduled Caste.

The appellant had established that before he field his nomination heceased to have any contract with the Trust Board. The oral and documentaryevidence did not support the allegation of couupt practices. Corrupt

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practice under the election law is akin to criminal offences. Thereforethe standard ol proof required for establishing corrupt practice is the sameas that required to establish a criminal offence.

Anjaneya Reddi v. Gatigi Reddi, 21 E.L.R. 247; Sankara Gouda v. Sirur VeeraBhadrappa, A.I.R. 1963 Mys. 81, referred to.

Where a declaration made under s. 12 7-A of the Act does not makeany reference to the "pamphlet or poster" such a declaration does not complywith the requirement of the law.

Miscellaneous First Appeal filed under Section 116-Aof the Representation of the People Act, 1951 against the orderdated 20th April, 1963 in Election Petition No. 33 of 1962 onthe file of the Election Tribunal, Bangalore.

G. R. Ethirajulu Naidu, V. N. Satyanarayan and A. C.Nanjappa, for Respondent No. 1.

B. G. Havarmer for Respondent No. 2.

JUDGMENTThese are connected appeals. They arise from decision

of the Election Tribunal, Bangalore, in Election Petition No.33 of 1962 on its file.

2. M. F. A. No. 139/63 was filed by the first respondent inthe aforementioned Election Petition (returned candidate) andM.F.A. No. 141/63 was filed by the petitioner therein (One ofthe unsuccessful candidates). Respondents 2 and 3 in theseappeals are the other candidates who contested in the electionbut were unsuccessful.

3. In the course of this judgment, we shall refer to theappellant in M.A.F. No. 141/63 as the petitioner and the appellantin M.F.A. No. 139/63 as the respondent.

4. In these appeals we are concerned with the election toBangalore South (Scheduled Caste) Constituency held inFebruary, 1962. For that constituency, the last date for filingthe nomination was 20th January 1962. The scrutiny of thenomination papers was done on 22nd January 1962. Thepoll was held on 22nd February 1962 and the counting of thevotes commenced on 25th February 1962. It was continuedon 26th February 1962 on which date the results were announced.The following are the votes polled by the candidates :

1. Petitioner (B. Basavalingappa) . . 11,5402. Respondent (D. Munichinnappa) . . 17,4413. K. Ghikkanna "\ are respondents 2 and 3 . . 2,5614. M. Narayanappa J i n these appeals. . . 1,404

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS 249

5. In his petition, petitioner has prayed for setting asidethe election of the respondent for various reasons. He has alsoprayed that it should be declared that he has been duly elected.The validity of the election of the respondent is assailed on threedifferent grounds. It was firstly contended that the respondentwas not qualified to be a candidate as he was not a member of anyof the Castes mentioned in the Constitution (Scheduled Castes)Order, 1950, as amended in 1956 (to be hereinafter referred to asthe "Order"). Secondly, it was urged that he was disqualified tobe a candidate by reason of the fact that he had a subsisting cont-ract on the material dates with the Bangalore City ImprovementTrust Board to be hereinafter referred to as the "Trust Board".Lastly, it was urged that the respondent by himself and throughhis agents and supporters had committed corrupt practices withinthe meaning of section 123 of the Representation of the PeopleAct, 1951 (to be hereinafter referred to as the "Act"), and thosecorrupt practices have materially affected the results of theelection.

6. The Election Tribunal rejected the last two contentionsput forward by the petitioner. It held that the petitioner hasfailed to establish that the respondent had any subsisting contractwith the Trust Board either on the date of the nomination or onthe date of the election. It also held that the corrupt practicesalleged, have not been proved. But it set aside the election of therespondent on the ground that he was not qualified to be a candi-date as he was not a member of any of the Castes mentioned inthe "Order".

7. The findings reached by the Tribunal on the issue relat-ing to the respondent's qualifications to be a candidate for aScheduled Caste Constituency can be summarised thus : Therespondent is a "Voddar" by caste. There are several sub-castesamongst the "voddars". One of these sub-castes is known as"Boyi". The sub-caste to which the petitioner belongs is knownas "Kallu Vodda". Only the "Boyi" sub-caste amongst the"Voddas" is included in the "Order". Therefore, the petitionerwas not qualified to stand as a Scheduled Caste candidate.

8. The Tribunal has made out an entirely new case for thepetitioner. In the Election Petition, it is nowhere stated that thecaste "Boyi" referred to in the "Order" is a sub-caste amongst"Voddas". The petitioner's case was that "Voddas" have notbeen included in that "Order". It was no body's case that onlyone of the sub-castes amongst "Voddas" has been included in the"Order". Neither the petitioner nor his witnesses have disposed

34—3 ECr/ND/67

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in support of the case found by the Tribunal. Sri G. R. Ethira-julu Naidu, the learned Counsel for the petitioner frankly con-ceded in the course of his arguments that it was never the peti-tioner's case that "Bhovi" mentioned in the "Order" is a sub-casteamongst the "Voddas". His stand was that neither the "Voddas"as a class, nor any sub-caste amongst them are included in the"Order". In other words, the caste "Bhovi" mentioned in the"Order" according to him does not refer to "Voddas" at all. TheTribunal, has quite clearly, made out a new case for the petitioner.In arriving at the conclusion that "Bhovi" mentioned in the"Order" is a sub-caste amongst "Voddas", the Tribunal appears tohave been influenced by certain observations found in theMysore Gazetteer edited by Mr. B. Lewis Rice, in 1876, to whichwe shall make reference at a later stage. At this stage, sufficeit to say that the finding of the Tribunal on this point is un-supported either by the pleadings in the case or by the evidenceon record and therefore, it has to be set aside.

9. But, this conclusion does not dispose of the larger ques-tion whether the respondent is a member of any of the castesmentioned in the "Order"? If he is not a member of any of thecastes mentioned therein, he was not qualified to be a candidatein the election in question.

10. It was not denied that till 1944, the respondent's com-munity was known as "Vodda" or "Voddar" or "Wadda". Inhis nomination paper, the respondent has mentioned the name ofhis community as "Bovi (Voddar)". It is also not denied thatthe respondent's community even now is called as "Vodda" or"Voddar" or "Wadda". Therefore, the only question that arisefor our decision is whether the word "Bhovi" mentioned in the"Order" refers to "Vodda" or "Voddar" or "Wadda."

11. According to the respondent and his witnesses, ever since1944 "Voddas" are known in Kannada as "Bhovi" ( ).But, whenever that name is mentioned in English it is differentlyspelt—sometimes as "Boyi", sometimes as "Bovi" and at othertimes as "Bhovi". He asserted that the change in the name of hiscommunity came about in the following manners—on 17th July1944 there was a conference of "Voddar Sangha" at Davangere.There in a resolution was passed changing the name of the com-munity from "Vodda" to "Bovi" ( ). That resolutionwas Kannada. The resolution in question was sent to the Govern-ment, with a request to change the name of the community from"Vodda" to " " (Bovi) in the official records. The Govern-ment accepted that recommendation and passed the followingorder on 2nd February 1946 (Ex. R-3).

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS 251

"Government are pleased to direct that the communityknown as "Vodda" be in future classed "Boyi" in allGovernment communications and records."

Ever since then, this community is known as " " i nKannada, but spelt as "Boyi", or "Boyi", or "Bhoyi" in English.It was urged that difference in spelling of proper names in Englishis not something peculiar to this case. Our attention was invited tothat fact that in Ex. R. 3 "Voddas" are referred to in two differentways "Vodda" and "Voddar".

12. Before proceeding to consider the evidence in support ofthe respondent's case, it is necessary to mention that it is not thecase of the petitioner that there is any other Scheduled Caste inthe Mysore Area of the Mysore State known as "Bhovi". This,undoubtedly, is an important circumstance. The "Order" refersto a Scheduled Caste known as "Boyi" in the Mysore Area of theMysore State, which means that in that area there is a scheduledcaste known as "Boyi". Now we may proceed to consider theevidence in support of the respondent's case.

13. "Vodda" community has always been considered as adepressed class. They have been so shown in Para 356 of theCensus Report of 1931 (Vol. XXV—Mysore—Part I). In thatReport they have been clubbed along with Adikarnatakas,Banjars, Koramas, etc. In that 1941 Census, "Vodda" com-munity was shown as one of the depressed classes. {Vide Para86 of the Census Report, 1941). It must also be rememberedthat the President in determining the Scheduled Castes withrespect of any State had to do it after consultation with theGovernor of the concerned State, which means that theScheduled Castes mentioned in the "Order" with respect tothis State were so mentioned after consulting the State Govern-ment. As already noticed, the former State of Mysore haddecided to refer to " Vodda " as " Boyi " in the official re-cords. The petitioner on whom the burden lay to prove that therespondent was not qualified to be a candidate should have gotproduced the recommendation made by the State Government.That recommendation would have been a great assistance indeciding the point under consideration. It appears likelythat the "Voddas" were recommended to be included in the" Order". Much stress was laid on the fact that Ex. R-3refers to "Voddas" as "Boyis", whereas the community men-tioned in the "Order" is "Bhovi". As mentioned earlier, theKannada word is " " . I n mentioning thatname in English it was spelt differently. The fact that the" Order " was drafted very carefully and that even synonyms

252 D. MUNIGHINNAPPA V. B. BASAVALINGAPPA & OTHERS [VOL. XXV

were separately mentioned in the same does not rule out thepossibility of all differences in the matter of spelling. Again thefact that the "Order" is exhaustive and not illustrative is also notrelevant. From the material before us, it is clear that even theGovernment has been spelling the word differently at differenttimes. For example, in the 1951 Census Report (vol. XV—Mysore) "Voddas" were called as "Bovis" and not "Boyis".The community in question was shown as a Scheduled Caste.

It is necessary to remember that this Census was held afterthe "Order" was issued.

14. The Enumerator's Guide issued in connection with theCensus of 1951, relating to Mysore, describes one of the ScheduledCastes in the State As "Bovi or Vodha"—see Appendix I page 21.The " " (Enumerator's Kaipidi) issuedmentions that one of the Scheduled Castes is known as "Bovi(including "Kallu Voddar" and "Mannu Voddar")—see page 23.

15. There is plenty of evidence on record to show that eversince the "Order" was issued, the "Vodda" community has beentreated as a Scheduled Caste and that petitioner's contention that"Vodda" community is not a Scheduled Caste is only an after-thought. Both the petitioner as well as the respondent hadapplied to the Mysore Pradesh Congress Committee for beingselected as a Congress candidate for Bangalore South (ScheduledCaste) Constituency. The petitioner does not appear to haveobjected to the selection of the respondent on the ground that hedoes not belong to any of the Scheduled Castes. Admittedly, thepetitioner did not object to the nomination of the respondent at thetime of the scrutiny. R.W. 7 (R. Peeranna) a "Vodda" bycommunity was elected from Heggadadevanakote Constituencydefeating the former Minister Sri Rachiah. That constituency wasalso reserved for the Scheduled Castes. The validity of his nomina-tion was not contested at the time of the scrutiny. Ramakrishnaa nephew of the petitioner was opposed in the Mudagere consti-tuency by the brother of Thimma Bovi (R.W. 5) a "Vodda" bycommunity. That Constituency was also reserved for the Schedul-ed Castes. In the 1957 election, R.W. 5's brother was elected fromMudagere constituency. Other instances of the members of"Vodda" community contesting from the Scheduled Casteconstituencies have been placed before us. But, it is unnecessaryto mention them. It is mentioned in the written statement of therespondent that he was nominated by Government of Mysore as aScheduled Caste member to the District Development Council,Bangalore; he was returned uncontested as a Village PanchayatMember for the seat reserved for the Scheduled Castes ; and the

E.L.R.] D. MUNIGHINNAPPA V. B. BASAVALINGAPPA & OTHERS 253

Government of Mysore while constituting Taluk AdvisoryCommittees relating to Scheduled Castes, Scheduled Tribes, etc.,for Bangalore South Taluk have included him as a Member of thatCommittee representing the Scheduled Castes. None of these factswere denied by the petitioner. It is difficult to believe that thepetitioner could have been ignorant of these facts. He had everyopportunity to ascertain the true facts even after the writtenstatement was filed in the case. Yet he has produced no materialto show that the facts pleaded in the written statement and provedby the evidence adduced by the respondent are in any mannerincorrect. The petitioner is not an ignorant villager. He is a lawgraduate. He was the Deputy Home Minister in the lastMinistry.

16. The respondent has addused satisfactory oral evidence toshow that the "Vodda" community is known as " "(Bovi) eversince 1944. In particular we are impressed with theevidence of P.Ws. 5, 6 & 7. These witnesses are respectablewitnesses. They themselves belong to the "Vodda" communityand hence they had every opportunity of acquainting themselvesabout the change effected in the name of their community.On this point, the petitioner has not adduced any satisfactoryevidence. The evidence adduced by him in this respect is eitherhearsay or opinion evidence.

17. On the point under consideration, no assistance isavailable from the Gazetteer of Mysore compiled in 1876 byMr. B. Lewis Rice. That book merely enumerates the varioussub-castes amongst the "Voddas", their avocation, and their wayof life. The same is the position as regards the Census Reportof 1901. The fact that some sections of the "Voddas" wereclassified as Backward Classes in the Report of Dr. Nagan Gowda'sCommittee is of no assistance to the petitioner. Admittedly,sections of the "Voddas" living in several areas other than theMysore Area of the Mysore State are not included in the "Order".Therefore, they were treated as backward class in that Report.The fact that there is a separate caste known as "Bhovi" inareas other than the Mysore Area is irrelevant in deciding thepoint under consideration.

18. From the facts set out above, it is clear that there is nosubstance in the plea that the respondent was not qualified to bea candidate for the Bangalore South (Scheduled Caste) Constitu-ency in the election held in February 1962. Therefore, our findingon the first issue framed by the Tribunal and the first pointformulated by us is that the respondent was a member of one ofthe Scheduled Castes mentioned in the "Order" and hence he

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was qualified to be a candidate in the last general elections for theBangalore South (Scheduled Caste) Constituency.

19. Now let us take up the next question whether therespondent was disqualified to be a candidate in the last electionfor the reasons mentioned in the petition. The case for thepetitioner is that on the date of the nomination as well as on thedate of the election, the respondent had a subsisting contract withthe Trust Board, which according to him is a GovernmentDepartment. The respondent has pleaded that he had no sub-sisting contract with the Trust Board does not bring the casewithin section 7 (d) of the "Act."

20. We shall first take up the question whether the res-pondent had a subsisting contract with the Trust Board on thematerial dates. The respondent admits that he entered into anagreement with the Chairman of the Trust Board on 12thSeptember 1957, as per Ex. P-l for executing certain worksEx. P-2 is the office copy of the work order issued to him. Ex. P-3is the extract of the work Register relating to the respondent inrespect of the Lakkasandra Layout. These facts are not deniedby the respondent. But, his case is that he transferred his rightsand liabilities under the contract to his brogher-in-law G. Ramiahin 1961 itself so that he may be a candidate in the 1962 GeneralElection. He says that he had nothing to do with the impugnedcontract at the time of the election. On this point, the Tribunalhas accepted the case of the respondent. The transfer pleaded bythe respondent is satisfactorily established by documentary as wellas oral evidence. Ex. R-29 is the copy of the application made bythe respondent to the Chairman of the Trust Board, requestinghim to transfer his "work bills, contracts (both assets andliabilities) in favour of" his brother-in-law G. Ramiah. A copy ofEx. R-29 had been sent to the Engineer Officer-in-charge see :Ex. P-21. On that copy P. W. 7 (Sri B. Gopalakrishna) theFinancial Assistant to the Chairman of the Trust Board, made anote to the effect "The assets and liabilities may be transferred."The effect of that note does not appear to have been properlyunderstood by the office. On 8th September 1961 a letter was sentto the respondent asking him "to produce the original documents,viz-, power-of-attorney, if any, executed in favour of Shri G.Ramiah and particulars of work already done,etc."—see: Ex. P-22.In response to that communication, the respondent sent the deedof transfer Ex. P-23. That deed is without doubt a transfer deedtransferring in favour of Ramiah "all the assets and liabilitiesincluding the deposits, reserves and such other funds that may bestanding to the credit" of the respondent in the Trust Board.It also says that Ramiah is bound to fulfil all commitments in

E.L.R.] D. MUNIGHINNAPPA V. B. BASAVALINGAPPA & OTHERS 255

respect of the contract entered into between the Trust Boardand the respondent. After the receipt of the transfer deed, theChairman of the Trust Board sent the following communicationto the respondent on 29th September 1961 (Ex. R-l) :

"Sir,

With reference to your application dated 30th August1961 regarding transfer of contract (assets and liabilities),you are hereby informed that the works already doneincluding reserve amounts and deposits have been trans-ferred in the name of Sri G. Ramiah, Sarbandepalaya,Bangalore South as desired."

There is some controversy as to the true effect of this letter.According to the respondent, as per that letter the Trust Boardreleased him from the contract entered into under Ex. P-l andthereafter his brother-in-law Ramiah became the contractor. But,it was contended on behalf of the petitioner that the true effect ofEx. R-l is only to transfer in favour of Ramiah "the worksalready done including reserve amounts and deposits". It wassaid that the same does not mean that the respondent had beenreleased from his contract. The interpretation placed on Ex. R-lby Sri Ethirajulu Naidu, the learned Counsel for the petitioner,appears to be highly technical. To find out the true effect ofEx. R-l, we have to see Exhibits P-l, P-2, P-3, P-21, P-22, P-23,R-29 and R-l. If these documents are read together, as theyshould be, there is hardly any doubt that the intention of theChairman of the Trust Board was to release the respondent fromthe contract entered into under Ex. P. 1. The Chairman of theTrust Board would have been the best person to tell the Court asto what his intention was. He has not been examined. Noreason is forthcoming for his non-examination. P. W. 7 (SriGopalakrishna) the Financial Assistant to the Chairman ofthe Trust Board,who has examined to prove the relevant documen-ts has specifically stated that on the basis of Ex. P-23, the TrustBoard "transferred the assets and liabilities to G. Ramiah andmade payments to G. Ramiah". He has also specifically statedthat Ex. P-23 was not treated by the Trust Board as a power-of-attorney ; it was treated as a transfer deed. From his evidence, itis clear that the Trust Board accepted the request of the respondentto transfer the rights and liabilities under Ex. P-l to G. Ramiah.

21. A point was made out of the fact that the final bill wasprepared in the name of G. Ramiah, as the power-of-attomeyholder of respondent. PW7 frankly admitted that it was anomission on his part not to have noticed the incorrect entry made

256 D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS [VOL. XXV

to the original bill Ex. P-20 (final bill). In our opinion, the res-pondent has satisfactorily established that months before he filedhis nomination, he had ceased to have any contract with the TrustBoard. It is not the case of the petitioner that G. Ramiah was abenamidar for the respondent. No such plea was taken nor anysuggestion made to that effect during the cross-examination of therespondent. The petitioner has all along been disputing thefactum of the transfer of the contract in question. In view of theabove findings of fact reached by us, there is no need to considerthe meaning of the word ''subsisting contract". For the samereason, the decision of the Supreme Court in Chatturbhuj VithaldasJasani v. Moreshwar Parasharm & others (1) is not relevant forour present purpose.

22. Now that we have come to the conclustion that the res-pondent is not proved to have had any subsisting contract with theTrust Board on the material dates, it is unnecessary to go into thefurther question whether the contract with the Trust Board canbe held to come within the mischief of section 7 (d) of the "Act".

23. For the reasons mentioned hereinbefore, our finding onthe third issue framed by the Tribunal (second point formulatedby us) is in the negative and in favour of the respondent.

24. This takes us to the last point in controversy, viz.,whether the Election of the respondent is liable to be set aside onthe ground that he was guilty of corrupt practices, eithercommitted by himself or with his consent by his agents. On thispoint, the gravamen of the charge against the respondent is thathe got published a scurrilous pamphlet against the petitioner andflooded the Constituency with the same. A copy of the pamphletin question is marked as Ex. P-6. It purports to have beenpublished by the " Election Propaganda Public Speeches Com-mittee." It is a highly defamatory document. If it is provedthat the respondent had got published that pamphlet, there canhardly be any doubt that the election of the respondent isliable to be set aside under section 100 (1) (b) of the " Act ".In that pamphlet we find appeal being made to the voters torefrain from voting to the petitioner on the ground of his caste.The allegations made therein relate to the personal characterand conduct of the petitioner. It was said that those allega-tions are false ; known to the petitioner to be false ; at anyrate not believed by him to be true. The case for the res-pondent is that no such pamphlet was published either by him orby his agents or by his supporters or for that matter by any oneduring the election.

(1) A.I.R. 1954 S.C. 236.

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS 257

It was asserted on his behalf that pamphlet came into exis-tence after the election; evidently the same had been got printedwith a view to bolster up the petitioner's case. After reviewingthe evidence on record, the Tribunal came to the conclusion thatthere is no satisfactory evidence to show that the pamphlet inquestion was got printed by the respondent or that it was printedat any time before the election or that the same was distributedduring the election. From the order of the Tribunal, it appearsthat it was inclined to accept the case of the respondent that thepamphlet in question was got up to lend support to the electionpetition. In dealing with the pamphlet in question, it is desirableto analyse the evidence under two broad heads viz-, (i) the evi-dence relating to the printing of the pamphlet : and (ii) theevidence relating to its publication.

25. Before scrutinising the evidence bearing on the pointsformulated above, it would be appropriate to remind ourselves thatcorrupt practices under the Election Law is akin to criminaloffences. Therefore, the standard of proof required for establishinga corrupt practice is the same as that required to establish acriminal offence. See : Anjaneya Reddy vs. Gangi Reddy andothers(2) and Shankara Gouda vs. Sirur Veer a Bhadrappa(3).The law is that those who want to contend that theapparent verdict of the voters is not the real verdict,have to make out a strong case. It is a strong thing to setaside an election and it is a wrong thing to do it except for veryconvincing reasons. It has been the experience of Courts thatgenerally speaking in election petition enquiries, large number ofwitnesses are examined by the parties. In Anjaneya Reddy\s casethis Court observed :

"The emotion worked up during the election is keptgoing during the enquiry and it is not surprising that someat least of their supporters make common cause withthem during the enquiry. Hence, the evidence adducedwill have to be scrutinised with more than ordinary care."

Therein, this Court also observed :

"But it would be destructive of all principles relatingto the appreciation of evidence if we assume that the oralevidence adduced by the parties is invariably false.

* * * * *

It is true that the circumstances relied on must be provedby satisfactory evidence and the inference to be drawn

(2) 21 E.L.R. 247.(3) A.I.R. 1963 Mys. 81.

35—3 EC1/ND/67

2 5 8 D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS [VOL. XXV

must be a reasonable one, the benefit of doubt, if any,going to the first respondent. But it is not correct toimagine that law has laid down impossible conditionsin the matter of proving corrupt practices. I refuse tobelieve that the Legislature's intention was to make amockery of democracy in this country and its purposewas merely to lay down high sounding but meaninglessmaxims."

26. We shall now proceed to examine the evidence on recordin the light of the above observations. We shall first take upthe question, when and by whom Ex. P-6 was printed. Itis mentioned in Ex. P-6 that it was printed in Revana Printers.The pamphlet in question does not mention the name or addressof the Printer or the Publisher. Section 127A(1) of the "Act"lays down :

"No person shall print or publish, or cause to be printedor published, any election pamphlet or poster which doesnot bear on its face the names and addresses of the printerand the publisher thereof."

The failure to print in the pamphlet the names and addressesof the Printer and Publisher is a serious commission. P.W. 3(Revanasiddiah) claims to be the manager of Revena Printers.He has not given any reason for not mentioning the names andaddresses of the printer and the publisher in the pamphlet inquestion. According to P. W. 3, it was the respondent whoordered the printing of Ex. P-6. Further P. W. 3 claims that itwas the respondent who gave him the manuscript. It must beremembered that Ex. P-6 contains highly defamatory statements.P. W. 3 can be prosecuted for the same. But, yet strangelyenough, P. W. 3 says that he returned the manuscript to therespondent. This is a highly suspicious circumstance. P. W. 3admitted that there are no records in the Press to show that therespondent gave orders for printing the pamphlet in question.P. W. 3 further stated that he received a sum of Rs. 120 from therespondent for printing the pamphlet in question. But, accordingto him, he did not pass any receipt for the payment in question,but made an endorsement of that fact on the manuscript itself,which, as mentioned earlier, is not forthcoming. P. W. 3 wantsthe Court to believe that the press does not maintain any accountbooks. It is seriously contended on behalf of the respondent thatP.W. 3 has nothing to do with that press. There is no documentaryevidence to support the claim of P.W. 3 that he is the manager ofthe press in question. He had not given any declaration under thePress Act. He had not paid any income-tax or any other tax

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPFA & OTHERS 259

The press in question is standing in the name of his brother. Inthese circumstances it is not easy to accept the claim of P.W. 3that he is the manager of the press in question. P.W. 3 was introuble in the past. In his deposition he stated :

"In 3 or 4 cases I had appeared as an accused before theSessions Court, Shimoga. One of those cases was Chik-kappannahalli Dacoity case. This was in 1943. I wasnot convicted in any of the cases."

In his re-examination, he stated that the dacoity cases of 1942were brought against him as he had absconded in 1942 move-ment in which he took part. P.W.3 admitted that he is a Con-gressman. We have earlier noticed that the petitioner wasthe Congress candidate.

27. Sub-section (2) of section 127A of the "Act" prescribes:"No person shall print or cause to be printed any electionpamphlet or poster,

(a) unless a declaration as to the identity of thepublisher thereof, signed by him and attested by twopersons to whom he is personally known, is deliveredby him to the printer in duplicate ; and

(b) unless, within a reasonable time after the print-ing of the document, one copy of the declaration is sent bythe printer, together with one copy of the document,

(i) where it is printed in the capital of the Stateto the Chief Electoral Officer ; and

(ii) in any other case, to the District Magistrate ofthe district in which it is printed."

P.W. 5 (Sri S. G. Joshi) is one of the Assistants in the ChiefElectoral Officer, Mysore. He has deposed that neither any copyof Ex. P-6 nor the required declaration had been received at theOffice of the Chief Electoral Officer, Mysore. This evidence wasnot challenged in any manner. P.W. 3 in his first deposition(he was examined on two occasions) had asserted that he had senta copy of Ex. P-6 along with the required declaration to the Officeof the Chief Electoral Officer, Mysore. But he did not give thedate on which they were sent. Further in support of his assertionhe had not produced any documentary evidence at that stage.Some time thereafter, an application was filed on behalf of thepetitioner to summon P.W. 3 to produce the acknowledgementreceived by him from the Chief Electoral Officer, Mysore,acknowledging the receipt of the copy of Ex. P-6 and the declara-tion. Curiously enough several days thereafter, the petitioner

260 D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS [VOL. XXV

totally ignoring the prayer made by him to summon P.W. 3 toproduce the acknowledgement referred to earlier, filed anotherapplication supported by his affidavit. In that affidavit, he didnot make any reference to his earlier request to summon P.W. 3to produce the acknowledgement in question. On the other hand,he stated therein, that P.W. 3 may be asked either to producethe registered acknowledgement mentioned earlier or any postalcertificate received from the Chief Electoral Officer. We arementioning these facts to show that the postal certificate theorywas introduced as an after-thought. How the petitioner came toconceive of it is not explained. P.W. 3 was not examined again forabout six months, after his first examination. Ultimately inMarch 1963, he was again examined. At that time, he produceda Certificate of Posting, Ex. P-34 dated 19th February 1962, saidto have been received by him from the Chief Electoral Officer.This Certificate of Posting, in the very nature of things, cannotthrow any light on the question whether P.W. 3 had sent a copyof Ex. P-6 along with the declaration to the Chief ElectoralOfficer. All that the Certificate of Posting shows is that some-body had sent some communication to the Chief Electoral Officeron the date mentioned therein. During election time, necessarilymany people would be sending communications to the ChiefElectoral Officer and some of those communications are likely tobe sent under Certificates of Posting. It would not have beendifficult to catch hold of one such certificate and press into service.Therefore, much reliance cannot be placed on the postal certificateproduced more particularly in the view of the circumstancesmentioned above. The Tribunal has rightly refused to place anyreliance on the same.

28. We shall now take up the declaration said to have beenmade at the time of the printing of Ex. P-6. The same is markedas Ex. P-7. It is dated 6th February 1962. It reads thus :

"I hereby declare that M/s Revana Printers, P-62Kilari Road, Bangalore-2 has been selected by me as oneof my printers for printing pamphlets, posters, etc., asenvisaged in 127A (Restrictions on the printing of pam-phlets, posters, etc.) of Representation of the People Act,1951. The Publisher is the undersigned.

L. T. M. of Narayana ReddyS/o Dodda Abbaiah,Bommanahalli.

Signed in Kannada(Sd) Govinda Reddi.Signed in Urdu.Syed Nazeer Sab."

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPPA & OTHERS 261

29. The declaration, Ex. P-7 is rather a strange type ofdeclaration. Narayana Reddy, the alleged publisher, was neithera candidate nor an election agent. It is surprising that heshould have appointed some one as his "printer for printinghis pamphlets, posters, etc." What is required by sub-sec-tion (2) of section 127-A of the "Act" is that "no person shallprint or cause to be printed any election pamphlet or poster,unless a declaration as to the identity of the publisher thereof,signed by him and attested by two persons " (Underliningis ours). Ex. P-7 does not refer directly or indirectly to Ex. P-6.There is no doubt that Ex. P-7 does not comply with the require-ments of law.

30. From Ex. P-7 it is seen that the declaration in questionwas made on 6th February 1962, while according to P. Ws. 3and 40 (Narayana Reddy), the order for printing Ex. P-6 wasgiven only on 11th February 1962 and on the same day Ex. P-7was executed. This is a serious discrepancy which remainsunexplained. If the declaration in Ex. P-7 had been made on thedate mentioned therein, then evidence of P. Ws. 3, 40, 41 and 42on this Point is not true. These contradictions may be indicativeof the fact that the evidence relating to the printing of the pamph-let is a cooked up evidence and consequently there was mixingup. According to P. W. 3, he met the respondent for the firsttime on the date when the order was given for printing pamphletsimilar to Ex. P-6. It is strangejithat he accepted an order for prin-ting such pamphlets—highly defamatory pamphlet—particularlyfrom a stranger and that against a candidate belonging to hisparty, even at the risk of being prosecuted for a serious offence.

31. Now coming to the evidence of P. W. 40 (NarayanaReddy), he is clearly an unreliable witness. He is an illiterateperson. He does not claim to have had any intimate connectionwith the respondent before the last general election. From theevidence, it is clear that this witness has no regard for truth.According to him, till the day he put his thumb mark to themanuscript, on the basis of which Ex. P-6 was printed, he had noinformation that a pamphlet like that would be published. Hewants us to believe that the respondent picked him up from hishouse and took him to the Press in question without any priorarrangement and that it was only on the way i.e. near the Churchat Madiwala he was asked to put his L. T. M. on the manuscript.He deposed that till then, he had no knowledge of the plan topublish such pamphlets. He further deposed that before he wasasked to put his L. T. M. the contents of the manuscript had beenread out to him ; on hearing the contents he refused to affix hisL. T. M. as he had nothing to do with it ; at that stage, the

262 D. MUNICHINNAPPA V. B. BASAVAUNGAPPA & OTHERS [VOL. XXV

respondent told him that he "had formed a committee of Krishna'murthy and Muniswamy Reddy and he would make me also itsmember", therefore, he put his L. T. M. If his evidence is true,he is a strange person. He was prepared to be a party to thecommission of a serious offence for the mere offer of being includedin a committee whose job was to canvass for the respondent.According to him, he worked for the respondent during the generalelection. He was an enthusiastic witness for the petitioner duringthe enquiry of the Election Petition. Less said about this witness,the better it is. The respondent's evidence that P. W. 40 workedfor the petitioner during the election appears to be true.

32. P. W. 41 (Nazir) and P. W. 42 (Govinda Reddy) haveattested Ex. P-7. Their evidence is artificial. The version givenby them is an improbable one. There are material contradictionsin their evidence. We agree with the Election Tribunal thatthese witnesses are not reliable witnesses. It is not difficult to pro-cure witness of this type and that in the enquiry of an ElectionPetition. At one stage, P. W. 41 even went the extent ofsaying that whatever was stated in the pamphlet is true. But,at a later stage he turned round and asserted, "I have personalknowledge that the petitioner had no hand in the taking awayof those girls". Both P. W. 41 and P. W. 42 pretended to haveworked for the respondent. But, according to the respondent,they were petitioner's workers. We are unable to place anyreliance on the evidence of P. \\Ts. 41 and 42.

33. After carefully considering the probabilities of the case,the oral as well as documentary evidence bearing on the questionwe have come to the conclusion that the story put forward asregards the printing of the pamphlets Lke Ex. P-6 is not a reliablestory. It is more than likely that these pamphlets came intoexistence after the Election.

34. We shall now proceed to consider the evidence relatingto the publication of the pamphlets in question. The evidence ofthe petitioner is that over 40,000 pamphlets had been distributedin the Constituency. Before going to the evidence regarding thepublication, it is necessary to refer to the broad probabilities of thecase. According to the petitioner, the pamphlets in questionwere distributed in the Constituency from about 14th February1962 and that he had come to know about the same very soonthereafter. He also deposed that several congressmen workedagainst him and that they had a hand in the distribution ofthose pamphlets. Quite clearly, if the pamphlets in questionhad been published during the Election, the persons responsible

E.L.R.] D. MUNICHINNAPPA V. B. BASAVALINGAPPA. & OTHERS 263

for their publication would have been guilty of an offence underSection 125 of the "ACT" which says :

"Any person who in connection with an election underthis Act promotes or attempts to promote on grounds ofreligion, race, caste, community or language, feelingof enmity or hatred between different classes of the citizensof India shall be punishable with imprisonment for a termwhich may extend to three years, or with fine, or withboth."

An offence under Section 125 is a cognizable offence. If the offencein question had been committed as deposed to by the petitioner,it is reasonable to assume that the petitioner who was a DeputyHome Minister at that time would certainly have complainedabout the same to the Police. It was not something triflingto be ignored. According to the petitioner, he knew that thepublication of the pamphlets in question was seriously damag-ing his prospects in the election and that feeling of hatredwere being roused against him. That being so, it is difficult tobelieve that he would have ignored the matter. His plea that anycomplaint at that juncture would have roused public anger againsthim is far from convincing. Further, admittedly, he complainedto the A.I.C.C. as well as to the M.P.C.C. against several con-gressmen who worked against him. He says that he complainedto those Bodies both before the polling took place as well asafter the results were declared. There is no satisfactory proofto show that he sent any copy of the pamphlet in question eitherto the A.I.C.C. or to the M.P.C.C, before he got ready for theElection Petition. This circumstance throws great deal ofdoubt on the alleged publication of the pamphlets like Ex.P-6.

35. The Bangalore Rural Parliamentary Constituency in-cludes within it the Bangalore South Constituency. The congresscandidate for the Parliamentary Constituency was Sri H. C.Dassappa. Naturally he had to work with the petitioner. SriDassappa was a former Finance Minister of the Mysore State,later the Chairman of the Public Accounts Committee of theParliament and now a Cabinet Minister in the Union Cabinet.It is the case of the petitioner that Sri Dassappa during hiselection campaign had come across with copies of the pam-phlet in question and that he tried to convince the voters thatthe allegations made therein are false. If this evidence is true,then Sri Dassappa would have been the most important witnessin the case. His evidence would have gone a long way toestablish that pamphlets like Ex. P-6 had been distributed

264 D. MUNIGHINNAPPA V. B. BASAVALINGAPPA & OTHERS [VOL. XXV

in the Bangalore South Constituency during the Election. SriDassappa was not examined in this case. No convincing expla-nation is forthcoming for his non-examination. Sri O. Veera-basappa, the learned Counsel for the respondent has very properlyasked us to draw an inference that Sri Dassappa had not beenexamined because the version put forward by the petitioner is nottrue. It may also be noted that though several Police Officershad attended the election meeting held in support of the res-pondent's candidature in the normal course of their duty andsome out of them had been examined in this case, none of themspoke to the distribution of pamphlets like Ex. P-6. They didnot even speak to the fact that they had seen such pamphletsduring election.

36. The evidence of P. W. 30 (H. P. Krishna Reddy), whospoke to the meeting where according to him plans were hatchedto carry on false propaganda against the petitioner, is highlyartificial. On his own showing, he did not object to the proposedcampaign. His evidence is not corroborated in any manner.

37. The respondent asserted that neither he, nor his sup-porters did print or publish pamphets like Ex. P-16. It isunnecessary to go into that question as Ex. P-16 is an innocuousdocument. The respondent's complaint is that pamphlets likeEx. P-16 were got up to give an air of reality to the evidenceadduced on behalf of the petitioner and to give a set form to theevidence to be adduced.

38. It is true that the petitioner had examined a largenumber of witnesses to speak to the distribution of the pamphletsin question. We have been taken through their evidence. TheElection Tribunal which had the benefit of seeing these witnessesin the witness-box and observing their demeanour has come to theconclusion that their evidence is not reliable. According to therespondent, they are the partisans of the petitioner. The versiongiven by them does not accord with the probabilities of the case.Therefore, the mere fact that they have given a more or lessconsistent version and that the respondent has not been able toclearly demonstrate that they were interested in the petitioner arenot sufficient to out-weigh the probabilities of the case. Aftercarefully going through their evidence and weighing the same, wehave come to the conclusion that the same is not acceptable.

39. For the reasons mentioned above, we allow M.F.A.No. 139 of 1963 and dismiss M. F. A. No. 141 of 1963. In theresult, the Election Petition, which has given rise to these appealsstands dismissed with costs of the Respondent throughout.

E.L.R.] BHANWAR LAL V. HARI PRASAD 265

40. A total of Rs. 1,000 (Rupees One Thousand) is fixed asAdvocate's fee (Rs. 500 in this Court and Rs. 500 before theTribunal).

Appeal allowed.

IN THE RAJASTHAN HIGH COURT OF JODHPUR

BHANWAR LALV.

HARI PRASAD

(I. N. MODI AND P. N. SHINGHAL, JJ.)

October 30, ] 963

Representation of the People Act (43 of 1951)—5.123(4)—Leaflet referringto candidate as idalaV of minister—Impliedly accusing candidate of remaining silenton payment of money, etc.—If false statements as to personal character or conduct inthe context—Leaflets to be interpreted as a whole—Burden of proof—When shifts--Statement must be of facts and not opinion.

The appellant challenged the respondent's election on the ground thathe had committed various corrupt practices, including one under s. 123(4)by the publication of a pamphlet in which the appellant was referred to asa 'dalal' of an impliedly dishonest minister and was, in effect, alleged to havekept his mouth shut because of payment of money to him. It was contendedthat these amounted to statements of fact which were false and which therespondent believed to be false or did not believe to be true in relation to thepersonal character or conduct of the appellant. The Tribunal dismissed thepetition.

On appeal to the High Court:

HELD :—On the facts, the publication of the leaflet did not fall withinthe mischief of s.l23(4) and the appeal must therefore fail.

To fall within the mischief of s.l23(4), a false statement need not neces-sarily be libellous under the ordinary law. It must, however, bear a definiterelation to the personal character or-conduct of the candidate as distinctfrom his public or political character.

It must also be a "false statement of fact" as opposed to a false statementof opinion.

Documents of the nature of election leaflets have to lie read and inter-preted as a whole and the statements contained therein construed in theirproper context and perspective.

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266 BHANWAR LAL V. HARI PRASAD [VOL. XXV

The burden of proving that the respondent published false statementsand either believed them to be false or did not believe them to be true is onthe petitioner. It however shifts, if the petitioner examines himself and statesthat he did not commit the alleged acts and also proves circumstances in-dicating a motive on the part of respondent to make false allegations againsthim.

T. K. Gangi Reddy v. M. C. Anjaneya Reddy & others, 22 E.L.R. 261 S.C.;Krishna Kumar"v. Krishna Gopal, I.L.R. (1963) 13 Raj 726; S. Mehar Singh v.Umrao Singh & another, A.I.R. 1961 Punjab 244 ; and Index Lai v. LaiSingh, A.I.R. 1962 S.C. 1156; referred to.

Election Appeal No. 47 of 1963 against the judgment datedFebruary 5, 1963, of Shri D. Parihar, Member, Election TribunalKota, in petition No. 331 of 1962.

B. S. Sharma, N. L. Jain, J. K. Jain and M. L. Sharma, forthe appellant.

R. K. Rastogi and J. S. Rastogi, for the respondent.

JUDGEMENT

SHINGHAL, J.—This appeal by Shri Bhanwar Lai undersection 116A of the Representation of the People Act, 1951,(hereafter referred to as the Act), is directed against the orderof the Election Tribunal, Kota, dated February 5, 1963. Bythat order, the Tribunal dismissed the election petition whichShri Bhanwar Lai had filed to challenge the election of respondentShri Hari Prasad to the Rajasthan Legislative Assembly fromthe Patan constituency, at the third general election held inFebruary 1962. The result of the election was declared onFebruary 27, 1962 and the election petition was filed on April16, 1962.

Election petitioner Shri Bhanwar Lai was a Congresscandidate at the election in question while Shri Hari Prasadwas a Jansangh candidate. Five other candidates entered thecontest but they were not made parties to the election peti-tion and it is not necessary to refer to them. Shri BhanwarLai challenged the election of Shri Hari Prasad on severalgrounds. It was alleged that during the course of the electioncampaign the Jansangh party published posters similar to pos-ter Ex. A (marked Ex. 1 by the Tribunal), gave widest publi-city to those posters and displayed them at the public meetingsaddressed by the respondent and some important leaders andworkers of the Jansangh party. The poster depicted "co-operative farming" as a demon and announced that the co-operative farming policy of the Congress would lead to loss

E.L.R.] BHANWAR LAL V. HARI PRASAD 267

of freedom and the private possession of land as well as theearnings and the cattle-wealth of the agriculturists. It wasclaimed that the publication of that poster and the speechesconnected therewith created an atmosphere of terror amongstthe villagers and interfered with the free exercise of the elec-toral right of the voters within the meaning of section 123(2)of the Act. It was further pleaded that by publishing thatposter the respondent and his workers made a systematicappeal to the voters not to vote for Shri Bhanwar Lai if theywanted to prevent cow slaughter, and thus an appeal was madeto the religious sentiments of the Hindus. The other groundwhich was taken in the election petition was that one NandKishore Dixit of Lakheri published leaflets similar to leafletEx. B (marked Ex. 2 during the course of the trial). It wasalleged that this Nand Kishore Dixit was "one of the strong-est supporters and agents" of respondent Hari Prasad, andwas Chairman of the Lakheri Municipal Board on the Jan-sangh ticket, and that the leaflet was published in Lakheriwith the consent and connivance of the respondent on or aboutFebruary 3, 1962, when Shri Mohan Lai Sukhadia, the ChiefMinister of Rajasthan, visited that town and delivered a publicspeech to secure electoral support for Shri Bhanwar Lai. Fur-ther, it was alleged that the leaflets were distributed by therespondent himself, by Nand Kishore Dixit and the agents ofthe respondent in other towns and villages of the constituencyas well. The petitioner further contended that the state-ments made in the leaflets were false and were either believ-ed by the respondent and his agents and supporters to be falseor were not believed by them to be true, and that those state-ments were made in relation to the personal character or conductof petitioner as well as his candidature at the election, and weresuch as were reasonably calculated to prejudice his prospectsat the election within the meaning of sub-section (4) of section123 of the Act. In particular, the petitioner mentioned thefollowing three statements to which he took exception:—-

"(i) That the petitioner by innuendoes and cleveruse of the language was shown to be an enemy of the labourclass, which constitutes majority of electors in Lakheriwhich is an industrial town.

(ii) That the petitioner acted as a 'dalhal' of ShriMohan Lai Sukhadia.

(iii) That the petitioner was a thoroughly dishonestperson, who agreed to keep his mouth closed as he was givenlakhs of rupees through the agency of Bhrarat SevakSamaj by Shri Mohan Lai Sukhadia "

268 BHANWAR LAI. V. HARI PRASAD [VOL. XXV

Accordingly, the petitioner claimed that the election ofrespondent Shri Hari Prasad was void because it had beenprocured and brought about by the corrupt practices mentionedabove, which were so widespread in the constituency that theymaterially affected the result of the election.

The respondent traversed the allegations made in theelection. He denied the publication of posters similar toposter Ex.1 at the instance of" the Jansangh party, as well as theother allegations which were made by the petitioner in connectiontherewith. As regards leaflet Ex. 2, the respondent denied thatShri Nand Kishore Dixit acted as one of his strongest supportersand agents or that he was the Chairman of the Lakheri MunicipalBoard at the relevant time, or that he published leaflets similarto leaflet Ex. 2 in the constituency. Further, the respondentdenied that he or his other agents distributed the leaflets in othertowns and villages within the constituency. He also denied theallegation that the statements in the leaflet related to the personalcharacter or conduct of the petitioner or that he and his agentspublished any statement which was false or was believedto be false or was not believed to be true, or that thosestatements could reasonably be said to prejudice the peti-tioner's prospects at the election. At the same time, therespondent pleaded that he believed those statements to betrue. Thus he denied that any corrupt practice had beencommitted at the election by him or his agents. By way ofadditional pleas the respondent raised the objections that inthe absence of full particulars of the corrupt practices the alle-gations were liable to be struck off, that the election petitionerhad not been filed within time, that the security in respect of ithad not been deposited in time and according to law and thathe had adopted all reasonable means to prevent the commissionof corrupt practices at his election. Two pleas were taken in thealternative, first, that leaflet Ex. 2 could at the most be said torelate to the public and political character and conduct of thepetitioner, and, second, that if any corrupt practice was foundto have been committed it was committed contrary to his ordersand without his consent.

The learned Tribunal framed 12 issues covering the pleadingsof the parties. The first four of those issues related to theallegations regarding the publication of posters similar to posterEx. 1. The learned Tribunal decided all those issues againstthe petitioner but Mr. Jain, learned counsel for the petitioner-appellant, has not challenged those findings before us so thatwe are not called upon to go into that part of the controversy.

E.L.R.J BHANWAR LAL V. HARI PRASAD 269

The dispute before us centres round the publication andthe contents and effect of leaflet Ex. 2. The learned Tribunalframed certain issues to determine whether responsibility forthe publication of the leaflet could be fastened on the respondentor his agent, or on any other person who could be said to havemade the publication with the consent of the respondent or hisagent and it would be convenient to dispose of this aspect of thecase at this stage. Respondent Shri Hari Prasad examined him-self at the trial. He is a resident of Lakheri and his version is likethis: While Shri Sukhadia visited Lakheri on February 3, 1962,the news that he was being brought there by Shri Brij Sunder(who admittedly was sitting member of the Rajasthan LegislativeAssembly and sought re-election as a candidate at the samegeneral election from the Bundi constituency of the Rajas-than Legislative Assembly on the Congress ticket) spread 7or 8 days in advance. When Shri Hari Prasad and some ofhis companions were about to start for his election compaignon January 28 or January 29 and were talking in the office,Nand Kishore Dixit came there and, during the talk, he alsoconveyed information about the impending visit of Shri Sukha-dia and Shri Brij Sunder. Nand Kishore told Shri Hari Prasadthat the visit of Shri Sukhadia was for the purpose of canvassingthe voters and enquired what was to be done in that respect.Shri Hari Prasad said that he did not know what to do. There-upon Nand Kishore produced a pencil draft from his pocket andshowed it to him. Shri Hari Prasad could not read it and askedNand Kisore to read it out so that he might re-write it legibly.This was done and in the meantime Babulal Pareek and BheemRaj also came there and Shri Hari Prasad showed his hand writtendraft (Ex. 13) to them saying that Nand Kishore wanted to getit printed. They however disapproved of the idea and so ShriHari Prasad told Nand Kishore not to get the draft printed, gaveback the draft to him and went away to the villages to look afterhis electoral canvass. Shri Hari Prasad returned to Lakheri onFebruary 3, 1962, in the afternoon. By that time, Shri Sukhadiahad addressed a public meeting in the village and the peoplewere dispersing. The same evening Nand Kishore met ShriHari Prasad and he and some other persons informed Shri HariPrasad that leaflet Ex. 2 had been distributed that day. Shri HariPrasad protested why that had been done when he had disapprovedof the printing of the leaflet. Nand Kishore told him that he hadgot the leaflet printed and distributed on his own responsi-bility. Shri Hari Prasad then asked him how much expenditurehad been incurred on the printing of the leaflet. Nand KishoreDixit gave him the bill and Shri Hari Prasad gave Rs. 10 tohim then and there. Thus it has been admitted by Shri Har-

270 BHANWAR LAL V. HARI PRASAD [VOL. XXV

Prasad that the manuscript (Ex. 13) of leaflet Ex. 2 is in his hand-writing and that he paid for its printing. The leaflet was printedat Shri Maheshwari Printing Press, Kota and the receipt (Ex. 10)of that press is dated February 2, 1962 and is for Rs. 10. Thenthere is a bill (Ex. 11) of the same date for Rs. 26 in which theadvance payment of Rs. 10 has been accounted for and receiptof the balance of Rs. 16 has also been acknowledged. Thegenuineness of the receipt and the bill was initially denied byShri Hari Prasad, but he ultimately admitted both the documentsto be correct. He also admitted that the expenditure on thataccount was included by him in his return of election expensesEx. 8. In that return, the respondent has shown the paymentsofRs. 10 and Rs. 16 to the Maheshwari Press on February 2,1962 and not on February 3, 1962. Thus it has been proved thatthe manuscript of leaflet Ex. 2 is in Shri Hari Prasad's hand-writing and that he paid for its printing in full on February 2,1962. Shri Hari Prasad tried to get rid of this evidenceby stating that he came to know of the printing of the leafleton February 3, 1962 when he reached Lakheri. His statementin that respect is believed by the fact that, according to his ownversion, he paid only Rs. 10 to Shri Nand Kishore on February 3,1962 on account of the printing charges, on the latter's giving thebill (Ex. 11) to him, but this could not have been so. Ashas been stated, it is obvious from a perusal of receipt Ex. 11that the bill was for Rs. 26 (out of which Rs. 10 were shown tohave been deducted on account of advance) and that amountwas payable to Nand Kishore and not Rs. 10. It would bereasonable to conclude, therefore, that as Shri Hari Prasadonly paid the advance of Rs. 10 in the first instance, this musthave been done on or before February 2, 1962, because the receiptevidencing that payment is dated February 2, 1962 and the billin which, there could, in these circumstances, be no questionof paying Rs. 10 to Nand Kishore on February 3, 1962. Ithas also to be remembered that Shri Hari Prasad has admittedthat Nand Kishore was his canvasser in Lakheri and that theleaflet (Ex. 2) was distributed there on February 3, 1962. Forreasons already stated, Shri Hari Prasad knew about the printingof the leaflet on or before February 2, 1962 i. e., a day before itspublication at Lakheri when he paid for it. We have therefore,no doubt that he was himself responsible for the publication.Reference may in this connection be made to S. Mehar Singh v.Umrao Singh and another (1) in which it has been held by a Benchof the Punjab High Court that the fact that a candidate paid theexpenses of printing a poster can justifiably lead to the conclusion

(1) A.I.R. 1961 Punjab 244.

E.t.R.] BHANWAR LAI. V. HARI PRASAD 271

that he knew and approved of the contents of the poster before heagreed to pay for it.

We may here mention that although the respondent tookthe plea that he had taken all reasonable means for preventingthe commission of corrupt practices at his election and that if anycorrupt practice was committed it was contrary to his orders andwas without his consent, and although this was the subject matterof issue No. 11 before the Tribunal, that issue was notpressed at the trial.

We shall therefore proceed to address ourselves to the quest-ion whether the publication of leaflet Ex. 2 could be said to fallwithin the mischief of sub-section (4) of section 123 of the Act.The relevant issue framed by the Tribunal on that point is asfollows:—

"(6) (1) Whether in Ex. 2 the respondent and his agentspublished such statements of facts as were false and as theyeither believed to be false or did not believe to be true inrelation to the personal character or conduct of the petitioner ?

(2) Whether such statements were reasonably calculatedto prejudice the prospects of the election of the petitioner?"

* * *

In order to appreciate the controversy it would be convenientto reproduce leaflet Ex. 2 which runs as follows:—

t f tA Free English rendering of the leaflet is as follows:—

'Who is responsible for ruining agriculturists andlabourers?

Black story of Shri Sukhadia's Congress GovernmentGentleman,

Shri Sukhadia has come to our village to-day to throw aveil on the black deeds of the local Congressmen and toestablish his corrupt Congress Government by getting them thevotes once again. The ruin of the agriculturists and labourersduring the Congress regime is not hidden from any one. Eversince Rajasthan was formed, Sukhadia has remained in the Coun-cil of Ministers and enjoyed governmental authority and he haseven secured the office of Chief Minister by making unsuccessfulwith the power of capital and his diplomacy (Kutniti) the truepublic-serving leaders who had a desire to serve the people.

t Hindi text omitted,

272 BHANWAR LAL V. HARI PRASAD [VOL. XXV

But the way in which the labourers were ruined in this Govern-ment is not befitting the dignity of those who serve the people,and it is treachery with the public to enjoy lakhs of rupees receivedin the election fund from and on behalf of the labourers. When youvisited Lakheri 10 years ago, you said that the dirty localityof the Cement Company was a hell and that you did not wantto see such a locality once again, but in your administration theexploitation of the labourers has increased and our occupationhas been lost. The whole of the land of this area has beenallotted to the Cement Company so that to-day no agriculturistor labourer can obtain land at any cost for building his ownhouse. Cases are going on for the last 10 years in respect of thehundreds of houses constructed by the members of the backwardclasses. Applications were presented to you also on your arrivalhere but nothing has been done till to-day. The black deeds ofShri Sukhadia are being tearfully narrated even to-day by thelabourers of the Cement Company at Sawai Madhopur—Astrike is going on in our neighbouring Madhopur. The labourersare dying for hunger and you are begging for votes after obtainingmotor cars and lakhs of rupees from the same Dalmia in order toget into power once again. It would have been better if this your'dalal' the present M.L.A. had shut your mouth by serving thepeople and raising their voice in the Legislative Assembly. Bygiving capital worth lakhs through you in the name of BharatSevak Samaj (his) mouth has been shut. To-day the public isgroaning under its difficulties. The public is feeling harassedon account of bribery, dishonesty, the loot of taxes, the problemof new land and the dispossession from land. Do you not feelashamed in taking votes without removing these troubles? Theexploitation of the labourers has reached a climax. Disparityis increasing, the poor people are ruined and unemploymentand starvation is present all round. At such a time the publichas started considering it to be a sin to vote for the Congress.Now the public is awake and everybody has started recognisingthe black deeds of this government.

If again vote is given to these persons, the agriculturistswould be ruined in the name of co-operative farming and thepublic will have to face ruin under new taxes. It is thereforeproper not be deceived by these persons and to end their oppres-sive authority. From our area brother Hari Prasad Sharma isseeking election who is a candidate of the Bharatiya Jansangh andis a sympathiser of the labourers and the agriculturists in theirdifficulties and is fearless, honest and a true servant, whose electionsymbol is 'Deepak'. We have to send him to the LegislativeAssembly by giving our votes to him and making him successful

E.L.R.] BHANWAR LAL V. HARI PRASAD 273

in order to expose the black deeds committed by the CongressGovernment so far. It is hoped that today the public will be on itsguard against these persons and will make the candidate of theBharatiya Jansangh successful with splendour.

I am your companion in hunger strike, victim of the oppres-sion committed on labourers,

JVand Kishore Dixit, Lakhery.

The learned counsel for the appellant has argued that thefollowing statements of fact in the leaflet were false and wereeither believed by the respondent to be false or, at any rate,were not believed by him to be true, in relation to the personalcharacter and conduct of Shri Bhanwar Lai, and that theirpublication amounted to a corrupt practice,—-

(i) The statement that Shri Bhanwar Lai was a 'dalal'of Shri Sukhadia, and

(ii) the statement that''It would have been better if thisyour 'dalal', the present M.L.A. had shut your mouthby serving the people and raising their voice in theLegislative Assembly By giving capital worth lakhsthrough you in the name of Bharat Sevak Samaj(his) mouth has been shut".

Leaflet Ex. 2 does not make a mention of petitioner ShriBhanwar Lai by name and the first question for consideration iswhether the two portions objected to by him could definitely besaid to relate to him. While Mr. Rastogi has argued for therespondent that the reference is to Shri Brij Sunder who was asitting M. L. A. and was contesting the same general election tothe State Legislative Assembly from the neighbouring Bundiconstituency. Mr. Jain has argued that the leaflet definitely referredto Shri Bhanwar Lai for he was a member of the LegislativeAssembly from the Patan constituency comprising the Lakheritown. In support of his argument, Mr. Rastogi has invited ourattention to the statements of Nemichand D. W. 9 and MukutBehari D. W. 10 and has urged that the words "maujuda' M.L.A."referred only to Shri Brij Sunder. Nemichand has no doubtstated that Shri Brij Sunder was the sitting M. I,. A. and had muchinfluence in Lakheri and that he thought that the reference to"maujuda' M.L.A." in the leaflet was to him. Mukut BehariD.W. 10 has stated that he had heard that the reference was toShri Brij Sunder. Mukut Behari's statement is useless as itamounts to hear-say, and the statement of Nemichand D.W7. 9is belied by the statements of Durga Shankar D.W. 11 and

37—3 ECI/ND/67

274 BHANWAR LAL V. HARI PRASAD [VOL. XXV

Kunj Behari D. W. 17 who have stated that Shri Bhanwar Laiwas in those days known as "M.L.A." Thus nothing seems toturn on the oral evidence on the point. There are howevercertain facts and circumstances which are relevant. The res-pondent did not take the plea in his written statement that thereference in leaflet Ex. 2 was to Shri Brij Sunder. No specificissue was framed on the point and it was not even suggested toShri Bhanwar Lai during the course of his cross-examination thatthe reference was to Shri Brij Sunder and not to him. The pointwas, in fact, not raised for the Tribunal's consideration at all.We are therefore not persuaded that Mr. Rastogi's contention thatthe reference in portion A to B of leaflet Ex. 2 was to Shri BrijSunder alone is tenable. We shall therefore deal with the mainquestion whether the impugned portions of the leaflet could besaid to fall within the mischief of section 123 (4) of the Act.

Before doing so, it would be desirable to set out certainpropositions of the law having a bearing on the point whichare well established. We would start by saying that a false state-ment of the nature contemplated under the sub-section (4) ofsection 123 need not be libellous under the ordinary law. It isequally well settled, as laid down by their Lordships of theSupreme Court in Inder Lai v. Lai Singh and others (2) that theimpugned publication must have relation to the personal characteror conduct of the candidate as distinct from his public or politicalcharacter, for if a false statement is made in regard to the latterit would not constitute a corrupt practice even if it is likelyto prejudice the prospects of the candidate's election. TheirLordships have further observed that although a sharp and clear-cut dividing line cannot be drawn to distinguish the one from theother, a working line to distinguish private character frompublic character has to be drawn and that in some cases the falsestatement may affect both the private and the public character.Then there is the other pronouncement of their Lordships of theSupreme court in T. K. Gangi Reddy v. M. C. Anjaneya Reddy andothers (3) that while the burden of proving that certain statementsalleged to have been published by the respondent were false andthat the respondent believed them to be false or did not believeto be true is in the first instance on the petitioner, but if the peti-tioner examines himself and states that he has not committed thealleged acts and proves circumstances indicating a motive onthe part of the respondent to make false allegations againsthim the court is entitled to accept his evidence and if it does sothe onus shifts to the respondents to prove the circumstances,

(2) A.I.R. 1962 Supreme Court 1156.(3) 22 E.L.R. 261 (S.C.)

E.L.R.] BHANWAR LAL V. HARI PRASAD 275

if any, to dislodge the assertions made by the petitioner. Thesepropositions of law cannot be, and are not in dispute before us.We are also in agreement with the view expressed in "Parlia-mentary Elections" by A. N. Schofield, third edition, at page416 of which there is a quotation from Ellis v. National Union ofconservatives, etc., in which Buckley J (as he then was) observedthat the language of the Statute relates to the false statement offact" and that language must be used in contrast to a false state-ment of opinion". Lastly, in Krishna Kumar v. Krishna Gopal (4)this Court has taken the view that a charge about the commissionof a corrupt practice is almost similar to a criminal charge andthat it should be established beyond all reasonable doubt.It is in the light of these principles of law that we shall addressourselves to the controversy about the nature of the impugnedstatements made in Ex. 2.

We shall first consider whether in using the word the'dalaP respondent made a statement in relation to the personalcharacter or conduct of the person whom it referred. Theword literally means 'broker" and it is not disputed that it is notalways used in bad sense. Mr. Jain has however argued that ithas to be borne in mind that 2,000 copies of the leaflet were distri-buted on February 3, 1962 on the occasion of the visit of ShriMohan Lai Sukhadia to Lakheri in connection with the electioncampaign of Shri Bhanwar Lai who was the Congress candidatefrom the Patan constituency. The learned counsel has furtherpointed out that Shri Bhanwar Lai was the sitting M. L. A. fromthe same constituency and that he was a worker of the BharatSevak Samaj. Mr. Jain has argued that as the leaflet containsa trenchant criticism of Shri Sukhadia, who had been depictedas the enemy of the labourers locally employed in the LakheriCement Factory, the statement in the leaflet that Shri BhanwarLai was the 'dalaP of Shri Sukhadia necessarily carried with it theimputation that Shri Bhanwar Lai was also the enemy of the labo-urers and did not deserve their votes. The learned counsel haspointed out that Shri Sukhadia was depicted in the leaflet to bea personally dishonest man and that it was natural for the electo-rate to infer that his 'dalaP must also be personally dishonest. Weare not persuaded that this argument of Mr. Jain is tenable.We have gone through the leaflet and we do not find any imputa-tion in it that Shri Sukhadia was a personally dishonest man.No doubt as a public worker and as the head of the administra-tion, but there is no attack on his personal integrity. It is there-fore futile to argue that the use of the word 'dalaP could havebeen reasonably construed to create an impression in the mind

(4) I.L.R. (1963) 13 Raj. 726.

2 7 6 BIIANWAR LAL V. HARI PR.ASAD [ V O L . XXV

of the electorate that Shri Bhanwar Lai was a dishonest 'dalal' ofShri Sukhadia. Shri BhanwarLal and Shri Sukhadia both be-longed to the Congress party and Shri Bhanwar Lai representedthe local constituency in the State Legislative Assembly. If, inthese circumstances, he was stated to be Shri Sukhadia's 'dalal',it cannot be said that the statement was calculated to prejudicethe election respects. The question whether Shri Sukhadia'sadministration was indifferent to the interests of the labour classhad no real bearing on his personal character or conduct, for thataspect of the matter related to his public career. It would followthat a person who was branded as the kdalaP of Shri Sukhadiawould not be justified in saying that so far as he was concernedthe imputation related to his personal character or conduct. Weare therefore disposed to hold the opinion that the use of theword 'dalal' does not bring leaflet Ex. 2 within the purview ofsub-section (4) of section 123 of the Act.

Then the question is whether the statement in portion A to Bof the leaflet (Ex. 2), read as a whole, could be said to amountto a corrupt practice.

Mr. Jain has argued that the allegation in the statementis that Shri Bhanwar Lai received money from Shri Sukhadiain the name of the Bharat Sevak Samaj and that he kept his mouthshut for that reason although it was his duty to voice the feelingsof the public in the Legislative Assembly and thereby shut themouth of Shri Sukhadia. On the other hand, Mr. Rastogihas argued that no such meaning can be read in the impugnedstatement. So far as the statement about the failure of the M.L.A.to voice the feelings of the public in the Legislative Assembly isconcerned the learned counsel has argued that it was a statementwhich clearly related to the political or public conduct of theperson concerned and had nothing to be with his personalcharacter or conduct. As regards the remaining statement he hasargument to relate to Shri Bhanwar Lai the statement is only to theeffect that money had been given to him in the name of the BharatScvak Samaj and thereby his mouth had been shut by Mr.Sukhadia. There is no allegation that the money was receivedby Shri Bhanwar Lai for his own use, and it has been argued thatthe payment of money for the Bharat Sevak Samaj was not amatter which could be said to be derogatory to the character orconduct of the person who gave it, or, for the matter of that, ofthe person who received it and that the further statement that theperson to whom the money was given kept his mouth shut for thatreason does not necessarily amount to an imputation of blameso far as his personal character as opposed to his public conductwas concerned.

E.L.R.] BHANWAR LAL V. HARI PRASAD 277

Documents of the nature of leaflet Ex. 2 have to be readand interpreted as a whole and the statements contained inthem have to be construed in their proper context and perspective.The heading of the leaflet (Ex. 2) shows that it purported tonarrate the black story of Shri Sukhadia's administration inorder to show that he was responsible for ruining the cultivatorsand the labourers. Thus the leaflet was essentially meant to bean attack on Shri Sukhadia's political or public career and per-formance and this might well have been so because the leafletwas meant to counteract any influence that Shri Sukhadia waslikely to create by his public speech at Lakheri and his efforts to se-cure electoral support for the Congress candidate Shri BhanwarLai. A reading of the text of the leaflet also shows that it essen-tially relates to Shri Sukhadia who has been addressed atabout dozen places by name or by the use of the pronoun 'aap'(you) or its appropriate variations. Even so, we are not satis-fied that it attacks the personal character or conduct of ShriSukhadia. There is no doubt a reference to " ^ H R ^wftpff"(local Congressmen) in the opening sentence of the leaflet,but that obviously refers to more than one Congressman. Again,a plural expression has been used, followed by the word " ^ | "(to them), and this also shows that the reference to the localCongressmen was only as a class. We have already given ourreasons for holding that the use of the word 'dalal' in the leafletis not open to objection. The further statement that it wouldhave been better if the "present M.L.A." had shut the mouthof Shri Sukhadia by serving the public and raising the voice of thepublic in the Legislative Assembly is also not a statementconcerning the personal character or conduct of the person towhom it refers. This leaves the last clause of the sentence forconsideration. A bare reading of it would perhaps show that ithas not been worded properly so that it is not capable of anappropriate translation. However, it seems to us that it is notimpossible to construe this statement as suggesting that by givinglakhs of rupees in the cause or the name of the Bharat ScvakSamaj Shri Sukhadia had won the goodwill and support of a cer-tain member and thereby had closed his mouth. That is dis-armed all opposition faction. We would assume for the sakeof argument, that the reference is to Shri Bhanwar Lai who wasclosely connected with and interested in the advancement ofthis institution. Even so the imputation would thus amountto nothing more than this that (i) Shri Sukhadia had givenmoney to the Bharat Sevak Samaj with which Shri BhanwarLai was closely associated and (ii) Shri Sukhadia had therebysuccessfully, even cleverly, eliminated the possibility of any frankor candid opposition from him.

278 BHANWAR LAL V. UARI PRASAD fvOL. XXV

There is no allegation, however, that the money was givenfor any dishonest or undesirable purpose or that it was given toShri Bhanwar Lai as a bribe. Mr. Jain for the appellanthas argued that the Bharat Sevak Samaj is a non-political andan all-India organisation which has laudable aims and obje-cts. He has invited our attention to page 294 of the Third FiveYear Plan to show that the Bharat Sevak Samaj has been formedto provide a common platform with the object of drawing out theavailable unused time and energy of the people and direct itinto various fields of social and economic activity. We have nodoubt that the Samaj has high aims and objects and the petitio-ner has himself admitted that he was the Joint Convenor of theChambal Samiti of the Samaj Further, he has admitted that asum of about Rs. 50,000/- used to be received annually in thatconnection which used to be repaid, and that Shri Sukhadia wasa member of the provincial Board of the Samaj. Then there isthe statement of Kanhaiya Lai P. W. 23, who was the Presi-dent of the District Congress Committee at the relevant timeand was the Secretary and organiser of the Chambal Samitiof the Bharat Sevak Samaj, that the Samiti used to receiveloans form the State Government every year. The witnesshas further classified that the loans used to be given by the depart-ment concerned. Similarly, the statement of Shri DhariwalP. W. 2, who was a Congress M. L. A. and was a member ofShri Sukhadia's cabinet, shows that the state Government usedto advance loans to the Bharat Sevak Samaj. The conclusionis therefore irresistible that the Samaj received money from theState authorities at a time when Shri Sukhadia was the ChiefMinister. The receipt of money for a laudable purpose does notamount to corruption and we do not therefore see how the state-ment in Ex. 2 that Shri Sukhadia gave money in the name of theBharat Sevak Samaj could be said to be a Statement which couldreasonably be calculated to prejudice the election prospects ofShri Bhanwar Lai for there is no suggestion in Ex. 2 that themoney was misappropriated or was otherwise misused. It hasto be remembered that an allegation about the commission ofa corrupt practice at an election is almost similar to a criminalcharge and that the allegation must fail if it could not be said tohave been proved beyond reasonable doubt.

The question then is whether the statement that the mouthof the M. L. A. had been shut by the payment of the moneywas an objectionable statement in the leaflet. We do not thinkthat this part of the statement could also be said to be objection-able. Human nature is very complex and it may well be that anhonest person who might otherwise be disposed to level criticismagainst another person may abstain from doing so if he finds that

E.L.R.] BHANWAR LAI, V. HARI PRASAD 279

person has done a good turn to a useful social institution withwhich he happens to be intimately associated. In the instantcase, if Shri Bhanwar Lai is presumed to be the M.L.A. referredto in this part of the leaflet, it would be difficult for us to acceptthe view that it must necessarily be inferred that he kept his mouthshut because he had been bribed by Shri Sukhadia. As we havestated, Shri Bhanwar Lai might have refrained from criticisingShri Sukhadia because he felt satisfied that Shri Sukhadia hadgiven financial assistance to an important and useful organisationlike the Bharat Sevak Samaj. At any rate this inference is quiteplausible on a reading of the impugned portion of the leafletand it would become all the more plausible if it is rememberedthat the leaflet was mainly meant to be a criticism of the publicand political career and conduct of Shri Sukhadia who had paid avisit to Lakheri on February 3, 1962 for the express purpose ofcanvassing support for the election of the Congress candidateShri Bhanwar Lai. This was really the sole purpose and theobject of the leaflet. We are therefore not satisfied that thestatement that the M.L.A. kept his mouth shut is a statementwhich,in the context in which it has been made, could necessarilybe calculated to prejudice the prospects of Shri Bhanwar Lai'selection.

Before leaving this aspect of the case it may be mentionedthat the petitioner led evidence at the trial to show what inter-pretation was placed on the leaflet by the persons who read itand how it prejudiced his prospects at the election, and ourattention has been invited to the statements of Bhanwar LaiP. W. 1, Shivdutt Sharma P. W. 5, Badri Lai P. W. 6, Ram KishanP.W. 8 and Geneshmal P. W. 13. Of these witnesses, BhanwarLai P. W. 1, is the most important for he was the concernedcandidate whose electoral prospects are said to have been adverselyaffected by the publication of leaflet Ex. 2. He has stated that theleaflet had the most serious effect on the election results inas-much as people thought that voting in favour of "the Congress"would ruin both the worlds, their lands would be confiscated,their financial position would be ruined and their ancestors wouldgo to hell. Thus the concerned candidate has stated only aboutthe broad effect of the leaflet on the election prospects of theCongress candidates in general and he has not returned tostate in what respect his own prospects were prejudiced by it.Besides this, his statement is very vague as he has deposed aboutthe cumulative effect of leaflets Ex. 1 and 2 on the prospects of theCongress candidates and not merely the effect of the impugnedleaflet Ex. 2. We are unable to hold, therefore, that an inferencecould properly be drawn even from Shri Bhanwar Lai's depositionthat the statement in the leaflet prejudiced his prospects at the

280 BHANWAR LAL V. HARI PRASAD [VOL. XXV

election from the Patan constituency of the Rajasthan LegislativeAssembly.

Mr. Rastogi has advanced one more argument on thisaspect of the case. He has contended that the allegationscontained in portion A to B of the leaflet in question are sub-stantially correct and that, at any rate, the respondent believedthat this was so. We have already stated that Shri Bhanwar Laihas himself admitted that he was the Joint Convenor of the Cham-bel Samiti of the Bharat Sevak Samaj which received huge sumsof money as loans in order to finance its activities. Referencehas also been made to the statements of Shri Dhariwal P.W. 2 andShri Kanhaiya Lai P. W. 23 which amply go to prove that theState Government used to grant substantial loans to finance thelocal activities of the Samaj in that area. Shri Sukhadia wasadmittedly the head of the State administration at the relevanttime, being the Chief Minister. There is thus clear evidence to theeffect that the State Government gave substantial sums of moneyas loan to the Bharat Sevak Samaj every year and if the publisherof the leaflet thought that Shri Sukhadia was responsible for thegrant of these loans, in could not be said that he was unjustifiedin that belief. Then there is the further fact that Shri BhanwarLai admitted during the course of his statement that he did notraise any protest in the legislative Assembly about the grant of alarge area of land to the Cement Company to the disadvantageof the local residents, although he had stated that it was the StateGovernment which made the grant. Thus there was some justi-fication for the other statement also that Shri Bhanwar Lai didnot raise his voice in the Assembly for the benefit of the public.It would appear therefore, that Mr. Rastogi's argument isnot without force that there was some justification for the beliefthat the allegations in question were substantially correct.

For the reasons mentioned above, we are in agreementwith the Tribunal that the publication of leaflet Ex. 2 does notfall within the mischief of sub-section (4) of section 123 of the Act.The appeal therefore fails and is hereby dismissed with costswhich we assess at Rs. 250/-. A substance of our decision maybe intimated to the Election Commission of India and the Speakerof the Rajasthan Legislative Assembly forthwith. Therefore, anauthenticated copy thereof may be sent to the Election Commis-sion as soon as possible.

Appeal dismissed.

E.L.R] HANJI SHIVANNA V. T. R. PARMESWARIAH 281

IN THE HIGH COURT OF MYSORE AT BANGALORE

HANJI SHIVANNAV.

T. R. PARAMESWARIAH & ORS.

(K. S. HEGDE AND T. K. TTJKOI., JJ)

November 14, 1963.

Recounting—Circumstances justifying order of.

The appellant challenged the validity of the election of the first respon-dent on the ground, among others, that the election had been vitiated byimproper reception, refusal and rejection of votes validity cast in his favourand by the improper reception of void votes in favour of the first respondent.The tribunal held that the appellant had not established any of the groundsset out in his election petition. In appeal the sole point canvassed was thatthe improper reception, refusal and rejection of valid votes and other irregu-laritcs justified a recount of the votes.

HELD :—The appellant had failed to make out a prima facie case forrecount and the Tribunal was right in rejecting the prayer for recount.

A petitioner praying for a recount must give good reasons and makeout a prima facie case before a recount can be ordered. The mere fact thatthere is a small margin of votes between the successful candidate and thepetitioner is not in itself sufficient ground for ordering a recount. A rovingenquiry to fish out materials to establish case for recounting cannot be per-mitted ; a demand for recount is not a matter of right but a matter of dis-cretion in the court.

Basviah v. Rachiah & Ors., 1959, Mys. L.J. 916; G. Ramalingam v. KandukuriRaghavulu and Ors. 1963, (1) Andh. W.R. 442; JV. Pethu Reddiarv. V.A. Mulhiah& Ors ; 1963, II M.L.J. 1.

C. Achutha Menon v. Election Tribunal Trichur, A.I.R. 1961, Ker. 186.

P. Kunchu Raman v. V. R. Krishna Iyer, A.I.R. 1961, Tier. 188.

Inayuttallah v. Diwanchand Mahajan & Ors, A.I.R. 1959, M.P. 58, referredto.

Miscellaneous First Appeal against order of the ElectionTribunal, Shimoga in Election Case No. 2/62 on its file dated19th December/1962.

S. K. Venkataranga Iyengar for Respondent (1) and B. N.Venkataswamy, Government Pleader, for Respondent No. 4.

JUDGMENT

T. K. TUKOL, J: This is an appeal by Sri Hanji Shivannaunder Sec. 116-A of the Representation of the People Act, 1951(hereinafter called the Act), against the order passed by the

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282 HANJI SHIVANNA V. T. R. PARMESWARIAH [VOL. XXV

Election Tribunal on 19th December, 1962 rejecting his petitionfor declaration that the election of the first respondent was voidand that he had been duly elected to the Mysore LegislativeAssembly from the Traikere Assembly Constituency. The petiti-oner and the first three respondents were the contesting candidatesat the election for which the polling took place on 25th February,1962 and respondent No. 1 was declared to have been duly elected.According to the results declared, the petitioner secured 17,990votes as against 18,357 votes secured by Respondent No. 1. Inhis petition, the appellant alleged that Respondent No. 1 hadcommitted corrupt practices by himself or through his agents, (a)by providing vehicles for the conveyance of voters to and from thepolling stations, (b) by holding out false promises to the votersthat he would grant lands to them as he was sure to become aMinister, (c) by appeal to the religious feelings of the voterswith the assistance of the religious heads of the Adikarnataka andLambani Communities and (d) by influencing the Muslim votersthrough one T. K. Sheik Hyder who was a clerk in the officeof the Assistant Commissioner and the Secretary of the LocalMuslim Association. He also alleged that the secrecy of theballot has been seriously violated and that the first respondent hadobtained the assistance of the fourth respondent for the further-ance of the prospect of his election. The petitioner also challengedthe validity of the election on the ground that the same had beenvitiated by the improper reception, refusal and rejection of votesvalidly cast in his favour and by the improper reception of voidvotes in favour of the first respondent. The Election Tribunalconsidered the entire evidence and held that the petitioner had notestablished any of the grounds set out in the petition againstthe validity of the election of the first respondent and dismissedthe petition.

2. In this appeal, Sri V. Krishnamurthi who has appearedfor the appellant has not attacked and in our opinion quitejustifiably the findings of the Tribunal on the allegations regardingthe use of hired vehicles for the conveyance of voters, promise oflands, appeal to the religious sentiments of the Adikarnatakaand Lambani voters and the participation of the fourth respond-ent in the furtherance of the prospects of the successful candidate.The sole point canvassed by him was that the election of the firstrespondent had been vitiated by the improper reception, refusaland rejection of valid votes cast in favour of the petitioner and thatthere were other irregularities in the counting of the votes and thedeclaration of the results which justified a re-count of the votes.He further submitted that if the votes improperly rejected wereproperly counted and the votes improperly received in favour of

E.L.R.] HANJI SHIVANNA V. T. R. PARMESWARIAH 283

the first respondent were excluded from consideration, the resultof the election as declared by the Returning Officer will have tobe set aside and the petitioner was likely to be declared as havingbeen duly elected to the Assembly from the Constituency.

3. Before referring to the grounds and the evidence insupport of the plea for a re-count,it is necessary to refer to the deci-sions cited at the Bar as to when a recount could be ordered. InBasviah v. Rachiah and others (1) this High Court consideredthe point with reference to the law in India and in Englandexhaustively and laid down as follows:

"The Act does not provide for a recount or scrutiny assuch. Such a petition must necessarily be founded onSec. 100(1) (d) (ii) read with Sec. 101 (a) of the Act. But thepetitioner in order to succeed under Sec. 100(1) (d) (ii)must necessarily establish improper reception refusal orrejection of any vote or reception of any vote which isvoid. We have not been shown any provision in the Actpermitting the petitioner to make a roving enquiry tofish out materials to establish his case. If such an enquiryis permitted as a matter of course, it might throw openthe flood gates for election petitions. Under Rule 64(2)a candidate is required to give good reasons for demand-ing a re-count by the Returning Officer. But theElection Tribunal, if the contention of the petitioner is valid,has no choice in the matter. The Legislature could nothave intended such anomalous position. While it is truethat, in a petition where the seat is claimed on the basis ofwrong counting or scrutiny, it may not be possible for thepetitioner to conclusively establish his case without a re-count,sanctity of Elections requires that he must make out aprima facie case before a re-count can be ordered. In otherwords what is required of him is to make out a case for re-counting and not a case for declaring him elected. Wesee nothing either in principle or in the reported decisionswhich entitles the petitioner to demand a re-count as a matterof right. The Returning Officer is presumed to haveacted according to law. Such a presumption can be dis-placed only by evidence prima facie showing either mistake ormisconduct on his part which is likely to have materi-ally affected the result of the Election. This positionis well established by a catena of decisions."

The decision of the Andhra Pradesh High Court in G.Ramalingam v. Kandukuri Raghavulu and another (2) followed the

(1) 1959 Mys. L.J. 916.(2) 1963 (1) Andh. W.R. 442.

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aforesaid decision of this High Court and affirmed the view thata roving enquiry to fish out materials to establish a case for re-counting cannot be permitted and that a demand for re-count isnot a matter a right but a matter of discretion vested in the Courtand that a petitioner praying for re-count must give good reasonsand make out a prima facie case before a re-count can be ordered.The mere fact that there is a small margin of votes between thesuccessful candidate and the petitioner is not in itself a sufficientground for ordering a re-count. The Madras High Court inJV. Pethu Reddiar v. V. A. Muthiah and another (3) took the same viewand laid down that a petitioner praying for a re-count must makeout a prima facie case and there would be "no justification fordirecting a recount of the votes, the request for which is basedon speculative rather than real reasons". The two decisionsof the Kerala High Court in C. Achutha Menon v. ElectionTribunal Trichur (4) and P. Kunju Raman v. V. R. KrishnaIyer (5) do not lay down any new proposition. We might,however, indicate, with respect, that the view taken by the learnedJudge in the latter decision to the effect that re-count was desirablewhere "there are good grounds to believe that the countingof the ballot papers was not in order and that the final figuresmight have been affected by likely miscount" appears to be toowide for acceptance. Mr. V. Krishnamurthi laid particularemphasis on the decision of the Madhya Pradesh High Courtin Inayuttallah v. Diwanchand Mahajan and others (6). But a carefulperusal of that Judgment would show that the decision turnedon the various facts and circumstances established in the caserather than on any principle of law different from the one indicatedabove.

4. We have therefore to see whether the petitioner hasestablished a prima facie case for re-count. The learned Advo-cates for the petitioner submitted that the petitioner had made outa prima facie case in support the ground mentioned by him inparagraph 3 (b)(i) of his petition. Therein, it has been allegedthat a bundle containing 239 votes in favour of the petitionerhad been wrongly put into pigeon-hole of the third respondentand the 7 voting papers cast for the third respondent had beenput into the pigeon-hole of the petitioner in counting the votes ofBooth No. 15 located at Gundenahalli. In paragraph 7 of hisobjection statement the fourth respondent has denied thisallegation and has explained at length how the mistake hadoccurred.

(5) 1963 II M.L.J. 1.(4) A.I.R. 1961 Ker. 186.(5) A.I.R. 1961 Ker. 188.(6) A.I.R. 1959 M.P. 58.

E.L.R.] HANJI SHIVANNA V. T. R. PARMESWARIAH 285

He has stated therein that the votes secured by the candidatesfor the Assembly Constituency were wrongly entered against thecandidates for the Parliamentary Constituency and vice versa asthe number of candidates for the Parliamentary Constituency alsowas four. According to him, the figures entered against thepetitioner and respondent No. 1 in Form No. 20 were respectively7 and 288 while the figures shown in Form No. 16 were 222 and279. He has further stated that he came to know of this mistakewhen he verified the entries in form No. 16 on 27th July, 1962,when a certified copy of the same was issued to the petitioner.The petitioner himself has admitted during the course of hisdeposition that the votes secured by him from Booth No. 15Gundenahalli were shown as 222 on black-board on whichannouncements of votes secured from each booth by the differentcandidates were made from time to time. In view of this admis-sion there is no room to doubt the explanation offered by theReturning Officer. In his deposition, the Returning Officer hasfully explained the mistake with reference to the relevant recordsand there is nothing in his cross-examination to suggest that themistake had been actuated by any fraud or partiality. We aresatisfied from the evidence that if these figures are correctly trans-posed to the creditive of the respect parties, the petitioner wouldsecure 215 votes more while the respondent would secure 9 votesless. The result would be that the petitioner would secure 18,205votes while the first respondent would secure 18,348 votes. Therewould be still a margin of 143 votes between them. It was earne-stly submitted by the learned Advocate for the petitioner that thismistake itself would be sufficient to order a recount. As observedabove, the mistake is a bona fide one and does not make out aprima facie case for a re-counts as the declared result of the electionis not materially affected.

5. It was contended that proper opportunity was not affordedto his counting agents while the votes were being counted and thatabout 500 votes which bore only the super-imposed marks causedby the folding of the ballot papers had been improperly rejectedalthough the intention of the voters to vote in favour of thepetitioner was clearly manifest. It was further urged that on twooccasions during the course of the counting, electric lights in theTaluk Office had gone off for more than half an hour and theadvantage of darkness had been taken to manipulate the wronginsertion of ballot papers in the pigeon-hole of the first respondent,to give him, an advantage. Certain ballot papers in which themajor portion of the marking seal was apparently in favour of thepetitioner, numbering about 150, had been wrongly rejected andthat the scrutiny disclosed excess of ballot papers in certain casesand shortage in others.

286 HANJI SHIVANNA V. T. R. PARMESWARIAH [VOL. XXV

6. In considering the bona fides and truth of these allega-tions, it is necessary to refer to two petitions - Exs. P-3, and P-4presented by the petitioner to the Returning Officer. Both aredated 26th February, 1962 on which day the counting commenced.According to the petitioner, he presented Ex. P-3 to the ReturningOfficer at about 4 p. M. on 26th February, 1962 and Ex. P-4 on27th February 1962 at 4 A.M. The Returning Officer has deposedthat both these petitions were presented to him on 27th February,1962 respectively at 3-45 A.M. and 3-20 A.M. He is corroboratedby the endorsements which he has made in the margins of the twopetitions indicating the date and time of the receipt of thosepetitions. We are inclined to accept the testimony of the Return-ing Officer who has no reason to make false endorsements on thesaid petitions. The contents of the petitions also lend support tohis statement on oath as Ex. P-3 must be the second applicationpresented for "re-verification of the ballot votes". What is how-ever material for our purpose is not the date and time of thepresentation but the contents of the two petitions which throw lighton the nature of the complaints made by the petitioner regardingthe alleged irregularities in counting. In Ex. P-3 there is a request"for the re-verification of the polled votes as I find mischief in sor-ting". It is not clear from that document or from the depositionof the petitioner that he intended to convey by the word'mischief, Ex. P-4 reads thus:

"In spite of the protest to the candidate and countingagents that 1-28 booths are not properly counted and some ofballot papers have not been properly scrutinised and prayre-counting of all the booths and result should not announcedtill recounting all the booths".

The petitioner adduced no evidence of protests to any candi-date or counting agent having been made by him. In the orderEx.P-9 passed by the Returning Officer below the two applicationsrejecting the prayer for re-count it has been stated—

" He (Petitioner) has not mentioned in his appli-cation specific and definite reasons for such a re-count. Hewas asked to mention specific and definite reasons as thegrounds urged were indefinite and vague. He said thatthe reasons have been mentioned in his application andthat apart from this he has no other grounds to urge. Whilescrutinising the doubtful ballot papers either the candidatesor their counting agents were invariably present and thedoubtful votes were decided in their presence. The candi-dates and their counting agents were observing the counting

E.L.R.] HANJI SHIVANNA V. T. R. PARMESWARIAH 287

by the supervisors and the counting Assistants in the respec-tive tables. No objections or protest were raised either by thecandidate or his counting agents when the counting ofvotes on booths 1 to 28 was being done. His objectionis not based on any valid and specific grounds ".

The petitioner got a certified copy of this order as early as on3-3-1962. He has not specifically denied the truth of the reasonsassigned by the Returning Officer, nor cross-examined the Re-turning Officer, in regard to the same. The Order specificallymentions that the petitioner was called upon to give specific anddefinite reasons in terms of his prayer for re-count and that hesaid that the reasons were those mentioned in his application.The position as it emerges from this order and the evidence inrelation to the two petitions leads us to conclude that the groundsnow put forward are more speculative than real.

7. The main ground on which the re-count is prayed for isthat votes which had been validly cast in favour of the petitionerhad been improperly rejected and that some of the votes cast infavour of the first respondent, though void, had been improperlycounted in his favour. During the course of his argument thelearned Advocate has not been able to show that the ReturningOfficer had committed any breach of the Rules. The petitionerand his two agents panchakshariah (P.W. 8) and Narsingappa(P. W. 9) have stated that until the 28 boxes were opened, theballot papers were not shown to the counting agents and thatthe petitioner gave an application to the Returning Officer tore-count the votes. The Rules do not require that each and everyvoting paper should be shown to the candidate or his countingagent at the time of the counting. Rule 53(3) lays down thatthe Returning Officer shall decide which counting agent or agentsshall watch the counting at any particular counting table or groupof counting tables. The grievance that the voting papers werecounted rapidly or that each of them was not shown by thecounting officers to the candidate or his agent receives no supportin law and the evidence of the Returning Officer that the countingwas fair and that there were no protests or complaints from anycandidate or his agent has not been challenged in his cross-examination or by any reliable evidence to the contrary. Rule56 A(3) enjoins that:—

"Before rejecting any ballot paper under sub-rule (2),the Returning Officer shall allow the counting agents presenta resonable opportunity to inspect the ballot paper but shallnot allow them to handle it or any other ballot paper".

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In his cross-examination for respondent No. l,the petitioneradmitted that the invalid votes were being taken to the ReturningOfficer for his decision, by the Presiding Officers and tellers andthat he used to be present then. He, however qualified thisstatement by saying that this was done after the counting of the28 Booths was over. We are unable to accept the interestedstatement of the petitioner and his two counting agents, Pancha-kshariah (P. W. 8) admitted that he was present when the Return-ing Officer used to scrutinise and that he had no objection to thescrutiny made by the Returning Officer of the doubtful papers.The other counting agent Narasingappa was a Member of theRepresentative Assembly for three terms and Vice President of theMunicipality for two terms. He was also a District Board memberfor one term. The petitioner was a candidate at the Municipalelection. It is, therefore, obvious that the petitioner and hiscounting agent had previous experience of election affairs and it isimpossible that they would keep quiet if grave irregularities as nowalleged were committed in their presence. The fact that therewere no protests from other candidates is pertinent to the point atissue.

7A. The petitioner and his witnesses deposed that there weredouble marking on some ballot papers numbering about 500 andthat they were wrongly rejected. The Returning Officer hasdenied that any ballot paper was improperly rejected. No specificinstance was suggested on his cross-examination to show that anyballot paper had been improperly rejected. Returning Officerdenied that he considered about 500 amudged votes as invalid infavour of the petitioner. It is common ground that before thedisputed votes were rejected, they were shown to the candidates ortheir agents, and one would naturally expect some note beingmade by such agent or candidate of the approximate number ofvotes so wrongly rejected from any specific booth. There is nosuch evidence.

8. The learned Advocate for the petitioner has taken usthrough the details entered in Form No. 16 produced at Ex. P-17to Ex. P-44 in respect of some of the polling stations. There werein all 58 polling stations in the constituency. Our attention hasbeen drawn to certain mistake committed in entering the serialnumbers of the ballot papers issued or ballot papers not used.Some instance of omission to mention the serial numbers of theballot papers, in Form No. 16 as for example in Ex.P-2, werebrought to our notice. The Returning Officer has offered hisexplanation in the course of his deposition about the irregularitiesin the entries in Form No. 16 received from the different booths.The mistakes are purely of a clerical nature. Except the instance

I.L.R.] HANJI SHIVANNA V. T. R. PARMESWARIAH 289

of Booth No. 15 where there has been a mistake by inter-change ofentries between the Parliamentary Constituency and the AssemblyConstituency, no instance was brought to our notice where therewas any mistake in the actual calculation of the votes polled. Itis common ground that as soon as the counting of the ballot papersof the boxes of any booth was completed, the votes secured byeach candidate were being loudly announced and also noted on theblack-board. The petitioner and his agents have stated that theyhave made notes of what was written in respect of each of thebooths. If there had been any mistake or deliberate manipula-tion in the overall results as noted by the Returning Officer, thenotes made by them would have been produced to support thealleged mischief. The petitioner deposed that there were about200 postal ballot papers and that 61 of them had been wronglyrejected as invalid. The Returning Officer was not questionedabout any specific instance of improper rejection.

9. It was next contended that there were certain cases ofexcess votes, particularly in Booth No. 20 and 22 and that therewere instances of shortage of ballot papers recovered from theboxes. The Returning Officer has denied that there were anyexcess ballot papers recovered from any of the boxes, and histestimony remains unchallenged. He has admitted that there wasa shortage of 10 votes in all from Booth Nos. 6, 7, 16, 21, 25, 28,34 and 57. It was contended that the number of missing ballotpapers was sufficiently large and it therefore justified a re-count.Though the petitioner alleged that the shortage was deliberatewe are unable to see how a responsible officer, like the AssistantCommissioner and the Sub-divisional Officer, who is the ReturningOfficer, would knowingly allow the ballot papers to be lost.Obviously such loss will not ensure to the benefit of any candidate.Much emphasis was laid on one ballot paper which was producedby the petitioner as having been found lying in the compoundof the Tahsilder's office at Tarikere on 4th April, 1962 by witnessRangappa (P. W. 1). It is difficult to find out how the ballot paperwas found lying outside the Taluk Office more than a month afterthe declaration of the results. Rule 42-C (1) of the conduct ofElection Rules, 1961, provides for such contingencies.

"If any ballot paper which has been issued to an electorhas not been inserted by him into any ballot box but isfound anywhere in or near the polling station, whetherwithin or outside the voting compartment it shall be deemedto have been returned to the presiding officer under sub-rule (2) of rule 41 and dealt with accordingly".

The finding of such a ballot paper or a small shortage in theballot papers issued and not recovered from the ballot boxes

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cannot be regarded as a, prima facie case fora recount. In the vastmass of ballot papers issued to thousands of persons in a Constitu-ency such stray occurrences are not unusual and cannot furnish areasonable ground for recount as the missing ballot papers cannotbe of use to any candidate.

10. It was lastly contended that during the course of coun-ting the electric lights went off twice and that in the darknesswhich prevailed for nearly half an hour the Officers tampered withthe ballot papers by inserting some secured by the petitioner in tothe pigeon hole in which the first respondent's votes were put in. Itis admitted for the petitioner that petromax lamps had been keptready in the Tahsildar's compound and that as soon as the electriclights went off, those lamps were immediately brought in. TheReturning Officer has stated that as a measure of abundantcaution, he had arranged for four petromax lights and kept themready in the verandah of the Taluk Office even before the sunsetand that immediately after the electric lights went off, the petro-max lights were brought inside the counting hall within about3-4 minutes on the first occasion and that the fuse was repairedimmediately. He has stated that on the second occasion the fusewas repaired within a minute or so. This sudden going of theelectric lights seems to have been occasioned by the use of high-voltage bulbs to have bright lights at the time of counting. It isin evidence that the counting supervisory staff consisted of twoAssistant Commissioners, two Assistant Engineers, one BlockDevelopment Officer of a gazetted rank, one Gazetted Officer ofthe Education Department and six others of status of Taluk Sheri-stedars and above. We do not think that such responsible Officerswould give room for any tampering. The petitioner himselfhad his counting agents beside himself, present on the occasion.The petitioner stated that he had sent a telegram allegingirregularities in counting to the Election Commission. He hasnot produced any evidence about the irregularities alleged by him.As observed above, neither in Ex. P-3 nor in Ex. P-4 did thepetitioner mention any specific instance of malpractice or impro-priety in the rejection or reception of votes. We do not findany substance in these allegations.

11. On a careful consideration of the allegations containedin the petition and the reply statement of the petitioner in thelight of the evidence adduced in the case, we have no hesitation inholding that the petitioner has failed to make out a prima facie casefor a recount. The grounds alleged by him appear to be specula-tive and he has failed to establish any of them by satisfactoryevidence. We think that the Tribunal was right in rejecting

B.L.R.] HANJI SHIVANNA V. T. R. PARMESWARIAH 291

prayer for recount. No other point was submitted for our conside-ration.

12. In the result, the appeal fails and is dismissed with costsof respondents 1 and 4 in one set. Advocate's fee Rs. 500.

Appeal dismissed.

IN THE PATNA HIGH COURT

KARTIK ORAON

V.DAVID MUNZNI & ANR.

(R. K. CHOUDHARY AND A. B. N. SINHA, JJ.)

November 14, 1963

Constitution Scheduled Tribes Order, 1950—Oraons—Conversion to Christianity—If person ceases to be member of the tribe.

The appellant challenged the election of the respondent on the grounds(i) that the respondent was guilty of corrupt practices by publishing anddistributing two pamphlets inciting communal feeling, caste feeling andcaste and community hatred between classes and thereby exercising undueinfluence on the voters; (ii) that he misled the voters by making a representa-tion that the symbol 'Cycle' which was the symbol of the respondent was thesymbol of the appellant; and (iii) that the respondents were Indian Christiansand as such they were not entitled to contest the parliamentary seat con-cerned as candidates for a seat particularly meant for the Scheduled Tribes;the contention was that the ancestors of the two respondents were originallyOraons but they subsequently embraced Christianity and therefore wereChristians by religion. The Tribunal dismissed the petition.

On appeal to the High Court :

HELD: The appeal must be dismissed.

(i) The tribunal was right in holding that the appellant had failed toprove that the impugned pamphlets were printed at the instance of the res-pondent or were distributed at his instance or with his consent.

(ii) The appellant had failed to prove that any false representation orimpersonation was made by the respondent.

(iii) From the evidence of the parties it appeared that even if a non-Christian Oraon omitted to observe some of the festivals and observed certainfestivals in a manner different from others, he did not cease to be a tribal;and that non-Christian Oraons treat the converted Oraons as tribals calling

2 9 2 KARTIC ORAON V. DAVID MUNZNI [VOL. XXV

them 'Christian Oraons'. Further, for purposes of employment no distinc-tion is made amongst the Scheduled Tribes on the ground of religion. There-fore on principles of law and on the authorities Christian Oraons are Oraonsin spite of their conversion and are entitled to the rights and privileges oftribals.

Chathurbhuj Vithaldas Jasani v. Adoreshwar Parashram, 9 E.L.R. 301 (S.C.);Abraham v. Abraham, 9 Moo. Ind. App. 199; Wilson Reade v. C. S. Booth, 14E.L.R. 480; Jena Uraon v. Johan Lhann, S.A. No. 1573 of 1948 dt. January17, 1951 (Patna); relied on.

Report of the Commissioner, for Scheduled Castes and ScheduledTribes 1961-62 (Eleventh Report) Para VI, Appendix XXXII ; Report ofScheduled Areas and Scheduled Tribes Commission 1960-61, Vol. 1; referredto.

Election Appeal No. 4 of 1963 from a decision of the Member,Election Tribunal, Ranchi, dated the 12th February, 1963.

Balabhadra Prasad Singh and Nagendra Prasad Singh No. 1for the appellant.

Kailash Ray, Shambhu Saran and Kumar SideshwarPrasad Singh, for the respondents.

JUDGMENT

CHOUDHARY, J.—This appeal under section 116A of theRepresentation of the People Act, 1951 (Act 43 of 1951) is directedagainst the judgment and order of the Election Tribunal, presidedover by Shri Syed Bahauddin Ahmad, Judicial Commissionerof Chotanagpur, Ranchi, dated the 12th of February, 1963, bywhich he dismissed the election petition filed by the appellantunder section 81 of the said Act.

In the last general election the appellant and the tworespondents were rival candidates for the Parliamentary seatfrom Lohardaga Parliamentary (Scheduled Tribes) Constituency.The appellant was the official candidate of the Congress party,the respondent No. 1 was the official candidate of the Swatantraparty and the respondent No. 2 was the official candidate of theJharkhand party. The result of the election was declared on the2nd of March, 1962, declaring respondent No. 1 to have beenduly elected. The appellant polled 41,804 votes, while respond-ent No. 1 polled 58,173 votes and respondent No. 2 polled 31,744votes. The appellant, therefore, filed an election petitionchallenging the validity of the election of respondent No. 1—whowill hereinafter be referred to as "the respondent"—and prayingfor declaration that he was the duly elected candidate fromLohardaga Lok Sabha seat (Scheduled Tribes). It was also

E.L.R.] KART1C ORAON V. DAVID MUNZNt 2 9 3

prayed that, if that be not possible, the entire election be declaredas void.

Before the Election Tribunal several grounds were taken forestablishing the invalidity of the election all of which were negati-ved by the Election Tribunal and the election petition was accord-ingly dismissed. Mr. Singh, appearing for the appellant, however,has pressed only three points in support of the appeal, namely,(1) that the respondent was guilty of corrupt practices by publish-ing and distributing two pamphlets, Exts. 1 and I/a, incitingcommunal feeling, caste feeling and caste and communityhatred between classes and thereby exercising undue influence onthe voters; (2) that he misled the voters by making a representa-tion that the symbol "cycle" which was the symbol of therespondent, was the symbol of the appellant; and (3) that thetwo respondents are Indian Christians and, as such, they werenot entitled to contest the Parliamentary seat concerned as candi-dates for a seat particularly meant for the Scheduled Tribes.Counsel for the respondent has challenged the validity of allthese points and has submitted that the appellant has entirelyfailed to establish anyone of them. It has, therefore, to beconsidered as to how far the appellant has been able to subs-tantiate his case on these three points.

The first question that has to be determined is whether therespondent was responsible for the publishing and distributingof the two pamphlets, Exts. 1 and I/a, and whether theyincited any communal or caste feeling or caste and communityhatred.

(After considering the detailed evidence, the judgmentcontinued):

Considering the evidence, as discussed above, I am in perfectagreement with the finding of the Election Tribunal that theappellant has failed to prove that the pamphlets, Exts. 1 and I/a,were printed at the instance of the respondent or were distributedat his instance or with his consent.

Assuming, however, in favour of the appellant that thesepamphlets were printed and distributed at the instance of therespondent, there is nothing in my opinion, in these pamphletswhich may have the tendency of inciting any communal or castefeeling or caste and community hatred and promoting enmitybetween classes in connection with the election, as alleged by theappellant. So far as the pamphlet Ext. I/a is concerned, Counselfor the appellant has not pressed his point with reference to thispamphlet and has not thus challenged the finding of the Election

294 KARTIC ORAON V. DAVID MUNZNI tV O 1"

Tribunal with respect to it. It is not, therefore, necessary todeal with the contents of Ext. I/a. Counsel for the appellanthowever, has urged seriously that the pamphlet, Ext. 1, has theeffect of inciting hatred and caste and communal feelings. Thispamphlet has been addressed to the Catholics by Mr. A. Soares,President of the Catholic Union of India, with respect to the dutiesof the Catholics in the coming elections. The relevant portionof this pamphlet runs as follows:—

"I have received inquiries as to whom Catholics shouldgive their vote to in the next elections. For individualcandidates, they should vote for such as are, to their knowle-dge, intelligent, conversant with public affairs and bearinggood character, not mere adventures or go-getters, eventhough they be Catholics. There are a large number ofcandidates who are independent or stand on no party basis.This advice is meant primarily for such cases though it isapplicable to all; but Catholics should not support candidateswho though nominally independent, are relying on Commu-nist support. They are probably crypto-Communists.

As for the parties; Communists and those in league withthem, such as the Maharashtra Samiti, are ruled out in prin-ciple. Communal parties like the Jan Sangh, Hindu Maha-sabha, R.S.S. should receive no support, not only becausethey are communal, but because they are strongly biasedagainst Christians. Nor should Catholics cast their votesfor purely communal candidates like the Muslim Leaguers.

There remain three national parties—the Congress,the Praja Socialist and Swatantra. There are also regionalparties, such as the D.M.K. (Madras), Ganatantra Pari-shad (Orissa), Janata Party (Bihar). The last two maycertainly receive Catholic support, but it is inadvisableof Catholics to vote for a party like D.M.K. which stands forthe disruption of the country.

Catholics may cast their votes on any of the candidatesof the national parties, whose programmes on the wholedo not clash with Catholic principles. There is no party,except perhaps the Swatantra, whose programme is entirelyunobjectionable. Those who wish to learn about the partyprogrammes, may look up Social Action (January) whichhas given a fair summary".

From the above statement it is clear that the instructionto the Catholics was not to cast their votes on caste or religionbasis. It is clearly stated therein that the Catholics might not

E.L.R.] KARTIG ORAON V. DAVID MUNZNI 295

give votes even to Catholic candidates if, to the knowlege of thevoters, they were not intelligent conversant with public affairsand bearing good character. The instructions further says thatCatholic candidates might not be given votes if they were mereadventurers or go-getters. It also goes on to say that votesshould not be given to such candidates who belong to a party ofCommunists or to a party which, stands for the disruption of thecountry. Then, towards the end, it says that, according to thePresident, the Swatantra party perhaps was a party whose prog-ramme was entirely unobjectionable. In my opinion, there isno such statement in the pamphlet, Ext. 1, which has any tendencyto induce people to vote on caste or religion basis or to incitecommunal and caste feelings or caste and community hatred.Thus, even on merits, the instructions given in the pamphlet,Ext. 1, do not constitute a relevant ground for setting aside theelection.

The second point urged on behalf of the appellant is that incertain villages the respondent misled the voters by posing himselfas the appellant and making respresentation to them that thesymbol of the appellant was "cycle chhap" which, in fact, washis symbol. It is contended that by making such false repreanta-tion the respondent misled the voters to cast their votes in hisfavour, though they intended to vote for the appellant believingthat 'cycle' was his symbol. It is, therefore, submitted that theelection is vitiated on the ground of false representation. Accord-ing to the appellant, this false representation was made in villagesTuriamba, Samsera, Rajkera, Arangi and Putto, on differentdates. The evidence in this regard consists of the testimonies ofP.W.'s 15, 16, 18, 19 and 20. P.W. 15 had spoken about therepresentation having been made in his village Putto. He hasstated that the respondent was telling the people that he was theman whose name was Kartik Babu and that his symbol was'cycle chhap', and he was urging the voters to cast their votes in'cycle chhap'. His further statement is that, on protest beingmade by one Sawna Oraon, the respondent said that the symbolhad been changed from 'bullocks" to 'cycle chhap'. ThisSawna Oraon has not been examined though he is alive. Accord-ing to his witness, the meeting in which the above statement wasmade by the respondent was attended by about 100 people whowere residents of village Putto. None of them has come to giveevidence to corroborate the statement of this witness. It is not,therefore, possible to accept his uncorroborated statement.P.W. 16 is the only witness who has spoken about the false re-presentation having been made in village Arangi. According tothis witness, the respondent was giving lecture in Arangi Bazar

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about 12 days before the polling of the general election in agathering of about 50 or 60 persons and he was telling themthat his name was Kartik Oraon whose symbol was 'cycle chhap'and they should cast their votes in 'cycle chhap'. He, however,could not give the name of any person who attended the meetingand heard the lecture of the respondent. His evidence is notcorroborated by any other witness of village Arangi, who,according to him, heard the lecture. Thus, it is not possibleto accept the uncorroborated statement of this witness also. Simi-larly, P. W. 18 is the only witness about the false representationhaving been made in Turiamba. In the meeting in which therespondent is said to have made the false representaion, about100 to 150 persons, including Dular, Bhadu and Anup, werepresent, but none of them has been examined to support theevidence of this witness. He is also a person who does not wantthat the Oraons who have accepted Christianity should fightthe election. Thus, he is interested in the cause as againstthe respondent. It will not, therefore, be safe to rely on hisevidence. P.W.'s 19 and 20 have supported the case of theappellant with respect to the false representation having beenmade by the respondent in village Raikera. According to P.W.19, there were some persons in this village who were working forthe Congress party in the last general election. Curiouslyenough, none of them protested that the symbol of the Congresscandidate was not the 'cycle chhap'. He appears to be an unsum-moned witness. At first he had stated that he had receivedsummons to depose on that date; but subsequently he statedthat he was not informed to depose and that he did not actuallyreceive the summons. He also used to work for the Congressparty in off hours. P. W. 20 is a non-Christian Oraon and, onhis own statement, he is interested in the case as against therespondent, because he has stated that they wanted that Christiansshould not be elected for their constituency. On the evidenceof these two witnesses, therefore, I am not inclined to believe thatthe respondent made any false representation in village Raikera.So far as village Samsera is concerned, nobody has been examinedto prove the allegation of the appellant in this regard. In myopinion, the appellant has utterly failed to prove that any suchfalse representation or impersonation was made by the respond-ent, as alleged by him (the appellant); and I perfectly agree withthe finding of the Election Tribunal in this regard.

So far as the third point is concerned, its solution is not freefrom difficulty. The allegations of the appellant in regard to thismatter are contained in paragraphs 9 to 20 of the election petition,the sum and substance of which is that the two respondents arc

E.L.R.] KARTIC OR AON V. DAVID MUNZNI 297

Indian Christians and have nothing to do with the animisticfaith and tribal way of life, nor do they follow the manners andcustoms of the tribes and have no affinity nor any commoninterest, defence or aspirations with or for the tribalpeople and, as such, they were not entitled to contest the Parlia-mentary seat concerned as candidates on a set purely meant for theScheduled Tribes. Admittedly, the ancestors of the two respond-ents were orginally Oraons. But they subsequently embracedChristianity and the two respondents are Christians by religion.The question, however, is whether, by embracing Christianity,they ceased to be Oraons.

Under Article 342(1) of the Constitution of India, the Presid-ent has been authorised to specify by public notification withrespect to any State or Union territory, and where it is a State,after consultation with the Governor thereof, the tribes or tribalcommunities or parts of or groups within tribes or tribal commu-nities which shall for the purposes of the Constitution be deemedto be Scheduled Tribes in relation to that State or Union Territory,as the case may be. Under this Article, the Constitution(Scheduled Tribes) Order, 1950, was made by the Presidentaccording to which, as shown in Part III, item No. 25, an Oraonis deemed to be a Scheduled Tribe so far as Bihar is concerned.Therefore, if the two respondents could not cease to be Oraonson account of their embracing Christianity, they come withinthe meaning of 'Scheduled Tribes' and were, therefore, entitledto stand as candidates for the seat reserved for the ScheduledTribes. The contention on behalf of the appellant, however,is that, after embracing Christianity, they ceased to beOraons and, therefore, they could not come within the meaningof 'Scheduled Tribes' and, as such, they were not entitled tocontest the seat reserved for Scheduled Tribes. It has therefore,to be seen whether the two respondents ever ceased to be Oraonson account of change of religion by embracing Christianity.

"Tribe" has been defined in Encyclopaedia Britannica,Volume 22, 1961 edition, at page 465 by W.H.R. Rivers as asocial group of a simple kind, the members of which speak acommon dialect, have a single Government, and act together forsuch common purposes as warfare. Other typical characteristicsinclude a common name, a contiguous territory, a relativelyuniform culture or way of life and a tradition of common descent.Tribes are usually composed of a number of local communities,e.g., bands, villages or neighbourhoods, and are often aggregatedin clusters of a higher order called nations. The term is seldomapplied to societies that have achieved a strictly territorial organi-zation in large states but is usually confined to groups whose unity

40—3 ECI/ND/67

2 9 8 KARTIK ORAON V. DAVID MUNZNI [VOL. XXV

is based primarily upon a sense of extended kinship ties.It is no longer used for kin groups in the strict sense,such as "clans". As already observed, the case of the appellant isthat the two respondents have nothing to do with the animisticfaith and tribal way of life and they did not follow the manners andcustoms of the tribes and have no affinity nor any common interest,defence or aspirations with or for the tribal people and that, inorder to be classed as a scheduled tribe, a person must have socialaffinity with the tribes, problems of common interests, aspirationsand defence and must profess the tribal religion (animism) andfollow the tribal way of life. In reply to the above allegation,the respondent, in his written statement, stated that both therespondents were and are members of the Oraon tribe which hasbeen specified as a Scheduled Tribe in the State of Bihar underthe Constitution (Scheduled Tribes) Order, 1950, and that havinganything to do with the animistic faith and tribal way of life was noingredient of membership of Scheduled Tribes within the meaningof the said Order. It was further stated that many members ofvarious Scheduled Tribes, professing the Christian faith, havecontested Parliamentary and Assembly seats which were reservedfor the members of Scheduled Tribes in the first, second and thirdgeneral elections in this country and the successful contestantsamong them served their full terms as members of the respectivelegislature without any challenge, and that, as a matter of fact,respondent No. 2 had successfully contested this particular reservedseat in the general election held in 1957 and he served as a memberof the Lok Sabha for the full term till its dissolution on the eve ofthe general election of 1962.

Both the parties have adduced evidence in support of theirrespective cases. The witnesses examined on behalf of theappellant are P.W's 1, 2, 3, 5, 6, 7, 9, 17, and 22. The witnessesexamined on behalf of the respondent are R.W's 1, 2, 3 and 5.P.W. 1 has stated that the Christians do not observe the tribalcustoms which the Oraons and Mundas observe, such as Sharna,Sarhul, Jhari, Shikar, Karma and Jatra festivals. He has furtherstated that the Christians do not observe the customs observedby the tribals at the time of birth, marriage and death. He isa member of the Congress Party and he had worked in the lastgeneral election for the Congress candidate of his constituency.He has also sworn an affidavit in this case on behalf of the appel-lant. He is, therefore, an interested witness. He could not, however,say as to what was meant by Deori and whether Deori meanta "tribal pahan" (priest). According to him, there is pahanin his village who conducts the rites relating to birth, marriageand death of non-Christian tribals. This pahan has not been

E.L.R.] KARTIK ORAON V. DAVID MUNZNI 299

examined. Sharhul, Sharna and Kerma festivals, according to him,are all religious festivals. P.W. 2 claims to be the pahan of villageKarak in which puja path is done and there are some, like Jatraand Jani Shikar, in have been converted to Christianity do notobserve Adivasi customary rites and the Munzanis of his village,who are Christians, also do not observe the Adivasi customs.He has further stated that there are some customs among theAdivasis in which puja path is done and there are some, likeJatra and Jani Shikar, in which there is no puja path and that theMunzanis do not take part even in those customs in which thereis no puja path. In cross-examination, however, he has said thatthe villagers of the particular village in which Jatra festival isobserved worship the diety of the village on the occasion of theJatra, contrary to his evidence in examination-in-chief; but hecould not say what were the deities which were worshipped at thetime of the Jatra. According to him, five deities {devtas) areworshipee among the Oraons, such as, Darha, Deswari, Maha-dania, Jaher and Chulha. He, however, does not say that theChristians Oraons do not worship any of these deities. He hasalso sworn an affidavit in support of the case of the appellant andhas come to depose without being summoned. He, therefore,appears to me to be an interested witness. P. W. 3 has similarlydeposed that the Christian Oraons do not observe the customsof the non-Christian Oraons and they do not join with the non-Christian Oraons in the observance of their customs and festivals,nor do the non-Christian Oraons join with them in the observanceof their Christian rites and customs. He has also stated that therecannot be an inter-marriage between the Christian and non-Chris-tian Oraons and that the non-Christian Oraons cannot marryany member of any other community. According to him,the non-Christian Oraons do not marry in their own gotra whereasthe Christian Oraons do not observe the marriage restrictions andthey marry even non-Adivasis. In cross-examination, however,he has said that he sometimes invited the Christians of his villagein a feast and they joined it. His statement with respect to themarriage restrictions is believed by the statement of the appellanthimself as will appear when the evidence of the appelant wouldbe discussed. According to him, respondent No. 2 is an Adivasibecause he has joined the Jharkhand party. His evidence,therefore, belies the case of the appellant that respondent No. 2is not an Adivasi. He has also filed an affidavit in support ofthe case of the appellant and is an unsummoned witness. He alsoappears to me to be an interested witness. P.W. 5 has stated thatthere can be no inter-marriage between a non-Christian Adivasiand a Christian Adivasi and that they do not recognise the Chris-tians as Adivasis. In cross-examination, however, he has admitted

300 KARTIK ORAON V. DAVID MUNZNI [VOL. XXV

that Christian Adivasis were also members of the Jharkhandparty. His evidence also with respect to the restrictions of marriagewill be found to have been belied by the evidence of the appellanthimself. He was a member of the Congress party ever since hisboyhood and he used to be paid by the Congress party when heused to attend the Bazars during the elections. He has alsofiled an affidavit in support of the case of the appellant. He wasa volunteer for the appellant in the last general election. He is,therefore, an interested witness. P.W. 6 has given some detailsabout the 'khoont' of a particular Oraon and has stated that theOraons who have been converted to Christianity do not recognisetheir customs. He has also stated that the Christian Oraonsdo not join the Panchayatis or Pahras. But in cross-examinationhe had to admit that there are no Christian Oraons in his village.Therefore, he is not a competent witness to speak about it. Ihave already held this witness to be a got-up one while discussinghis evidence with respect to the distribution of the pamphlets,especially in view of the fact that he was an unsummoned witnessand was brought in the witness-box by the appellant to deposein his favour. P.W. 7 has stated that there is an institution of theOraons called Dhumkuria in which religious and social instructionsare given to boys and girls; but the Christian Oraons do not jointhat institution and it is used only by the non-Christian Oraons.In cross-examination, however, he stated that the boys and girlsof Oraons community who read in schools or colleges in Ranchitown do not attend any Dhumkuria. As already observed, hecame to Court as he was interested in the appellant and he want-ed that the appellant should win. Thus, on his own admission,no weight can be attached to his evidence. P.W. 9 has deposedthat the Oraons who have been converted to Christianity do notobserve the Khoontpujas which are performed by the non-ChristianOraons and that the non-Christian Oraons do not accept theChristian Oraons as Adivasis. In cross-examination, howeverhe had to admit that, though Tana Bhagats do not do khoontpuja in the same manner as the non-Christian Oraons do, they areaccepted as Adivasis. It is also clear from his evidence that,though Munda Oraons and Tana Bhagatas have separate cutls,there is inter-marriage between them. It has been taken fromhim in cross-examination that the non-Christian Oraons treatDarha, Deswari, Mahdania, Jahar, Burdia and Chuchu as theirdeotas (Gods), and not as bhoots (spirits). But he could notsay if the Hana Bhagats also treat them as their deotas (Gods.).Again according to him, among the Oraon community some peo-ple believe in bhoots, but the Tana Bhagats as a class do not believein bhoots. Thus, the mere fact that a particular type of worshipis not performed by a Christian Oraon does not mean that he is

E.L.R.] KART1K ORAON V. DAVID AiUNZNt 301

not an Adivasi. P.W. 17 is a Tana Bhagat. His evidence is that,though they do khoont puja and also Sharna and other pig aswhich are done by the non-Christian Oraons, they do not sacrificefowls like the non-Christian Oraons and, instead, they offersweetmeats. He had also filed an affidavi in support of thecase of the appellant. On his evidence, it is clear that it isnot necessary for one to be an Oraon to observe the festivals ina manner similar to the non-Christian Oraons.

The evidence of P.W. 22, the appellant, is very importantin this respect. In my opinion, he himself has fully established thecase of the respondent. He has stated in his examination-in-chief that the Christian Oraons are not members of any scheduledtribe because the Indian Chritsians, or even the tribal converts,were not and could not be members of any scheduled tribe astheir ways of life were irresconcilable with the ways of life of amember of a scheduled tribe. By way of illustration, he gavethe following facts which, according to him, could be taken assome of the factors which go to make a person a member of ascheduled tribe:—

(1) Endogmy, which means not marrying outside their owntribe.

(2) Ancestral worship, which differs with each clan in whicha particular tribe is divided each clan being distinguish-ed by totem or khunt, claiming descent from the sameancestor. Each clan worships its own khunt. Marriagebetween members of the same khunt is notpermissible.

(3) Living a communal life in villages, being under a parti-cular 'Parha' consisting of a group of villages. EachParha has its own council.

According to him, the tribals who have been converted intoChristianity or any other religion do not follow these ways of lifeand are, therefore, not members of Scheduled Tribes. In cross-examination a question was put to him as to whether, accordingto him, a tribal ceased to be a tribal the moment he embraced anyreligion. In answer to that question he stated that if he or shedisobeyed all tribal customary laws, manners and customs andgave up all tribal ways of life and had no affinity and consideredhimself or herself as a part and parcel of another religion to whichhe or she was converted, he or she ceased to be a tribal. He hasfurther stated that, if a tribal is converted to Christianity butmaintains the ways of life in all matters, some of the factors ofwhich he had given in his examination-in-chief, he will remain a

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tribal. Thus, on this answer, a tribal could not cease to be a tribalmerely on his having embraced any religion, such as, Christianity.His evidence further shows that the tribals who have embracedChristianity are being treated like any other tribal by the Govern-ment and the Chritian tribals pose themselves as tribals. He hasadmitted that the Christian tribals also write as their surname thenames of their tribal and also khoont. He had to admit that theown brother of his wife had married a Christian Oraon girland he is treated as a tribal and their children also will be treatedas tribals. Thus, the evidence of the witnesses referred to abovestating that there could not be inter-marriage between a ChristianOraon and a non-Christian Oraon is believed by the statementof the appellant himself. His evidence further shows that noOraon puja can be complete without the sacrifice of a fowl or anyother animal. But the Tana Bhagats do not sacrifice fowls oranimals and yet they are tribals.

R.W. 1 is the Pahan of village Karak, the village home ofthe respondent, and he is a non-Christian Oraon. He has clearlystated that the forefathers of the respondent were Oraons andthe Oraons who embrace Christianity remain Oraons. He hasalso stated that the Munzanis and the other Oraon who haveembraced Christianity take part in Jatras and Purhas and that theChristian Oraons also do not marry within the same gotras. Incross-examination, it has been taken from him that the ChristianOraons observe sharna pujas and sacrifice fowls in thepujas and theyalso do bhoot pujas. He has also denied that the ways of lifeof the Christian Oraons and the non-Christian Oraons are notalike. R. W. 2 is also a non-Christian Oraon of village Karak andaccording to him also the ways of life of Christian Oraons are thesame as those of non-Christian Oraons and the Christian Oraonsalso take part in Jatra and parhas. He has also stated thatthe respondent is treated as an Oraon. In cross-examination,it has been taken from him that Oraons are treated as Oraons andare not ex-communicated even if they marry in another caste,like Bania, Rajput or Brahmin. According to him, the Christianshave their church in Karak and David Munzani attends the churchand also observes Sharna puja. R.W. 3 also is a non-ChristianOraon. He has stated that they treat the Christian Oraons asOraons like themselves. He has further stated that their way oflife and the way of life if the Christian Oraons is alike. Thiswitness has further stated that the respondent is also an Oraonand that there is an association in Rourkela area which is knownas Adivasi Unnati Samaj, of which the Christian and non-Christ-ian Adivasis are members and of which the respondent is thePresident. This witness is also a member of that association.

E.L.R.] KARTIK ORAON V. DAVID MUNZNI 303

R.W. 5 is the respondent himself. He has stated that theChristian and the non-Christian Oraons have the same affinity,aspirations and common interest and the members of the Oraoncommunity who have embraced Christanity are also Oraontribals. He has further stated that the Christian Oraon alsoobserve gotra and khoont and as a rule the Christian Oraons do notmarry within their own gotras. According to him, the ChristianOraons also take part in Jatra, Parha and Jam Shikar, and the waysof life of both the Christian and the non-Christian Oraons are thesame. Of course, he has admitted that the Christian Oraonsdo not accept only those customs and rites of the Oraons societywhich are in direct conflict with the doctrine of Christianity.According to him the customary laws of inheritance of theChristian Oraons and the non-Christian Oraons are the sameand the Christian Oraons also have to take th& permission ofthe Deputy Commissioner of selling their lands under the ChotaNagpur Tenancy Act. It may be noted here that when a questionwas put to the appellant about the law of inheritance he expressedhis ignorance. This witness further stated that the Governmentrecognises the Christian Oraons also as tribals like the non-Christians, and the Christian Oraons students reading in schoolsare getting stipends and scholarships and also freeship from theGovernment in the same manner as the non-Christian Oraons.The Chota Nagpur Tenancy Act is applicable in the ChristianOraons just as to the non-Christian Oraons. It appears fromhis evidence that he had contested the election as a member of theschedule tribe from the Lohardaga area in 1952 and 1957 whichwas treated as reserved Parliamentary constituency for scheduledtribes. Respondent No. 2 had also contested those two electionsand both the respondents had to make declarations in the twoelections to the effect that they were tribals. This respondent is thePresident of the Adivasi Unnati Samaj which has its headquartersat Rourkela for the last six years and all Adivasi Christians andnon-Christians are its members. He is also working for the upliftof the Adivasis in Ranchi, including the Christians and non-Christians. The only thing has been taken from him in cross-examination is with respect to the burying of dead bodies.According to him, the dead bodies of non-Chritian Oraons areburied only during rains but are burnt beyond the rains whereasthe dead bodies of Christian Oraonsare burried all through.This is quite consistent with his earlier statement that theChristian Oraons observe all customs and festivals of the non-Christian Oraons except those which are in direct conflict withthe doctrines of Christianity.

From the evidence of the parties discussed above, it appearsthat, even if a non-Christian Oraon omitted to observe some of the

304 KARTIK ORAON V. DAVID MUNZNI [VOL. XXV

festivals and observed certain festivals in a manner different fromothers, he did not cease to be a tribal. It also appears that theChristian Oraons also observe some of the festivals of the tribalswhich are not in direct conflict with the religion of Christianity.The most important thing that appears from the evidence referredto above is that the non-Christian Oraons treat the convertedOraons as tribals calling them 'Christian Oraons'. The very-fact that the converted Oraons are called as 'Christian Oraons,shows that they are Oraons first and Christians next. It furtherappears that during the course of the previous general electionsthe people of the locality took both the respondents as representa-tives of the tribals and actually respondent No. 2 remained,member of the Parliament on the last occasion, (vide All-IndiaCivil List published in November, 1960 at page 6). Over andabove all these, the respondent appears to have taken up the causefor the improvement of the condition of the tribals, includingChristians and non-Christians, and both kinds of Oraons considerthe respondent to be one of them for their uplift work and aremembers of the Adivasi Unnati Samaj, of which the respondentis the President. It is not, therefore, possible to hold on suchevidence that the Christian Oraons have no social affinity withthe tribals or with the problems of common interest, aspirationsand defence, and that the ways of life of the Christian Oraons aredifferent from those of the non-Christians Oraons.

Before the Election Tribunals three documents, namely,a sale deed (Ext. B), a parcha (Ext. C) and a khatian (Ext. D),had been produced on behalf of the respondent to show that hisancestors were accepted as Oraons though their religion wasmentioned as Christianity. The learned Member of the Tribunalaccepted these documents to come to a finding that the mere factthat the respondent was a Christian since the time of his father'sfather did not make any differenece whatsoever. These documentshave not been printed in the paper book and Counsel for theappellant did not advance any argument with respect of thesedocuments. It is thus clear that these documents showed thateven Christian Oraons were called Oraons. In other words,on account of their having accepted the religin of Christianitythey did not cease to be called as Oraons. Thus, in fact, it isheld that the respondent is-an Oraon and was perfectly entitled tostand as a candidate for the Parliamentary seat reserved for theScheduled Tribes.

Counsel for the appellant has however, drawn our attentionto the Government of India (Provincial Legiaslative Assemblies)Order, 1936, dated the 30th of April, 1936, by which a separateterritorial constituency for Indian Christians was established.

E.L.R.] KARTIK ORAON ?'. DAVID MUNZNI 305

In part VII of that Order, paragraphs 4, 5 and 6 deal with thismatter (vide page 71). Paragraph 4 states that the Indian Chri-stian seat shall be filled by an election by an electoral college con-sisting of forty persons nominated for the purposes of the electionby the Chota Nagpur Catholic Sabha and forty persons nominatedfor the purposes of the election by the Bihar and Orissa ChristianCouncil. Paragraph 5 says that a person shall not be qualified tobe chosen to fill the Indian Christian seat unless he is an IndianChristian entitled to vote in the choice of a member to fill thatseat or some seat in a territorial constituency. Paragraph 6declares that a person shall not be qualified to be chosen to filla seat reserved for a representative of backward tribes unless heis a member of a backward tribe who is entitled to vote in the choiceof a member to fill that seat or some general seat. Counselfor the appellant has argued on the basis of the above Order thata distinction was made between Indian Christians and Oraonsfor the purposes for representation in the Provincial LegislativeAssembly and it must, therefore, be held that the Indian Christiansceased to be Oraons for such representation. Those were thedays when serious attempts were made by different missionariesto convert people, especially and Adivasis, to Christianity and,in order to give temptation to them to accept that faith, allsorts of facilities were given and, in my opinion, this is one of thosefacilities which were given to them for their representation in theLegislative Assembly. In this connection, reference may bemade to Oraon Religion and Customs by Shri Sarat Chandra Roy(1928 edition) in which a description is given of the ChristianMovement at page 336. I would do no better than to quote apassage from that book in this connection.

"Whatever considerations might have led these earliestconverts to accept the new religion, most available outsidereports, official as well as non-official, would appear toindicate that this Gossner's Evangelical Lutheran Missionand the later Christian Missions in Chota Nagpur owe muchof the wonderful progress they have since made amongthe Oraons, and some other aboriginal tribes in less than acentury, to the moral support and in many cases pecuniaryand other assistance which the generous European mission-aries naturally extended to their converts in their manifoldmiseries. They helped them as much as they could in theirstruggle against the oppressions of exacting, and, is not afew cases, tyrannical landlords and usurious money-lendersas also against persecution at the hands of their own tribe-fellows in the cases of suspected witches and their famil-ies . . . .

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3 0 6 KARTIK ORAON V. DAVID MUNZNI [VOL. XXV

Now the Oraons saw that whereas their old gods andspirits could afford no relief or protection against theirmanifold economic miseries nor could the Bhakti cults{whether Mahadeo Bhakti, or Vishnu Bhakti or Kabir Bhakti)be of much help to them in their wordly struggles, here werethe converts to the foreign faith and the proteges of theforeign missionaries who secured more or less protection fromfuture molestation, though not always relief from existingtroubles. They further found that the children of theirChristian converts considerably improved their economiccondition and prospects through the secular educationimparted in the Mission Schools and the powerful patronageof influential missionaries. All this naturally induced theOraons to flock in increasing numbers to the Christian fold.At times of acute economic distress or agrarian discontentthere were phenomenal mass conversions to Christianityamong the Oraons. A number of the converts, howeverrelapsed to their old ways, some after their temporal interestswere more or less served, and others when they found thatthe high expectations they had formed of improving their owneconomic condition and securing relief from their agrariangrievances with the aid of the missionaries could not berealised. The descendants of such of the converts as clungto the new religion have, however, in most cases, provedthemselves genuine Christians in faith, if not always inpractice

The Christian missionaries wisely permitted their Oraonconverts to retain some of their tribal customs, such as exo-gamy based on tontemistic lineago and certain other cherishedfolk customs and observances such as ceremonial enting offirst fruits, certain rites and harvest and sowing of paddy,and certain observances at birth and marriage, which didnot conflict with the cardinal tenets of the Christian faith".

Reference may also be made to the Oraons of Chota Nagpurby Shri S. C. Roy (1915 edition), page 485, which gives theOraon population in Bihar and Orissa. First it givesthe figures of Hindu males and females Oraons and of animistmales and females Oraons of the different States. Thenit states that besides these there are 55,594 males and 57,144females returned as Christians, namely, in the Santal Parganas(2 + 6); Ranchi (43,438 + 45,209); Palamau (3,680 + 3,600);Manbhum (22 + 16); Singhbhum (212 + 231) and Orissa States(8,232 + 8,019). Thus, it appears that, though an Oraonis not an animist and is of Hindu faith or of Christian faith,he is taken as an Oraon in this book for finding out the population

E.L.R,] KARTIK ORAON V. DAVID MUNZNI 30?

of the Oraons in Bihar and Orissa. In other words, the ChristianOraons have not been omitted from being included in the popula-tion of the Oraons in those two States.

Paragraph 6 of appendix XXXII of the Report of theCommissioner for Scheduled Castes and Scheduled Tribes for theyear 1961-62 (Eleventh Report) Part II, deals with the concessionallowed to scheduled castes and scheduled tribes in the matterof employment under the Government of India. It states thatin the case of Scheduled Tribes, however religion is immaterial,and a number of a Scheduled Tribe continues to be one eventhough he may change his religion. Thus, for the purposes ofemployment no distinction is made amongst the ScheduledTribes on the ground of religion and, as such, the Christian andthe non-Christian Oraons stand on the same footing as belongingto Scheduled Tribes for the purposes of such employment.

Similarly, in paragraph 31 of Chapter 2, of the Report of theScheduled Areas and Scheduled Tribes Commission, 1960-61,Volume I, at page 12, it is stated that a large number of Oraonshave been converted to Christianity. Even after conversion theyobserve the totemic clan divisions, but the institution of dormitoryis gradually dying out among the Christian Oraons, though at-tempts have been made to revive it. Paragraph 86 of that Chapterat page 19 says as follows:—

"Tribal religion varies as much as tribal social customor tribal law. Some of the tribals are Buddhists and havebeen so for centuries. Some have become Christians incomparatively recent times. Others worship Hindu godsand follow a simplified form of the Hindu religion. Yetagain, others still follow the faith of their ancestors "

Shri D. N. Majumdar in his book named "Races and Culturesof India", at page 369, states as follows:—

"A tribe like a caste of the lower order, today followsan occupation in many areas. Thus we got hunting,pastoral and agricultural tribes. The tribal returns recordedin the Census of 1931 reveal a heterogenous category includ-ing Muslim tribes of Pathans, Baluchis, Brahuis or Mapillas,comparatively primitive tribes like the Toda or Nocobaresewho still worship their own tribal deities; those who havebecome partly Hinduized like most of the Bhils and Gondswhere the tribal names is on the way to become a caste name,those largely Christianized like the Oraon or the Lushai andothers wholly Hindu, the like the Manipuri but retainingtheir distinctive language and culture".

3 0 8 KARTIK ORAON V. DAVID MUNZNI [VOL. XXV

pages 371-72 he says:—"A tribe forbide its members marry outside the tribe;

the same is the case with caste. Inter-caste marriages to takeplace, inter-tribal marriages are also known, the Oraon-Munda, the Kharia-Munda of the Ranchi District providingsuch examples".

Reference may also be made to a debate in the Lok Sabhaon the 1st of March, 1961, with respect to Adivasis, which has alsobeen reproduced in the judgment of the Election Tribunal.It appears that a question was raised that the conversion of amember of a tribe to a particular religion should be taken intoaccount in deciding the question whether or not he or she wouldremain a tribal. The Deputy Minister of Home Affairs, Shri-mati Alva, observed as follows:—

"I may also point out to Shri Prakash Vir Shastri thatwhere one talks of Adivasis, one has to bear in mind thatreligion is not a factor to be taken into consideration. Iwant to reiterate this that in the case of a Scheduled Casteperson being converted, he loses his caste, but in the case ofthe Adivasi, he remains an Adivasi, whether he is a Buddhist,or whether he becomes a Christian or a Muslim he remainsan Adivasi. Therefore, religion does not matter in the caseof an Adivasi".

A Bench of this Court, in Jena Uraon v. Johan Uraon aliasBigua Uraon (1), while dealing with the question of inheritanceamongst the Oraons, took the view that the word "Oraon" in itsordinary connotation refers only to the members of a race or sector tribe and has no religious significance.

In Chaturbhuj Vithaldas Jasani v. Moreshwar Parashram (2),the Supreme Court held that conversion of a Mahar into a Maha-nubhava import only an intellectual acceptance of certainideological tents and does not alter the convert's status as a memberof a Scheduled Caste, at any rate, so far as the householder sectionof the Mahanubhava Panth is concerned. In that case oneGangaram Thawara stood as a candidate from the ScheduledCaste and his nomination was rejected on the ground that he didnot belong to the Scheduled Caste in question, namely, Mahar,and the question to be decided in that case was whether he ceasedto be a Mahar when he joined the Mahanubhava Panth. Inthat connection their Lordships pointed out that what they had

(1) Second Appeal No. 1573 of 1948 decided on 17-1-51.(?) 9 E.L.R. 301.

E.L.R.} KART1K ORAON V. DAVID MUNZNI 309

to determine were the social and political consequences of suchconversion and their Lordships felt that the same must be decidedin a common sense practical way rather than the convert had show-by his conduct and dealings that his break from the old order wastolerant of the new faith and saw no reason to out caste or excom-municate the convert and the individual himself desired and int-ended to retain his old social and political ties, the conversionwas only nominal for all practical purposes and when they had toconsider the legal and political rights of the old body the viewsof the new faith hardly mattered; and that the new body wasfree to obstracise and outcaste the convert from its fold if he did notadhere to its tenets, but it could hardly claim the right to inter-fere in matters which concerned the political rights of the oldbody when neither the old body nor the convert was seekingeither legal or political favours from the new as opposed to purelyspiritual advantage. It was further observed that, on the otherhand, if the convert had shown by his conduct and dealings thathis break from the old order was so complete and final that he nolonger regarded himself as a member of the old body and therewas no reconversion and readmittance to the old fold, it wouldbe wrong to hold that he could nevertheess claim temporalprivileges and political advantages which were special to the oldorder. Their Lordships, quoting with approval the observationmade in Abraham v. Abraham (3) that a convert "may renouncethe old law by which he was bound, as he has renounced his oldreligion, or, if he thinks fit, he may abide by the old law, not-withstanding he has renounced the old religion", observed thatthe only modification there was that it was not only his choicewhich must be taken into account but also the views of the bodywhose religion tenets he had renounced, because there (9 E.L.R.301) the right they were considering was the right of the oldbody, the right conferred on it as a special privilege to send amember of its own fold to Parliament; but with that modificationthe following observations applied in their broad outline:—

"The profession of Christianity releases the convertfrom the trammels of the Hindu law, but it does not of necessi-ty involve any change of the rights or relations of the convertin matters with which Christianity has no concern, such as hisrights and interests in, and his powers over, property. Theconvert, though not bound as to such matters, either by theHindu law or by any other positive law, may be his course ofconduct after his conversion have shown by what law heintended to be governed as to these matters. He mayhave done so either by attaching himself to a class which as

(3) 9 Moore's Ind. App. 199.

310 KARTIK ORAON V. DAVID MUNZNI [VOL. XXV

to these matters has adopted and acted upon some familyusage or custom; and nothing can surely be more just thanthat the rights and interest in his property, and his powersover it, should be governed by the law which he has adoptedor the rules which he has observed".

In Wilson Reade v. C. S. Booth (4), a case from the AssamHigh Court, the father of the appellant was an Englishman whomarried a Khasi woman. The appellant had never seen hisfather. He has from his childhood lived among the Khasis,and excepting a daughter of his, who had married a Bengaliand another who married an American, all his children weremarried to Khasis. The appellant himself had married aKhasi woman. He alleged further that under the practiceprevalent among the Khasi tribal people; any one who was bornof a Khasi mother was regarded as a member of the Khasitribe. The appellant occupied an important position among theKhasi and was a founder member and a member of the executivecommittee of a political organisation called the "Khasi NationalDurbar", which came into existence in 1923. He was also amember and treasurer of the District Tribal Union which was abranch of the Eastern India Tribal Union, and an elector andtreasurer of the Federation of the Khasi States. He was also acandidate both for the Parliament and the State LegislativeAssembly of Assam and a member of the Khasi tribe and had filedhis nomination in the last election, and this was accepted. Hisnomination for the election in question was rejected and therejection was upheld by the Tribunal on the ground that he wasnot a Khasi of pure blood and was an Anglo-Indian and that, atany rate, he had, claiming that he was an Anglo-Indian, enjoyedthe privileges of an Anglo-Indian by joining the Auxiliary Forceand so forfeited his right to be regarded as a Khasi. It washeld that, on the evidence adduced in the case, the appellant wasa member of the Khasi tribe and that assuming that the appell-ant was an Anglo-Indian and had claimed and enjoyed theprivileges of an Anglo-Indian, that did not debar him fromclaiming that he was also a member of the Khasi tribe and seekingelection for the seat reserved for the Khasi tribe.

The decisions referred to above are fully applicable to thefacts of the present case. It has been found in this case, asalready observed, that the Christian Oraons also observed someof the festivals which are not in direct conflict with the religionof Christianity and they are called, not Indian Christians, but

(4) 14 E.L.R. 480

E.L.R.] KARTIK ORAON V. DAVID MUNZNI 311

Christian Oraons. It further appears from the evidence discus-sed above of the appellant himself that there can be a marriagebetween a non-Christian Oraons and the girl of a Christian Oraonand their descendants are treated as tribals. According to theevidence of the appellant, it also appears that if a tribal convertedto Christianity maintains the tribal ways of life in all matters,he remains a tribal. The Christian tribals are also writing as theirsurname and names of their tribe and khoont. It is further admit-ted in his evidence that an Oraon, such a Tana Bhagats, does notcease to be an Oraon because he does not sacrifice fowls or animalsat the time of puja, without which no puja could be completedamong the Oraons. From the evidence of P.W. 3 it furtherappears that Christian Oraons are also invited to feasts held bynon-Christian Oraons and the Christian Oraons join such feasts.It has also been found that the two respondents, though they areChristian Oraons, occupied important positions among theOraons both Christians and non-Christians. The respondent isan active member of an institution called Advasi Unnati Samajestablished for the improvement of the conditions of the tribals,both Christians and non-Christians, and he is the President of thatinstitution. Both Christian and non-Christian Oraons have faithin him for their uplift work and are members of that institution.It has also been found that respondent No. 2 was elected andremained a member of the Parliament in the election previousto the election in question as representing the tribals withoutany objection being raised by anyone. On the principle of lawenunciated in the decisions referred to above and on the authori-ties considered above, it appears to me that Christian Oraons areOraons in spite of their conversion and are entitled to the rightsand privileges of the tribals.

On a consideration of the evidence and the law on thesubject, my concluded opinion, therefore, is that both the respond-ents are Oraons and they are entitled to contest the Parliamentaryseat reserved for the Scheduled Tribes. There is thus no meritin this appeal, which is, accordingly, dismissed with costs payableto respondent No. 1 only and the judgment and order of theElection Tribunal dismissing the election petition of the appellantis affirmed. Hearing fee is assessed at Rs. 250.00 nP. (RupeesTwo Hundred and fiftv only).

Appeal dismissed.

312 O.C.BANERJEE V. R.O, BURDWAN H.P. CONSTITUENCY [VOL. XXV

IN THE HIGH COURT OF CALCUTTA

GURUCHARAN BANERJEEV.

R.O. BURDWAN H. P. CONSTITUENCY(D. N. SlNHA, J)

December 9, 1963.

The Representation of the People Act, 1951, 5.53(2)—Scope of.—Successfulcandidate's election set aside on election petition—Elector seeking declaration by Re-turning Officer of only other candidate as elected—on refusal and Election Commis-sion notifying bye-election electors seeking declaration by writ petition under Art. 226—Whether High Court has jurisdiction to entertain such petition in view of s. 80 of Act43 of 1950.

Constitution of India, Article 329(6); Representation of the People Act, 1951,J.80—'Election' meaning of.—Whether election proceedings can be called in questionby writ petition, either before or after completion of election.

The election of G was challenged on the ground that he held offices ofprofit under the government and as such was disqualified under the Con-stitution for being elected as a member of the Lok Sabha. The Tribunal,the High Court and the Supreme Court held that G did hold offices of profitand was therefore disqualified. Two electors thereafter applied to the Re-turning Officer saying that S, the only other candidate, should forthwithbe declared elected. The application was rejected. The Election Com-mission then issued a notification announcing a bye-election. This petitionunder Article 226 was filed for the issue of a Writ commanding the respondentto recall and cancel the notification and also to make a declaration undersub-section (2) of s. 53 of the Act that S was elected uncontested. It wascontended that G did not exist in the eye of law as a candidate and sincethere was only one seat and only one candidate, s. 53(2) was attracted. Therespondent raised a preliminary objection that the High Court had no jurisdic-tion to entertain the application since by s. 80 of the Act no election shall becalled in question except by an election petition presented in accordancewith the provisions of Part VI of the Act.

HELD :—(i) The objection must succeed.

The word 'Election' is used with reference to the entire process whichconsists of several stages and embraces many steps some of which may havean important bearing on the result of the process. The law of election doesnot contemplate that there should be two attacks on matters connected withelection proceedings, one while they are going on by invoking the extra-ordinary jurisdiction under Art. 226 and another after they have been com-pleted by means of an election petition. Such a position would be contraryto Part XV of the Constitution and the Representation of the People Act.

The Election Commission had issued a notification under s.149 of theAct and so long as that remained in force the election proceedings must con-tinue in terms thereof and in accordance with the provisions of the Act. Thepetitioners had not challenged that notification and there was no prayerfor the issue of a writ for setting aside or quashing the notification.

E L.R.] G.C.BANERJEE V. R.O. BURDWAN H.P. CONSTITUENCY 313

JV. P. Ponnuswami v. Returning Officer, Namakkal, A.I.R. 1952, S.C. 64;Durga Shankar Mehia v. Returning Officer, 1955 (1) S.C.R. 267; Shanker NanaSahab Karpe v. Returning Officer, A.I.R. 1952, Bom. 277 ; T. B, Chavan v. K. T.Mangal Murti, A.I.R. 1958, Bom. 397; referred to.

(ii) When s. 53(2) speaks about the 'number' of candidates it means thenumber of candidates who have contested the election. If originally therewas one seat and one candidate the provisions of s. 53(2) would have applied.In fact, however, there was one seat and two candidates. What had happenedwas that subsequent to the completion of the election, an election petitionwas made against the successful candidate and the election had been declaredvoid. Therefore s.149 of the Act applied in terms and the authorities mustproceed to hold a bye-election in accordance therewith.

Hobbes v. Morey (1904) 1, K. B. 74; Keskav Lahshman Borkar v. DeoraoLakshman Anande, A.I.R. 1960, S.C. 131, referred to.

Civil Rule No. 795w of 1963.Hari Prasanna Mukherjee, Paritosh Kr. Mukherjee and

Toyindra Nath Nanda, for the Petitioner.S. M. Bose, B. Das and P. K. Banerjee, for Opposite Party

JUDGMENT

D. N. SINHA J.—The facts in this case are briefly as follows:The petitioners are electors (voters) of No. 34 one-memberBurdwan Parliamentary Constituency, West Bengal. In thelast General election, the election commission by notificationissued in the Official Gazette, called upon the said Constituencyto elect a member for the House of the People (Lok Sabha)of Parliament for the said Constituency. On or about the 13thJanuary, 1962, public notice was given under section 31 of Repre-sentation of the People Act, 1951 (hereinafter referred to as thesaid Act) by the Returning Officer of the said Constituency,of the intended election, inviting nomination of candidates forsuch election qualified to be chosen to fill that seat under the pro-visions of the Constitution and under the said Act. Pursuantto the said public notice nominations were filed and scrutinisedand accepted by the said Returning Officer. The candidateswhose nomination were accepted were—(a) Shri GurugobindaBasu and (b) Shri Subiman Ghose. Thereafter polling tookplace and upon the counting of votes, the said Shri GurugobindaBasu was declared elected, having got a majority of votes in hisfavour. Thereafter, two electors of the said constituency viz.Shri Sankari Prasad Gosal and Shri Narayan Chandra Ghoshpresented an election petition challenging the election of ShriGurugobinda Basu as void. The ground made out was inter aliathat the said Shri Gurugobinda Basu held offices of profit under

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3 1 4 O.C.BANKRJEE V. R.O. BURDWAN H.P. CONSTITUENCY [VOL. XXV

the Government and as such was disqualified under the Constitu-tion for being elected as member of the Lok Sabha. On the 11thAugust, 1962 the Election Tribunal (Shri S. Chakravarty)held that the said candidate Sri Gurugobinda Basu was holdingoffices of profit under the Government and was, therefore, dis-qualified for being chosen as a member of the House of the Peopleunder the provisions of Art. 102(1) (a) of the Constitution.Against the said Judgment of the Election Tribunal, the said ShriGurugovinda Basu preferred an appeal to this High Court, number-ed as Election Appeal (F.A.) no. 423 of 1963. A DivisionBench of this court presided over by P. N. Mooker Jee. J.dismissed the said appeal. The said Shri Gorugobinda Basuappealed there from to the Supreme Court of India and the appealwas numbered as Civil Appeal No. 486 of 1963. The appeal washeard by the Constitution Bench of the Supreme Court which heldthat the said Shri Gurubobinda Basu did hold offices of profitunder the Government and on the 14th August, 1963, the appealwas dismissed. On the 23rd August, 1963 two electors, SriKedareswar Chakraverty and Shri Shyamal Sen Gupta appliedbefore the Returning Officer, praying that the said Shri SubimanGhosh should be forthwith declared as elected without contest. Onthe 1 lth September 1963 the petitioners made a similar applicationbefore the Returning Officer. On the 16th September 1963the Returning Officer rejected both the applications. On the26th September, 1963 the said Kedareswar Chakravarty made anapplication under Art. 227 of the Constitution in this Courtnumbered as C. O. No. 4577 of 1963 . On the 12th November1963 the said application was summarily rejected by this Courtby a Division Bench presided over by Banerjee J. On the 16thNovember, 1963 the Election Commission issued a notificationin the Calcutta Gazette as follows:

'Whereas a vacancy has occurred in the House of the Peopleconsequent on the election of Shri Gurugobinda Basu, a memberelected to that House from the Burdwan Parliamentary Constitu-ency in the State of West Bengal having been declared void by theelection Tribunal, Bankura.

Now, therefore, in pursuance of the provisions of sub-section (I)of section 149 of the Representation of the People Act, 1951, theElection Commission hereby calls upon the said Constituency toelect before the 27th December, 1963, in accordance with theprovision of the said act and of the Rules and Orders madethereunder, a person to fill the vacany so caused.

According to the said notification, the Bye-election is to becompleted by the 27th December, 1963, Now this application

E.L.Rj] G.C.BANERJEE V. R.O. BURDWAN. H.P. CONSTITUENCY 315

has been made under Art, 226 of the Constitution for the issueof a writ or order in the nature of mandamus commanding therespondent, the Returning Officer of the said Constituency, torecall and cancel the notice dated 16th November, 1963 a similarwrit commanding the said respondent to make a declarationforthwith under sub-sections (2) of section 53 of the saidAct that Shri Subimen Ghosh be elected uncontested as amember of the House of the People from the said constituencyin the last General Election (1962), and for incidental reliefs.In the body of the petition it has been stated that the last GeneralElection still remains incomplete and that an order should bemade under sub-section (2) of secton 53 of the said act by decla-ring Shri Subiman Ghosh as elected without contest.

Mr. Mukherjee appearing on behalf of the petitioner, hasargued his case is as follows: The qualification for membershipof Parliament is laid down in Art. 84 of the Constitution. A personshall not be qualified to be chosen to fill a seat in Parliamentunless he is a citizen of India and in the case of a seat in the Houseof People be not less than 25 years of age and possesses such otherqufilications as may be prescribed in that behalf by or under anylaw made by Parliament. Such qualifications are prescribedin the said Act. Article 102 lays down the disqalificationfor membership. Under it, a person is disqualified for beingchosen as, and for being a member of either House of Parlia-ment, if he holds any office of profit under the Government ofIndia or the Government of any State, other than an officedeclared by Parliament by law not to disqualify its holder. Hethen refers to the Provisions of the said Act. Section 100 givespower to the Tribunal constituted under the said Act, that is tosay the Election Tribunal, to declare void the election of a returnedcandidate if on the date of his election he was disqualified to bechosen to fill the seat under the constitution or the said Act. Infact, under sub-section (1) (a) of section 100. if the Tribunal isof the opinion that a returned candidate is so disqualified, theTribunal 'shall' declare the election of the returned candidate tobe void, section 101 is important and is set out below:

'101 Grounds for which a candidate other than the returned candidatemay be declared to have been elected. If any person who has lodged apetition has, in addition to calling in question the election of thereturned candidate, claimed a declaration that he himself or anyother candidate has been duly elected and the Tribunal is ofopinion (a) that in fact the petitioner or such other candidatereceived a majority of the valid votes; or (b) that but for thevotes obtained by the returned candidate by corrupt practicesthe petitioner or such other candidate would have obtained a

3 1 6 G.C.BANERJEE V. R.O. BORDWAN H.P. CONSTITUENCY [VOL. XXV

majority of the valid votes, the Tribunal shall after declaring theelection of the returned candidate to be void declare the petitioneror such other candidate as the case may be, to have been dulyelected'. Mr. Mukherjee argues that the said Shri GurugobindaBasu when he filed his nomination, knew that he was disqualifiedand when his election has been declared void, it must be taken asif no election at all took place so far as he was concerned. Hewent so far as to argue that in the eye of law, the candidate didnot exist as a candidate in the last General Election. He thenargues that the election of Shri Gurugobinda Basu having beendeclared void, the remaining candidate Shri Subiman Ghoshought to have been declared as returned uncontested undersection 53(2) of the said act, and until that was done theelection must be taken to have been incomplete. Section 53deals with the procedure in contested and uncontested elections.Sub-section (2) runs as follows: (2) If the number of such candi-dates is equal to the number of seats to be filled, the returningofficer shall forthwith declare all such candidates to be duly electedto fill those seats". Mr. Mukherjee argues that since Shri Guru-gobinda Basu never existed as a candidate, there was one seatand only one candidate for that seat, and consequently section53(2) was attracted.

Mr. Mukherji did not contest the position which has nowbeen firmly established-see jV. P. Ponnuswami V. Returning Officer,Namakkal, (1) that the process of election is a creature of statute andtherefore, its incidence must be regulated by the law whichcreates it and/or governs it. The only provision in the lawwhich provides for a candidate other than a returned candidate,to be declared as having been elected is section 101 of the said Act.In cases where such claims have been put forward, the claimantshave attempted to come within the provisions of that section.Mr. Mukherjee has, however, admitted that his client does notcome under section 101 of the said act. He says, however, thatthe said act is not a complete code and on general principles,where the returned candidate has been found to be disqualifiedhe must be considered as non est and, therefore, his clientshould come within the scope of section 53(2) of the said act andbe declared as elected. The only other provision of the said actto be considered is section 149. Part IX of the said act deals withqye-elections. The relevant part thereof runs as follows:

'149. Casual vacancies in the House of the People—(I).When the seat of a member elected to the House of the

People becomes vacant or is declared vacant or his election(1) A.I.R. (1952) S.C. 64.

E.L.R.] Q.C.BANERJEE V. R.O. BURDWAN H.P. CONSTITUENCY 317

to the House of the People is declared void, the Election Com-mission shall, subject to the provisions of sub-Section (2), by anotification in the Gazette of India, call upon the ParliamentaryConstituency concerned to elect a persons for the purpose offilling the vacancy so caused before such date as may be specifiedin the notification, and the provisions of this act and of the rulesand order made thereunder shall apply as far as may be, in relationto the election of a member to fill such vacancy'.

It will be observed that in this section a specific provision hasbeen made for the situation that arises when an election to theHouse of the People is declared void. Under such circumstances,the Election Commission is compelled under this section to proceedto fill the casual vacancy by a bye-election. In spite of this,Mr. Mukherji argues that on general principles this ought notbe done. In support of his argument, Mr. Mukherji has reliedon a Supreme Court decision-Dwrga Shankar Mehta v. ThakurRaghuraj Singh & ors. (2). The facts in that case were as follows:The Lakhnadon Legislative Assembly Constituency in MadhyaPradesh is a double member constituency, one of the seats inwhich is reserved for Scheduled Tribes. The appellant andrespondents Nos. 1, 3, 5 and 7 were duly nominated candidatesfor the general seat in the said Constituency, while respondentsNos. 2, 4 and 6 were nominated for the reserved seat. Noobjection was taken before the Returning Officer in respect of thenomination of either the appellant or respondent No. 2 VasantRao. The appellant received 18,627 votes and the respondentNo. 2 received 14,442 votes. These were the highest for therespective seats and accordingly the appellant and the respondentNo. 2 were declared elected to the general and reserved seatrespectively under section 66 of the said act, and the results weregazetted in the official Gazette. The respondent No. 1 Raghu-raj Singh who was one of the defeated candidate for the generalseat filed an election petition praying that the entire electionbe declared void or in the alternative the election of Vasant Raoand/or that of the appellant be declared void. Various allegationswere made, but only one was substantiated against the saidVasant Rao, who was found to be under 25 years of age and conse-quently not qualified under the Constitution to be chosen to filla seat in the Legislative Assembly. The Election Commissioncame to this conclusion and held that it amounted to an improperacceptance of nomination within the meaning of section 100(1 )(c)of the said act as it stood at the relevant time, and as the resultof the election was materially affected, the whole election wasdeclared to be void. Against this, an appeal was taken to the

(2) 1955, (1) S.G.R. 267.

318 G.C.BANERJEE V. R.O. BURDWAN H.P. CONSTITUENCY [VOL. XXV

Supreme Court. In the said act as it stood at the relevant timesection 100 was somewhat differently worded. Under section100(1) (c) if the Tribunal was of the opinion that the result of theelection has been materially affected by the improper acceptanceor rejection of any nomination, the Tribunal had to declare theelection to be wholly void. On the other hand, under section100(2) (c) if the result of the election had been materially affectedinter alia by non-compliance with the provisions of the Constitut-ion, then the Tribunal had to declare the election of the returnedcandidate as void. It was held by Mukherjee J:, that in the factsand circumstances of the case, the Election Tribunal was in errorin applying the provisions of section 100(1) (c) to the facts of thecase, since what was applicable was section 100(2) (c) and,therefore, only the election of Vasant Rao should have been setaside. The learned Judge pointed out that in the electoralroll the said Vasant Rao was not shown as below 25 years of ageand the nomination paper did not disclose that fact. Therefore,the acceptance of the nomination by the Returning Officer cannot be said to have been an improper acceptance of the nominat-ion as contemplated under section 100(1) (c) of the said actas it stood at the relevant time, it would have been an improperacceptance, if the want of qualification was apparent on theface of the record, and was overlooked by the Returning Officeror if the objection having been pointed out was mistakenlydecided. The appeal was, therefore, allowed and only the electionof the said Vasant Rao was declared to be void but the electionof the appellant was declared to be valid. I do not understandhow this authority helps the petitioner. On the other handit seems to be against him. It establishes the fact that unlessthe disqualification appears on the fact of the record, which isnobody's case here, it cannot be said that there was any improperacceptance of nomination and the whole election was not invalid.The result of it being subsequently discovered that one of thereturned candidates was disqualified, only his election is to bedeclared as void. The question is as to whether in the facts andcircumstances of the case section 149 is attracted. If so, theElection Commission is bound to hold a bye-election. Mr.Mukherjee however argued that in the present case, since therewas only seat and the person returned to that seat was found tobe disqualified, therefore his election was void, but the electionof the other candidate should stand, I am unable to follow thisargument and I do not think that the Judgment of MukherjeeJ. can be extended in that fashion. In that case, there were twoseats and the persons returned to one seat having been found dis-qualified, the election of the person to the other seat was held tobe valid. That is a different matter altogether, and throws no

E.L.R.] O.C.BANERJEE V. R.O. BURDWAN H.P. CONSTITUENCY 319

light on the facts that have arisen in this case, where there is onlyone seat to be filled and the person who was returned to that seatwas found to be disqualified and his election declared as void.Under such circumstances the election of the other candidatecannot be taken to be a completed election unless he comes withinthe four corners of section 101 of the said act.

Mr. Das appearing on behalf of the respondents has taken apreliminary point, namely that this court has no jurisdiction toentertain this application and that regard being had to the provis-ions of art. 329 (b) of the Constitution, the application does notlie and is misconceived. Article 329(b) of the Constitution laysdown that no election to either House of Parliament shall be calledin question except by an election petition presented to such autho-rity and in such manner as may be provided for by or under anylaw made by the appropriate legislature. The said act is such alaw and by section 80 of the said act, no election shall be called inquestion except by an election petition presented in accordancewith the provisions of Part VI of the said act. What does the term'election' in the Constitution as well as the said Act mean?This has been explained in a Division Bench of the BombayHigh Court presided over by Changla C. J. Shankar NanasahebKarpe v. Returning Officer, Kolaba district & am. (3). The learnedChief Justice said as follows: 'The real and substantial questionthat arises for our determination is, what is the interpretation thatwe must place upon the expression 'election' used in Art. 329(b).Does 'election' mean the result of the election as a result ofcounting votes, or has 'election' a wider connotation? In ouropinion, reading the exprssion' election' in its context, both inArt. 329 and in juxt-apposition with Arts, 327 and 328 and in itssetting in part XV, 'election' must bear a wider meaning thanthe very limited restricted meaning of the result of an electionor the counting of votes 'election' is not merely the ultimate decis-ion or the ultimate result. 'Election is every stage from thetime the notification is issued till the result is declared, and evenperhaps if there is an election petition, till the decision of theElection Tribunal. It is one whole continuous integrated proce-eding and every aspect of it and every stage of it and every steptaken in it is a part of the election, and what is prohibited by Art.329(b) is the calling in question any one aspect or stage of theelection. This has been followed in a subsequent Division Benchdecision of the said High Court—Teshvantarao Balwantrao Chavanvs. K. T. Mangalmurti & anr. (4). Dixit. J., said as follows:'Now, in the case of an election there are certain steps to be taken

(3) A.I.R. (1952) Bom. 277.(4) A.I.R. (1958) Bom. 397.

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until the poll is taken. In the first place, there is an announcementabout the holding of an election. This is followed by nominationof candidates. After the nominations are made, a scrutiny of thenomination is held. After the nominations are scrutinized,'a list of validly nominated candidates is prepared. After the list!of validly nominated candidates is prepared, there is a stage ofwithdrawal enabling a candidate to withdraw his candidature.After the withdrawal if any, a candidate may retire from contestand finally, there is the poll. Indeed, an election is one continuousprocess involving these steps'.

The learned Judge held that this interpretation of the word'election' is also applicable to the said act.

In N. P. Ponnuswami vs. The Returning Officer, Namakkal(l).Fazal Ali J. held that the word 'election' in the Constitution ofthe said Act was appropriately used with reference to the entireprocess which consists of several stages and embraces many steps,some of which may have an important bearing on the result of theprocess. The learned Judge proceeds to state as follows:

'The question now arises whether the law of elections in thiscountry contemplates that there should be two attacks on mattersconnected with election proceedings one while they are going onby invoking the extra-ordinary jurisdiction of the High Courtunder the Art. 226 of the Constitution and another after they havebeen completed by means of an election petition. In my opinion,to affirm such a position would be contrary to the scheme of partXV of the Constitution and the Representation of the Peopleact, which seems to be that any matter which has the effectof vitiating an election should be brought up only at the approp-riate stage, in an appropriate manner before a Special Tribunaland should not be brought up at an intermediate stage beforeany court'.

It is clear, therefore, that at this stage, the further electionunder section 149, which is proposed to be held in accordancewith its provisions cannot be restrained. The difficulty in doingso is at once apparent. There is also an insuperable barrier in itsway. This application can not succeed unless the notificationissued by the Election Commission under section 149 of the saidact dated 16th November, 1963 is set aside and/or put out of theway. The Election Commission has issued a notification, undersection 149 of the said act and as long as that remains in force, theelection proceedings must continue in terms thereof and in accord-ance with the provisions of the said act. In this application thepetitioners have not challenged that notification and there is no

E.L.R.] G.C. BANERJEE V. R.O. BURDWAN H.P. CONSTITUENCY 321

prayer for the issue of a writ, for setting aside or quashing the saidnotification. Besides, if any such prayer was made, it could notbe made in the absence of the Election Commission which hasissued the notification, and the Election Commission has notbeen made a party to this application. In my opinion, this is alsoa fatal objection and must succeed.

These two preliminary points are sufficient to dispose ofthis application. Regard being, however, to the point raised,which is of public importance, I shall also deal with it on merits.I have already pointed out that an election is a creature of statuteand, therefore, there must be a specific provision in law in supportof any action done under it. In reality the petitioners want therelief which is provided for in section 101 of the said act. Thatrelief can only be got on certain grounds specified therein and inan application made in accordance thereof. In the present case,those grounds do not exist and the application is not in conformitywith it. In fact, section 101 does not apply to the facts of thiscase at all. Perhaps, after realising this, Mr. Mukherjee hastried to come within the scope of section 53(2) of the said act.That provision, however, does not apply to the facts of the presentcase. When it speaks about the 'number' of candidates it meansthe number of candidates who have contested the election. Iforiginally there was one seat and one candidate, the provisionsof section 53(2) would have applied. In fact, however, therewas one seat and two candidates. What has happened is thatsubsequent to the completion of the election an election petitionwas made against the successful candidate and the election hasbeen 'declared void' because the successful candidate was a persondisqualified under the constitution. Therefore, section 149of the said Act applied in terms, and the authorities must proceedto hold a bye-election in accordance therewith. A considerablelight on the question is thrown by two cases which I shall nowproceed to consider. The first case to be cited is an Englishcase Hobbes vs. Morey(b). In that case, the petitioner and therespondent were both nominated in proper form for election to theoffice of councillor for a ward in a Borough. The respondentobtained a majority of votes and was declared elected. Both atthe time of nomination and of the election, however, he wasdisqualified by reason of having an interest in contract enteredinto with the Borough Council. The petitioner there made thevery same claim as is being sought to be done before me now.He said that the nomination of the respondent, as also his election,were invalid because of the respondent's disqualification. Conse-quently, he should be declared as elected to the office. It was

(5) (1904) I.K.B. 74.43—3 ECr/KD/67

322 G.C. BANERJEE V. R.O. BURDWAN H.P. CONSTITUENCY [VOL. XXV

argued that the nomination of the respondent being invalidthere was only one valid nomination that is to say, of the petitionerand therefore, he should be deemed to have been elected. Inother words, that although at the election he got a minority ofvotes he should be declared elected and the majority of votesgiven for the respondent were to be altogether disregarded.It was held that the disqualification was not apparent on theface of the nomination paper, and therefore the nomination of therespondent was valid and as there was no allegation that the elect-orate had any notice of the disqualification of the respondent,the votes given for him could not be disregarded as being thrownaway, enabling the person having the minority of votes to beelected to the office. Therefore, although the election of therespondent was declared void, the court refused to declarethe petitioner as having been elected. This principle has beenconfirmed by the Supreme Court in Keshav Lakshman Borkar v.Dr. Deorao Lakshman Anande (6). The facts in that case were asfollow: There were two candidates, standing for election to theBombay Legislative Assembly from the Electoral Constituencyof Mazagaon, held on March 11, 1957. The respondent secured22,914 votes whereas the appellant got 14,885 votes. The resultwas that the respondent was declared as elected. On an electionpetition by the appellant, the Election Tribunal declared theelection of the respondent void on grounds of disqualificationunder Article 191(1) (a) of the Constitution, in as much as he washolding an office of profit under the Government of Bombayand as such was disqualified for election to the LegislativeAssembly. It also declared the appellant as duly elected undersection 101 (a) of the said Act. It was held that the ElectionTribunal was in error in declaring the appellant to have beenduly elected. It is true that the acceptance of a nomination paperafter scrutiny is not final or conclusive, and can be set aside bythe Election Tribunal in appropriate proceedings. But theacceptance of the nomination paper under section 36(8) makesthe candidate whose nomination paper is accepted after scrutiny,a validly nominated candidate, at least for the purpose of receivingvotes at the election. This position is further reinforced by theprovisions of Rule 58, which provides that every ballot paperwhich is not rejected under Rule 57 should be deemed to bevalid and must be counted. The question of throwing away ofvotes, therefore, cannot arise unless it is shown that voters hadcast their votes with knowledge or notice that the candidate forwhom they had voted was not eligible for election and that conse-quently they had deliberately thrown away their votes in favourof the disqualified person. It was for the appellant to claim

(6) A.I.R. (1960) S.C. 131.

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and prove that he had received a majority of valid votes. Hehad failed to do so and therefore, could not claim to have beenelected, even though the election of the respondent was declaredvoid as a result of a constitutional disqualification.

Although Mr. Mukherjee has not tried to bring his clientunder the provisions of section 101 of the said act, the abovedecisions throw a considerable light on the subject. The unsuccess-ful candidate namely, Shri Subiman Ghosh could be declaredelected if he came within the provisions of section 101. It willhave to be proved that he got a majority of votes. In the factsand circumstances of this case, this cannot be proved. In myopinion, therefore, the Election Commission rightly proceededunder section 149 of the said act and issued the notification on thebasis of which a fresh bye-election is proposed to be held to electa candidate for the said constituency.

For the reasons aforesaid this application must fail and theRule is discharged. Interim orders, if any, are vacated. Therewill be no order as to costs.

Mr. Mukherjee appearing for the petitioner asked for a certi-ficate under Article 132(1) of the Constitution. In my opinionthe case does not involve any substantial question of law as to theinterpretation of the Constitution. Therefore, I am unableto grant the certificate.

Petition dismissed.

IN THE SUPREME COURT OF INDIA

JABAR SINGH v. GENDA LAL

(P. B. GAJENDRAGADKAR, A. K. SARKAR, K. N. WANCHOO,

K. C. DASGUPTA AND N. RAJAGOPALA AYYANGAR, JJ.)

December 20, 1963

Representation of the People Act, 1951, ss. 97, 100(l)(rf) and 101 (a)— Scope

Conduct of Election Rules 1961, s. 57(1)—Scope of.

After the appellant had been declared elected to the Madhya PradeshAssembly by a majority of two votes over the respondent the latter challengedhis election by an election petition on the ground of improper receptionof votes in favour of the appellant and improper rejection of votes cast in

324 JABAR SINGH V. GENDA LAL [VOL. XXV

his own favour ; and prayed that he should be declared elected instead.The Tribunal found that 10 ballot papers in favour of the respondent hadbeen improperly rejected and four had been improperly accepted in favourof the Appellant. At this stage the appellant urged before the Tribunalthat there had been improper rejection of his votes and improper acceptanceof the votes of the respondent and if recounting and rescrutmy was made, hewould be found to have secured a majority of votes. The respondent objectedto this course on the ground that the appellant had not recriminated unders. 97 of the Act and that he had not complied with the proviso to s. 97(1) asto the furnishing of security. The Tribunal rejected the respondent's con-tention and held that in order to consider the relief which the respondenthimself had claimed in his election petition, it was necessary for it to decidewhether the respondent had in fact received a majority of votes under s. 101;it therefore re-examined the ballot papers of the respondent as well as theappellant and came to the conclusion that 22 ballot papers cast in favour ofthe respondent had been wrongly accepted. In the result the respondentwas not found to have secured a majority of votes and the Tribunal there-fore declared that the election of the appellant was void and refused to granta declaration to the respondent that he had been duly elected.

In two cross-appeals filed before the High Court, the appellant challengedthe conclusion of the Tribunal that his election was void, whereas the res-pondent disputed the correctness of the decision of the Tribunal that nodeclaration could be granted in his favour that he had been duly elected. TheHigh Court upheld the Tribunal's decision and dismissed the appeals.

On appeal to the Supreme Court :

HELD '. (dismissing the appeals, Ayyangar, J., concurring with thedecision of the Court but on different reasoning) :

(i) The scope of the enquiry in a case falling under s. 100(1 )(d)(iii)is to determine whether any votes have been improperly cast in favour ofthe returned candidate, or any votes have been improperly refused or re-jected in regard to any other candidate. These are the only two matterswhich would be relevant in deciding whether the election ol the returnedcandidate has been materially affected or not. At this enquiry, the onusis on the petitioner to show that by reason of the infirmities specified in s.100(1 )(d) (iii), the result of the returned candidate's election has beenmaterially affected. Therefore, in the case of a petition where the onlyclaim made is that the election of the returned candidate is void, the scopeof the enquiry is clearly limited by the requirement of s. 100(l)(d) itself. Theenquiry is limited not because the returned candidate has not recriminatedunder s. 97(1) [which has no application to the case falling under s. 100(1)(d) (iii)] but because what the clause requires to be considered is whetherthe election of the returned candidate has been materially affected aridnothing else. If the result of the enquiry is in favour of the petitioner whochallenges the election of the returned candidate, the Tribunal has to makea declaration to that effect, and that declaration brings to an end the pro-ceedings in the election petition.

(ii) It is in regard to a composite case in which the election petitionmakes the double claim that the election of the returned candidate is voidand also asks for a declaration that petitioner himself or some other personhas been duly elected, that s.100 as well as s. 101 would apply ; and it is inrespect of the additional claim for a declaration that some other candidate

E.L.R.] JABAR SINGH V. GENDA LAL 325

has been duly elected that s. 97 comes into play. Section 97(1) thus allowsthe returned candidate to recriminate and raise pleas in support of his casethat the other person in whose favour a declaration is claimed by the petitionercannot be said to be validly elected ; it would be open to the returned candi-date to take these pleas, because when he recriminates, he really becomes acounter -petitioner challenging the validity of the election of the alternativecandidate. The result of s. 97(1) therefore is that in dealing with a compositeelection petition, the Tribunal enquires into not only the case made outby the petitioner, but also the counter claim made by the returned candi-date. That being the nature of the proceedings contemplated by s. 97(1)-it is not surprising that the returned candidate is required to make his re-crimination and serve notice in that behalf in the manner and within thetime specified by s. 97(1) proviso and s. 97(2;. If the returned candidatedoes not recriminate as required by s. 97, then lie cannot make any attackagainst the alternative claim made by the petitioner. In such a case, anenquiry would be held under s. 100 so far as the validity of the returnedcandidate's election is concerned' and if as a result of the said enquiry adeclaration is made that the election of the returned candidate is void, thenthe Tribunal will proceed to deal with the alternative claim, but in doingso, the returned candidate will not be allowed to lead any evidence becausehe is precluded from raising any pleas against the validity of the claim of thealternative candidate.

(iii) The contention that the Tribunal cannot make a finding that diealternative candidate has in fact received a majority of the valid votes unlessall the votes cast at the election are scrutinised and counted, is not wellfounded. As a result of Rule 57, the Election Tribunal will have to assumethat every ballot paper which had not been rejected under R. 5G constitutedone valid vote and it is on that basis that the finding will have to be madeunder s. 101 (a) that the petitioner or such other candidate for the declara-tion of whose election a prayer is made in the election petition has in factreceived a majority of the valid votes, tn the absence of the returned candi-date making recrimination as required by s. 97, there would be nothing wrongif the Tribunal proceeds to deal with the dispute under s. 101 (a) on the basisthat the other votes counted by the returning officer were valid votes andthat votes in favour of the returned candidate, if any, which arc rejected,were invalid. Therefore, even in cases to which s.97 applies, the enquirynecessary while dealing with the dispute under s. 101 (a) will not be wider ifthe returned candidate has failed to recriminate.

If the returned candidate has recriminated and has raised pleas in regardto the votes cast in favour of the alternative candidate or his votes wronglyrejected, then those pleas may have to be tried after a declaration has beenmade under s. 100 and the matter proceeds to be tried under s. 101 (a). Inother words, the first part of the enquiry in regard to the validity of theelection of the returned candidate must be tried within the narrow limitsprescribed by s. 100(1) (d) (iii) and the latter part of the enquiry which isgoverned by s. 101 (a) will have to be tried on a broader basis permitting thereturned candidate to lead evidence in support of the pleas whicli he may havetaken by way of recrimination under s. 97(1).

Inayatldlah Khan v. Diwanchand Mahajan, 15 E.L.R. 219 and LakshmiShankar Tadav v. Kunwar Sripal Singh, 22 E.L.R. 47 ; disapproved.

Bhim Sen v. Gopali and Ors., 22 E.L.R. 288 ; relied on.

326 JABAR SINGH V. GENDA LAL [VOL. XXV

Vashist Narain Sharma v. Dev Chandra, (1955) 1 S.C.R. 509; Hari VishnuKamath v. Syed Ahmed Ishaque, (1955) 1 S.C.R. 1104 and Keshav Laxman Borkarv. Dr. Devr'ao Laxman Anande, (1960) 1 S.C.R. 902; explained.

Appeal by special leave from the judgement and order datedMay 3, 1963, of the Madhya Pradesh High Court in First AppealNo. 46 of 1962.

S. K. Kapur, B. L. Khanna and B. N. Kripal, for the appellant.

Homi Daji, R. K. Garg, S. C. Agarwal, M. K. Ramamurthiand D. P. Singh, for the respondent.

JUDGEMENT

GAJENDRAGADKAR, J.—The question of law which thisappeal has raised for our decision is in relation to the nature andscope of the enquiry contemplated by sections 97, 100 and 101of the Representation of People Act, 1951 (No. 43 of 1951)(hereinafter called the Act). The appellant Jabar Singh and therespondent Genda Lai, besides five others, had contested theelection to the Madhya Pradesh Assembly on behalf of theMorena Constituency No. 5. This election took place on the21st February, 1962. In due course, the scrutiny of recordedvotes took place and counting followed on the 27th February1962. As a result of the counting, the appellant was shown tohave secured 5671 votes, whereas the respondent 5703 votes. It isnot necessary to refer to the votes secured by the other candidates.After the result of the counting was thus ascertained, the appellantapplied for recounting of the votes and thereupon, recountingfollowed as a result of which the appellant was declared electedhaving defeated the respondent by 2 votes. The recountingshowed that the appellant secured 5656 votes and the respon-dent 5654. Thereafter, the respondent filed an election petitionfrom which the present appeal arises. By this petition the res-pondent challenged the validity of the appellant's election on theground of improper reception of votes in favour of the appellantand improper rejection of votes in regard to himself. Therespondent urged before the Tribunal either for the restorationof the results in accordance with the calculations initially madebefore recounting, or a rescrutiny of the votes by the Tribunaland declaration of the result according to the calculations whichthe Tribunal may make. His prayer was that the appellant'selection should be declared to be void and a declaration should bemade that the respondent was duly elected.

The Election Tribunal found that 10 ballot papers in favourof the respondent had been improperly rejected and 4 had beenimproperly accepted in favour of the appellant. That led to a

E.L.R.j JABAR SINGH V. GENDA LAL 327

difference of 12 votes and the position of the votes was found tobe the respondent 5664 and the appellant 5652 votes.

At this stage, the appellant urged before the Tribunalthat there had been improper rejection of his votes and improperacceptance of the votes of the respondent, and his case was thatif recounting and rescrutiny was made, it would be found thathe had secured a majority of votes. The respondent objectedto this course ; his case was that since the appellant had notrecriminated under s. 97 of the Act, it was not open to him tomake the plea that a recounting and rescrutiny should be madeon the ground that improper votes had been accepted in favourof the respondent and valid votes had been improperly rejectedwhen they were cast in favour of the appellant. The respondent'scontention was that in order to justify the claim made by theappellant it was necessary that he should have complied with theprovisions of the proviso to s. 97 (1) of the Act and should havefurnished security as required by it. The failure of the appellantin that behalf precluded him from raising such a contention.

The Tribunal rejected the respondent's contention and heldthat in order to consider the relief which the respondent hadclaimed in his election petition, it was necessary for it to decidewhether the respondent had in fact received a majority of votesunder s. 101 of the Act, and so, he re-examined the ballot papersof the respondent as well as the appellant and came to the con-clusion that 22 ballot papers cast in favour of the respondenthad been wrongly accepted. The result was that the respondenthad, in fact, not secured a majority of votes. As a consequence ofthese findings, the Tribunal declared that the election of theappellant was void and refused to grant a declaration to the res-pondent that he had been duly elected.

This decision led to two cross-appeals before the High Courtof Madhya Praddesh No. 46/1962 and No. 1/1963, respectively.The appellant challenged the conclusion of the Tribunal that hiselection was void, whereas the respondent disputed the correct-ness of the decision of the Tribunal that no declaration couldbe granted in his favour that he had been duly elected. In theseappeals, the main question which was agitated before the HighCourt was about the nature and scope of the enquiry permissibleunder sections 100 and 101 of the Act. In dealing with thisquestion, the High Court based itself upon its own earlier decisionin Inayatullah Khan v. Diwanchand Mahajan & Ors.,(\) as wellas the decision of this Court in Bhim Sen v. Gopali & Ors.(2) and

(1) 15 E.L.R. 219.

(2) 22 E.L.R. 288.

328 JABAR SINGH V. GENDA LAL [VOL. XXV

held that the grievances made by both the parties in their res-pective appeals was not well-founded and that the decision of theTribunal was right. In the result, both the appeals were dis-missed and the decision of the Tribunal was confirmed. Againstthis decision, the appellant has come to this Court by specialleave. Later on, the respondent filed an application for leaveto appeal to this Court, but the said application was filed beyondtime, when the said application came on for hearing before thisCourt, the delay made by the respondent in preferring his appli-cation for special leave was not condoned, and so, the decisionof the High Court against the respondent has become final andis no longer open to challenge in this Court. When the applicationfor leave filed by the appellant was argued and admitted bythis Court, it was urged by Mr. Kapoor on his behalf that theobservations made by this Court in the case of Bhim Sen (Supra)on which the High Court substantially relied required reconsidera-tion. That is why the appeal has been placed before a Benchof five Judges for final hearing.

In dealing with the question raised by Mr. Kapoor before us,it is necessary to refer to the provisions of the Act in regard to thepresentation of election petitions and prayers that the petitionerscan make therein. Section 81 provides that an election petitioncalling in question any election on one or more of the groundsspecified in sub-section (I) of s. 100 and s. 101 may be presentedto the Election Commission by any candidate or any electorwithin the time specified by the said section. It is thus clearthat when a person presents an election petition, it is open to himto challenge the election of the returned candidate under s. 100(1)and claim a declaration that returned candidate's election ifvoid. He can also claim a further declaration that he himselfor any other candidate has been duly elected. In other words,if the election petition contents itself with claiming a simpledeclaration that the election of the returned candidate shouldbe declared to be void, the petition falls under s. 100 and theElection Tribunal can either grant the said declaration in whichcase the petition is allowed, or refuse to grant it in which case thepetition is dismissed. It is also possible that the election petitionmay claim two reliefs, one under s. 100 (I), and the other unders. 101. In this category of cases, the Tribunal first decides thequestion as to whether the election of the returned candidate isvalid or not and if it is found that the said election is void, itmakes a declaration to that effect and then deals with the furtherquestion whether the petitioner himself or some other personcan be said to have been duly elected. The scope of the

E.L.R.] JABAR SINGH V. OENDA LAL 329

enquiry which the Tribunal has to hold in such cases would ob-viously depend upon the nature of the reliefs claimed by thepetition.

There is another fact which it is necessary to bear in mind indealing with the controversy before us in the present appeal.When elections are held, the declarations of the results aregoverned by the statutory rules framed under the Act. Thecounting of votes is dealt within the relevant rules under PartV. Rule 55 deals with the scrutiny and opening of ballot boxes.Rule 56(1) requires that the ballot papers taken out of eachballot box shall be arranged in convenient bundles and scrutini-sed. R. 56(2) provides when the returning officer has to rejecta ballot paper ; the grounds for rejection are specified in clauses(a) to (h). Rules 56(3), (4) and (5) prescribe the procedure forrejecting ballot papers. When the ballot papers have beentaken out of the ballot boxes and have been scrutinised, countingfollows and that is dealt with by R. 57 and the following Rules.R. 63 provides for recounting of votes ; R. 63(1) lays downthat after the counting has been completed, the returning officershall record in the result sheet in Form 20 the total number ofvotes polled by each candidate and announce the name. R. 63(2)permits an application to be made for a recounting and if thatapplication is allowed, a recounting follows. If a recountingis made, then the result is declared once again on the sheet inForm 20. In pursuance of the result of counting thus announced,the result of the election is declared under R. 64 and a certificateof election is granted to the returned candidate. It is significantthat R. 57(1) provides that every ballot paper which is not re-jected under R. 56 shall be counted as one valid vote, which meansthat after the ballot papers have been scrutinised and invalidpapers are rejected under R. 56(2), all voting papers which havebeen taken into the counting by the returning officer shall bedeemed to be valid under R. 57(1). Similarly, then the scrutinyof the nomination papers is made by the returning officer unders. 36 of the Act and as a result, certain nomination papers areaccepted, s. 36(8) provides that the said acceptance shall be pre-sumed to be valid. In other words, when an election petitionis filed before an Election Tribunal challenging the validity of theelection of the returned candidate, prima facie the acceptance ofnomination paper is presumed to be valid and the voting paperswhich have been counted are also presumed to be valid. Theelection petition may challenge the validity of the votescounted, or the validity of the acceptance or rejection of a nomi-nation paper, that is a matter of proof. But the enquiry wouldcommence in every case with prima facie presumption in favour of

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the validity of the acceptance or rejection of nomination paperand of the validity of the voting papers which have been counted.It is necessary to bear in mind this aspect of the matter in dealingwith the question about the scope and nature of the enquiryunder sections 100 and 101 of this Act.

Let us now read the three relevant sections with which areconcerned in the present appeal. Section 97 provides :

"(1) When in an election petition a declaration thatany candidate other than the returned candidate has beenduly elected is claimed, the returned candidate or any otherparty may give evidence to prove that the election of suchcandidate would have been void if he had been the returnedcandidate and a petition had been presented calling in ques-tion his election :

Provided that the returned candidate or such otherparty as aforesaid shall not be entitled to give such evidenceunless he has, within fourteen days from the date of com-mencement of the trial, given notice to the Tribunal ofhis intention to do so and has also given the security and thefurther security referred to in sections 117 and 118, res-pectively.

(2) Every notice referred to in sub-section (1) shall beaccompanied by the statement and particulars requiredby section 83 in the case of an election petition and shall besigned and verified in like manner."

Section 100, sub-section (I) reads as under :—(a) that on the date of his election a returned candidate

was not qualified, or was disqualified, to be chosen to fillthe seat under the Constitution or this Act ; or

(b) that any corrupt practice has been committedby a returned candidate or his election agent or by any otherperson with the consent of a returned candidate or his elec-tion agent ; or

(c) that any nomination has been improperly rejected ;or

(d) that the result of the election, in so far as it con-cerns a returned candidate, has been materially affected—

(i) by the improper acceptance of any nomination,or

(ii) by any corrupt practice committed in the inter-rests of the returned candidate by an agent other thanhis election agent, or

E.L.R.] JABAR SIMGH V. OENDA LAL 331

(iii) by the improper reception, refusal or rejectionof any vote or the reception of any vote which is void, or

(iv) by any non-compliance with the provisions ofthe Constitution or of this Act or of any rules or ordersmade under this Act.

the Tribunal shall declare the election of the returnedcandidate to be void."

Section 101 provides that :"if any person who has lodged a petition has, in addition

to calling in question the election of the returned candidate,claimed a declaration that he himself or any other candi-date has been duly elected and the Tribunal is of opinion—

(a) that in fact the petitioner or such othercandidate received a majority of the valid votes ; or

(b) that but for the votes obtained by the returnedcandidate by corrupt practices the petitioner or suchother candidate would have obtained a majority of thevalid votes,

the Tribunal shall after declaring the election of thereturned candidate to be void declare the petitioner or suchother candidate, as the case may be, to have been dulyelected."

Mr. Kapoor contends that in dealing with the cases falling unders. 100(1) (d) (iii), section 97 can have no application, and so,the enquiry contemplated in regard to cases falling under thatclass is not restricted by the prohibition prescribed by s.97(I).He suggests that when the Tribunal decides whether or not theelection of the returned candidate has been materially affectedby the improper reception, refusal or rejection of any vote, or thereception of any vote which is void, it has to examine the validityof all votes which have been counted in declaring the returnedcandidate to be elected, and so, no limitation can be imposedupon the right of the appellant to require the Tribunal to considerhis contention that some votes which were rejected though castin his favour had been improperly rejected and some votes whichwere accepted in favour of the respondent had been improperlyaccepted. Basing himself on this position, Mr. Kapoor furthercontends that when s. 101 requires that the Tribunal has to cometo the conclusion that in fact the petitioner or such other can-didate received a majority of the valid votes, that can be done onlywhen a recount is made after eliminating invalid votes, and so,

332 JABAR SINGH V. GENOA LAL [VOL XXV

no limitations can be placed upon the scope of the enquiry con-templated by s.lOl(a). Since s. 100(1) (d)(iii) is outside thepurview of s. 97, it would make no difference to the scope of theenquiry even if the appellant has not recriminated as required bys. 97(i)'.

On the other hand, Mr. Garg who has addressed to us a veryable argument on behalf of the respondent, urged that theapproach adopted by the appellant in dealing with the problemposed for our decision in the present appeal is inappropriate.He contends that in construing sections 97, 100 and 101, we mustbear in mind one important fact that the returned candidatewhose election is challenged can face the challenge under s. 100only by making pleas which can be described as pleas affordinghim a shield of defence, whereas if the election petition besideschallenging the validity of the returned candidate claims thatsome other person has been duly elected, the returned candidateis given an opportunity to recriminate and by way of recrimina-tion he can adopt pleas which can be described as weapons ofattack against the validity of the election of the said other person.His argument is that though s. 100(1) (d) (iii) is outside s. 97,it does not mean that in dealing with a claim made by an electionpetition challenging the validity of his election, a returned can-didate can both defend the validity of his election and assailthe validity of the votes cast in favour of the petitioner or someother person. It is in the light of these two rival contentions thatwe must now proceed to decide what the true legal positionin the matter is.

It would be convenient if we take a simple case of an electionpetition where the petitioner makes only one claim and that isthat the election of the returned candidate is void. This claimcan be made under s. 100. Section 100(i) (a), (b) & (c) referto three distinct grounds on which the election of the returnedcandidate can be challenged. We are not concerned with anyof these grounds. In dealing with the challenge to the validityof the election of the returned candidate under s. 100(i) (d),it would be noticed that what the election petition has to proveis not only the existence of one or the other of the grounds specifiedin clauses (i) to (iv) of s. 100 (I) (d), but it has also toestablish that as a result of the existence of the saidground, the result of the election in so far as it concerns areturned candidate has been materially affected. It is thusobvious that what the Tribunal has to find is whether ornot election in so far as it concerns the returned candidate hasbeen materially affected, and that means that the only point whi-ch the Tribunal has to decide is; has the election of the returned

E.L.R.J JABAR SINGH V. GENDA LAL 333

candidate been materially affected ? And no other enquiry islegitimate or permissible in such a case. This requirement ofs. 100 (I) (d) necessarily imports limitations on the scope of theenquiry. Confining ourselves to clause (hi) of s. 100 (1) (d),what the Tribunal has to consider is whether there has been animproper reception of votes in favour of the returned candidate.It may also enquire whether there has been a refusal or rejectionof any vote in regard to any other candidate or whether there hasbeen a reception of any vote which is void and this can only bethe reception of a void vote in favour of the returned candidate.In other words , the scope of the enquiry in a case falling unders. 100(1) (d) (hi) is to determine whether any votes have beenimproperly cast in favour of the returned candidate, or any voteshave been improperly refused or rejected in regard to any othercandidate. These are the only two matters which would berelevant in deciding whether the election of the returned candi-date has been materially affected or not. At this enquiry, theonus is on the petitioner to show that by reason of the infirmitiesspecified in s. 100 (1) (d) (iii), the result of the returned candidate'selection has been materially affected, and that, incidentally,helps to determine the scope of the enquiry. Therefore, it seemsto us that in the case of a petition where the only claim madeis that the election of the returned candidate is void, the scopeof the enquiry is clearly limited by the requirement of s. 100 (l)(d)itself. The enquiry is limited not because the returned candidatehas not recriminated under s. 97(1); in fact, s. 97(1) has no appli-cation to the case falling under s. 100 (1) (d) (iii) ; the scopeof the enquiry is limited for the simple reason that what theclause requires to be considered is whether the election of thereturned candidate has been materially affected and nothingelse. If the result of the enquiry is in favour of the petitionerwho challanges the election of the returned candidate, the Tribunalhas to make a declaration to that effect, and that declarationbrings to an end the proceedings in the election petition.

There are, however, cases in which the election petitionmakes the double claim ; it claims that the election of the re-turned candidate is void, and also asks for a declaration thatpetitioner himself or some other person has been duly elected.It is in regard to such a composite case that s. 100 as well ass. 101 would apply, and it is in respect of the additional claim fora declaration that some other candidate has been duly electedthat s. 97 comes into play. Section 97(1) thus allows the returnedcandidate to recriminate and raise pleas in support of his casethat the other person in whose favour a declaration is claimed bythe petition cannot be said to be validly elected, and these would be

334 JABAR SINGH V. GENDA LAL [VOL. XXV

pleas of attack and it would be open to the returned candidateto take these pleas, because when he recriminates, he reallybecomes a counter petitioner challenging the validity of the elec-tion of the alternative candidate. The result of s. 97 (1) thereforeis that in dealing with a composite election petition, the Tribunalenquires into not only the case made out by the petitioner, butalso the counter claim made by the returned candidate. Thatbeing the nature of the proceedings contemplated by s. 97 (1),it is not surprising that the returned candidate is required to makehis recrimination and serve notice in that behalf in the mannerand within the time specified by s. 97(1) proviso and s. 97 (2).If the returned candidate does not recriminate as required bys. 97, then he cannot make any attack against the alternativeclaim made by the petition. In such a case, an enquiry wouldbe held under s. 100 so far as the validity of the returned candi-date's election is concerned, and if as a result of the said enquirya declaration is made that the election of the returnedcandidate is void, then the Tribunal will proceed to deal with thealternative claim, but in doing so, the returned candidate will notbe allowed to lead any evidence because he is precluded fromraising any pleas against the validity of the claim of thealternative candidate.

It is true that s. 101 (a) requires the Tribunal to find that thepetitioner or such other candidate for the declaration of whoseelection a prayer is made in the election petition has in factreceived a majority of the valid votes. It is urged by Mr. Kapoorthat the Tribunal cannot make a finding that the alternativecandidate has in fact received a majority of the valid votes unlessall the votes cast at the election are scrutinised and counted. Inour opinion, this contention is not well-founded. We havealready noticed that as a result of Rule 57, the Election Tribunalwill have to assume that every ballot paper which had not beenrejected under R. 56 constituted one valid vote and it is on thatbasis that the finding will have to be made under s. 101 (a).Section 97(1) undoubtedly gives an opportunity to the returnedcandidate to dispute the validity of any of the votes cast in favourof the alternative candidate or to plead for the validity of anyvote cast in his favour which has been rejected ; but if by hisfailure to make recrimination within time as required by s. 97the returned candidate is precluded from raising any such pleaat the hearing of the election petition, there would be nothingwrong if the Tribunal proceeds to deal with the dispute unders. 101 (a) on the basis that the other votes counted by the re-turning officer were valid votes and that votes in favour of thereturned candidate, if any, which are rejected, were invalid.

E.L.R.] JABAR SINGH V. GENDA LAL 335

What we have said about the presumed validity of the votesin dealing with a petition under s. 101 (a) is equally true in dealingwith the matter under s. 100 (1) (d) (iii). We are, therefore,satisfied that even in cases to which s. 97 applies, the enquirynecessary while dealing with the dispute under s. 101 (a) willnot be wider if the returned candidate has failed to recriminate.

If the returned candidate has recriminated and has raisedpleas in regard to the votes cast in favour of the alternative can-didate or his votes wrongly rejected, then those pleas may haveto be tried after a declaration has been made under s. 100 and thematter proceeds to be tried under s. 101 (a). In other words,the first part of the enquiry in regard to the validity of the electionof the returned candidate must be tried within the narrow limitsprescribed by s. 100(1) (d) (iii) and the latter part of the enquirywhich is governed by s. 101 (a) will have to be tried on a broaderbasis permitting the returned candidate to lead evidence insupport of the pleas which he may have taken by way of re-crimination under s. 97(1). If Mr. Kapoor's construction ofsection 100( 1) (d) (iii) is accepted, it would either make sec. 97otiose and inaffective or make the operation of s. 101 read withs. 97 inconsistent with the operation of s. 100 (I) (d) (iii). We are,therefore satisfied that the High Court was right in coming to theconclusion that the Tribunal was in error in holding that it wasan authority charged with the duty of investigating the validityof votes for and against the petitioner and returned candidateor for a matter of that any other contesting candidate."

It, however, appears that following its own earlier decisionin Inayatullah Khan's cases [Supra), the High Court was disposedto take the view that the enquiry under s. 101 (a) was wider andthat in making its finding under the said provision, it was open tothe Tribunal to scrutinise the votes and determine whether infact, the petitioner or some other person had received a majorityof the valid votes. As we have already indicated, this would bethe position only if the returned candidate had recriminated inthe absence of recrimination, it would not be open to the ElectionTribunal to allow the returned candidate to challenge the validityof votes cast in favour of the petitioner or any other candidate inwhose favour a declaration is claimed by the election petition orto contend that any of his votes were improperly rejected. Weought to add that the view taken by the Madhya Pradesh HighCourt in the case ofInayatullah Khan( 1), in regard to the scope of theenquiry under s. 101 (a) does not correctly represent the truelegal position in that behalf. Similarly, the view taken by the

(1) 15 E.L.R. 219.

336 JABAR SINGH V. GENDA LAL [VOL. XXV

Allahabad High Court in Lakshmi Shankar Tadav v. KunwarSripal Singh & Ors. (2), cannot be said to interpret correctly thescope of the enquiry either under s. 100 or s. 101. The conclusionwhich we have reached in the present appeal is substantially inaccord with the observations made by this Court in the case ofBhim Sen(3) (Supra) though it appears that the points in questionwere not elaborately argued before the Court in that case.

There is another point to which reference must be made,Mr. Garg contended that even if the view taken by the Tribunalabout the scope of the enquiry under s. 100 (l)(d)(iii) and s. 101was right, the relief appellant in the present proceedings. Insupport granted by it was not justified by the pleadingsof this argument, he referred us to paragraph 4 of the SpecialPleas filed by the appellant, and relied on the fact that at theinitial stage of the hearing the Tribunal had framed 18 issuesincluding issue No. 16 which consisted of three parts, viz-,—

(a) Whether any votes cast in favour of respondent No. 1were wrongly rejected specially pertaining to pollingstation mentioned in para 4 of the written statementunder heading special pleas ?

(b) Whether many votes were wrongly accepted in favour ofthe petitioner appertaining to the polling station men-tioned in para 4 of the special pleas in written statement.

(c) What is the effect of the above in the cases.

Later on when the respondent contended that in the absenceof any recrimination by the appellant these issues did not ariseon the pleadings, they were struck out, and yet in its judgment,the Tribunal has virtually tried these issues and given reliefon grounds which were not included even in his written statement.Since this appeal was admitted mainly on the ground that theappellant wanted this Court to reconsider the observations madeby it in the case of Bhim Sen (3) (Supra), we do not propose to restour decision on this subsidiary point raised by Mr. Garg.

It now remains to refer to two decisions which were citedbefore us during the course of the arguments in Vashist NarainSharma v. Dev Chandra and Ors(4) this Court has held that s. 100(1) (c), as it then stood, places a burden on the objector to subs-tantiate the objection that the result of the election has beenmaterially affected by the improper acceptance or rejection of the

(2) 22 E.L.R. 47.(3) 22 E.L.R. 228.(4) (1955) I.S.C.R. 909.

E.L.R.] MBAR SINGH V. GENDA LAt 337

nomination paper. In that connection, this Court observedthat where the margin of votes is greater than the votes securedby the candidate whose nomination paper had been improperlyaccepted, the result is not only materially not affected but notaffected at all ; but where it is not possible to anticipate theresult, the petitioner must discharge the burden of provingthat fact and on his failure to do so, the election must be allowedto stand.

In Hart Vishnu Kamath v. Syed Ahmed Isahaque and Others (5),adverting to the expression "the result of the election" in s. 100(1) (c), this Court stated that unless there is something in thecontext compelling a different interpretation, the said expressionmust be construed in the same sense as in section 66, and thereit clearly means the result on the basis of the valid votes. Basinghimself on this observation, Mr. Kapoor has urged that while theTribunal decides the question as to whether the election of thereturned candidate has been materially affected or not, thevalidity of the votes falls to be considered, and that inevitablyenlarges the scope of the enquiry. We do not think that theobservation on which Mr. Kapoor relies was intended to laydown any such proposition. All that the reference to s. 66 denotesin that after considering the pleas raised, the Tribunal has todecide whether the election of the returned candidate has beenmaterially affected or not, and that only means that if any votesare shown to have been improperly accepted, or any votes areshown to have been improperly refused or rejected, the Tribunalhas to make calculations on the basis of its decisions on thosepoints and nothing more. It is necessary to recall that the voteswhich have not been rejected by the returning officer under R. 56have to be treated as valid, unless the contrary is specificallypleaded and proved. Therefore, we do not think that Mr.Kapoor is justified in contending that the observations in HariVishnu Kamath's case support his plea that the enquiry unders. 100 (1) (d) (iii) is wide enough to take in the scrutiny of thevalidity of all voting papers.

In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande (6),this Court has pointed out that the expression "valid votes"has nowhere been defined in the Act, but in the light of the pro-vision of s. 36 (8) of the Act read with Rule 58, two things areclear, first that the candidates are validly nominated candi-dates whose nomination papers are accepted by the returningofficer after scrutiny and second that the provision of s. 58

(5) (1955) I.S.C.R. 1104 at P. 1131.(6) (I960) I.S.C.R. 902.45—3 ECI/ND/67

3 3 8 JABAR SINGH V. GENDA LAL {VOL. XXV

provides that the ballot papers which are not rejected underR. 57 are deemed to be "valid ballot papers" and are to becounted as such.

It appears that the position under the English Law in re-gard to the recounting of votes in proceedings under electionpetitions is substantially similar. As Halsbury points out, "wherea petitioner claims the seat for an unsuccessful candidate allegingthat he had a majority of lawful votes, either party must, sixdays before that appointed for the trial, deliver to the master,and also at the address, if any, given by the other side, a listof the votes intended to be objected to and of the heads of theobjection to each of these votes."(7) It further appear that noevidence may be given against the validity of any votes or underany head not specified in the list, unless by leave of the Courtupon such terms as to amendment of the list, postponement ofthe inquiry, and payment of costs as may be ordered. Where nolist of the votes, to which it is intended to take objection, hasbeen delivered within the time specified, the Court has no powerto extend the time or to allow evidence of the votes objected to orof the objections thereto to be given at the trial. Therefore, itseems clear that in holding an enquiry either under s. 100 (1)(d) (iii), or under s. 101, where s. 97 has not been complied withit is not competent to the Tribunal to order a general recount ofthe votes preceded by a scrutiny about their validity.

In the result, the appeal falls and is dismissed. We wouldlike to add that though we have accepted the construction ofs. 100 (1) (d) (Iii) and s. 101 for which Mr. Garg contended, norelief can be granted to the respondent, because his applicationfor special leave to appeal against the decision of the High Courthas been dismissed since he was unable to make out a sufficientcause for condoning the delay made by him in preferring thesaid application. In the circumstances of this case, we directthat the parties should bear their own costs. We ought tomention that when this appeal was argued before us on the 4thDecember, 1963, we were told that the fresh election which hadbeen ordered to be held in accordance with the decision of theHigh Court was fixed for the 6th December, 1963, and so, afterthe case was argued, we announced our decision and intimatedto the learned Advocates that our reasons will follow. The pre-sent judgment gives the reasons for our decision.

! AVYANGAR J.—While I agree that the appeal deserves to bedismissed for reasons which I shall indicate later, I regret my

(7) Halsbury's Laws of England P. 306, paras 553 and 554.

B.L.R.] JABAR SINOH V. OENDA LAL 339

inability to agree with the construction which my learned bre-thren have placed on s. 100 (1) (d) (iii) of the Representation ofthe People Act which for shortness I shall call the Act, on whichin ultimate analysis the question of law arising in the appealturns.

The facts of the case which have given rise to the proceedingsas well as the points involved in the appeal have all been set outin detail in the judgement of Gajandragadkar, J. and I considerit unnecessary to report them. I shall accordingly state onlythose facts which are relevant for the purpose of: (1) the cons-truction of s. 100(1) (d) of the Act, and (2) the conclusion Ihave reached that the appeal should be dismissed.

The appeal arises out of a contested election to the MorenaConstituency of the Madhya Pradesh Legislative Assembly.The polling for the election took place on February 21, 1962,and there were as many as seven candidates who participatedin that poll. The appeal is, however, concerned only with twoof them—Genda Lai and Jabar Singh the latter being the re-turned candidate and is the appellant before us. The votingprocedure adopted was that set out in rule 39. Conduct ofElection Rules, 1961 which I shall hereafter refer to as the Rulesunder which the voter makes a mark on the ballot paper on ornear the symbol of the contesting candidate to indicate his choice.On the first count of the ballot papers the Returning Officer com-puted the valid votes obtained by Genda Lai as 5703 as against5671 which had been counted in favour of Jabar Singh. JabarSingh, however, immediately applied for a recount under Rule 63of the Rules on the ground that the original scrutiny and countingwere defective and this, though opposed, was acceded to by theReturning Officer who carried out a recount. I might mentionin passing that the Election Tribunal has found discrepancieseven in the total of the number of ballot papers in some of thepolling stations, the figures of the total number of valid votesin 6 polling stations being different from those found in the resultsheet prepared under Rule 57(2) Form 20, the scrutiny recountdisclosed that Genda Lai was found to have polled 5654 votes asagainst 5656 votes counted as having been obtained by JabarSingh. As a result of the recount Jabar Singh was declaredelected, he having obtained 2 votes more than his rival GendaLai.

Genda Lai thereupon filed the election petition which hasgiven rise to this appeal in which he sought to have the electionof Jabar Singh declared void and also made a claim to the seat.The Election was sought to be set aside on various grounds but

340 JABAR SINGH V. GENDA LAL [VOL. XXV

we are concerned in this appeal solely with one of them viz.,the correctness of the scrutiny and counting of votes at the re-count vis-a-vis the petitioner and the returned candidate.Shortly stated, the allegation in this respect in the electionpetition was that 49 valid votes cast in favour of the petitioner(whois the respondent before us)were improperly rejected and that32 votes were improperly accepted in favour of" the returnedcandidate who is the appellant before us. Needless to addthese allegations were denied by the returned candidate. Besidesthe denial, he also pleaded in his written statement that manyvotes cast in favour of himself had been wrongly rejected in regardto which details were given and that similarly the several voteswere wrongly accepted in favour of the election petitioner and inregard to which also details were given and it ended with theprayer that if a proper scrutiny and recount were made of thevalid votes received by each it would be found that he the returnedcandidate had, in fact, obtained a larger number of votes than theelection petitioner and for this reason he submitted that theelection petition ought to be dismissed. Though Genda Laihad by his election petition besides seeking the relief of having theappellant's election declared void, claimed the seat for himselfunder s. 84 of the Act, none of the respondents to the petition in-cluding the appellant had filed any recrimination in conformitywith the provisions of s. 97 of the Act against the grant of suchfurther relief and it is the effect of this failure on the rights of theparties that forms the principal point for consideration in theappeal.

The Election Tribunal who inquired into the petition framedthe necessary issues arising out of these pleadings. Issue(2) dealtwith the allegation in the petition that 49 valid votes cast in fa-vour of Genda Lai had been improperly rejected. After examin-ing the evidence adduced and considering the validity of thosevotes in regard to which dispute was raised, the Election Tribunalrecorded the finding that not 40 but only 10 votes of Genda Laihad been impropely rejected. In regard to the question of theimproper acceptance of 32 votes cast in favour of Jabar Singhwhich was covered by issue 6 (b), the Tribunal found, again aftergoing through the evidence in respect of the particular votes indispute, that not 32 but only 4 had been improperly accepted. Theresult of these finding on issues 6(a) and 6 (b) was that the totalnumber of valid votes polled by Genda Lai become 5664 asagainst 5652 polled by Jabar Singh. The Tribunal consequentlyheld that the election of Jabar Singh who had obtained aminority of votes compared to Genda Lai must be declaredvoid under s. 100 (1) (d) (iii).

E.L.R.] JABAR SINGH V. OENDA LAL 341

So far we are on non-controversial ground except this thaton this state of the voting Genda Lai claimed that he was entitledto the further relief that he be declared elected having obtainedthe majority of lawful votes satisfying the requirement of s. 101 (a).The Election Tribunal refused him that relief for reasons whichit is unnecessary to set out or discuss and that decision havingbeen affirmed by the High Court in appeal and the special leaveprayed for to appeal from that decision of the High Court havingbeen dismissed by us, the propriety of the disallowance of thisadditional relief does not require to be further noticed.

The question about the scope of s. 100 (1) (d) (iii) aid itsrelative place in the scheme of ss. 97, 100 and 101 of the Actarises out of the plea made by Jabar Singh that without referenceto the irregularities in the counting of the 49 and the 32 votesalleged by Genda Lai and which he had denied, and which werethe subject-matter of issues 6(a) and 6 (b) to which 1 have alreadyadverted, there were other irregularities in the scrutiny and count-ing which, if examined, would establish that after every error wasleiminated, he himself had obtained a majority of lawful votes.The question of a law that was debated before us was whetheron the scheme of the Representation of the People Act, 1951,Jabar Singh was entitled to make such a plea and claim to adduceproof in support thereof in order to sustain his election withoutfiling a recrimination under s. 97 of the Act. My learnedbrethren have held that he could not and it is on that point thatI do not find it possible to agree with them.

The correct answer to this question would depend, it iscommon ground, on a proper construction of s. 100 (1) (d) (iii)read in conjunction with s. 101 (a) and this I shall first considerI shall next deal with the place and function of s. 97 in this con-text and its bearing on the interpretation of the provisions onwhich the decision of this appeal turns.

Though there have been a few decisions bearing upon thequestion of law I have indicated and they have all been referredto by Gajendragadkar, J. It is common ground that there is nobinding decision of this Court touching the matter thoughsome observations in Bhim Sen v. Gopali and Ors. (2) wouldappear to favour the construction which by learned brother haveadopted. As, however, the appeal was placed before this Benchfor the consideration of this question and we have proceeded onthe basis that the matter as res-integra I do not propose to referto any of these decision but shall proceed merely to interpret theprovisions without advertance to the authorities to which ourattention was invited during the course of the arguments.

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Section 100 (1) (d) reads :—"100. Grounds for declaring election to be void(l)

Subject to the provisions of sub-section (2) if the Tribunal isof opinion—

(d) that the result of the election, in so far as it con-cerns a returned candidate, has been materially affected—

(i) by the improper acceptance of any nomination, or(ii) by any corrupt practice committed in the

interests of the returned candidate by an agent other thanhis election agent, or

(iii) by the improper reception, refusal or rejectionof any vote for the reception of any vote which is void, or

(iv) by any non-compliance with the provisions of theConstitution or of this Act or of any rules or orders madeunder this Act, the Tribunal shall declare the election ofthe returned candidate to be void."

The short question arising for consideration in this appeal,may be stated out thus in the context of the provisions containedins. 100(1) (d) which permits on election of a returned candidateto be set aside only on proof of the "result" viz., the election of thereturned candidate having been materially affected by the impro-prieties or illegalities referred to in the four clauses numbered(i) to (iv) what is the import of the words "by the improperreception, refusal or rejection of any vote or the reception of anyvote which is void." For our present purposes I might omit thereference to the latter part of this provision relating to "the recep-tion of a vote which is void" and concentrate on the earlier part.

It is manifest that the jurisdiction of the Tribunal to declarean election void arises only when it is of opinion that "the resultof the election has been materially affected by the defects orimproprieties set out in els. (i) to (iv), so that if notwithstandingthat impropriety or illegality of the types set out in the fourclauses, the result of the election is not materially affected, thereturned candidate is entiled to retain his seat. With thispreliminary observation I shall proceed to consider the import ofthe relevant words "materially affected by the improper reception,refusal or rejection of any vote", first in a case where there is nocomplication arising from the petition claiming the seat in addi-tion to the relief of having the election of the returned candidatedeclared void. The argument strenuously pressed before us byMr. Garg-learned Counsel for the respondent was that the Tri-bunal in considering whether the result of an election had been

E.L.JL.] JABAR SINGH V. GENDA LAL 343

materially affected, was confined to the consideration of anyimpropriety alleged as regards the reception of the votes of thereturned candidate as well as improprieties alleged by the peti-tioner in the refusal or rejection of votes stated to have beencast in favour of the petitioner and the denials of these charges orallegations by the returned candidate. His further submissionwas that the returned candidate could not sustain his seat byshowing a similar improper reception of votes in favour of thepetitioner or an improper refusal or rejection of his own votes.In other words, the argument was that the Tribunal dealing witha petition under s. 100(1) (d) has jurisdiction to proceed onlyon the allegations made in petition and that even where a casehad been established for a scrutiny, and a recount is ordered,it would be so confined and that its jurisdiction would not extendto cases of complaints by the returned candidate. It is thisargument that I feel unable to accept.

When an election petition is filed complaining of the impro-per reception or rejection of votes and praying for a scrutiny ofthe ballot papers for the purpose of determining whether the voteshave been properly counted by the Returning Officer the Tribunalwould doubtless have to be satisfied that a case is made out forscrutiny and a recount, for it is settled law that the petitioner isnot as a matter of right entitled to have such a scrutiny and re-count merely because he prays for such a relief, but has toallege, make out and prove the specific grounds to establishthat the scrutiny or counting was improper and that the returnwas in consequence erroneous. If one reaches that stage and theTribunal is satisfied that a case for scrutiny and recount is madeout it would mean that the Returning Officer had not dischargedhis duties properly in the matter of the scrutiny of the ballotpapers and their counting. If in such circumstances the respon-dent (the returned candidate) also makes allegations of the sametype regarding the scrutiny and the counting I consider it wouldbe unjust to deprive him of the opportunity of proving his alle-gations and thus maintain his seat, unless of course, the statutoryprovision clearly precludes him from doing so. In saying thisI am not suggesting that the respondent need made no avermentin his pleadings making definite allegations regarding the parti-cular votes regarding which he desires scrutiny and which hesays have been wrongly counted either for or against him. Letus take a case where the allegation of the petitioner is that therehas been a miscount i.e., a wrong counting of the votes of thereturned candidate and nothing more. Let us suppose that Ahas been declared elected as having secured, say 200 votes againstB who has secured 190. If B in his election petition says that

344 JABAR SINGH V. GENDA LAL [VOL. XXV

A's votes have been wrongly counted as 200 whereas, in fact,if they were recounted they would only be 180 and the Tribunalon a recount finds the allegation in the petition made out andthat the returned candidate had obtained only 180 votes theacceptance of Mr. Garg's argument would mean that the electionof A would have to be set aside notwithstanding that there hasbeen a similar mistake in the counting of B's votes and if thesewere properly counted they might not amount to more than 170.Mr. Garg submitted that though if B claimed the seat their wouldhave to be a recount of the votes of both the candidates and thisalso only in the event of a recrimination being filled under s. 97,still if no seat was claimed the election of the returned candidatewould be set aside and that the letter had no means wherebyhe could maintain his election notwithstanding that as a fact hehad attained a majority of lawful votes.

It is urged that this result flowed from the opening wordsof s. 100(1) (d) which speaks of "the result of the election"being materially affected "so far as it concerns a returned can-didate", I do not find it possible to agree with the constructionor the reasoning on which the submission is based. There is,no doubt that an election petition is primarily concerned withthe validity of the election of the returned candidate. It cannotalso be disputed that the election of the returned candidate cannotbe declared void, unless, confining oneself to the improperietyor illegality involved in the reception or refusal of votes, the return-ed candidate is proved to have obtained a minority of votes,for otherwise whatever be the impropriety or its degree or exten-siveness, the result of the election would not be materially affectedit is common ground and beyond controversy that the electionpetitioner is not restricted as regards the manner or details ofthe improper reception or refusal of votes which he could allegeand prove which would achieve that result. If so much isconceeded and is common ground, I do not see any force in thecontention that the returned candidate is confined merely todisproving what is alleged to dislodge him from his seat and isforbidden from proving that votes which under the law had to becounted in his favour, have been wrongly omitted to be so counted.The words in cl. (iii) do not impose any such restriction, for theyspeak of the "improper reception or refusal of any vote" and asthe inquiry under s. 100 (1) (d) is for ascertaining whether theresult of the election has been materially affected which in thecontext of cl. (iii) obviously means "the returned candidate hasbeen proved not to have obtained, in fact, a majority of validvotes", there appears to me no scope for the argument pressedbefore us by Mr. Garg.

B.L.R.] JABAR SINGH V. OENDA LAL 345

On an analysis of the situation the position would appear tobe this. Let us for instance assume that the voting procedureadopted in an election was that prescribed in Rule 59 i.e., byplacing the ballot papers in the ballot boxes set apart for thedifferent contesting candidates. The returning officer countsthe valid votes cast in the several boxes and declares A electedas having secured 200 votes as against B whose votes are countedas 198. If B files a petition and alleges that the counting wasirregular, that the totals of the ballot papers in the result sheet arenot properly computed, and that as a matter of fact A's papers,if counted, would be 196. Mr. Garg's submission is that thoughthe discrepancy disclosed in the totals is considerable, A cannotprove that there has been a miscounting of B's votes also, and thatthough if properly counted his total is only 190, still A's electionshould be not aside. It is said that the position would be differentand the anomaly would be overcome in cases where the electionpetitioner besides claiming a declaration that the election of thereturned candidate is void, also seeks a further declaration thathe should be declared duly elected and the returned candidatefiles a recrimination against such a prayer and challenges theright to have the further declaration. This, however, obviouslyfurnishes no answer for more than one reason. It is the sub-mission of Mr. Garg, and that is the whole basis upon which theconstruction which he desires us to adopt of s. 100(1) (d)(iii)turns, that the question raised by the recrimination arises onlyafter the election of the returned candidate is declared voidtherefore we would have the anomalous situation wherein theelection of the returned candidate is declared void by reason ofhis not obtaining the majority of valid votes so far as the decisionunder s. 100(1) (d) is concerned and then after the matter setout in the claim to the seat in the recrimination is inquired intoand decided the election tribunal holds that the returned candi-date had a majority of lawful votes but that this affected only theright of the defeated candidate to claim the seat. In my judge-ment the provisions of s. 100 read with s. 101 do not contemplatethis position of a candidate's election being set aside because hedid not get a majority of lawful votes but in the same proceedingsand as part of the same inquiry he being held to have obtaineda majority of lawful votes. A construction of s. 100 (l)(d) whichwould lead to this result must, in my opinion, be rejected asunsound.

This apart, there is the further circumstance arising fromthe fact that according to Mr. Garg the inquiry in respect of arecrimination and its defence is identical with what he says is thescope of a petition and its defence. This, of course, is logical,

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but it suffers from the same anomaly which I have pointed outas resulting from the acceptance of the primary argument re-garding the construction of s. 100(1)(d)'(iii). Applying that Ihave shown already regarding a case where there was no claimto a seat in an election petition in which the election of a returnedcandidate has to be declared void, not withstanding that he hadin fact, obtained a majority of valid votes, because he is precludedfrom proving this fact, similarly in cases where a seat is claimed,the petitioner so claiming would have to be declared elected,notwithstanding that is a fact he had not obtained the majorityof lawful votes, but that the returned candidate has returned backa majority because the latter is precluded from proving it. If onetook a case where there were more candidates than two, theanomaly I have indicated v/ould be seen clearly. If B files apetition against A the returned candidate claiming the seat andimpleads as he must C and B who are the other contestants,no proof could be led by to show that some of his own votes havebeen counted for C or D, though B would be entitled to prove thatsome of C's or D's votes have been wrongly counted as cast infavour of A. In such case it is obvious that B gains no advantageby recriminating, because recrimination under s. 97 could onlybe against A and not against the other contesting candidatesimpleaded as respondents. The result, therefore v/ould be thatthough, in fact, A has obtained the majority of lawful votes, Bthe petitioner will be declared elected-recrimination or no recri-mination. I cannot accept the position that either s. 100(1) (d) (iii)or s. 101 (a) contemplate this result which is at once so unjust andanomalous and appears to me to contradict the basic principle,underlying election law, viz., (1) that apart from disqualificationscorrupt practices, etc., the election of a candidate who obtainsthe majority of valid votes shall not be set aside, and (2) no can-didate shall be declared duly elected who has not obtainedthe majority of valid votes.

I should add that the entire argument proceeds on a mis-conception of the procedure involved in a scrutiny. I will takethe case where the voting takes place, as in the case of the electionbefore us, in accordance with the provisions of Rule 39. Thenconformably to Rule 57(3) all the ballot papers which have beenheld to be valid in each polling station are bundled up and sealedby the Returning Officer, and similarly all the rejected ones ofeach station are made into another bundle. That the scrutiny bythe Tribunal these two sets of bundles are examined to find outwhether the votes cast in favour of each of the contesting candid-ates have been properly counted or not. How this can be donecompartmentally as these cast for A or B or C or sepa-rately as is suggested by Mr. Garg. I am unable to follow, if

B.L.R.] JABAft SINGH V. GENDA LAL 347

the votes cast in favour of each candidate were made into separatebundles, then at least, there might be scope for an argument thatthe bundles of A or B shall not be opened up, but when all the vot-ing papers have to be scrutinised in order to find out (a) whetherthe returned candidate has really been proved to have receiveda minority of valid votes and (b) whether the candidate claimingthe seat has obtained a majority of valid votes, this cannot ob-viously be done without an examination of the ballot papers towhich objection is taken and which are contained in the twotypes of bundles into which these are made up under Rule 57(3).

Support was sought by Mr. Garg for the construction thathe sought to press upon us by reference to the provisions in theother sub clauses of s. 100(1) (d). His point was that if the returnedcandidate could not put forward the objections contained inthose clauses, the returned candidate could not likewise allegeimproprieties in the reception of the votes of any other candidateincluding the petitioner. I am wholly unimpressed by this argu-ment which does not take into account both the nature of the ob-jection in these other clauses as well as their bearing on thequestion whether the election of the returned candidate has beenmaterially affected, which is the prime question for considerationin the provision and which furnishes the key to the interpretationof the sub-clauses now under consideration. Let me take eachof the cases provided by the other sub-clauses a sub-clause (I)deals with the improper acceptance of a nomination. It is obviousthat allegations and proof by the returned candidate regadingthe improper acceptance of a nomination cannot serve to sustainhis election A fortiore clause (ii) which reads :

"(ii) by any corrupt practice committed in the interestsof the returned candidate by an agent other than his electionagent, or"

could have no meaning in the present context nor cl. (iv) unlessthe non-compliance has a bearing on the reception of votes inwhich case it would be wholly covered by cl. (Hi). In the caseof els. ( i), (ii) and (iv) it is obvious, having regard to the verynature of the provisions, that the returned candidate can do nomore than prove (a) that there was no such impropriety or illegaityas is alleged, and (b) that even if there was, the same had notaffected the result of his election in other words, that the impro-priety or illegality, if any, was inconsequential so far as hiselection was concerned, but this would not be the position inregard to the improper reception or rejection of votes. Therewe have two factors : (1) the impropriety of the reception orrejection, and (2) whether as a result of such improper reception

348 JABAR SINGH V. GENDA LAL [VOL. XXV

or rejection the result was materially affected. In the case con-templated by cl. (iii) the question whether the result was mate-rially affected or not could not, when the facts are ascertained, bea matter of doubt or dispute but would be one merely of arith-metical calculation and comparison. No doubt, s. 100 of theAct casts on the election petitioner the onus of establishing to thesatisfaction of the Tribunal that "the result of the election wasmaterially affected "by the impropriety, etc., and taking thecase of cl. (iii) in hand, of improper reception or rejection ofparticular votes, but from this it does not follow that the returnedcandidate is powerless to establish to the satisfaction of theTribunal that notwithstanding the improper reception or re-jection of the particular votes alleged by the petitioner his electionhas not been materially affected. The argument of Mr. Garg,if accepted, would mean that the returned candidate can merelycombat the case alleged against him and is disabled from esta-blishing positively that the result of the election has not beenmaterially affected. If the key words of the provision on thefulfilment of which alone the Tribunal is invested with jurisdic-tion to set aside an election are taken to be the words "the resultof the election has been materially affected". I do not considerthat it is possible to contend that it is beyond the power of thereturned candidate to establish this fact which he might do inany manner he likes. He might do this by establishing thatthough a few votes were wrongly counted as in his favour. Stilla larger number of his own votes were counted in favour of thepetitioner of the votes which ought to have been counted as castfor him, have been improperly counted as cast in favour ofdefeated candidates other than the petitioner. Without such ascrutiny it would manifestly not be possible to determine whetherthe election of the returned candidate has been materiallyaffected or not. Nor do I see anything in the language of cl. (iii)which precludes the returned candidate from establishing this.This clause employs the words "improper reception, refusal orrejection of any vote", to confine oneself to its first part. Nodoubt, when a petitioner complains of a rejection, he obviouslymeans an improper rejection of votes in his own favour and whenhe speaks of an improper reception he also obviously improperreception of votes in favour of the returned candidate. But fromthis it does not follow that there might not be an improper recep-tion of votes in favour of the election petitioner or of anothercandidate or of an improper rejection of votes of the returnedcandidate. As the clause does not speak of the person in whosefavour or as against whom the improper reception or rejectionijas taken place, its content and significance have to be ascertainedfrom the purpose for which the provision is intended viz., to

E.L.R.] JABAR SINGH V. GENDA LAL 349

determine from a counting of the voting papers after a scrutinywhether the election of the returned candidate has been materiallyaffected. For instance, let me take a case with section 100(1)(d) (i) where there has been an improper acceptance of anynomination. The question arises as to whether the election of thereturned candidate has been materially affected by that impro-per acceptance. Obviously, a nomination which is alleged tohave been improperly accepted and which is the subject of thecharge under s. 101 (1) (d) (i) is not the acceptance of the nomi-nation either of the election petitioner where he has been one of thecandidates or of the returned candidate but only of one of theother defeated candidates. If after inquiry the nomination isfound to have been improperly accepted and the Tribunalproceeds to inquire as to its effect on the election, I take it, itwould necessarily have to consider the votes received by that can-didate. If this is not to be done it would either mean that inevery case of an improper acceptance of a nomination the electionis to be declared void or that in no case can such a declarationbe made. Now, if the votes cast in favour of that candidatewhose nomination was improperly accepted have to be countednecessarily there has to be a scrutiny and the Tribunal wouldhave to inquire and ascertain the number of valid votes cast forthat candidate in order to determine whether the improperreception of votes in favour of that candidate has materiallyaffected the result of the election, i.e., has resulted in the electionof the returned candidate. In that context the scrutiny of theimproper reception of the votes in favour of such candidate wouldobviously have to take place and that could be done only by virtueof the provision in s. 100 (1) (d) (iii). This would at least showthat the expression of "any vote" in the clause has to be read asmeaning 'any vote cast in the election with which the petitionis concerned' and not 'any vote cast in favour of the returnedcandidate', to take the illustration merely of the improper recep-tion of a vote.

The construction which I have placed on s. 100 (1) (d) (iii)would harmonise the provision contained in the opening wordsof s. 100(1) (d) and s. 101 (a). I cannot reasonably conceiveof the law providing (unless of course the language employedleaves me no alternative) for the setting aside of an election of thereturned candidate because the Tribunal finds that he did notreceive the highest number of valid votes cast at the election ;but that after this stage is over and the Tribunal proceeds toconsider whether the claim to the seat is made out or not itsreaching the finding that such a petitioner is not entitled to thatrelief because on further scrutiny, the returned candidate had,

350 JABAR SINGH V. GENDA LAL [VOL. XXV

in fact, secured the highest number of votes Mr. Garg, no doubt,contemplated this anomaly with equanimity suggesting that itwas not any anomaly at all but a situation arising merely fromthe application of different tests or being the result of inquiriesdirected to different ends at different stages of the petition. Itis this that I am unable to reconcile myself to. The languageused in s. 101 (a) is, no doubt, "in fact received the majority ofthe valid votes". I do not however, consider that the use of thewords 'in fact' involves scrutiny of a type different from that whichthe tribunal conducts for ascertaining whether by reason of theimproper reception or rejection of votes the election of a returnedcandidate has been materially affected so as to justify its beingset aside. The enquiries are identical. If every vote which hasbeen improperly received is eliminated and every vote whichhas been improperly refused or rejected is added you get thetotally of the valid votes cast in favour of a candidate. That isprecisely the inquiry which is prescribed to be conducted unders. 100 (l)(d), read with cl. (iii). The words 'in fact' usedin s. 101 (a) to my mind do not add any new element as regardseither the scrutiny or the counting. If so, on the constructionwhich I have endeavoured to explain, when once it is ascertainedthat the returned candidate has obtained a majority of validvotes there is no question of his election having to be set aside.But it might be shown that he had not obtained the majority ofvalid votes. In other words, by the scrutiny that has takenplace in order to test the validity of his election the Tribunalmight have arrived at a conclusion that he had not received themajority of valid votes. Immediately that stage is reached andthat conclusion is arrived at the Tribunal proceeds to declarethe election void. If there is no claim to a seat there is nothingmore to be done, with the result that it stops with declaring theelection void in which event there would be a re-election. If,however, the seat is claimed by a defeated candidate or on hisbehalf there has to be a further inquiry which the Tribunal iscalled upon to conduct. For the purpose of declaring theelection void the Tribunal would have arrived at the figures ofthe valid votes cast in favour of the several candidates. It mightbe that the petitioner who made the claim to the seat or the personon whose behalf that is made might not have obtained the highestnumber of valid votes in which case, of course, a claim to theseat would be rejected. It is this situation which is indicated bys. 101 (a). It provides that there cannot be a declaration infavour of the claimant to a seat merely because the election of thereturned candidate has been declared void but he must in additionhave secured the majority of the lawful votes cast. A questionmight arise as to how this total is to be ascertained. It is obvious

E.L.R.] JABAR SINGH V. GENDA LAL 351

that for this purpose the Tribunal ought to scrutinise not merelythe ballot papers of the claimant and the returned candidate butalso of the other candidates. Thus, for instance, taking the caseonly of the petitioner who is a claimant, among the votes countedin his favour might be some which were really votes cast in favour ofa defeated candidate and similarly votes properly cast for himmight have been improperly counted as the votes of the otherdefeated candidates. Undoubtedly the irregularities wouldhave to be pleaded, but I am now concerned with whether evenif pleaded, the Tribunal would on a proper interpretation of ss. 100and 101 have jurisdiction to entertain the pleas and embarkon such a scrutiny. Proceeding then on the footing that thenecessary averments have been made in the pleadings filed therewould have to be a scrutiny of the ballot papers before it can beascertained whether or not the person who or on whose behalfthe seat is claimed has obtained a majority of valid votes in orderto sustain the claim to the seat. After this stage is passed and theTribunal has reached the conclusion that the claimant has, infact, received the majority of valid votes that the Tribunal em-barks on the further inquiry as to whether there are any reasonswhy he should not be declared elected. And it is at this stagethat the provisions of s. 97 in regard to recrimination come intoplay. If no recrimination is filed then on the terms of s. 101 (a)the claimant would be immediately declared elected but if thereis a recrimination then s. 101 (b) is attracted and the Tribunalwould have to inquire whether if the claimant were a returnedcandidate there are circumstances in which this election could bedeclared void. This would indicate that the recrimination isconcerned with a stage which emerges after the scrutiny is com-pleted and assumes that the scrutiny has resulted in the claimantbeing found to have obtained the majority of valid votes. Thisconstruction would harmonise the previsions of ss. 97, 100 (1) (d)and 101 and would lead to a rational result.

This brings me to a submission based upon Rule 57(1)to which reference was made by Mr. Garg. He referred us to thewords of that Rule reading.

"Every ballot paper which is not rejected under Rule 56shall be counted as one valid vote."

as throwing some light on the construction of s. 100(1) (d)(iii)and as favouring the interpretation which he invited us to putupon the provision. I consider that the rule has no bearing atall upon the point now in controversy. Rule 57 occurs inPart V of the Rules beginning with Rule 50 which is headed,Counting of votes in Parliamentary and Assembly Constituencies',

352 JABAR SINOH V. OEKDA LAL [VOL. XXV

Rule 55 prescribes the scrutiny at the time of the opening of theballot boxes and Rule 56 with the scrutiny and rejection of ballotpapers. This last Rule lays down which shall be deemed to bea valid vote on a ballot paper and which is not and directs theReturning Officer to follow these directions and made the counting.And it is in that contest that we have Rule 57 and the provision insub-rule (1). It obviously means only that so far as ReturningOfficer is concerned and for the purpose of enabling him todeclare the result the ballot papers which are not rejected are tobe deemed as valid. It is manifest that if that validity held goodeven at the stage of the election petition and for the conduct ofthe inquiry before the Tribunal that could really be no scrutinyof the ballot papers and s. 100 (1) (d) (iii) would become mean-ingless. The meaning of Rule 57(1) is only this that ballotpapers not rejected shall be deemed to be valid so far as theReturning Officer is concerned and even as regards himself it issubject to the provision in Rule 63 under which a recount maybe demanded and granted. His decision has of course, primafacie validity at the stage of the inquiry by the Election Tribunalbecause the impropriety of his acceptance or refusal has to bepleaded and proved by the party objecting to this scrutiny and it isonly if the Tribunal finds the impropriety established, that thevote would be differently treated or counted. It appears to me tobe clear therefore that Rule 57 does not bear upon the construc-tion ofs. 100(1) (d) (iii) or ofs. 101 (a) for which purpose reliancewas placed upon it.

The next question that arises is the result of the constructionwhich I have endeavoured to explain of the relevant provisionsof the Act and now I shall set out a few further findings of theElection Tribunal which bear upon the point next to be considered.The Election Tribunal found after a scrutiny of the voting papersto which objection has been made by the petitioner—Genda Lai—and on a recount that it resulted in Genda Lai having obtained5664 votes as gainst 5652 obtained by the returned candidate—Jabar Singh which meant that the election of Jabar Singh shouldbe declared void. The Tribunal then proceeded to investigatethe allegation made by Jabar Singh as regards the improper re-ception of votes in favour of Genda Lai and the improper rejectionof votes in his own favour and after considering the ballot papersof the several polling stations, it arrived at the result that GendaLai had been improperly credited with 10 votes and that JabarSingh had been improperly denied the benefit of 12 votes cast inhis favour. If this position could be sustained the result would bethat Genda Lai had obtained 5654 votes as against 5664 votespolled by Jabar Singh could not be declared void, for "the result

E.L.R.] JABAR SINGH V. GENDA LAL 353

of the election had not been materially affected." It was this thatwas strenuously urged before us by Mr. Kapoor—learned Counselfor the appellant Jabar Singh. Both the Tribunal as well as theHigh Court on appeal therefrom have held that because JabarSingh had not recriminated this deduction of 10 votes in favourof Jabar Singh could not be made and consequently deniedto the appellant the benefit of this finding. In view of that Ihave stated earlier as to the proper construction of ss. 100(1) (d)(iii) and 101 (a) the absence of recrimination could not lead to thisresult and if this finding could be sustained I would have allowedthe appeal. But this finding of the Tribunal has proceeded partlywithout any pleading to support it. When an objection is takento the improper reception or refusal of a vote the facts uponwhich such impropriety has occurred have to be set out and theother party has to be given an opportunity to meet the case.Though there might be no express requirement of the Act or anyrule made thereunder, I consider that it is implicit in the pleadingsrequired to be filed under ss. 81 to 83 of the Act, read with theframe of s. 100 that a party who alleges an impropriety or errorin the scrutiny by the returning officer, and needless to add thiswould apply to every allegation of imprepriety or illegality bywhomsoever committed, must specify with particularity thegrounds of attack on the section of the Returning Officer in regardto the scrutiny of the ballot paper or the counting. In the pre-sent case it is admitted that though in his written statement, theappellant Jabar Singh challenged the propriety of the receptionof certain votes in favour of Genda Lai and the improper rejectionof some of his own votes, he did not specify all of these in regardto which impropriety has been found by the Tribunal. The Tribu-nal has, as I have already stated, found that 10 ballot paperswhose numbers have been specified ought not to have been countedin favour of Genda Lai. But of those, it is now admitted, thatin regard to 6 of them no plea had been made in the written state-ment, with the result that only 4 votes could be taken into accountas having been wrongly counted, bearing in mind the pleadingin the case. Similarly, as regards the rejection of Jabar Singh'svotes the Tribunal, as stated earlier, has found that 12 votesought to have been counted in his favour. Of these, however, thewritten statement contained allegations only as regards 6 and notas regards the rest. This would mean that the Tribunal hadno jurisdiction to find that more than 6 votes had been improperlyrejected in his case. If the votes regarding which no plea ofimpropriety had been raised by Jabar Singh were eliminated,it would follow that as a result of the final scrutiny Genda Laihad obtained properly 5660 valid votes as against, 5658 polledby Jabar Singh. The result of the election, therefore, was

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3 5 4 VIDYA GHARAN SHUKLA V. KHUBCHAND BAGHEL [VOL. XXV

materially affected by the improper reception or refusal of votesand therefore I consider that the election of Jabar Singh wasproperly set aside and that is why I concur in the order that theappeal should be dismissed.

Appeal Dismissed.

IN THE SUPREME COURT OF INDIA

VIDYA CHARAN SHUKLA

v.KHUB CHAND BAGHEL AND ORS.

(B. P. SINHA, C. J., K. SUBBA RAO, RAGHUBAR DAYAL, N.RAJAGOPAL AYYANGER AND J. R. MUDHOLKAR, JJ.)

December 20, 1963Representation of the People Act 1951 .r.ll 6-A—Whether the period of 30 days

prescribed by s.\ 16-A(3) for filing appeal to be computed after excluding time requiredfor obtaining copy of order appealed against.— Whether appeal under .f. 116-A is anappeal "under the Code of Civil Procedure" within Art. 156, Limitation Act, 1908—Whether s.\2 of Limitation Act applies—s. 29(2), Limitation Act,-—scope of.

Limitation Act, 1908 ss.\2(2), 29(2), Art. 156—Scope of—Applicabilityto appeals under S.116-A of Act 43 of 1951.

The first respondent filed an election petition challenging the appellant'selection to the Lok Sabha alleging that various corrupt practices had beencommitted. The Election Tribunal dismissed the petition by its order datedJanuary 5, 1963. Thereafter, on February 13, 1963, the first respondentpreferred an appeal to the High Court under s. 116-A of the Representationof the People Act 43 of 1951. The appellant contended before the HighCourt that as the appeal was admittedly filed more than 30 days after thedate of the Tribunal's order, it was time-barred under s.H6-A(3) and therespondent was not entitled to exclude the time taken by him in obtaininga copy of the order of the Tribunal. The High Court rejected this plea,found that the appellant had committed two corrupt practices under s. 123(4),and set aside his election.

In the appeal to the Supreme Court, the only question for considera-tion was whether, for the purposes of computing the period of 30 days pre-scribed under s.H6-A(3), the proviiions of s. 12 of the Limitation Act couldbe invoked.

HELD : S.12 of the Limitation Act, 1908 applies in respect of anappeal under s. 116-A of the Representation of the People Act, 1951 andtherefore the time taken for obtaining a copy of the order appealed frommust be excluded in computing the period of limitation.

E.L.R.] VIDYA CMARAN SHUKLA V. KHUBCHAND BAGHEL 355

(Per Sinha, C. J., Subba Rao and Ayyangar, JJ.) : The expression"appeal under the Code of Civil Procedure in Art. 156 of the LimitationAct means an appeal governed by the provisions of the Code of Civil Proce-dure. To attract Art. 156 if the Limitation Act, it is not necessary that theright to prefer the appeal should be conferred by the Code of Civil Proce-dure. It is sufficient if the procedure for the filing of the appeal and thepower of the Court for dealing with the appeal are governed by the Code.Though the right of appeal is conferred by S.116-A of the Representationof the People Act, 1951, the appeal is still an appeal "under the Code ofCivil Procedure" within the meaning of Art, 156. The special lawnamely, Act 43 of 1951 prescribes a period of limitation different from theperiod prescribed therefor by the First Schedule to the Limitation Act withinthe meaning of s.29(2) of that Act ; and s.12 of the Limitation Act is attractedso as to exclude the time taken for obtaining a copy ©f the order appealedfrom.

Ago Mahomed Hamadani v. Cohen (1886) I.L.R. 13 Cal. 221; RamaswamiPillai v. The Deputy Collector of Madura, (1919) I.L.R. 43 Mad. 51; Dropadiv. Hira Lai (1912) I.L.R. 34 All. 496; Canara Bank Ltd. v. Warden InsuranceCo. Ltd., I. L. R. (1952) Bom 1083; Bcharilal Chaurasiya v. Regional TransportAuthority, A.I.R. 1961 M.P. 75, 77; Kaushalya Rani v. Gopal Singh, 1964(4)S.C.R. 982; State of U.P. v. Smt. Kaushalya, 1964(4) S.C.R. 1002; relied on.

(Per Mudholkar and Raghubar Dayal, JJ., dissenting): There is nowarrant for holding that an appeal which was not given by the Code of CivilProcedure would still be one under the Code merely because the proceduralprovisions thereof would govern its course. Where the right of appeal isgiven by some other law, the appeal must be regarded as one under that lawand not under the Code. There was no valid reason for considering thewords 'under the Code of Civil Procedure' as meaning 'governed in thematter of procedure by the Code of Civil Procedure'.

(Per Majority : Subba Rao and Mudholkar, JJ., Contra) : Both partsof sub-section (2) of s. 29 of the Limitation Act have to be read as one wholeand the words following the conjunction 'and' "for the purpose of determin-ing any period of limitation" etc. attract the conditions laid down by theopening words of the sub-section.

Kandaswami Pillai v. Kannappa Chetty, A.I.R. 1952 Mad. 186 ; Mst. AbidaKhatoon v. Chote Khan, A.I.R. 1956 All. 252; Sehat AH Khan v. Abdul Qavi Khan,I.L.R. (1956) 2 All. 252; Chandra Kumar Sen v. Mathuria Debiya, (1925) I.L.R.52 Cal. \QQ9;J\rasaruddinKhan v. Emperor, (1926) I.L.R. 53 Cal. 827; BholanathBalbhadra v. Accheram Puran, A.I.R. 1937 Nag. 91 ; Bengal Immunity Co. Ltd.v. State of Bihar, 1955(2) S.C.R. 603; referred to .

Appeal from the judgment and order dated April 23, 1963of the Madhya Pradesh High Court in First Appeal No. 23of 1963.

G. S. Pathak, B. A. Musodkar, S. N. Andley and RameshwarNath, for the appellant.

M. S. Gupta, for respondent No. 1.

356 VIDYA CHARAN SHUKLA V. KHUBCHAND BAGHEL [VOL. XXV

JUDGMENTSUBBA RAO, J.—This appeal by special leave raises the

question of the true construction of the provisions of section29 (2) of the Indian Limitation Act, 1908 (9 of 1908), in thecontext of its application to section 116-A of the Representationof the People Act, 1951 (43 of 1951), hereinafter called theAct.

The facts relevant to the question raised lie in a smallcompass and they are not disputed. The appellant was electedto the House of the People from the Mahasamund ParliamentaryConstituency in the State of Madhya Pradesh in the thirdgeneral Elections. The respondents were the other contest-ing candidates. Respondent 1 filed an election petition be-fore the Election Commissioner of India under sections 80and 81 of the Act for setting aside the election of the appellantand it was duly referred to the Election Tribunal. The Elec-tion Tribunal, by its order dated January 5, 1963, dismissedthe election petition. On February 11, 1963, the first respon-dent preferred an appeal against the said order of the ElectionTribunal to the High Court of Madhya Pradesh at Jabalpur.Under sub-section (3) of section 116-A of the Act every appealunder Chapter IVA of the Act shall be preferred within a periodof thirty days from the date of the order of the Tribunal undersection 98 or section 99 thereof. Admittedly, the appeal wasfiled more than thirty days from the said order. If the timerequisite for obtaining a copy of the order of the Tribunal wasexcluded, the appeal was filed within thirty days, but, if in lawit could not be excluded, the appeal would certainly be out oftime. The appellant contended before the High Court thatrespondent 1 was not entitled in law to exclude the time sotaken by him in obtaining a copy of the order of the Tribunalbut that plea was rejected by the High Court. On merits,the High Court held that the appellant had committed twoacts of corrupt practice as defined by section 123 (4) of theAct and on that finding it declared the election of the appellantvoid. It is not necessary to go into the details of the judg-ment of the High Court given on the merits of the case, asnothing turns upon them in this appeal, for the learned counselconfined his argument only to the question of limitation. Thepresent appeal has been preferred by the appellant against thesaid order of the High Court setting aside his election.

The only question, therefore, is whether for the purposeof computing the period of 30 days prescribed under section116-A(3) of the Act, the provisions of section 12 of the Limita-tion can be invoked.

E.L.R.] VIDYA CHARAN THUKLA V. KHUBCHAND BAGHEL 357

Mr. Pathak, learned counsel for the appellant, in an elaborateargument placed before us the different aspects of the questionraised, and I shall deal with his argument in the appropriatecontext in the course of my judgment. It would be convenientat the outset to read the relevant provisions of the Act andthose of the Limitation Act.

The Representation of the People Act, 1951Section 98.—At the conclusion of the trial of an election

petition, the Tribunal shall make an order*—(a) dismissing the election petition ; or(b) declaring the election of all or any of the returned

candidates to be void ; or* $ * * *

Section 116-A.—(1) An appeal shall lie from every ordermade by a Tribunal under section 98 or section 99 to the HighCourt of the State in which the Tribunal is situated.

(2) The High Court shall, subject to the provisions of thisAct, have the same powers, jurisdiction and authority, andfollow the same procedure, with respect to an appeal underthis Chapter as if the appeal were an appeal from an originaldecree passed by a civil court situated within the local limitsof its civil appellate jurisdiction.

^ % ^ $ $(3) Every appeal under this Chapter shall be preferred

within a period of thirty days from the date of the order of theTribunal under section 96 or section 99 :

Provided that the High Court may entertain an appealafter the expiry of the said period of thirty days if it is satisfiedthat the appellant had sufficient cause for not preferring theappeal within such period.

The Indian Limitation Act, 1908Section 29(2).—Where any special or local law pres-

cribes for any suit, appeal or application a period of limitationdifferent from the period prescribed therefor by the first Schedulethe provisions of section 3 shall apply, as if such period wereprescribed therefor in that Schedule, and for the purpose ofdetermining any period of limitation prescribed for any suit,appeal or application by any special or local law—

(a) the provisions contained in section 4, sections 9 to18, and section 22 shall apply only in so far as, and

*Decision of the Tribunal.

358 VIDHYA CHARAN SHUKLA V. KHOBCHAND BAGHEL [VOL. XXV

to the extent to which, they are not expressly ex-cluded by such special or local law; and

(b) the remaining provisions of this Act shall not apply.

Section 12.—(2) In computing the period of limi-tation prescribed for an appeal, an application for leave to appealand an application for a review of judgment, the day on whichthe judgment complained of was pronounced, and the time re-quisite for obtaining a copy of the decree, sentence or orderappealed from or sought to be reviewed, shall be excluded.

(3) Where a decree is appealed from or sought to be re-viewed, the time requisite for obtaining a copy of the judg-ment on which it is founded shall also be excluded.

Section 116-A of the Act confers a right of appeal againstan order of the Tribunal under section 98 or section 99 thereof;sub-section (3) thereof prescribes a period of limitation of30 days for preferring such an appeal. Section 29 of the Limita-tion Act attracts, by fiction, the provisions of section 3 thereofto an appeal described in section 29 of the said Act, with theresult, the provisions of sub-sections (2) and (3) of section 12of the Limitation Act are attracted thereto ; and if those sub-sections were attracted in computing the period of limitationprescribed for an appeal the time requisite for obtaining a copyof the decree or order or judgment on which it is founded shallbe excluded. Learned counsel for the appellant, thereforecontends that section 29 of the Limitation Act does not applyto an appeal under section 116-A of the Act. The first argu-ment of" learned counsel is that for invoking sub-section (2)of section 29 of the Limitation Act, the necessary condition isthat the First Schedule thereto shall prescribe a period of limi-tation for an appeal and that a special law shall prescribe forthe same type of appeal a different period of limitation andthat, as in the present case the First Schedule has not prescribedany period of limitation to an appeal under section 116-A ofthe Act against an order of the Tribunal, sub-section (2) ofsection 29 of the Act is not attracted. This argument is metby learned counsel for the respondents in two ways, namely,—(i) that the First Schedule to the Limitation Act has pres-cribed a period of limitation for such an appeal, and (ii) thatsub-section (2) will apply even to a case where the First Scheduleto the Limitation Act has not prescribed by any period oflimitation for an appeal, but a special law prescribed a periodof limitation for such an appeal. I shall proceed to considerthe two limbs of the argument separately.

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL 359

Has the First Schedule to the Limitation Act prescribed aperiod of limitation for an appeal against an order of an ElectionTribunal under section 98 or section 99 of the Act ? Article156 of the First Schedule to the Limitation Act says that to anappeal under the Code of Civil Procedure, 1908 to a HighCourt, except in the cases provided for by Article 151 andArticle 153, the period of limitation is 90 days from the dateof the decree or order appealed from; and article 151 referredto in article 156 provides for an appeal against a decree or orderof any of the High Court of Judicature at Fort William, Madras,and Bombay, or of the High Court of Punjab in the exerciseof its original jurisdiction. What does the expression "underthe Code of Civil Procedure" in article 156 of the First Scheduleto the Limitation Act connote? Does it mean that a right ofappeal shall be conferred under the Code of Civil Procedure,or does it mean that the procedure prescribed by the said Codeshall apply to such as appeal ? A comparison of the termsof article 156 and article 151 indicates that the emphasis is moreupon the procedure applicable to an appeal than on the right ofappeal conferred under an Act. The heading of the firstcolumn in the First Schedule to the Limitation Act is "Des-cription of Appeal". The phraseology used in article 156describes the nature of the appeal in respect of which a particularperiod of limitation is prescribed. It does not refer to a rightconferred under the Code of Civil Procedure, but only des-cribes the appeal with reference to the procedure applicablethereto. Though the word "under" may support the contraryview, the reference to article 151 therein detracts from it. Aricle151 is an exception to article 156, indicating thereby that,but for the exception, article 156 will apply to an appeal coveredby article 151; that is to say, an appeal under article 151 isdeemed to be an appeal under the Code of Civil Procedure.Though a right of appeal is conferred under the Letters Patent,it is deemed to be an appeal under the Code of Civil Procedure,because the Code of Civil Procedure governs the said appeal.As Rajamannar, C.J. observed in Kandaswami Filial v. KannappaChetty (1)—

"It is well established that the Limitation Act andthe Code are to be read together, because both are statutesrelating to procedure and they are in pari materia andtherefore, to be taken and construed together as one systemas explanatory of each other."

So construed it may reasonably be held that article 156provides for an appeal governed by the procedure prescribed by

(1) A.I.R. 1952, Mad. 186.

360 VIDHYA CHARAN SHUKLA V. KHUBGHAND BAGHEL [VOL. XXV

the Code of Civil Procedure. This view was accepted by theCalcutta High Court as early as 1886in Aga Mahomed Hamadaniv.Cohen (2). There, under section 49 of the Burma Courts Act(XVII of 1875), where the amount or value of a suit or pro-ceeding in the Recorder's Court exceeded Rs. 3,000 and wasless than Rs. 10,000 an appeal lay to the High Court. Undersection 97 of the said Act, "save as otherwise provided by thisAct, the Code of Civil Procedure shall be, and shall, on andfrom the 15th day of April 1872, be deemed to have been inforce throughout British Burma". Section 540 of the CivilProcedure Code of 1882, which was in force at that time,read :

"Unless when otherwise expressly provided by thisCode or by any other law for the time being in force, anappeal shall lie from the decrees or from any part of thedecrees of the Courts exercising original jurisdiction tothe Courts authorised to hear appeals from the decisionof those Courts."

The effect of this provisions of the Code on the Burma CourtsAct was that where an appeal was not expressly excluded byany special Act, an appeal lay to whatever court which underthe enactment in force was the appropriate Court. But thissection was overborne by the Burma Courts Act to the extentit conferred a right of appeal from the Recorders Court to theHigh Court subject to certain conditions, for section 49 ofthe Burma Courts Act had taken away the right of appeal ofvalue under a prescribed amount and conferred such a right,when the subject-matter of the appeal was between two pres-scribed amounts, from the decree of the Recorder's Court tothe High Court. It is, therefore, not correct to say, as con-tended by the learned counse,! that a right of appeal was con-ferred under section 540 of the Code of Civil Procedure, 1882.After the passing of the Burma Courts Act, a right of appealwas conferred under section 49 of that Act and not under section540 of the Code. It was contended before the Calcutta HighCourt, as it is now contented before us, that article 156 of ScheduleII of the Limitation Act did not apply to an appeal under theBurma Courts Act, on the ground that the said appeal wasnot an appeal under the Code of Civil Procedure. The learnedJudges observed thus, at p. 224 :

"Now what is meant by an appeal under the Civil Pro-cedure Code ? A particular appeal was given by theBurma Courts Act and the Burma Courts Act is still the

(2) (1886) I.L.R., 13 Cal. 221.

»JL.R.] VIDHYACHARAN 8HUKLA V. KHUBOHAND BAOHEL 361

only Act which prescribes to what Court this appeal shalllie. If it had not been given by the Burma Courts Act,then section 540 of the Civil Procedure Code would havebeen sufficient to give it, provided that some Court wasby some enactment provided as the proper Court to hearthe appeal. The procedure in appeals in every respect isgoverned by the Code of Civil Procedure. The Limita-tion Act, Schedule II, Article 156, when it speaks of theCivil Procedure Code is, on the face of it, speaking of aCode which relates to procedure, and does not ordinarily dealwith substantive rights: and the natural meaning of anappeal under the Civil Procedure Code appears to us tobe an appeal governed by the Code of Civil Procedureso far as procedure is concerned."

It is manifest from this passage that the learned judges did notrepeal the contention on the ground that the right of appeal wasconferred by section 540 of the Code of Civil Procedure, butexpressly for the reason that the natural meaning of the relevantexpression in article 156 of Schedule II of the Limitation Actwas that the appeal mentioned therein was one governed bythe Code of Civil Procedure. This decision was followed bya Division Bench of the Madras High Court in Ramasami Pillai v.The Deputy Collector of Madura (3). The learned Judges,Abdul Rahim and Oldfield, JJ., held that article 156 of theLimitation Act (IX of 1908) applied to appeals filed undersection 54 of the Land Acquisition Act (I of 1894). The rightof appeal was conferred under the Land Acquisition Act, butthe procedure prescribed by the Code of Civil Procedure governedthat appeal. The same argument now raised before us wasraised, but was repelled. After citing the relevant part of thepassage from the judgment of the Calcutta High Court extractedabove, the learned Judges stated at p. 55 thus :

"It seems to us that this is the correct interpreta-tion of Article 156. There seems to be no good reasonfor saying that an appeal under the Civil Procedure Codemeans only an appeal the right to prefer which is conferredby the Code itself. On the other hand it would not bestraining the language of the article too much to hold thatan appeal, the procedure with respect to which, from itsinception to its disposal, is governed by the Civil ProcedureCode, may rightly be spoken of as an appeal under theCode."

(3) (1919) I.L.R. 43, Mad. 51.48—3 ECI/ND/67

862 VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL [VOL. XXV

Then the learned Judges referred to article 151 of the LimitationAct and concluded thus :

"That also tends to show that what is meant by thelegislature is appeals, the hearing and disposal of whichis governed by the rules of procedure laid down in theCivil Procedure Code."

Though about 77 years have passed by since the decision ofthe Calcutta High Court and though the Limitation Act wasamended a number of times, the Legislature did not think fitto express its dissent from this view by amendment or other-wise. No direct decision has been brought to our notice whichhas differed from, or even questioned the correctness of, thisdecision. In this context we may also refer to the decisionof the Allahabad High Court in Dropadi v. Hira Lal(4) whereit is pointed out the several Indian enactments, for instance theSuccession Act, the Probate and Administration Act, the LandAcquisition Act and the Provincial Insolvency Act, conferrights of appeal and direct the application of the provisionsof the Code of Civil Procedure to such appeals, but prescribedno period within which such appeals might be filed. Theidea being that article 156 of the Limitation Act would furnishthe period of limitation for the filing of such appeals. Mr.Pathak, learned counsel for the appellant, brought to our noticea number of decisions which considered the forum to which anappeal shall lie against an order under section 476 of the Codeof Criminal Procedure and the procedure to be followed therein.

In Nasaruddin Khan v. Emperor'(5) where an appeal undersection 476-B of the Code of Criminal Procedure from theCourt of the Munsif was heard in part by the District Judge,and on the next date of hearing the appellant's pleader wasnot present in Court, it was held that the District Judge wasentitled to consider that the appeal had been abandoned andto dismiss it under the provisions of order XLI of the Codeof Civil Procedure. In Mt. Abidia Khatoon v. Chote Khan(6),the Allahabad High Court held, under similar circumstancesthat an appellate Court could set aside an order dismissingan appeal for default. The Nagpur High Court, in BholanathBalbhadra Sehai v. Achharam Puran Kurmi{l), held that in suchan appeal the appellate Court could exercise its power undersO. X L I . rule 27 of the Code of Civil Procedure. In Chandra

(4) (1912) I.L.R. 34, All. 496.(5) (1926) I.L.R. 53, Cal. 827.(6) A.I.R. 1956, All. 155.(7) A.I.R. 1937, Nag. 91.

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL 363

Kumar Sen v. Mathuria Debya(8) that the Calcutta High Courtapplied to such an appeal the period of limitation prescribedunder Article 154 of the Limitation Act.

It is said that the combined effect of these decisions is thatthe procedure applicable in an appeal against an order madeby a civil court under section 476 of the Code of CriminalProcedure is that prescribed by the Code of Civil Procedurewhereas the period of limitation is that prescribed for an appealunder the Code of Criminal Procedure. But the learnedcounsel himself conceded that there is a conflict of decisionson the question whether to an appeal against the order of acivil court under s. 476-B of the Code of Criminal Procedurethe civil procedure applies or the criminal procedure appliesand therefore, the only decision which may have some bearingon the question now raised is that in Chandra Kumar Sen v. MathuriaDebya(S). There, an application was filed before the Sub-ordinate Judge for filing of a complaint against the petitionerunder section 476 of the Code of Criminal Procedure. Thatwas rejected. The complainant preferred an appeal to theDistrict Judge more than 30 days prescribed under article 154of the Limitation Act. The learned District Judge held thatno question of limitation arose, for the district Judge suo motucould lodge a complaint in the criminal court when an offencein connection with the administration of civil justice came tohis notice. On that reasoning he instituted a complaint. TheHigh Court held that the appeal was filed before the DistrictJudge under section 476-B of the Code of Criminal Procedureand that under article 154 of the Limitation Act it should havebeen filed within 30 days from the date of the order of the Sub-ordinate Court. It will be noticed that no argument wasraised in that case that the appeal was governed by the Codeof Civil Procedure and, therefore, the appropriate article ofthe Limitation Act was not article 154, but article 156 thereof,for the simple reason that whichever article applied the appealwas clearly barred by limitation. It is not, therefore, per-missible to read into the decision the entire argument nowadvanced before us. The present question was neither raisednor argued in that case. It may therefore be safely held thatfor over 75 years the decision of the Calcutta High Court onthe construction of article 156 of the Limitation Act stood theground. Though it must be conceded that the point is notfree from difficulty, we are not prepared to depart from theconstruction put upon the article as early as 1886 and whichwas not dissented from all these years. I, therefore, hold that

(8) (1925) I.L.R. 52, Gal. 1009.

3 6 4 VTOHYACHARAN SHUKLA V. KHUBCHAND BAGHEL [VOL. XXV

the expression "appeal under the Code of Civil Procedure"in article 156 of the Limitation Act means an appeal governedby the Code of Civil Procedure.

Even so, it is contended that under section 116-A(2) of theAct the High Court, though it has the same powers, jurisdictionand authority of an appellate court governed by the Code ofCivil Procedure, it is not empowered to follow the procedureprescribed under the Code in respect of receiving the appeals.This argument is contrary to the express terms of sub-section(2) of section 116-A of the Act. Under that sub-section, "TheHigh Court shall, subject to the provisions of this Act, havethe same powers, jurisdiction and authority and follow thesame procedure, with respect to an appeal under this Chapteras if the appeal were an appeal from an original decree passedby a civil court situated within the local limits of its civil appellatejurisdiction." Under the second part of sub-section (2) ofsection 116-A of the Act, a fiction is created, namely, that thougha right of appeal is conferred by section 116-A(1) of the Actthe appeal thereunder for the purpose of sub-section (2) willbe deemed to be an appeal from an original decree passed bya civil court situated within the local limits of its civil appellatejurisdiction. The first part of the sub-section described thepurposes for which the fiction is invoked, namely, the exerciseof the powers, jurisdiction and authority and the followingof the procedure with respect to such an appeal. The powers,jurisdiction and authority take in the powers, jurisdiction andauthority exercisable by an appellate tribunal in regard tovarious matters prescribed in the Code of Civil Procedure.What does the word "Procedure" mean? The procedure mustnecessarily be the procedure governing such an appeal. Itmeans inter alia the manner of receiving an appeal in the court,the preparation of records of the appeal, the posting of theappeal and the manner of its disposal. We find it impossibleto exclude from the word "procedure" the filing and receivingof an appeal in the court. If that part was excluded, howcould the appeal be received in the High Court? The answergiven is that the Government might make rules under section169(1) of the Act. When section 168 (2) confers a statutorypower on the High Court to follow the procedure prescribedby the Code of Civil Procedure, we cannot invoke the generalpower of the Central Government to make rules under section169 (1) of the Act. If so, the procedure prescribed by O. XLIof the Code of Civil Procedure, along with the other relevantprovisions of the said Code, equally applies to an appeal filedunder section 116-A (2) of the Act. The result is that under

fc.L.R.] V1DHYACHARAN SHUKLA V. KHUBCHAND BAOHEL 365

section 116-A (2) of the Act, the appeal, by fiction, is equatedwith an appeal filed under the Code of Civil Procedure in thematter of not only the exercise of the powers, jurisdiction andauthority but also in the matter of procedure to be followedfrom the date of receipt of the appeal to its final disposal. Forthe aforesaid reasons, I hold that the special lav/, namely, theAct, prescribed a period of limitation different from the periodprescribed therefor by the First Schedule to the LimitationAct within the meaning of article 29 (2) of the Limitation Act.If so, Section 12 of the Limitation Act is attracted, and the 1strespondent was entitled to exclude the time taken by him forobtaining the copy of the order.

Even assuming that article 156 of Schedule I to the Limita-tion Act did not prescribe a period of limitation for the kindof appeal under consideration, the question arises whether sub-section (2) of Section 29 of the Limitation Act would not beapplicable if no period was prescribed by the First Schedulefor an appeal created by a special law but the special law pres-cribed a period of limitation for the same. The history of thisprovision throws some light on this question. The first Limita-tion Act was passed in the year 1859 (Act XIV of 1859).Section 3 of that Act provided :—

"When, by any law now or hereafter to be in force,a shorter period of limitation than that prescribed by thisAct is specially prescribed for the institution of a particularsuit, such shorter period of limitation shall be appliednotwithstanding this Act.".

The provisions of the Act of 1859 were repealed by the Limita-tion Act IX of 1871. Section 6 of that Act, which is relevantto the present inquiry, read :—

"When, by any law not mentioned in the schedulehereto annexed, and now or hereafter to be in force in anypart of British India, a period of limitation differing fromthat prescribed by this Act is especially prescribed for anysuits, appeals or applications, nothing herein containedshall affect such law."

The limitation Act of 1871 was replaced by Act XV of 1877.Section 6 of this Act read :—

"When, by any special or local law now or hereafterin force in British India, a period of limitation is speciallyprescribed for any suit, appeal or application, nothingherein contained shall affect or alter the period so pres-cribed."

366 VtDBYACHARAN SHUKLA V. KHUBGHAND BAGHEL [VOL, XXV

The same provision was retained in the Limitation Act IXof 1908, but it was amended in the year 1922 in the present form.Before the amendment of 1922, there was a difference of viewon the following questions, namely, (1) whether the generalprovisions of the Limitation Act, where the word "prescribed"alone without reference to any Act, was used or even wherethat word was not used, would be applicable to special or locallaws, and (2) whether the general provisions of the LimitationAct did not apply at all to the periods of limitation prescribedby special or local laws. Decisions holding that the generalprovisions of the Limitation Act did not apply to periods oflimitations prescribed by other laws relied upon the expression"affect or alter" used in the section as it then stood. Section29 of the Limitation Act was amended to remove the conflictwith a view to make the general provisions applicable to theperiod of limitation prescribed by special or local laws. Acomparison of the phraseology of the earlier sections showsthat while section 3 of the Limitation Act of 1859 used thewords "shorter period", section 6 of the Act of 1871 used theexpression "differing", and Section 6 of the Acts of 1877 and1908 removed both the expressions. The result was that Section6 of the Act of 1871 saved all the special or local laws whichprescribed a special period of limitation from the operationof the provisions of the Limitation Act. As the section then stood,it applied to all special or local laws prescribing a period oflimitation whether the Limitation Act prescribed any periodof limitation or not for suits or appeals similar to those governedby special or local laws, or where the period of limitation soprescribed by special or local laws was shorter or longer thanthat prescribed in the Limitation Act. Can it be said that bythe amending Act of 1922 a conscious departure was made bythe Legislature to impose a condition for the application ofsub-section (2) of section 29, namely, that a period of limita-tion should have been expressly prescribed by the First Scheduleto the Limitation Act m respect of a suit or appeal governedby the special or local law ? There was no occasion for sucha departure. To put it in other words, apart from resolvingthe conflict, did the Legislature intend to exclude a particularcategory of proceedings governed by special or local laws fromthe operation of the benefit conferred by sub-section (2) ofsection 29. No justification was suggested for such a departureand we find none.

The problem may be approached from a different pers-pective. The scheme of the Limitation Act may be brieflystated thus : The preamble of the Act shows that it was passed

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL 367

to consolidate and amend the laws relating to the law of limita-tion in respect of the proceedings mentioned in the Act. Itapplies to the whole of India. Part II comprising sections3 to 11 deals with limitation of suits, appeals and applications.Part III comprising sections 12 to 25 provides for computationof periods of limitation ; and Part V deals with savings andrepeals. We are not concerned with Schedules II and III,for they have been repealed. The First Schedule consists ofthree divisions : the first division provides for the period oflimitation for suits ; the second division, for appeals ; and thethird division, for applications. Article 120 found in the firstdivision prescribes for a suit for which no period of limitationis prescribed elsewhere in the Schedule; Article 181 in the thirddivision prescribes for application for which no period of limita-tion is prescribed elsewhere in the Schedule or by section 48of the Code of Civil Procedure. But no such residuary Articleis found in the second division dealing with appeals. TheLimitation Act was conceived to be an exhaustive code pres-cribing for every conceivable proceeding, whether suit, appealor application, subject to the saving in Part V thereof. Itfollows that there is no period of limitation for an appeal notprovided for in the second division unless the special or locallaw prescribes for it. If so, it may reasonably be said that, asthe First Schedule of the Limitation Act prescribes no limita-tion for an appeal not covered by Articles 150 to 157 thereof,under the Limitation Act such a suit or appeal can be filedirrespective of any time limit.

With this background let us revert to the construction ofsection 29 (2) of the Limitation Act, when the First Scheduleof the Limitation Act prescribes no time limit for a particularappeal, but the special law prescribes a time limit to it, can itnot be said that under the First Schedule of the LimitationAct an appeal can be filed at any time, but the special lawby limiting it provides for a different period. While the formerpermits the filing of an appeal at any time, the latter limitsit to the prescribed period. It is, therefore, different fromthat prescribed in the former. This problem was consideredby a Division Bench of the Bombay High Court, consisting ofChagla, C. J. and Gajendragadkar, J., in Canara Bank Limited,Bombay v. The Warden Insurance Company, Ltd., Bombay (9). Therein,Chagla, C. J. speaking for the Court, observed at p. 1086,thus :—

"The period of limitation may be different under twodifferent circumstances. It may be different if it modifies

(9) I.L.R. 1952, Bom. 1083.

S68 VTOHYACHARAN SHUKLA S. KHUBCHAND BAOHEL [VOL. XXV

or alters a period of limitation fixed by the first Scheduleto the Limitation Act. It may also be different in thesense that it departs from the period of limitation fixed forvarious appeals under the Limitation Act. If the firstSchedule to the Limitation Act omits laying down anyperiod of limitation for a particular appeal and the speciallaw provides a period of limitation, then to that extentthe special law is different from the Limitation Act. Weare conscious of the fact that the language used by theLegislature is perhaps not very happy, but we must putupon it a construction which will reconcile the variousdifficulties caused by the other sections of the LimitationAct and which will give effect to the object which obviouslythe legislature had in mind, because if we were to giveto section 29(2) the meaning which Mr. Adarkar contendsfor, then the result would be that even section 3 of theLimitation Act would not apply to this special law. Theresult would be although an appeal may be barred by limita-tion, it would not be liable to be dismissed under section3".

A full Bench of the Allahabad High Court, in Sehat AH Khan v.Abdul Qavi Kkan(lO) also dealt with this question. Thelearned Judges expressed conflicting views. Mootham, C. J .assumed that the first limb of the sub-section did not apply toa case where the schedule omitted to provide for a period oflimitation. On that assumption he proceeded to considerthe second limb of the sub-section. Dayal, J. took the viewthat for the application of the first part of section 29(2) theperiod of limitation should have been prescribed by the firstschedule. Agarwala, J. agreed with the view of the BombayHigh Court. Bhargava J. agreed with the view expressed byMootham, C. J . and Upadhya, J. did not agree with the viewof the Bombay High Court. A division Bench of the MadhyaPradesh High Court in Beharilal Chaurasiya v. Regional TransportAuthority{\\) agreed with the view expressed by the DivisionBench of the Bombay High Court. Dixit, C. J. speaking forthe Court, stated thus :—

"A special law may provide a period of limitationand schedule 1 may omit to do so. Nonetheless the speciallaw would be different from the Limitation Act. Section29(2) of the Limitation Act is not very happily worded.It must be construed so as to avoid absurdity. The

(10) I.L.R. (1956) 2 All. 252.(11) A.I.R. 1961, M.P. 75,77.

E.L.R.] V1DHYACHARAN SHUKLA V. KHUBCHAND BAOHEL 369

expression 'a period of limitation different from the periodprescribed therefor by the first schedule' occurring insection 29(2) cannot be construed as meaning that schedule 1must also positively prescribe the period of limitation. Such aconstruction would not be in accordance with the intensionof the Legislature and would lead to an absurdity".

The learned Chief Justice proceeded to consider the anomalousposition that would arise if a literal construction was givento the provisions of the first part of the section. This court,in Kaushaliya Rani v. Gopal Singh, (12) had to consider thisquestion incidentally in the context of the application of section29(2) of the Limitation Act to an application for special leaveto appeal against an order of acquittal, under sub-section (3)of section 417 of the Code of Criminal Procedure. This Courtheld that section 5 of the Limitation Act would not apply toan application for special leave to appeal under sub-section (3)of section 417 of the Code of Criminal Procedure. TheLimitation Act does not provide any period of limitation foran application for special leave to appeal from an order ofacquittal under the said section. If that be so, on the argumentof learned counsel for the appellant, section 29 of the Limita-tion Act could not be invoked. But this Court held that section29(2) of the Limitation Act applied, but that section excludedthe application of section 5 to the said application. Sinha,C. J., speaking for the Court, observed :

"Hence it may be said that there is no limitationprescribed by the Limitation Act for an appeal againstan order of acquittal at the instance of a private prosecutor.Thus, there is a difference between the Limitation Act andthe rule laid down in section 417(4) of the Code in respectof limitation affecting such an application. Section 29(2)is supplemental in its character in so far as it providesfor the application of section 3 to such cases as would notcome within its purview but for this provision".

This observation clearly supports the position that section 29(2)would apply even to a case where a difference between thespecial law and the Limitation Act arose by the omission toprovide for a limitation to a particular proceeding under theLimitation Act.

I, therefore, hold that in the instant case the Act providesa period of limitation different from that prescribed thereforby the First Schedule to the Limitation Act and, therefore, itis governed by section 29(2) of the said Act.

(i2) 1964 (4) S.G.R. 982.49—3ECIND/67

370 VIDHYACHARAN SHUKLA V. KHUBCHAND BACHEL [VOL. XXV

Even if my view on the construction of the first limb ofSection 29 of the Limitation Act were wrong it would not helpthe appellant, for his case squarely falls within the scope of thesecond limb of the section. For convenience I restate therelevant part of the section :

" and for the purpose of determining anyperiod of limitation prescribed for any suit, appeal orapplication by any special or local law".

Learned counsel for the appellant relied upon the conjunction"and" in support of his contention that the use of that conjunc-tion makes the following sentence a limitation on the first partof the section. He further argues that if it is not a limitation,but an independent clause, it will lead to the anomaly sections4 to 25 of the Limitation Act applicable to proceedings fallingunder the first part and only some of the provisions thereof,namely, sections 4, 9 to 18 and 22 applying to the second part,of the section. Apart from the grammatical construction,which I will consider presently, I do not see any anomaly insections 4 to 25 of the Limitation Act applying to the first partof the section and only some of them applying to the secondpart thereof. Those proceedings to which the first part applies,by fiction the period prescribed in the special or local law istreated as prescribed in the First Schedule itself. There cannotpossibly be any reason why section 3 of the Limitation Actin toto shall not apply to them. But the same cannot be said inthe case of the proceedings of a different type not providedfor in the First Schedule. So, the Legislature specified thesections applicable to them and excluded the general sectionswhich relate to legal disabilities, acknowledgements, part-payments and others specified therein. The Legislature mayhave thought that such articles are not generally appropriateto proceedings under special or local laws for reliefs not providedfor in the First Schedule.

Now, coming to the construction of section, the relevantrule of construction in well settled. "A construction which willleave without effect any part of the language of a statute willnormally be rejected"; or to put it in a positive form, the Courtshall ordinarily give meaning to every word used in the section.Does the conjunction "and" make the following clause a limita-tion on the preceding one ? No rule of grammatical con-struction has been brought to our notice which requires aninterpretation that if sentences complete by themselves areconnected by a conjunction, the second sentence must be heldto limit the scope of the first sentence. The conjunction "and"

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBGHAND BAGHEL 371

^is used in different contexts. It may combine two sentencesdealing with the same subject without one depending uponthe other. But if the interpretation suggested by the learnedcounsel be accepted, we would not be giving any meaning atall to the word "any" used thrice in the second part of thesection, namely, "any period", "any suit" and "any specialor local law". If the second part is a limitation on the firstpart, the sentence should read, "for the purpose of determiningthe period of limitation prescribed for such suit, appeal orapplication by such special or local law". Instead of that, theuse of the word "any" clearly demonstrates that the secondpart does not depend upon the first part or vice versa. Thereis no reason why we should attribute such a grammaticaldeficiency to the legislation when every word in the secondpart of the section can be given full and satisfactory meaning.I would, therefore, hold that the second part is an independentprovision providing for the aforesaid category of proceedingsto which the first part does not apply. This is the view expressedby the majority of the judges of the Full Bench of the Allaha-bad High Court in Sehat All Khan v. Abdul Qavi Khan(]0).I agree with the same.

It was then said that section 116-A of the Act providedan exhaustive and exclusive code of limitation for the purposeof appeals against orders of tribunals and reliance is placed onthe proviso to sub-section (3) of that section, which reads :

"Every appeal under this Chapter shall be preferredwithin a period of thirty days from the date of the orderof the Tribunal under section 98 or section 99 :

Provided that the High Court may entertain an appealafter the expiry of the said period of thirty days if it issatisfied that the appellant had sufficient cause for notpreferring the appeal within such period".

The contention is that sub-section (3) of section 116-A of theAct not only provides a period of limitation for such an appeal,but also the circumstances under which the delay can be ex-cused, indicating thereby that the general provisions of theLimitation Act are excluded. There are two answers to thisargument. Firstly, section 29(2) (a) of the Limitation Actspeaks of express exclusion but there is no express exclusionin sub-section (3) of section 116-A of the Act ; secondly, theproviso from which an implied exclusion is sought to be drawndoes not lead to any such necessary implication. The proviso

(10) I.L.R. (1956), 2 All. 252.

372 VipHYACHARAN SHUKLA V. KHUBCHAND BAGHEL tVOL> XXV

has become necessary, because, if the proviso was not enacted,section 29(2) (b) of the Limitation Act would have excludedthe operation of section 5 of the Limitation Act, with the resultthat even if a sufficient cause for the delay existed, the HighCourt would have been helpless to excuse the delay. I, there-fore, hold that the proviso to sub-section (3) of section 116-Aof the Act only restores the power denied to the Court undersection 29(2) (b) of the Limitation Act.

Lastly, it is contended that section 12(2) of the Limita-tion Act, on its express terms, would not apply to an appeal tothe High Court against an order of the Election Tribunal undersection 98 of the Act. Elaborating the argument it is saidthat in order to exclude the time for obtaining a copy of theorder appealed against, the original shall be a decree or orderwithin the meaning of section 12(2) or judgment within themeaning of section 12(3) of the Limitation Act and the orderunder section 98 of the Act is neither a decree nor an orderor a judgment within the meaning of the said sub-sections osection 12 of the Limitation Act. Reference is made to thedefinitions of decree, judgement and order in sub-sections (2),(9) and (14) of section 2of the Code of Civil Procedure, respectively,and it is contended that the order under section 98 of the Actdoes not fall under any of the said three expressions as defin-ed therein. Under sub-section (9) of section 2 of the Codeof Civil Procedure, "Judgment" is defined to mean the state-ment given by the judge of the grounds of a decree or order.Sub-section (14) of section 2 of the said Code defines "order"to mean the formal expression of any decision of a civil courtwhich is not a decree. It follows from the said definitionsthat judgment is a statement of the reasons given by the judgeand order is the formal expression of his decision.

Section 104 of the said Code says, "An appeal shall liefrom the following orders, and save as otherwise expressly pro-vided in the body of this Code or by any law for the time beingin force, from no pther orders". Order XX of the Code dealswith the manner of pronouncing a judgment and decree. UnderOrder XX, rule 20, of the Code, "Certified copies of the judg-ment and decree shall be furnished to the parties on applicationto the Court, and at their expense". Under section 141 ofthe Code : "The procedure provided in this Code in regardto suits shall be followed as far as it can be made applicable,in all proceedings in any Court of civil jurisdiction". Theeffect of these provisions is that a decree is formal expressionof adjudication conclusively determining the rights of partieswith regard to all or any of the controversies in a suit, whereas

B.L.R.J VIDHYACHARAN SHUKLA V. KHUBCJfAND BAOHEL 373

order is a formal expression of any decision of civil court whichis not a decree. Judgment is a statement given by the judgeof his grounds in respect of a decree or order. Ordinarilyjudgment and order are engrossed in two separate documents.But the fact that both are engrossed in the same documentdoes not deprive the statement of reasons and the formal ex-pression of a decision of their character as judgment or order,as the case may be.

With this background let me look at the provisions of section116-A of the Act. Under sub-section (1) thereof, an appealshall lie from every order made by a Tribunal under section98 or section 99 to the High Court of the State in which theTribunal is situated. Under section 98 of the Act :

"At the conclusion of the trial of an election petitionthe tribunal shall make an order—

(a) dismissing the election petition ; or(b) declaring the election of all or any of the returned

candidates to be void : or(c) declaring the election of all or any of the returned

candidates to be void and the petitioner or anyother candidate to have been duly elected."

Part VI of the Act provides for disputes regarding elections;Chapter III thereof prescribes the procedure for the trial ofelection petitions, and section 90 therein says :

"(1) Subject to the provisions of this Act and of anyrules made thereunder, every election petition shall betried by the Tribunal, as nearly as may be, in accordancewith the procedure applicable under the Code of CivilProcedure, 1908, to the trial of suits".

There is no provision in the Act denning how the decisionshould be given. It could not have been the intention of theLegislature that the Tribunal need not give the statement ofreasons for its decision. As under section 90 of the Act theElection Tribunal is directed to try election petitions as nearlyas may be in accordance with the procedure applicable underthe Code of Civil Procedure, it is the duty of the Election Tribunalto give a statement of reasons for its decision. It is open toit to issue two documents—one embodying the reasons for thedecision and the other, the formal expression of its decision;the former will be its judgment and the latter, its order. It mayissue both in the same document in which case the judg-ment as well as the order is embodied in the same document

374 VIDHYACHARAN SHUKLA V, KHUBCHAND BAOHEL [VOL. XXV

If so, it is manifest that an order made under section 98 of theAct, if it contains also the reasons for it, is a composite documentsatisfying the definition of a judgment as well as that of anorder and thereby attracting the relevant provisions of section12 of the Limitation Act.

That apart, a different approach to the question raisedleads to the same conclusion. Section 12(2) of the Limita-tion Act does not say that the order mentioned therein shallbe only such order as defined in the Civil Procedure Code.If a statute provides for the making of an order and confersa right of appeal to an aggrieved party against that order withina prescribed time, sub-section (2) of section 12 of the LimitationAct says: that the time requisite for obtaining a copy of suchorder shall be excluded. The Act empowers the Tribunal tomake an order and gives a right of appeal against that orderto the High Court. Section 12(2) of the Limitation Act, istherefore, directly attracted without any recourse to the defini-tion of an order in the Code of Civil Procedure. In either view,section 12 of the Limitation Act applies and, therefore, the timetaken for obtaining a copy of the said order shall be excludedin computing the period of limitation.

In the result, the appeal fails and is dismissed with costs.

RAGHUBAR DAYAL, J.—I agree that the appeal bedismissed, but for different reasons :

I am of opinion that the first part of section 29 (2) of theLimitation Act applies only when a special or local law pres-cribes a period of limitation for an appeal and when for thatparticular appeal a period of limitation is prescribed in theFirst Schedule to the Limitation Act, as omission to prescribea period of limitation cannot be equated with the prescribingof any positive period of limitation within which the appealshould be filed, and that the second part of section 29(2) ofthe Act is independent of the first part and can apply to casesto which the first part does not apply. I am also of opinionthat Article 156 of the First Schedule applies to appeals whichare instituted in view of the right of appeal conferred by anyspecial or local law and not in pursuance of the provisions ofsection 96, Criminal Procedure Code. I do not elaborate myviews as I agree with what my learned brother Mudholkar,J., has said in construing the first part of section 29(2) of theLimitation Act and Article 156 of the First Schedule and agreewith my learned brother Ayyangar, J., with respect to his con-struction of the second part of section 29 (2).

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHE1, 375

The proviso to section 116 (a) of the Representation ofthe People Act gives discretion to the High Court to entertainan appeal presented after the expiry of 30 days from the dateof the order of the Tribunal in case it is satisfied that there issufficient cause for the late presentation of the memorandumof appeal. The respondent has applied in this Court for thecondonation of the delay in filing the appeal in the High Court.In the circumstances of the case, I consider it a fit opinion inthe High Courts regarding the applicability of section 12 of theLimitation Act to such appeals. The delay was of a few days.The Election Tribunal passed the order on January 5, 1963and the appeal was filed on February 11, 1963.

A party can reasonably desire to obtain a copy of the judg-ment for deciding after studying it, whether it is worthwhileappealing against it, and if so, on what grounds. I am satisfiedthat there was sufficient cause for the respondent's not presentingthe appeal within the period of limitation. I, therefore, con-done the delay and confirm the order of the High Court.

AYYANGAR, J.—We have had the advantage of perusingthe judgment of our brother Subba Rao, J., and we agree withhim that the appeal should be dismissed.

The justification for this separate judgment, however,is because of our inability to agree with him in his construc-tion of the relative scope of the two limbs of section 29 (2) ofthe Indian Limitation Act.

The facts of the case have been set out in detail in the judg-ment of Subba Rao, J., and it is, therefore, unnecessary to re-peat them. There were three principal points that were urgedbefore us on either side which require to be considered and allof them turn on the proper construction of section 29 (2) ofthe Indian Limitation Act which we shall for convenience setout here :—

"29. (2) Where any special or local law prescribes forany suit, appeal or application a period of limitation differentfrom the period prescribed therefor by the first schedule,the provisions of section 3 shall apply, as if such periodwere prescribed therefor in that schedule, and for thepurpose of determining any period of limitation prescribedfor any suit, appeal or application by any special or locallaw—

(a) the provisions contained in section 4, sections 9 to18, and section 22 shall apply only in so far as, and

3 7 6 VIDHYACHARAN SHUKI.A V. KHUBCHAND BAGHEL [VOL. XXV

to the extent to which, they are not expressly ex-cluded by such special or local law ; and

(b) the remaining provisions of this Act shall not apply."

The learned Judges of the High Court have proceededon the basis that section 29 (2) (a) applies to the case of appealspreferred under section 116-A of the Representation of thePeople Act, 1951 and on that footing have held that the appealpresented to them by the respondent was within time if com-puted after making the deductions permitted by section 12 ofthe Limitation Act. It is the correctness of this view that ischallenged before us.

Proceeding now to deal with the question whether theterms of section 29 (2) are apt to take in appeals under theRepresentation of the People Act, the first matter to be con-sidered necessarily is whether that Act is a "Special or LocalLaw" within the opening words of the sub-section. As tothis, however, Mr. Pathak raised no dispute and he concededthat section 116-A was such a "special or local law". Thatthis "special or local law" prescribed "for an appeal a periodof limitation" is also evident. The first point of controversy,however, has arisen as to whether "the period of limitationprescribed by the Special or Local Law is different from theperiod prescribed therefor by the first schedule." The con-tention urged strenuously before us by Mr. Pathak, the learnedcounsel for the appellant, was that there would be "a differentperiod" only where for the identical appeal (to refer only tothat proceeding with which we are immediately concerned)for which a period of limitation has been prescribed by theSpecial or Local Law, a period is prescribed by first columnof the first schedule, and there is a difference between the twoperiods. It was his further contention that where the IndianLimitation Act made no provision for such an appeal, section29 (2) and the provision contained in its (a) and (b) were in-applicable. There have been several decisions on this pointbut it is sufficient to refer to the decision of the Bombay HighCourt in Canara Bank Ltd., Bombay v. The Warden Insurance Co.Ltd., Bombay (13) where Chagla, C.J., repelled this constructionand held that even where there was no provision in the FirstSchedule for an appeal in a situation identical with that forwhich the Special Law provides, the test of "a prescriptionof a period of limitation different from the period prescribed bythe first schedule is satisfied. This Court in State of U. P. v. Smt.Kaushiliya, etc., (14) upheld this construction and approved

(13) I.L.R. 1952 Bomb. 1083.(14) 1964(4) S.C.R. 1002.

B.L.R.] VIDHYACHARAN SAUKLA V. KHUBCHAND BAGHEL 377

the judgment of Ghagla, C. J. in the Canara Bank case. Apartfrom the decision of this court, we consider the reasoning ofChagla, C. J., to the inexceptionable and we agreed with SubbaRao, J., in holding that the requirement of a prescription by theSpecial Law "of a period different" from that prescribed by thefirst schedule is satisfied in the present case.

The next point was one that arose on the submission ofCounsel for the respondent and it was this. Assume that theconstruction of the words "different from" urged by the appel-lant were accepted, and this requirement would be satisfiedonly if the First Schedule made provision for an identical appealas that under the Special Law, still it was submitted by therespondent that even this was satisfied in this case. For thispurpose he relied on Art. 156 of the first Schedule which runs :

Description ofappeal

(1)

156. Under the Code ofCivil Procedure, 1908,to a High Court, exceptin the cases providedfor by article 151 andarticle 153.

Period oflimitation

(2)

Ninety days

Time from whichperiod begins to

run

(3)

The date of the dec-ree or order appealedfrom.

The argument was that though the right of appeal in thecase before us was conferred by Section 116A. of the Representa-tion of the People Act and it was by virtue thereof that theappeal was filed by the respondent to the High Court, it wasstill an appeal "under the Code of Civil Procedure, 1908, toa High Court". For this submission learned Counsel reliedprincipally on two decisions—one of the Calcutta and the otherof the Madras High Court, and they undoubtedly support him.In Aga Mohammad Hamdani v. Cohen and Ors. (15) as well as inRamaswami Pillai v. Deputy Collector of Madura (16) which follow-ed it, the Court held that to attract this article it was not neces-sary in order to be an "appeal under the Code of Civil Pro-cedure" within the meaning of those words in Article 156 thatthe right to prefer the appeal should be conferred by the Codeof Civil Procedure but that it was sufficient if the procedure for

(15) I.L.R. 13 Col. 221.(16) I.L.R. 43 Mad. 51.

50—3 ECI/ND/67

378 VIDHYACHARAN SHUKLA V. KHUBGHAND BAQHEL [VOL XXV

the filing of the appeal and the powers of the Court for dealingwith the appeal were governed by that Code. For adoptingthis construction the Court relied on the reference in Article156 to Article 151. Article 151 dealt with appeal to the HighCourt from judgments rendered on the original side of thatCourt. The right to prefer these appeals was conferred bythe Letters Patent constituting the respective High Courtsand not by the Code of Civil Procedure, though the Code ofCivil Procedure governed the procedure, jurisdiction andpowers of the Court in dealing with the appeals so filed. Therewould have been need, therefore, to except cases covered byArticle 151 only if the words "under the Code of Civil Pro-cedure" were understood as meaning appeals for the disposalof which the provisions of the Code of Civil Procedure was madeapplicable. We might mention that besides the Calcutta andthe Madras High Courts a Full Bench of the Allahabad HighCourt also has in Dropadi v. Hira Lal(\7) adopted a similar con-struction of the Article, the learned Judge pointing out thatseveral Indian enactments among them the Indian SuccessionAct, the Probate and Administration Act, the Land Acquisi-tion Act and the Provincial Insolvency Act proceeded on thebasis of a Legislative practice of conferring rights of appealunder the respective statutes without prescribing any periodof limitation within which the appeal should be preferred,but directing the application of the provisions of the Civil Pro-cedure Code to such appeals, the intention obviously beingthat Article 156 would furnish the period of limitation for suchappeals. We consider that these decisions correctly interpretArticle 156 and, if any event, we are not prepared to disturbthe decisions which have stood for so long and on the basis ofthe correctness of which Indian legislation has proceeded.

Mr. Pathak drew our attention to some decisions in whicha different construction was adopted of the word "under" aparticular enactment occurring in other Articles of the Limita-tion Act and in particular some dealing with appeals in certaincriminal matters. In them the word "under" was understoodas meaning "by virtue of". He was, however, unable to bringto our notice any decision in which the construction adoptedof Article 156 which we have set out has been departed from.In the cases dealing with the words "under the Criminal Pro-cedure Code" which he played before us, the situation wouldobviously be different, since the indication afforded by themention of Article 151 in Article 156 does not figure in the

(17) I.L.R. 34 All, 496,

H.L.R.] VIDHYACHARAN SHUKLA V. KHUBGHAND BAQHEL 379

Articles dealt with. Therefore, that would be a circumstancepointing to a different result.

If the construction adopted of Article 156 in the Calcuttaand Madras decisions to which we have referred, were up-held, there could be no controversy that an appeal undersection 116-A of the Representation of the People Act wouldbe "under the code of Civil Procedure", for section116A (2) enacts, to read the material portion :

"116A. (2) The High Court shall, subject to the pro-visions of this Act, have the same powers, jurisdiction andauthority and follow the same procedure, with respectto an appeal under this Chapter as if the appeal were anappeal from an original decree passed by a civil courtsituated with the local limits of its civil appellate jurisdic-tion ; "

In this view even on the narrowest construction of thewords "different from those prescribed therefor in the firstschedule" occurring in the opening part of section 29 (2), theexclusion of time provided for by Article 12 of the LimitationAct would be permissible in computing the period of limita-tion for filling the appeal to the High Court, in the case beforeus.

The last point which remains for consideration is onewhich would be material only in the event of the two pointswe have already dealt with being decided differently. Thisrelates to the relationship or interconnection between the firstand second limbs of section 29 (2) of the Limitation Act. Thereason why we are dealing with it is because of our inabilityto agree with the construction which our learned brothersSubba Rao and Mudholkar, JJ., have placed on this featureof the sub-section. Sub-section (2), it would be seen, con-sists of two parts. The first sets out the conditions to whichthe special law should conform in order to attract section 3and that part ends with the words "As if such period were pres-cribed therefor in that schedule". This is followed by theconjunction 'and' and that word by the second part reading"for the purpose of determining any period of limitation pres-cribed for any suit, appeal or application by any special orlocal law—

"(a) the provisions contained in section 4, sections9 to 18, and section 22 shall apply only in so far as, andto the extent to which, they are not expressly excluded bysuch special or local law; and

380 VIDHYACHARAN SHUKLA V. KHUBCHAND BAOHEL [VOL. XXV

(b) the remaining provisions of this Act shall notapply-

The question that has been debated before us is whether thethe condition postulated by the first limb, namely the specialor local law prescribing a period of limitation for a suit appeal,etc., "different from the period presrcibed therefor by thefirst schedule has to be satisfied in order to render the provi-sions of clause (a) applicable. If the conjunction 'and' wasused for the purpose of indicating that the two parts werecumulative, that is if the two parts operated in respect of thesame set of circumstances, then unless the opening words ofsub-section (2) were satisfied there would be no basis for theapplication of clause (a) to the period prescribed for a suit,appeal or application applicable by the special or local law.If on the other hand, the two parts of the subjection couldbe read independently as if they made provision for two separatesituations, the result would be that the words starting from"for the purpose of determining any period of limitation pres-cribed for any suit, appeal or application by any special orlocal law" followed by clauses (a) and (b) would be an indepen-dent provisions unrelated to the first part and therefore couldoperate unhampered by the condition set out in the first partIn other words, if the latter construction were adopted for everysuit, appeal or application for which a period of limitationwas prescribed by a special or local law, the provisions insections 4, 9 to 18 and 22 would apply unless excluded. Mr.Pathak urged that the conjunction 'and' could in the contextbe construed only as rendering the second limb a part andparcel of the first, so that unless the conditions laid down by theopening words of the sub-sections were satisfied, the provi-sions of the Limitation Act set out in clause (a) would not beattracted to "determine the period of limitation" prescribedby the special or local law. The question of the import andfunction of the conjunction 'and' was the subject of elaborateconsideration by a full Bench of the Allahabad High Court ina decision in Sehat AH Khan v. Abdul Qavi Khan (18). The majorityof the learned Judges held that the two parts of the sub-sectionwere independent and that for the purpose of determiningany period of limitation prescribed for any suit, appeal or applica-tion by any special or local law, clause (a) would apply unlessexcluded. Raghubar Dayal, J., then a Judge of that Court,however, dissented from this view and held that the entire sub-section (2) had to be read as an integrated provision and thatthe conjunction 'and' connected the two parts and made it

(18) I.L.R. 1956 (2) Allahabad 252.

E.L.R.] VIDHYACHARAN SHUKLA V, KHUBCHAND BAQHEL 381

necessary for attracting clause (a) that the conditions laid downby the opening words of sub-section (2) should be satisfied. Mr.Pathak recommended for our acceptance the dissenting judg-ment of Dayal, J. We consider that the view expressed byRaghubar Dayal, J, as to the inter-relation of the two partsof the sub-section reflects correctly our own construction of theprovision. Raghubar Dayal, J., has approached this questionof construction from several angles including the grammar ofthe passage. Without going into any of them, we would restour decision on a shorter ground. In odrer that the secondpart might be held to be independent of the first, the first partshould itself be complete and be capable of operating in-dependently. Unless this test were satisfied, the conjunction'and' would have to be read as importing into what followsit, the conditions or considerations set out earlier as otherwiseeven the first part would be incomplete. Let us now see whetherthe first part could function without the second. The firstpart reads "where any special or local law prescribes for anysuit, appeal or application a period of limitation from theperiod prescribed by the first schedule the provision on section3 shall apply as if that period was prescribed therefor in thatschedule". The question is what this standing by itself wouldsignify. If the conditions presrcibed by the opening wordswere satisfied section 3 of the Limitation Act would be attracted.Section 3 reads :

"Subject to the provisions contained in sections 4to 25 (inclusive), every suit instituted, appeal preferred, andapplication made, after the period of limitation prescribedtherefor by the first schedule shall be dismissed, althoughlimitation has not been set up as a defence.

In other words, if the special or local law prescribed a periodof limitation different from that prescribed by the first scheduleby the application of the first part of sub-section (2), the coustis enabled to dismiss suits, appeals and applications filed beyondtime. If this is the only effect it would be seen that the provi-sions is inane and redundant, because even without it, by thevery prescription of a period of limitation the jurisdiction of theCourt to entertain the suit, appeal, etc., would be dependenton the same being filed in time.

It is possible, however, to construe the reference to section3 in section 29 (2) to mean that the power to dismiss the suit,appeal etc., if filed beyond the time prescribed, is subject to themodes of computation, etc., of the time prescribed by applying

382 VIDHYAGHARAN SHUKLA V. KHUBCHAND BAQHEL [VOL, XXV

the provisions of sections 4 to 25 which are referred to in theopening words of section 3. On this construction where acase satisfies the opening words of section 29 (2) the entiregroup of sections 3 to 25 would be attracted to determine theperiod of limitation prescribed by the special or local law. Nowlet us test this with reference to the second limb of section 29(2) treating the latter as a separate and independent provi-sion. That part starts with the words "for determining anyperiod of limitation prescribed for any suit, appeal or applica-tion by any special or local law" (italicsours). The words italicis-ed being perfectly general, would manifestly be comprehensiveto include every special or local law, and among these mustnecessarily be included such special or local laws which satisfythe conditions specified by the first limb of section 29 (2). Wethen have this strange result that by the operation of the firstpart sections 3 to 25 of the Limitation Act are made applicableto that class of special and local laws which satisfy the condi-tions specified by the first limb, whereas by the operation ofthe second limb the provisions of sections 3, 5, 6 to 8 and 19to 21 and 23 to 25 would not apply to the same class of cases.A construction which would lead to this anomalous result can-not be accepted and we, therefore, hold that subject to theconstruction we have put upon sub-section (2) of section 29both the parts are to be read as one whole and that the wordsfollowing the conjunction 'and' "for the purposes of determin-ing and period of limitation", etc., attract the conditions laiddown by the opening words of the sub-section.

As we have pointed out earlier, this does not affect theresult. We agree that the appeal falls and we direct that itbe dismissed with costs.

MUDHOLKAR J.—While I agree with my brother SubbaRao J. that the appeal should be dismissed, I regret my inabili-ty to agree with all the reasons which he has given.

I need not recapitulate the facts which have been set outfully in the Judgement prepared by my learned brother butI would only state the point which we have to consider in thisappeal. The point is whether for the purpose of computingthe period of 30 days prescribed by section 116A (3) of theRepresentation of the People Act, 1951 under which an appealcan be preferred from the decision of the Election Tribunal,the provisions of section 12, sub-section (2) of the LimitationAct, whereunder the time requisite for obtaining a copy ofthe decree and the day on which the judgement complained ofwas pronounced can be excluded can be passed in aid. It

B.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL 383

was contended before us that the appeal should be deemed tobe one under the Code of Civil Procedure, in which case itwould fall under article 156 of the first schedule to the Limita-tion Act, and that though a shorter period of limitation is pres-cribed for it by the Representation of the People Act the pro-visions of section 12 (2) of the Limitation Act would be attractedby reason of the provisions of clause (a) of section (29) (2). Re-liance was placed in this connection on the first limb of section29 (2). Alternatively it was argued that the first limb of section29, sub-section (2) of the Limitation Act would also apply toan appeal under the Representation of the People Act eventhough it does not fall under article 156 of the Limitation Actsince a different period of limitation was prescribed for it fromthat prescribed for an appeal in the first schedule of the Limita-tion Act and that, therefore, clause (a) thereof would attractsection 12 (2) of the Limitation Act. Finally it was arguedthat even if the appeal cannot be regarded as one falling withinthe first limb of section 29 (2), clause (a) of sub-section (2) ofsection 12 would still apply because the second limb of sub-section (2) of section 12 is wide enough in its ambit to includea suit, appeal or application for which no period of limitationis prescribed in the first schedule but a period of limitationhas been prescribed by a special or local law. My learnedbrother has held in his judgement that an appeal provided forby section 116A of the Representation of the People Act wouldbe an appeal under the Code of Civil Procedure to which andthus falls under the first column of article 156 of the first scheduleof the Limitation Act. He has also held that the words "whereany special or local law prescribes for any suit, appeal or applica-tion a period of limitation different from the period prescribedtherefor by the first schedule" occurring in the first limb ofsub-section (2) of section 29 would include a suit or an appealeven though it is not of a type for which a period of limitationis prescribed in the first schedule because it is enough if thespecial law prescribes for such an appeal a period which isdifferent from any period prescribed in the first schedule. Iregret I am unable to agree with either of these views. Final-ly, however, my learned brother has construed the secondlimb of sub-section (2) of section 29 "and for the purpose ofdetermining any period of limitation prescribed for any suit,appeal or application by any special or local law" as beingwide enough to include a suit, appeal or an application undera special or local law which is of a type for which no period oflimitation is prescribed in the first schedule. With this lastconclusion I agree. In my judgement what he has said on thelast point is enough for the purpose of disposing of the appeal

384 VIDHYAGHARAN SHUKLA V. KHUBCHAND BAOHEL [VOL. XXV

in the way proposed by him. As, however, I do not agreewith what he has said on the first two points I must brieflyindicate my reasons for coming to different conclusions.

In support of the conclusion that article 156 applies, mylearned brother has relied upon the decision in Aga MahomedHamadani v. Cohen (19) which was followed by the MadrasHigh Court in Ramasami Pillai v. The Deputy Collector of Madura(20). The first of these two cases was one from what was thenBritish Burma. Under section 49 of the Burma Courts Act,1875 (XVII of 1875), an appeal lay to the High Court from thedecision in a suit or proceeding before the Recordor's Courtin which the amount or value was not less than Rs. 3,000 andwas not more than Rs. 10,000. Section 97 of that act said:"save as otherwise provided by this Act, the Code of Civil Pro-cedure shall be, and shall, on and from the 15th day of April,1872, be deemed to have been in force throughout BritishBurma". Section 540 of the Code of Civil Procedure, 1882which was in force at that time read thus :

"Unless when otherwise expressly provided by thisCode or by any other law for the time being in force, anappeal shall lie from the decrees or from any part of thedecree of the Courts exercising original jurisdiction of theCourts authorised to hear appeals from the decisions ofthose Courts."

The question which the High Court had to consider in thatcase was whether the appeal could be said to be in time as itfell to be governed by article 156 of the first schedule to theLimitation Act. For deciding this matter the high Courtproceeded to consider what was meant by an appeal under theCode of Civil Procedure. While dealing with the matter theHigh Court observed :

"A particular appeal was given by the Burma CourtsAct and the Burma Courts Act is still the only Act whichprescribes to what Court this appeal shall lie. If it hadnot been given by the Burma Courts Act then section540 of the Civil Procedure Code would have been sufficientto give it, provided that some Court was by some enact-ment provided as the proper Court to hear the appeal.The procedure in appeals in every respect is governedby the Code of Civil Procedure. The Limitation Act,Schedule I, Article 156 when it speaks of the Civil Pro-cedure Code is, on the face of it, speaking of a Code which

(19) (1886) I.L.R. 13 Cal. 221.(20) (1919) I.L.R. 43 Mad. 51.

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAOHEL 385

relates to procedure, and does not ordinarily deal withsubstantive rights ; and the natural meaning of an appealunder the Civil Procedure Code appears to us to be an appealgoverned by the Code of Civil Procedure so far as pro-cedure is concerned." Referring to this, my learnedbrother has observed. "It is manifest from this passagethat the learned Judges did not repeal the contention onthe ground that the right of appeal was conferred by section540 of the Code of Civil Procedure, but expressly for thereason that the natural meaning of the relevant expres-sion in article 156 of Schedule I of the Limitation Actwas that the appeal mentioned therein was one governedby the Code of Civil Procedure.".

That is true. It is, however, not material for my purpose toconsider whether or not the High Court was right in holdingthat the appeal before it was under the Burma Courts Act.I would assume that the High Court was right but it is necessaryto point out that the provisions of section 29 of the limitationAct as then in force did not come for consideration in that case.The question would then be whether its view that an appeal,though not provided by the Code of Civil Procedure would yetbe deemed to be an appeal under the Code for the purpose ofArticle 156 of the Limitation Act, was right. With respectI do not think that there was any warrant for holding that anappeal which was not given by the Code would still be one underthe Code thereby because the procedural provisions there-of would govern its course. Where the right of appeal is givenby some other law, the appeal must be regarded as one underthat law and not under the Code. I see no valid reason forconstruing the words 'under the Code of Civil Procedure' asmeaning 'governed in the matter of procedure by the Codeof Civil Procedure.' For, that is, in effect, that the HighCourt has done in this case. By reading the article in the wayit has done the High Court has virtually construed the onlyprovision in the Limitation Act dealing with normal civilappeals to the High Court as a residuary article which wouldtake in all appeal by whatever law they may be provided,merely because the procedure relating to appeals containedin the Code of Civil Procedure was applicable to them. Thiswould in my judgement go against the plain intendment ofthe Legislature. Indeed, while a right to institute a suit ormake an application is a wider kind of right, there can be noright of appeal unless some statute confers it. That is whyihc Legislature has expressly enacted residuary provisions,Articles 120 and 180, for suits and appeals respectively in the

51--3 ECI/ND/67

386 VIDHYAGHARAN SHUKLA V. KHUBCIIAND BAOIIEI. [VOL. XXV

Limitation Act. The first schedule is divided into three divi-sions. Article 156 is one of the eight articles contained in thesecond division which deals with appeals. The first divisionof that schedule deals with suits. There, provision is madefor a variety of suits including some under special laws, butit was realised that it could not be exhaustive. Therefore,article 120 was provided therein, which deals with "suits forwhich no period of limitation is provided elsewhere in thisschedule.". The third division of the first schedule deals withapplications of different kinds. Article 181 makes provisionsfor applications for which no period of limitation is prescribedelsewhere in the schedule. In the second division, however,which deals with appeals, there is no provision analogous toarticle 120 and article 181. Four of the eight articles deal withappeals under the Code of Criminal Procedure and four withappeals other than those under the Code of Criminal Procedure.As already stated, only one of these articles deals with normalcivil appeals to the High Court, namely, article 156. It is notcouched in language similar to that used in article 120 andarticle 181. Would we then be justified in reading the firstcolumn of article 156 to mean the same thing as is said in thefirst column of article 120 or 181 ? The Legislature knewthat appeals have been provided by various special laws ; buthas made no provision for such appeals in this schedule apparent-ly for the reason that a law which confers a right of appeal isexpected to provide for the period of limitation for such an appeal.That seems to be the explanation for the absence of a residuaryprovision for appeals.

The first difficulty, therefore, in interpreting article 156in the way contended for by the respondents is that where adifferent period of limitation for appeal is expressly providedby a special law article 156 will not in terms be attracted. Tobring such an appeal under it would clearly go against the ex-press intention of the Legislature which was to confine thatarticle to appeals under the Code of Civil Procedure. Thenext difficulty is that the entry deals with appeals "under" theCode of Civil Procedure and not appeals arising out of pro-ceedings to which the Code of Civil Procedure applies. Noragain, does it include an appeal which is only deemed to beunder the Code of Civil Procedure. Be it noted that so far asproceedings under the Representation of the People Act areconcerned, the whole of the Code of Civil Procedure does notapply but only so much of it as is expressly made applicableby the provisions of the Representation of the People Act. Itwas said that if the provisions of O. XLI, of the Code of Civil

E.L.R.] VIDHYACHARAN SHUKI,A V. KHUBCHAND BAOHEL 387

Procedure were not applicable to an appeal under the Representa-tion of the People Act there would be no provision whereunderthe party could at all file an appeal. It semes to me, however,that there can be no difficulty at all in this matter as everyHigh Court has made rules partly under the Constitution andpartly in exercise of its inherent power to make suitable provisionsin regard to this and allied matters. The Calcutta High Court,however, does not appear to have given the full considerationin Cohen's (1) case to the ambit of article 156 and that is anotherreason why I find myself unable to accept the correctness of theview it lias taken in that case.

It was then said that the view should be accepted on theground of stare decisis. In this connection it was pointed outthat so far no court has dissented from that view and indeedthe view was fully accepted in Ramaswami Pillar's (2) case by theMadras High Court. In so far as the principle of stare decisisis concerned it is nothing more than, as observed by Dowrickin Justice According to the English Common Lawyers (196.1ed. p. 195) a precipitate of the notion of legal justice. In otherwords it is the principle that judicial decision have a bindingcharacter. But in India the position is not quite the same.Here the decision of a High Court is not even always bindingupon it in the sense that it can be reconsidered by a full bench.No doubt its decision may bind all courts subordinate to itas also all Judges sitting singly or in division benches of theHigh Court. It is also true that a decision of a Division Benchof a High Court is binding on every other Division Bench ofthat High Court but there again there have been cases whereone Full Bench has reconsidered the decision of an earlier FullBench. In any case the decision of a High Court has no morethan persuasive character in so far as this Court is concerned.In that view the decision of the Calcutta High Court, eventhough it may not have been dissented from since the time itwas rendered, cannot in the proper sense of the term be re-garded as stare decisis. What could be stare decisis in this Courtwould be its own previous decisions. But even here instancesare not wanting where, unlike perhaps the House of Lords,we have considered ourselves free to go back on previous deci-sions. (See The Bengal Immunity Company Limited v. The Stateof Bihar and ors(3) 3A. Finally, even where a decision hasnot been dissented from for a long time, but has on the otherhand been followed, it is not entitled to be treated as immut-able, particularly where it deals only with a question appartainint^

(21) (1955) 2 S.C.R. 603.(3A) Sec footnote (3) at p. 209. Allen. Law in the Making 5th Kdn.

388 VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL [VOL. XXV

to the adjective law, such as the limitation for an appeal.There may be a great deal to be said in favour of not disturb-ing even erroneous decisions affecting substantive rights toproperty which have stood undisturbed for a long time on theground that such a course may unsettle existing titles to pro-perty. But this or similar considerations which would justifyleaving such decisions undisturbed would not stand in the wayof overrulling an erroneous decision on a matter appartaingto the adjective law however ancient the decision may be.Therefore, I do not feel myself persuaded to hold that the pre-sent appeal can be regarded as of a type falling within the firstcolumn of article 156 of the first schedule to the LimitationAct.

In order to deal with the second ground given by mylearned brother it is necessary to reproduce the provisions ofsection 29, sub-section (2) of the Limitation Act. They runthus :

"Where any special or local law prescribes for anysuit, appeal or application a period of limitation differentfrom the period prescribed therefor by the First Schedule,the provisions of section 3 shall apply, as if such period wereprescribed therefor in that Schedule, and for the purposeof determining any period of limitation prescribed for anysuit, appeal or application by any special or local law—

(a) The provisions contained in section 4, sections9 to 18, and section 22 shall apply only in so far as, andto the extent to which they are not expressly excludedby such special or local law ; and

(b) the remaining provisions of this Act shall notapply."

While expressing the view that the legislature has not expresseditself happily while enacting this provision he has agreed with theview taken in Canara Bank Ltd. v. The Warden Insurance Co. Ltd.,Bombay (22) which was followed by the High Court of MadhyaPradesh in Beharilal Chaurasia v. Regional Transport Authority(23). In that case the Bombay High Court has held that art.156 is attracted on the ground that the period provided by thespecial law is different from that contained in the first Schedule.With great respect to the learned Judges, I find it difficult tostrain the language used in the first limb of section 29 (2) inthis manner. The legislature has in clear terms spoken of

(22) 1952 Bomb. 1033. "(23) A.I.R. 1961 M.P. 75.

E.L.R.] VIDHYACHARAN SHUKLA V. KHUBCHAND BAGHEL 389

cases in which a special or local law has prescribed for a suit,appeal or an application a period of limitation "different"from that prescribed by the first schedule. Now, the governingwords are "suit, appeal or application". Therefore, what hasto be seen is whether a suit, appeal or application under aparticular local or special law is of a kind similar to one forwhich a period of limitation is prescribed in the first schedule.The first limb of sub-section (2) of section 29 is concerned onlywith proceedings of this kind, that is, proceedings under specialor local law for which a period of limitation is provided in thefirst schedule. If for such a proceeding the period to be foundin the first schedule is different from that prescribed under aspecial or local law certain consequences will follow under theprovision. I do not think that any inconvenience would becaused by giving a literal and natural interpretation to theexpression used by the legislature in the first portion of sub-sec-tion (2) of section 29 because cases of other kind can easilycome under the second portion thereof.

Since I agree with my learned brother about what he hassaid regarding the second portion of the limb of sub-section(2) of section 29 the appeal must be dismissed with costs asproposed by him.

Appeal dismissed.

52—3 ECI/ND/67

!> ELECTION LAW REPORTS

VOLUME XXV

I N D E X

SUBJECT PAGE

Code of Civil Procedure, 1908—Or.XLI, r.22—Whether applicable to Proceed-ings of appeal under s. 116-A of Act of 43 of 1951—if High Court canuphold order of Tribunal on grounds decided by Tribunal in favour ofappellant.

C. Chiranjeeiulu Naidu v. E. S. Thyagarqjan; (Mad. H. C.) 201

Conduct of Election Rules 1961, s. 57(1)—Scope of.

^ Jabar Singh v. Genda Lai, (S. C.) 323

v Conduct of Election Rules 1961, r. 63—Whether includes re-scrutiny of ballotpapers—Whether re-scrutiny can be made by Tribunal despite absence of

\ express provision.

Chitloori Indrayya v. Mullapudi Harirchandra Prasad, (An. Pr. H. C.) 192

Constitution of India,—Article 102(1) (a)—Office of profit under the Govern-ment—Meaning of—Tests for determining.

Guru Govinda Basu v. Shankari Prosad Ghosal & Ors. (S. C.) 77

Constitution of India, Article 329(b); Representation of the People Act, 1951, s.80—'Election' meaning of.—Whether election proceedings can be called inquestion by Writ petition, either before or after completion of election.

Gurucharan Banerjee v. R.O. Burdwan H. P. Constituency. (Cal. H. C.) 312

Constitution (Scheduled Castes) Order, 1950—Bovi, if voddar caste.

D. Mimichinnappa v. B. Basavalingappa & Ors. (Mysore, H. C.) 247

Constitution (Scheduled Tribes) Order, 1950—Oraons—Conversion to Christia-nity—If person ceases to be member of the tribe.

Kartik Oraon v. David Munzni & Am. (Pat. H. C.) 291

Evidence—Handwriting expert's view—Value of.

C. Chiranjeevulu Naidu v. E. S. Thyagarajan, (Mad. H. C.) 201

imitation Act, 1908, SS.12(2), 29(2), Art. 156—Scope of—Applicability toappeals under s. 116A of Act 43 of 1951.

Vidaya Charan Shukla v. Khub Chand Baghel & Ors. S. C. 354

Practice and Procedure—Pleas not raised before tribunal cannot be allowed tobe urged in appeal.

Mohinder Singh & Anr. v. Gurmit Singh, (Pun. H. C.) 27

Recounting—Circumstances justifying order of.Hanji Shivanna v. T. R, Parameswariah & Ors. (Mys. H. C.) 281

3Q1

i.

392

PAGE

Representation of the People Act, 1950—s. 22—Correction of entry in ElectoralRoll—Electoral Registration Officer, powers of—Entry regarding housenumber—Whether mandatory.

Registration of Electors Rules, 1960, r. 26 (3)—if mandatory.

P. N. Appa Rao v. Kumnuru Suryanarayana Naidu, (A. P. H. C.) 220

Representation of the People Act, 1951,—ss. 33, 36, 100(1) (c)—Variation insurname between nomination paper and voters' list—Whether nominationpaper "improperly rejected"—Returning Officer's duty to ensure correction.Ss. 82, 90.

•—Ss. 82, 90—if petition liable to be dismissed for joinui? surplus parties.

S. 117-—only one deposit when more than one petitioner—if compliance withsection.

Namdeo Chimnaji Tapre v. Govinddas & Ors. (Nag. H. C.) 1

Representation of the People Act, 1951—s. 36 (8)—Improper rejection ofnomination papers-—Omission of name in the list of contesting candidates—Rectification of list—if improper rejection.

Mohindra Singh & Am. Gurmit Singh, (Pun. H. G.) 27

Representation of the People Act, ss. 38, 52—Validity nominated candidate dyingbefore the date of withdrawal—if becomes contesting candidate—poll ifmust be counter-manded.

Madan Gopal v. Nek Ram Sharma, (All. H. C.) 61

Representation of the People Act, 1951, s. 53(2) and s. 80—Scope ofs. 53(2).—Successful candidate's election set aside on election petition—Elector seekingdeclaration by Returning Officer of only other candidate as elected—onrefusal and election commission notifying bye-election elector seekingdeclaration by writ petition under Art. 226—Whether High Court hasjurisdiction to entertain such petition in view ofs. 80.

—S. 80 'Election' meaning of—Whether election proceedings can be called inquestion by writ petition, cither before or after completion of election.

Gurucharan Banerjee v. R. 0. Burdwan H. P. Constituency, (Cal. H. C.) 312

Representation of the People Act, 1951—s. 81 (3) Requirement that copiesshould be attested as true by the petitioner-—if mandatory or directory.

Sant Prasad Singh v. Darn Sinha, (Pat. H. C.) 181

Representation of the People Act, 1951—ss. 79(b), 82 (b), 99 and 123—Person withdrawing candidature allegations of corrupt practices against himin election petition—Whether necessary party.—Whether corrupt practicealleged must have been committed by candidate in his capacity as such.

Rao Abhe Singh v. Rao Nihal Singh, (Pun. H. C.) 113

Representation of the People Act, 1951—ss. 82 (b), 90(1), 90(3),—non-impleadingof candidate against whom corrupt practice alleged—subsequent petition toimplead—if permissible—if liable to be dismissed under s. 90(3)—s. 90(1)"subject to the provisions of the Act and of any rules made thereunder"—effect of—s. 82 (b) if confined only to the allegations of corrupt practiceagainst candidate when committed by him in his capacity as candidate.

Amin Lai v. Hunna Mai, (Pun. H. C.) 116

Representation of the People Act, 1951, as amended by Act 40 of !96!—s. 83(1)proviso—affidavit to be in the proscribed form—requirement, if mandatory—Proper procedure to be adopted for remedying defects.

Mehesh Prasad Sinha v. Manjay Lai & Ors. (Pat. H. C.)

Representation of the People Act, 1951—s. 83(1), proviso—Allegation of CorruptPractice—Omission to file affidavit—if fatal to the maintainability of petition.

N. P. Chengalraya Naidu v . G. jV. Patlabhi Redcli, (A. P. H. C.)

PAGE

130

168

practice—INot filing ;

Kidwai Hussain Kamil v . Yadav Ram Sewak & Ors.

iiity of peti

(Ail. H. C.)

pt

35

Representation of the People Act, 1951, ss. 100(1) (d) and 10! (a)—Scope of.

Jabar Singh v. Genda Lai (S. C.) 323

Representation of the People Act, 1951, s. 100(l)(d)(iii)—improper receptionrefusal or rejection of any vote—Recount—Circumstances justifying—Matterof discretion widi the Court—necessity of protest before Returning officer.

Koduri Krishnarao v. Bapineedu, (A. P. H. C.)

),' Representation of the People Act, 1951, s. 100(l)(iii)—Improper reception,

refusal or rejection of votes—Application for scrutiny by Tribunal of rejectedballot papers—Whether can be granted unless prima facie case made out.

Chittoori Fudrqyya v . Mullcpudi Horischandra Prosed, (An. Pr, H.C.)

159

192

Representation of th- People Act, 1951, s. 100(1) (d) (iii)—Recounting—Primafacie case to be made out—canmt be demanded as of right.

Bhairon & Am. v . Sisram & Ors. (Raj. H. G.) 239

Representation of the People Act, 1951—ss.109, 110—Failure to prosecute petition—sections if applicable. Interpretation of Statutes—'GasusTomissus'—if canbe cured by construction.

Kodur Subha Ramiah v. Annam Chanchu Subha Reddi, (Ejection Tri. Hyderabad.) 97

Representation of the People Act, 1951—s. 116A—Whether the period of 30 daysprescribed by s.H6A(3)for filing appeal to be computed after excludingtime required ior obtaining copy of order appealed gainst—Whetherappeal under s. 116A is an appeal "under the Code of Civil Procedure"within Art. 156, Limitation Act, 1S08—Whether s. 12 of Limitation Actapplies—s. 29(2), Limitation Act—acope of.

Vidya Charan Shukla v. Kiiub Chand Baghel & Ors. (S. C.) 351

Representation of the People Act, (43 of 1951) s. 117—Security for costs—-Jointpetition by two persons—Deposit by one of the petitioners, if sufficientcompliance—Whether Tribunal has jurisdiction to dismiss petition in cases ofnon-compliance.

Net Ramjalv. The Election Comm. & Ors. (Pub. H. C.) 89

Representation of the People Act, 1951—s. 123—Corrupt practice—Burden Ofproof.

D. Munkhinnappa v. B. Basavalingappa & Ors. (Mysore H. C). 247

PAGE

Representation of the People Act, 1951 s. 123(3)—Corrupt Practice—Scope ofexpression "for any person on the ground of religion, race, caste, community )or language". ^

Sant Prasad Singh v. Dasu Sinha, (Pat. H. C.) 181

Representation of the People Act, 1951, s. 123(4)—Scope of—Whether proof ofpublication of false statement enough—or whether Court to be satisfied as toprejudicial effect on candidates' prospects—Expression "calculated", meaningof.

Dattaraya Narayan Patil v Dattaraya Krishnaji Khanvilkar and Ors. (Maharashtra,H.C.) 143

Representation of the People Act, (43 of 1951)—s. 123(4)—Leaflet referringto candidate as 'dalal' of minister—Impliedly accusing candidate of remainingsilent on payment of money, etc.—if false statements as to personal characteror conduct in the context—Leaflets to be interperted as a whole—'Burden ofproof—when shifts—Statement must be of facts and not opinion.

Bhanwar Lai v. Hart Prasad, (Raj. H.C.) 265

Representation of the People Act, 1951—s. 123(7,—Scope of.

C. Chiranjeevulu Naidu v. E. S. Thyagarajan; (Mad. H. C.) 201

Representation of the Peple Act, 1951—s. 127A—Proper declaration—wrhat is.

D. Munkhinnappa v. B. Basavalingappa & Ors. (Mys. H. C.) 24''

MGIPCBE—SI—3 ECI/ND/67—25-9-68—1060.