election law reports, vol. vi
TRANSCRIPT
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 theElection Tribunals.
Vol. VI1953
Editor :A. N. AIYAR, B.A., B.L.,Senior Advocate, Supreme Court.
6 E.L.R.
Published under the authority of the Election Commission of Indiaby the Manager of Publications, Civil Lines, Delhi,
andPrinted by The Company Law Institute Press, Madras.
All Mights Beserved.
I.
II.
III.
IV.
CONTENTS.
Table of Cases Reported
Table of Cases Cited
Reports of Cases
Index
PAGE
i—ii
iii—x
1—508
.... 509—516
The Mode of Citation of this the Sixth Volume of the ElectionLaw Reports is as follows:
6 E. h. R. '
A TABLEOF THE
NAMES OF THE CASES REPORTEDIN THIS VOLUME
PAGEAjayab Singh and Another v. Karnail Singh and
Others • .... 368Balbir Singh v. Arjan Singh and Others .... 341Beni Madho Rai v. Bhola and Others . .... 308Bhairon v. Thakur Ganpat Singh and Others .... 409Bhikaji Keshao Joshi v. Brijlal Nandlal Biyani
and Others (No. 2) .... 53Bholanath v. Krishna Chandra Gupta and Others
(No. 2) .... 104Daulat Ram v. Maharaja Anand Chand and Others .... 87Deo Chand and Others v. Vashist Narain and
Others .... 138Din Singh and Others v. Kapil Deo and Others .... 247Gulabchand Chordia v. Thakur Narain Singh and
Others .... 397Hakikatullah v. Nathu Singh and Others .... 10Hukam Singh and Another v. Sardul Singh and
Others (H.C.) .... 162Jawahar Shankar Pacholi v. Hirday Narain Singh
and Others .... 495Linge Gowda v. Shivananjappa .... 288Madan Pal v. Rajdeo Upadhya and Others .... 28Madan Singh v. Kalyan Singh and Others .... 405Mahadeo v. Jwalaprasad Mishraand Others (H.C.).... 1
ii ELECTION LAW BEPOBTS [VOL. VI
PAGE
Niharendu Dutt Mazumdar v. Sudhir ChandraBhandari and Others .... 197
Radhey Shyam Sharma v. Chandra Banu Guptaand Others .... 123
Ramkrishna v. Thakur Daoosing (H.C.) .... 186Ram Singh v. Hazari Lai and Others .... 224Sardul Singh Caveeshar v. Hukum Singh and
Others .... 316Satya Dev Bushahri v. Ghanshiam (J.C.C.) .... 388Satya Dev Bushahri v. Padam Dev and Others ..., 414Shiv Dayal and Others v. Teg Ram and Others .... 346Surain Singh v. Waryam Singh and Others .... 99Ugam Singh v. IJari Singh and Others .... 470
TABLE OF CASES CITED.•PAGE
Abdul Roufv. Makhtar Ali (2 E.L.R. 340) ... 138Aligarh (2 Jagat Narain 3) ... 346Ali Muhamad Khan v. Ishaq Ali Khan (I.L.R, 54 All. 57 F.B.)... 123Ambala (4 Khanna 22) ... 346Ambala Division case, 1930 (Hammond 77) ... 346Ambala North Sikh Rural Constituency, 1937 (Sen and Poddar
10) ... 346Ameer Ali v. Yakub Ali Khan (I.L.R. 41 Cal. 347) ... 247Amritsar City (2 Hammond E.P. 17) ... 414Anglo-Indian Constituency (Punjab), 1946 (Sen and Poddar 66)... 346AslamKhan v. Fazlul Haq (4 E.L.R. 341) ... 470Azamgarh (N.M.R.), 1931 (Hammond 97) ... 470
Baba Gurdit Singh's Case (1 Doabia 92) referred to ... 316Baddrudduja Syed v. Md. Khoda Buksh and Others (2 E.L.R.
189) ... 368Badri Prasad v. Sheodas Daga (2 Jagat Narain 146) • ... 224Bahu Vyankatesh, In re (A.I.R. 1925 Bom. 433) followed ... 388Balasubramanian, P. N. v. C. R. Narasimhan and Others (1 E.L.R.
461) * 224, 368,470Baldwin and Others v. Ellis and Others ([1929] 1 K.B. 273) ... 346Ballia Case (Hammond 27) ... 247Bankat Lai v. Madan Mohan and Others (3 E.L.R. 375) ... 470Banwarilal Roy, In re, (48 C.W.N. 766) ... 53Bareilly City (N.M.U.), 1924 (Hammond 127) ... 414Basti District North East General Rural Constituency, 1937 (Sen
& Poddar 106) ' ... 470Batala Sikh Rural Constituency, 1946 (Sen and Poddar 122) ... 346Bejaysingh v. Narbada Charan Lai (2 E.L.R. 426) 138, 341Belfast Case (4 O'M. & H. 108) referred to ... 288Belgaum District Case (1 Hammond E.P. 45) ... 414Bellary Mohammadan Rural Constituency, 1947 (Sen and Poddar
136) followed ... 138Benares and Mirzapur District (Sen & Poddar 154) ... 247Beverley (1 O'M. & H. 143) ... 414Bhandara Cases (4 Khanna 55) ... 346Bobby v. Crosbie ((1915) 85 L.J. K.B. 239) ... 414Borough of Evesham Case (3 O'M. & H. 94) ... 197Breedlove v. Suttles ((1937) 302 U.S. 277) ... 414
Reference is to the page at which the Judgment begins.
iv ELECTION LAW REPORTS [VOL. VI
PAGEBrijnaresh Singh v. Thakur Hukum Singh and Others (2 E.L.R.
266) ... 470Brindaban Prasad Tiwari v. Sitaram and Others (5 E.L.R. 48) ... 414Budhram v. Returning Officer, Bhandara (Miscellaneous Petition
No. 1779 of 1951, decided on 18th December 1951) ... 186Bulandshahar District (East) 1921 (Hammond 217) ... 138
Chander Nath v. Kunwar Jaswant Singh and Others (3 E.L.R.147), referred to • •• 3 6 8
approved ... 470Chartered Bank of India v. Imperial Bank of India (A.I.R. 1930
Cal. 534) ... 197Chaudhri Allahdad Khan v. Safi Abdul Hameed Khan (1 Doabia
63) ... 28Chhail Behari Lall Kapur v. Shyam Sundar Lall (3 Jagat Narain
59) ... 288Chhotalal Aditram Trivedi v. Bai Mahakore (I.L.R. 41 Bom. 466)
... 247Chhota Nagpur Division Case (2 Hammond E.P. 99) ... 414Coconada General Rural Constituency, 1937 (Sen & Poddar 267)... 470Commissioner of Police v. Gordhandas Bhanji (A.I.R. 1952 S.C.
16) ... 53Countess of Rothes v. Kirkcaldy and Dysart Water Works Com-
missioners (7 A.C. 694) 104Cumberland (Cockermouth Division) Case (5 O'M. & H. 155)
referred to ... 288Debi Prasad v. Mohammed Nazeer (3 E.L.R. 137) relied on 123,288,414Debi Prasad Sri Krishna Prasad Ltd. v. Secretary of State (A.I.R.
1941 All. 377) ... 104Delane v. Hillcoat (9 B. & C. 309; 109 E.R, 115) ... 414De Silva, G.E. v. Attorney-General, Ceylon (A.I.R. 1949 P.C.
262) ... 186Devidas v. Nilkantharao (I.L.R. 1936 Nag. 73) ... 1Durham Case (2 O'M. & H. 152) ... 197
East Cork (6 O'M. & H. 318) ... 414Ebrahim Aboobakar v. Custodian General of Evacuee Property
(1952 S.C.R. 696; A.I.R. 1952 S.C. 319) ... 162Election Commission v. Venkata Rao (2 E.L.R. 499) ... 186Electric Company Ltd. v. Province of Bombay (A.I.R. 1947 Bom.
276) ... 53Emmens v. Elderton (4 H.L.C. 624) ... 414Eli Vadapalli Garu v. Bayya Suryanarayanamurthi Garu and
Others (Sen & Poddar267) ... 470
E.L.B.] TABLE OF CASES CITED V
PAGE
Emperor v. Bhawanidas (A.I.R. 1916 All. 299) followed ... 388Emperor v.Kuchal Pal Singh (A.I.R. 1931 All. 443) ... 388Emperor v. Mallappa Tejappa (A.I.R. 1937 Bom. 14) ... 388Emperor v. Rachappa (A.I.R. 1936 Bom. 221) ... 388
Fairchild v. Hughes (258 U.S. 126) ... 414Few, E. v. C. E. Gibbon (Sen and Poddar 66) 224, 368Firm Durga Parshad v. Firm Ruliamal (A.I.R. 1922 Lah. 100) ... 414
Gabdoo v. Rajan (1953 N.L.J. 7) « ... 53Gadilingana Gowd, Y. v. H. Sitarajna Reddi and Others (Gaz. of
India Extra. Part II, sec. 3, No. 62, 9-3-1953, page 767 ... 28Gaura Telin v. Shriram Bhoyer and Others (A.I.R. 1926 Nag. 265) 414Ghasi Ram v. Ram Singh and Others (4 E.L.R. 124) ... 28
dissented from 414Gobardhan Das v. Rao Bahadur Ch. Lai Chand (1 Jagat Narain
57) ... 414Gobind Ram v. Emperor (A.I.R. 1942 Sind 62) followed ... 388Gokal Das Hirji v. Zaveri Vallabhdas (2 E.L.R. 234) ... 247Gokul Prasad v. Mr, K. M. Dharmadhihari (4 Jagat Narain 32) 247Golaghat case (Sen and Poddar 10) referred to ... 346Gold v. Essex C. C. ([1942] 2 K. B. 293) ... 414Gondia General Rural Constituency, 1937 (Sen & Poddar 326) ... 346Gouri Dutt Ganesh Lai v. Madho Prasad and Others (A.I.R.
1943 P.C. 147) ... 414
Habibur Rahman v. Nawab Sir K. G. M. Faroqui (Sen andPoddar 802) ... 316
Haji Nasimuddin and Another v. Dandi Ram Dutta and Others(1 E.L.R. 412) 409
followed ... 247Hakikatullah v. Nathu Singh and Others (6 E.L.R. 10) ... 470Hansa Jivraj Mehta (Dr.) v. Indubhai B. Amin (1 E.L.U. 171) 28, 397Hansraj v. Ram Singh (2 E.L.R. 12) followed ... 409Hanuman Prasad Misra v. Tara Chand and Others (5 E.L.R.
446) ... 104Hari Das v. Hira Singh Pal (4 E.L.R. 466) ... 414Hariram Onkar v. Mt. Radha (A.I.R. 1943 Nag. 327) ... 388Hayat Khan v. Emperor (A.I.R. 1932 Sind 90) ... 388Horen Jones v. Mohansingh and Others (2 E.L.R. 147) ... 104Hubli Electric Company Ltd. v. Province of Bombay ... 58
Islington case (5 O'M. & H. 120) ... 197
Vi ELECTION LAW REPORTS [VOL. VI
PAGEJadunandan Mahto v. Musahib Singh (1 Doabia 46) ... 28Jagan Nath Sharma v. Sham Charan Gupta and Others (2 E.L.R. 8) 470Janardhan Thakur v. Baldeo Prasad Singh (A.I.R. 1920 Pat. 147)
not followed ••• 388J. K. Gas Plant Manufacturing Co. v. Emperor (1947 F.C.R. 141;
A.I.R. 1947 F.C. 38) ... 104John Mathai, Dr., In re (1 E.L.R. 1) ... 186Jones v. Scullord ([1898] 2 Q.B. 565) ... 414Joseph Theberge v. Philippe Laudry ([1876-77] 2 A.C. 102) ... 186Joy Chand v. Kamalaksha (A.I.R. 1949 P.C. 239) ... 1Julius v. Bishop of Oxford (5 App. Cas. 214) distinguished ... 1Jwala Prasad Misra v. Mahadeo and Others (3 E.L.R. 473) ... 1
Kalap Raj v. Bishambhar Nath Tripathi and Another (Sen &Poddar 106) ... 470
Kanahiya Lai v. Bhagwandas (A.I.R. 1926 All. 30) ... 388Kannabhiran, Dr. v. A.J. Arunachalam and Others (2 E.L.R. 167)
referred to ... 104Karansing v. Kartarsing (A.I.R. 1951 Punjab 170) ... 53Kesab Chandra Patwari v. Gouri Sankar Bhattacharya and Others
(2 E.L.R. 215) ... 414Kesho Prasad v. Brij Raj Singh and Others (2 E.L.R. 276) ... 28Khairati Ram v. Malawa Ram (A.I.R. 1925 Lah. 266) ... 388Kikabhoy Chandabhoy v. Commissioner of Income-Tax, Bombay
City (A.LR. 1950 Bom. 6) ... 414KluKluxcase(110U.S. 651) ... 414Lahore Case (1 Khanna 117) ... 197Lahri Singh v. Attar Singh and Others (3 E.L.R. 403) 138, 414Lakhan Lai Mishra v. Tribeni Kumar (3 E.L.R. 423) followed ... 138Lakshmana Pillai v. Changam Pillai (2 E.L.R. 103) ... 28Lakshmi Chand v. Ladhu Ram Chodhri and Others (4 E.L.R. 200) 224Laxman Rao v. Lakshminivas Ganerival and Others (2 E.L.R. 20)
relied on ... 470Lichfleld (1 O'M. & H. 22) 288, 368Lord Strickland v. Guiseppe Grima (A.I.R. 1930P.C. 227) ... 186Lwsser v. Garnett (258 U.S. 130) ... 414
Magwe West Case (Hammond 505) ... 197Mahadeo v. Jwalaprasad (6 E.L.R. 1) ... 186Mahadev Parasharam Diwan v. Vinayak Pandharinath Thorat
(Sen & Poddar 741) ... 405Maharaja of Parlakimedi v. Bijay Chandra Das and Others (4
E.L.R. 101) dissented from ... 104
E.L.R.] TABLE OF CASES CITED vii
PAGE
Mahendra Sahu v. Dutia Raul and Others (3 E.L.R. 117) ... 397Makhdiiman, Mt. v. Syed Altaf Hussain (A.I.R. 1922 Pat. 222)... 247Malhar*Rao v. Vishnupant (Sen & Poddar 326) ... 224Manipuri and Etah Districts Muhammadan Rural Constituency,
1946 (Sen & Poddar 530) ... 247Manjoor Hussain v. Gholam Mohiuddin (Sen & Poddar 746) ... 316Mathra Das and Others v. Dara Singh (4 E.L.R. 441) 224, 346Maulvi Yaqinuddin Ahmad v. Maulvi Kader Bux (2 Jagat Na-
rain 75) ... 288Menghraj v. Bhiman Das (2 E.L.R. 301) 28,247Midnapur South (2 Jagat Narain 113) ... 346Minor v. Happerset ((1874) 21 Wall. 162) ... 414Mohomed Baksh v. Muhammad Abdul Baqui Khan (A.I.R. 1924
All. 134) ... 104Mohamed Hossain v. Mohammed Raffique (A.I.R. 1941 Cal-
cutta 130) ... 247Mohammad Zakria Kitchlew v. Sheikh Mohammad Sadiq (Sen &
Poddar 34) ... 316Moinuddin v. B.P. Divgi (3 E.L.R. 248) dissented from ... 316Motisinghji v. Ishwarbhai Khodabhai (1 E.L.R. 330) not followed 247Mukti Nath Rai v. Uma Shanker Misra and Others (3 E.L.R.
109) ... 123Municipal Corporation of Rangoon v. M.A. Shakur (A.I.R.
1926 Rang. 25) ... 388Munuswami Gounder v. Khader Shariff and Others (No. 2)
(4 E.L.R. 283) dissented from ... 288Nairn and Others v. University of St. Andrews (1909 A.C. 147)... 414Nalini Kanta v. Anukul Chandra (A.I.R. 1918 Cal. 792) ... 388Narain Das v. Manohar Rao Jatar (E.P. No. 3 of 1952) ... 414Narasimhe Gowda v. Lakkappa and Others (4 E.L.R. 234) ... 414Narotam Singh v. Des Raj and Others (4 E.L.R. 309) ... 368Nasir Ali Khan v. Nawabzada Mohammad Faiyaz Ali Khan (Sen
& Poddar 428) ... 414Nawab Major Sir Mohammad Akbar Khan v. Attar Singh (40
C.W.N. 997) ... 247Nazir Ahmed v. King-Emperor (A.I.R. 1936 P.C. 253) ... 247North Durham Case (3 O'M. & H. 2) ... 346Pakuri Viraraghavalu v. Poluri Yettamandu (95 Ind. Cas. 584) ... 247Palamau (3 Jagat Narain 228) ... 346Pandit Brij Nandan Lai v. Pandit Moti Lai Bhargava (4 Jagat
Narain 96) ... 224
viii ELECTION LAW REPORTS [VOL. VI
PAGEPandit Harish Chandra v. Raja Man Singh and Others (5 E.L.R.
129) 224,470Pandit Krishna Rao v. Trimbak (I.L.R. 1938 Nag. 409) '... 53Perumal Mudaliar, K. v. Province of Madras (A.I.R. 1950 Mad.
194) ... 104Piare Lai v. Bhagwan Das (I.L.R. 55 All. 216) ... 123Pitman's Shorthand Academy v. B. Lila Ram and Sons (A.I.R.
1950 E.P. 181) ... 388Ponnuswami, N.P. v. Returning Officer, Namakkal (1 E.L.R. 133)
applied 53,186Prabhudas Ramjibhai Mehta v. Lallubhai Kishordas Maniar
(1 E.L.R. 154) relied on ... 104Prem Nath v. Ram Kishen (1 E.L.R. 271) 28,368Prince Line v. Trustees of the Port of Bombay (A.I.R. 1950 Bom.
130) ... 123Pritam Singh v. Charan Singh (2 E.L.R. 276) ... 28Province of Bengal v. S.L. Puri (51 C.W.N. 753) ... 104Province of Bombay v. Hormusji Manekji (A.I.R. 1947 P.C. 200) 414Province of Bombay v. Khushaldas (A.I.R. 1950 S.C. 222) 53,388Punjab North East Towns (2 Jagat Naiain 143) ... 346Purshottamdas Ranchoddas Patel v. Shantilal Girdharlal Parekh
(1 E.L.R. 223) followed 53,123Pyare Lai v. Amba Prasad (4 Jagat Narain 4) distinguished ... 138Qunayat Husain v. Sajidunnissa Bibi (A.I.R. 1949 All. 499) ... 123
R. v. Bowers ([1866] L.R. 1 C.C. at p. 45) ... 414R. v. Negus (L.R. 2 C.C.R. 34) ... 414R. v. Reason (23 L.J.M.C. 13) ... 414R.v. Walker ([1858] 27 L.J.M.C. 207) ... 414Rai Bahadur Panna Lai v. Lala Mohan Lai (2 Jagat Narain 143)
... 224Raipur North (2 Jagat Narain 146) ... 346Raman Lalji v. Gokul Nathji (I.L.R. 39 All. 343) ... 123Ram Chandra Annaji Khedgikar v. Shivbishalsingh Harpalsingh
(lDoabia211) ... 368Rameshwar Prasad Singh v. Krishna Gopal Das and Others (4
E.L.R. 112) 224,368Ram Nath Dube v. The State of U. P. (Civil Miscellaneous No.
7095 of 1951) ... 138Ramprasad Chimanlal v. Hazarimull Lalchand (A.I.R. 1931 Cal.
458) ... 197Rangoon West (G.U.), 1926 (Hammond 605) ... 414
E.L.R,.] TABLE OF OASES CITED ix
PAGERazzar Muhammadan Rural Constituency Case (Sen & Poddar)
716) ... 247Reg. v. Commissioners for the Special Purposes of Income-Tax
((1888)21Q.B.D. 313) ... 162Richards v. Pitt ([1915] 84 L.J.K.B. 1417) , ... 414Rochester Case (4 O'M. & H. 159) ... 288Roller Flour Mills, Patiala v. Income-Tax Officer (A.I.R. 1953
Pepsu 88) ... 162Rudra Pratap v. Bhagwandin (1 E.L.R. 60) ... 186
Sadler v. Henlock ([1855] 24 L.J.K.B. 138) ... 414Saharanpore District (N.M.R.) Case (1 Jagat Narain 66) ... 197Saharanpore Dist. Non-Mohammadan Rural (4 Jagat Narain 96) 224Satyendra Kumar Das v. Chairman of the Municipal Commis-
sioners of Dacca (A.I.R. 1931 Cal. 288) ... 414Shahabad case (1 Jagat Narain 85) ... 346Shambhu Nath v. Gobind Prasad Singh (2 Doabia 411) 87Shankar Nanasaheb v. Returning Officer, Kolaba (1 E.L.R. 13;
A.I.R. 1952 Bom. 277) 162, 186Shankar Nanasaheb Karpe v. Maruti Sitaram Sawant and Others
(1 E.L.R. 302) ... 104Shankar Rao v. State of Madhya Bharat (1 E.L.R 34) ... 186Sharma v. Lalit Bahadur Kharga (1 E.L.R. 252) ... 224Sheikh Mohammad Sadiq v. Dr. Saifud-Din Kitchlew (Sen &
Poddar 28; 2 Doabia 117) 28,414Shiva Dutt and Others v. Bansidas Dhangar and Others
(5 E.L.R. 55) ... 123Shiva Shankar Singh v. Thakur Motisingh (Hammond 97) ... 470Shri Gian Chand v. The State (Civil Miscellaneous No. 189 of
1951) ... 162Shyam Chand Pasak v. Chairman of Dacca Municipality
(24C.W.N. 189) ... 197Simmons v. Heath Laundry ([1910] 1 K.B. 543) ... 414Sitaram Hirachand Birla v. Yograjsingh Shankarsingh (2 E.L.R.
283) 28,123followed ... 1
Sochet Singh v. Sardar Thakar Singh (3 E.L.R. 102) ... 247State-Aided Bank of Travancore v. Dhirt Ram (A.I.R. 1942
P.C. 6) ... 414Stein v. Larkin ([1934] 1 K.B. at p. 196) ... 414Stepney Case (4 O'M. & H. 34) ... 288Subbiah Pillai v. Sankarapandian Pillai (A.I.R. 1950 Mad. 369) 123Subramanyam, K. v. Abdul Hameed Khan (1 E.L.R. 432) applied 10,470
X ELECTION LAW REPORTS [VOL. VI
PAGE
Sujaniram v. Lai Shyamshah (5 E.L.R. 183) ... 186Sukar Gope v. State of Bihar (1 E.L.R. 68) ... 186Suraj Narainv. Ram Nath and Others (3 E.L.R. 305) ... 346Surat Singh v. Jang Bahadur Singh and Others (4 E.L.R. 306)
224, 346, 368Surendra Narayan Sinha v. Babu Amulyadhone Roy and Others
(2Doabia368) ... 288Surendra Nath Roy v. Kedar NathBose (A.I.R. 1937 Cal. 87) ... 414Swaroop Narain v. Durga Narain (3 Jagat Narain 22) ... 28Templeton v. William Parkin & Co. ([1929] 140 L.T. 519) ... 414Tenishah v. Bolahishah (14 C.W.N. 479) ... 388Thadi Subbi v. Emperor (A.I.R. 1930 Mad. 869) ... 388Thanawala v. Shahzada Basudeo Singh (1 Ind. Cas. 325) ... 414Tikaram Sharma v. Lalit Bahadur Karga and Others (1 E.L.R. 252) 224Tirhut (2 Jagat Narain 180) ... 346
Udainath Singh v. Jagat Bahadur Singh (3 E.L.R. 26) .... 138United States v. Hartwell (6 Wall. 385) .... 414
Vijaya Mohan Reddy v. Paga Pulla Reddy (2 E.L.R. 414) followed 409Vindhya Pradesh Legislative Assembly Members, In re (4 E.L.R.
422) ... 397Vyankatesh Deshpande v. The Crown (I.L.R. 1940 Nag. 1) 53
Warrington case (1 O'M. & H. 42) .... 368Wigan (4 O'M. & H. 1) , .... 414
Yarborough, Ex parte, ([1884] 110 U.S. 631) .... 414Yograjsing Shankarsing Parihar v. Sitaram Hirachand Birla and
Others (1 E.L.R. 389 and 3 E.L.R. 439) ... 104
ELECTION LAW REPORTSVOL. VI
[NAGPUR HIGH COURT.]
MAHADEOv.
JWALAPRASAD MISHRA AND OTHERS.K. T. MANGALMURTI and P. P. DEO, JJ .
April 27, 1953.Election petition—Amendment of petition—Tribunal's power to allow
amendments—"May", "trial", meanings of—Joinder of all reliefs mentionedin s. 84—Legality—Right to abandon time-barred relief—'Representation ofthe People Act, 1951, ss. 84, 90(4), 92—R. P. Rules, 1951, r. 119(b).
Where an election petition contained all the three reliefs mentionedin section 84 of the Eepresentation of the People Act, 1951, and, as therelief for a declaration that the election was wholly void was barred bylimitation under rule 119(b), the petitioner applied for amending the peti-tion by deleting the prayer for a declaration that the election was whollyvoid, and the application was allowed by the Tribunal:
Held, that the Election Tribunal had power to allow the petition tobe amended and did not act without, or in excess of, jurisdiction in doingso, and the High Court would not interfere by issuing a writ under art.226 or 227 of the Constitution.
While it is not open to the Election Commission to allow amend-ments, the Election Tribunal is empowered to do so, not only by the useof the expression "may" in section 90, sub-section (4), but also by theprovisions of sub-section (2) of that section and of section 92 which conferon the Election Tribunal the power possessed by a civil court in the trialof suits.
The trial" of an election commences when the Tribunal proceeds todeal with the petition and not when it begins to hear the evidence.
The word may" in section 90, sub-section (4), does not mean shall"and the Election Tribunal is not bound to dismiss a petition for non-compliance with sections 81, 83, or 117.
Sitaram Hirachand Birla v. Yograjsingh (2 E.L.E. 283) followed.Julius v. Bishop of Oxford (5 App. Cas. 214) distinguished.
2 MAHABEO V. JWALAPRASAD MISHEA ( H . C.) [VOL. VI
MISCELLANEOUS PETITION NO. 70 of 1953.
Application under articles 226 and 227 of the Consti-tution of India for issue of a writ of certiorari and direc-tions to quash the order of the Election Tribunal,Rajnandgaon, in Election Petition No. 292 of 1952 dated31st January, 1953, reported as Jwala Prasad Misra v.Mahadeo and Others (3 E.L.R. 473).
M. N. Phadke and B. L. Gupta, for the petitioner.M. R. Bobde and K. O. Chendke, for respondent No. 1.
JUDGMENT.
This petition, purporting to be one under articles 226and 227 of the Constitution for issue of a writ of certiorariand directions to quash the final order of the ElectionTribunal, Rajnandgaon, in Election Petition No. 292 of1952, decided on 31st January, 1953, is made by ShriMahadeo Paliwal whose election was set aside by thetribunal. It was held that he was disqualified for beingchosen as a member of the State Legislature in view ofsection 7(d) of the Representation of the People Act, 1951(XLIII of 1951) hereinafter called the Act, and that con-sequently acceptance of his nomination paper was illegaland invalid. The tribunal further held that the acceptancematerially affected the result of the election.
2. It may be stated at the outset that this findingwas not challenged before us during the course of argumentsthough we pointedly brought it to the notice of the learnedcounsel for the applicant and asked him why the courtshould interfere in his favour under the extraordinaryjurisdiction under article 226. Setting aside the order ofthe tribunal means to permit the petitioner to exercise hisrights as member of the Legislature when he is disqualifiedto do so. All that the learned counsel submitted was thatthe tribunal having acted without jurisdiction, this findingis not binding on the applicant and must be ignored.
3. The non-applicant No. 1, Dr. Jwala Prasad Mishra,presented an election petition by post to the ElectionCommission, which was received by it on 22nd May, 1952.By the notice dated 8th July, 1952, the attention of the
E.L.R.] MAHADEO V. JWALAPRASAD MISHRA ( H . C.) 3
non-applicant was directed by the Election Commission tothe provisions of section 81 of the Act and rule 119(b)made thereunder and he was asked to show cause why thepetition should not be dismissed under section 85 for non-compliance with the provisions of section 81 inasmuch asthe petition which contained a prayer for a declarationthat the election to the said double-member constituencywas wholly void was presented beyond the limitation pre-scribed by rule 119(b). It was further stated that thisnotice was without prejudice to the provisions of the lawapplicable to the case. In showing cause the non-applicantNo. 1 stated that he could claim alternative reliefs with-out making separate applications and separate deposits assecurity for costs and that this was sufficient cause withinthe meaning of the proviso to section 85 to condone thedelay under that proviso. He requested that the delay becondoned. It was further submitted that even if the relieffor one declaration was barred by time, it could not entailthe dismissal of the petition as a whole and that thereliefs which were within limitation were bound to be con-sidered on merits by the Election Tribunal, and that inview of the law points involved, the questions raised bythe Election Commission should better be left to be de-cided by the Election Tribunal which would be the properforum for deciding them. He prayed for a hearing, if thematter was to be decided by the Election Commission. TheElection Commission did not pass any order under section85 but constituted the Election Tribunal under section 86for the trial of the petition. That petition was duly pub-lished by the Election Tribunal in the Official Gazette.
4. In his written statement the applicant pleadedthat the petition was liable to be dismissed in limine fornon-compliance with the mandatory provisions of sections81 and 83 of the Act and as barred by time under rule119(b). It was further pleaded that the constitution ofthe tribunal was ultra vires the Election Commission asthe petition did not comply with the provisions of section83 of the Act. The applicant prayed that these conten-tions be tried as preliminary issues.
5. On 7th November, 1952, the non-applicant No. 1made an application praying for leave to withdraw therelief that the election was wholly void and also to delete
4 MAHADEO V. JWALAPRASAD MISHRA (H. C.) [VOL. VI
paragraphs 5 to 10 of the petition. On 14th November,1952, the tribunal allowed the petitioner to delete para-graphs 5 to 10 in spite of opposition, and asked the appli-cant to make consequential amendments in the writtenstatement which was done. The case was adjourned forhearing argument on the question whether the non-appli-cant No. 1 could be allowed to withdraw the alternativerelief clause. At the adjourned hearing the applicantagain raised the objection that it was not permissible forthe tribunal to allow withdrawal of the allegations inparagraphs 5 to 10. On hearing arguments the tribunalstated that the decision on the objection would be givenin the final order.
6. The applicant then presented Miscellaneous Peti-tion No. 16 of 1953 to this court for directing the ElectionTribunal to decide the election petition as made to theElection Commission without any amendment and todecide first the preliminary objections raised by the appli-cant. That petition was dismissed on 6th April, 1953, asno security deposit was made.
7. The applicant contends that the Election Tribu-nal had no jurisdiction to permit withdrawal of the allega-tions in paragraphs 5 to 10 and should have dismissed thepetition as barred by time since the delay was not con-doned and the Election Tribunal had no jurisdiction tocondone the delay. It was further contended that thepetition did not conform to the provisions of sections 81and 83 of the Act and was not made within the time pres-cribed by rule 119(b) and that the tribunal had no alter-native but to dismiss the petition in view of the man-datory provisions of section 90, sub-section (4). The appli-cant also disputed the finding that he was disqualified forstanding for the election; but, as we have stated, thisground was not pressed at the hearing. The learnedcounsel for the applicant further contends that the appli-cant having been duly elected a member, had a right to bea member of the State Legislature and his election couldbe called in question only by an election petition present-ed in the manner provided by the Act.
8. The learned counsel for the contesting non-appli-cant contends that this court has no jurisdiction to ques-tion the decision of the Election Tribunal because it is
E.L.R.] MAHADEO V. JWALAPEASAD MISHRA (H. C.) 5
constituted by the Election Commission which is notamenable to the jurisdiction of this court because itis not required by law to have its sitting within its terri-torial jurisdiction. It was further contended that thejurisdiction of this court was excluded by sections 105 and170 of the Act read with article 329(b) of the Constitu-tion.
9. The prayers in the election petition are:—(a) It be declared that the election of respondent
No. 1 is void and that the petitioner who had securedthe next highest number of votes for the general con-stituency from the aforesaid constituency has been dulyelected,
(b) or, in the alternative, that the election for theJangjir-Pamgarh constituency is wholly void,
(c) or, in the alternative, the election of respon-dent No. 1 is void.
10. Section 83(1) of the Act requires the electionpetition to state concisely all material facts on which thepetitioner relies and to be signed by him and verified inthe manner laid down in the Code of Civil Procedure forverification of pleadings. Sub-section (2) requires the peti-tion to be accompanied by a list duly signed and verifiedin like manner, setting forth full particulars of the corruptor illegal practices alleged by the petitioner etc. Section84 enables the petitioner to claim any one of the follow-ing declarations:—
(a) that the election of the returned candidate isvoid;
(b) that the election of the returned candidate isvoid and that he himself or any other candidate has beenduly elected;
(c) that the election is wholly void.Section 81 provides that an election petition calling
in question any election may be presented on one or moreof the grounds specified in sub-sections (!) and (2) of sec-tion 100 and section 101 in such form and within suchtime as may be prescribed. Section 100 gives the groundsfor declaring the election to be void. Section 101 refersto the grounds on which a candidate other than the re-turned candidate may be declared to have been elected.
6 MAHADEO V. JWALAPRASAD MISHEA (H. C.) [VOL. VI
Rule 119 prescribes the time within which the electionpetition shall be presented. Sub-rule (a) provides forlimitation where the election petition is against the re-turned candidate. Sub-rule (b) provides for limitationwhere there are more returned candidates than one at anelection and the election petition calls in question the elec-tion as a whole. Thus the limitation for reliefs (a) and (c)is to be computed in accordance with rule 119 (a) and thatfor the relief (b) in accordance with rule 119 (b) (sic).
11. It is conceded that the petition in so far as itseeks the declaration that the election is wholly void isbeyond time, but it is contended that the petition for adeclaration that the election of the returned candidate,i.e., the applicant, is void is within limitation and the tribu-nal was bound to decide the case for this declaration onmerits and that the whole petition could not be dismissedas barred by time. It is also contended that the tribunalhad power to allow the non-applicant No. 1 to withdrawthe allegations in paragraphs 5 to 10 and abandon therelief that the election is wholly void and that the decisionof the question whether a particular application or reliefis barred by limitation does not affect the jurisdiction ofthe tribunal to entertain the petition. The tribunal wascreated by the Election Commission under section 86 ofthe Act and section 90, sub-section (4), of the Act empower-ed the tribunal to decide whether the election petition com-plied with the provisions of section 81, section 83 or section117. A tribunal is required to decide whether an applica-tion for relief before it, is within limitation. Reliance wasplaced on Devidas v. Nilhaniharao(l), where it has beenheld that jurisdiction is entirely independent of the man-ner of its exercise; the former involves the power to actat all and is independent of the decision reached in theexercise of that power; and the latter is confined to theauthority to act in the particular way in which the courtdoes act. It is argued that a tribunal does not act illegallyor with material irregularity when it decides wrongly thematter within its competence because it has jurisdictionto decide wrongly as well as rightly. It is conceded thatif an erroneous decision results in the tribunal exercisingjurisdiction not vested in it by law or failing to exercise
(1) I.L.B. 1936 Nag. 73.
E.L.B.] MAHADEO V. JWALAFBASAD MISHRA ( H . C.) 7
the jurisdiction so vested, the decision is revisable as washeld in Joy Ghandv. Kamalaksha^).
12. According to the learned counsel for the applicantthe tribunal was bound to decide the preliminary objectionthat the petition was liable to be dismissed for non-com-pliance with the mandatory provisions of sections 81 and83(2) of the Act and rule 119(b) and unless it found thatthe petition complied with these provisions it had no juris-diction to decide the case on merits and hold that the ap-plicant was disqualified in view of section 7(d) of the Act.Reliance was placed on article 329(b) of the Constitutionwhich provides that no election shall be called in questionexcept by an election petition presented to such authorityand in such manner as may be provided for, by or underany law made by> the appropriate legislature. The learnedcounsel therefore submits that unless the election petitionstrictly conformed to these provisions, his election couldnot be challenged.
13. As already stated, section 84 enables a peti-tioner to claim any one of the declarations specified in thatsection whereas the petitioner (non-applicant No. 1) claim-ed all the three declarations. It may be that a separatedeposit is required for each declaration on the groundthat it forms a separate petition; but we express no opi-nion thereon as it was not raised or argued before us. Itis however clear that a petition cannot be dismissed eitherunder section 85 or under section 90, sub-section (4), forcontravening section 84. The inference is therefore in-evitable that the petition can be brought in order by per-mitting the petitioner to make appropriate amendmentsby withdrawing the declaration which the petitioner doesnot seek to enforce. The petition in the instant case, if soamended, would be a petition in accordance with sections81, 83 and 117 of the Act. This power of amendment isconferred not only by section 90, sub-section (2), but bysub-section (4) as well. That sub-section reads thus:—
"Notwithstanding anything contained in section 85,the Tribunal may dismiss an election petition which doesnot comply with the provisions of section 81, section 83 orsection 117".
(1) A.I.R. 1949 P.O. 239.
8 MAHADEO V. JWALAPBASAD MISHRA (H. 0.) [VOL. Vl
Even if the Election Commission fails to consider the de-fects in the election petition or does not dismiss the peti-tion under section 85, it shall be lawful for the ElectionTribunal to dismiss the petition for the various defects un-less it allows appropriate amendments. The use of the word"may" is very significant. No doubt, it does not empowerthe court to act contrary to law; but it is a permissive orenabling expression. It always means "may" and does notmean "must". There are however cases in which for certainreasons where a person is by statute entrusted with a powerit becomes his duty to exercise it and the expression "may"has in that case to be interpreted as "shall". As stated byEarl Cairns in Julius v. Bishop of Oxford^):—
"But there may be something in the nature of thething empowered to be done, something in the object forwhich it is to be done, something in the conditions underwhich it is to be done, something in the title of the personor persons for whose benefit the power is to be exercised,which may couple the power with the duty and make itthe duty of the person in whom the power is reposed, toexercise that power when called upon to do so. Whetherthe power is one coupled with a duty such as I have des-cribed is a question which, according to our system of law,speaking generally, it falls to the Court of Queen's Benchto decide, on an application for a mandamus. And thewords 'it shall be lawful', being according to their naturalmeaning permissive or enabling words only, it lies uponthose, as it seems to me, who contend that an obligationexists to exercise this power, to show in the circumstancesof the case something which, according to the principlesI have mentioned, creates this obligation".
Such conditions do not exist in the instant case. Onthe contrary, the deliberate use of the word "may" in sec-tion 90, sub-section (4), as opposed to "shall" in section 85,is significant. While it is not open to the Election Commis-sion to allow amendments, the Election Tribunal is em-powered to do so not only by the use of the expression"may" in section 90, sub-section (4), but also by the pro-visions of sub-section (2) of the section and of section 92which confer on the Election Tribunal the power possessedby a civil court in the trial of suits. We cannot accept the
(1) (1880) 5 App. Uas. 211.
E.L.R.] MAHADEO V. JWALAPRASAD MISHRA (H. C.) 9
argument of the learned counsel for the applicant that thetrial begins with the hearing of evidence. That is not thesense in which the word "trial" has been used in section90, sub-section (2), which is as under:—
"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 Civil Pro-cedure, 1908 (Act V of 1908), to the trial of suits".
On receipt of the election petition the tribunal causes acopy of it together with a copy of the list of particulars tobe served on each respondent and publishes it in the Offi-cial Gazette as required by the rules. The trial thus com-mences when the tribunal proceeds to deal with the peti-tion. The tribunal therefore possesses the power to allowamendment of the petition or abandonment of the relieffor a declaration. It is a power exercised by a civil courtduring the trial of a suit.
14. The same view has been expressed in SitaramHirachand Birla v. Yograj Singh^) wherein it has beenobserved that when in the same statute with regard to thesame subject-matter the expression "shall" is used in onesection and "may" in another, it is not possible to holdthat these two expressions were used with the same mean-ing and connotation. It has been further held therein thatan Election Tribunal has power in a proper case to permitamendment of an election petition under section 90, sub-section (2), of the Act, and to allow the applicant to bringit in conformity with section 83. We respectfully agreewith this view.
15. We are, therefore, of the opinion that the Elec-tion Tribunal did not act without jurisdiction or contraryto law in allowing the non-applicant No. 1 to withdraw theallegations in paragraphs 5 to 10 of the petition and inproceeding only with the trial of the other declaration,whether the election of the applicant was void.
16. In this view, it is not necessary for us to exa-mine in this case the various other contentions raised bythe parties before us.
(1)1 2 E.L.R. 283.EL—2
10 HAKIKATULLAH V. NATHlT SINGH [VOL. VI
17. The application therefore fails and is dismissedwith costs. Counsel's fee Rs. 100 if certified.
Application dismissed.
[ELECTION TRIBUNAL, BIKANER.]
HAKIKATULLAHv.
NATHU SINGH AND OTHERS.M. P. ASTHANA (Chairman) M. C. BHANDARI and
GOVERDHANDAS T. GAJRIA (Members).
April 30, 1953.Electoral roll—Entry as to age—How far final—Power of Beburniwj
Officer and Tribunal to ascertain real age—Disqualification of candidates—>"Office of profit"—Chairman of Municipality—Bepresentatio?i of the PeopleBules, 1950, rr. 18, 20—Bepresentation of the People Act, 1951, ss. 7(d),36(7).
The entry in the electoral roll relating to the age of the proposer isnot conclusive by reason of the provisions of section 36(7) (a) of the Re-presentation of the People Act, 1951 and notwithstanding such an entry inthe electoral roll, the question of age could be enquired into by the Return-ing Officer as well as the Election Tribunal.
K. Subrahmanyarn v. Abdul Hanuied Khan (1 E-L.R. 432) applied.Whether the post of Chairman of any particular Municipality held
by any person, is an office of profit held under the Government of a State,will depend upon the various provisions of the Municipal Act whichgovern the said Municipality. As the President of the Jodhpur Munici-pality receives an honorarium of Us. 130 a month and the Jodhpur Munici-pal Act does not make the President and the Vice-President of theJodhpur Municipality absolutely independent of the Government but theyare, on account of the provisions of the Act, under the control of the Gov-ernment so far as their appointment, removal etc are concerned, thePresident of the Jodhpur Municipality holds an office of profit under theGovernment of the State of Rajasthan.
ELECTION PETITION NO. 283 of 1052.
Petition under section 81 of the Representation of thePeople Act, 1951, for declaration that the election of the
E.L.R.] HAKIKATULLAH V. NATHU SINGH 11
respondent No. 1 to the Rajasthan Legislative Assemblyfrom the Barmer "B" constituency was void.
ORDER.
This petition has been filed by one Hakikatullah undersection 81 of the Representation of the People Act, 1951,for a declaration under section 100 of the same Act thatthe election of the respondent No. 1 from the Barmer "B"constituency to the Rajasthan Legislative Assembly is void.
The facts are that during the last elections, the peti-tioner and the respondents had filed their nominationpapers as candidates for election as members to the Raja-sthan Legislative Assembly, from the Barmer "B" con-stituency, before the Returning Officer of the said con-stituency, on 26th November, 1951. On the date of thescrutiny of these nomination papers which took place on30th November, 1951, an objection was raised againstthe identity of the proposer of the petitioner and also hisage which was said to be below 21 years. After hearingthe parties and the evidence adduced by them the Return-ing Officer passed the following order on the petitioner'snomination paper:—
"As the age of the proposer has been proved to bebelow 21 years, he is not eligible to be a proposer. Thisform of Shri Hakikatullah has been rejected".
Besides the ground of improper rejection of his nomina-tion paper, the petitioner has alleged in his petition thatthe Returning Officer has improperly rejected the nomina-tion paper of the respondent No. 3 on the ground that asPresident of the Municipality of Jodhpur, the respondentNo. 3 was holding an office of profit and was as such dis-qualified under the provisions of article 191 (1) (a) of theIndian Constitution. The respondent No. 1 in para. 5 of hiswritten statement, has denied the allegations made by thepetitioner in para. 7 of his petition regarding the rejectionof the nomination paper of the respondent No. 3 and hasfurther asserted that the same was rightly rejected. Thepetitioner has neither produced before us the nominationpaper of the respondent No. 3 nor the order passed by theReturning Officer thereon. He has further alleged in his
12 HAKIKATULLAH V. NATHTJ SINGH [VOL. VI
petition that the nomination paper of respondent No. 1has been improperly accepted by the Returning Officer ashe holds an office of profit under the Government of Raja-sthan inasmuch as he is a Jagirdar, holding three villagesin jagir from the State of Rajasthan, the income of whichhe realises for the services which he renders or is deemedto render to the State. Besides this, as a Jagirdar heexercises the following powers, amongst many others,viz., realization of rent revenue, granting of exemptionfrom land revenue, granting of tenancy rights in theJagirdari lands, sale of land and granting of pattas inabadi as well as agricultural lands, and further enjoysprivileges according to the prevalent rules and customs inthe State.
Out of the three respondents, the respondent No. 1who is the successful candidate, has alone appeared andcontested the petition. He has filed a written statementin which he has denied the allegations made in the petitionregarding the improper rejection of the nomination paperof the petitioner and respondent No. 3 and the improperacceptance of his nomination paper and has contendedthat the orders passed by the Returning Officer on thenomination paper of the petitioner and the respondentsNos. 1 and 3 are correct and legal and that he had powerto enquire into and decide the question in controversy atthe time of the scrutiny. He has further alleged that therespondent No. 3 was, by virtue of being the President ofthe Jodhpur Municipality holding an office of profit as hewas drawing an honorarium of Rs. 130 per mensem out ofthe funds of the Municipality, which was being financedbj? the Rajasthan Government to some extent, and lastlythat in any case, the result of the election has not beenmaterially affected on account of the improper rejection ofthe nomination papers referred to above.
The case was adjourned to 14th February, 1953, forframing of issues, and on this date before framing theissues which arose for consideration out of the parties'pleadings, the Tribunal thought it proper to examine thepetitioner and the respondent No. 1 in order to elucidatecertain points whiqh did not appear to be quite clear fromthe pleadings. Accordingly, the statements of the peti-
E.L.R.] HAKIKATTTLLAH V. NATHTT SINGH 13
tioner and the respondent No. 1 and also their respectivecounsel were recorded, will be discussed under the appro-priate issues. The Tribunal after recording these state-ments framed the following issues:—
(1) Was the nomination paper of Shri Hakikatullahimproperly rejected by the Returning Officer as alleged?If so, has it materially affected the result of the election?
(2) Was the nomination paper of the respondentNo. 3, Shri Barkatullah Khan, improperly rejected asalleged by petitioner?
(3) Is respondent No. 1 holding an office of profitunder the State of Rajasthan and as such was his nomina-tion paper improperly accepted? If so, has it materiallyaffected the result of the election?
(4) Was the nomination paper of the petitionerliable to be rejected as alleged in para. 11 of the writtenstatement?
(5) To what relief, if any, is the petitioner entitled?After the framing of the issues the case was put off to
20th March, 1953, for the petitioner's evidence, 21st forrespondent's evidence and 23rd, for arguments. Thereafterthe petitioner's counsel presented an application in whichhe prayed that as his witnesses would be coming fromcertain villages in Barmer district, which is 130 miles awayfrom Jodhpur, it will be less expensive and inconvenientif the tribunal holds the sitting at Jodhpur instead ofBikaner, to which the counsel -for the respondent No. 1had no objection. Accordingly it was decided by theTribunal that the sittings fixed for evidence and argu-ments, shall be held at Jodhpur. The case was, therefore,taken up at Jodhpur and the evidence was recorded on20th and 21st March, but as 23rd March happened to be aholiday, the hearing for arguments was adjourned to 24th.We have heard the arguments of the learned counsel ofthe parties and after giving our most thoughtful consider-ation to them, our findings on the issues raised are asunder:—
IssuetNo. 1.—1st Part In the negative.2nd Part Does not arise.
Issue No. 2.—In the negative.
14 HAKIKATULLAH V. NATHU SINGH [VOL. VI
Issue No. 3.—1st Part In the negative.2nd Part Does not arise.
Issue No. 4.—Unnecessary in view of the finding onissue No. 1.
Issue No. 5.—Petition dismissed with costs as ordered.Issue No. 1.—It is alleged by the petitioner that his
nomination paper has been improperly rejected by theReturning Officer on the ground that the age of his pro-poser whose name was Bahadur was proved to be below21 years on the date of nomination. His contention is thatsince his age as entered in the electoral roll which wasprepared according to the provisions of the Representationof the People Act,*XLIII of 1950, was 25 years, it was con-clusive and binding so far as the Returning Officer w#s con-cerned, and he had absolutely no power to go behind theentries made in the electoral roll and hold an enquiry inorder to ascertain the correct age of the proposer. Whathas happened in this case, is that on the date of scrutinyof the nomination paper of the petitioner, an objection inwriting was raised by Shri Padam Singh, which has beenproduced before us and marked as Ex. 3 to the effect thatthe proposer, Bahadur, who had subscribed to the nomina-tion paper of the petitioner, was not the same person whosename appeared in the electoral roll as "Bahadur s/o Sihla"and also that he was below 21 years and as such was dis-qualified to become an elector under the provisions ofarticle 326 of the Constitution of India which are asunder:—
"The elections to the House of the People and tothe Legislative Assembly of every State shall be on thebasis of adult suffrage; that is to say, every person who isa citizen of India and who is not less than 21 years of ageon such date as may be fixed in that behalf by or underany law made by the appropriate Legislature and is nototherwise disqualified under this Constitution or any lawmade by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegalpractice, shall be entitled to be registered as a voter at anysuch election".
As to what happened on the date of the scrutiny ofthe nomination paper of the petitioner, before it was
E.L.B.] HAKIKATULLAH V. NAtHU SINGH 15
rejected, we have recorded the statements of the petitionerand the respondent No. 1 and their respective advocates,on 14th February, 1953, before the issues were framed andalso examined the Returning Officer, Shri J. N. Kunzuru,as P. W. 1. and Noor Mohammed P. W. 4 on the date ofhearing of this petition, and find that when an objectionwas taken the Returning Officer gave the parties an oppor-tunity to adduce evidence as to the age of the proposerBahadur before him, which was done by them. Two wit-nesses were examined in support of the age of the proposeras entered in the electoral roll, and a letter marked as Ex.A-l which has been denied by the petitioner, said to havebeen addressed to the Collector, Barmer, by the HeadMaster of the D. H. High School, Barmer, in which thisproposer is alleged to have studied, which mentions thatthe date of birth as entered in the Scholar register of theschool is 3rd February, 1932, was produced. The ReturningOfficer, who was examined as P. W. 1 before us, has statedthat he considered the letter of the Head Master of theSchool, Ex. A, and the evidence of the uncle of the pro-poser Bahadur, and then came to the conclusion that theage of the proposer was proved to be below 21 years, withthe result that he rejected the petitioner's nominationpaper. He does not remember if he examined any otherwitness, but it is clear from his evidence that some evi-dence was led before him by the parties, from which hecame to the above conclusion. It may be mentioned herethat it is not only the age of the proposer, which had beenobjected to, but also his identity was questioned at thetime of the scrutiny of the petitioner's nomination paper.Now the question for consideration is whether the entryin the electoral roll relating to the age of the proposer as25 years, is conclusive by reason of the provisions of sec-tion 36 (7) (a) of the Representation of the People Act,1951, or whether, notwithstanding such an entry in theelectoral roll, the question of age could be enquired intoby the Returning Officer as well as the Election Tribunal.There is also a further question in this case, as to what isthe effect if the age of the proposer is not proved to be 21years on the question of his identity which appears tohave been raised regarding him. The learned counsel forthe petitioner has contended that the order of rejection
IN r> _ G g'-" " i a- -Q
!-?-f
16 HAKIKATULLAH V. NATHU SINGH [vOL. VI
of the petitioner's nomination paper, shows that thisobjection as to identity has been rejected. But in ouropinion this is not so. If the petitioner wanted to provethat the Returning Officer had no doubt about the identityof the proposer, when he examined the Returning Officeras his witness he should have made this clear from him.But no question was put to him on this point. We aretherefore constrained to come to the conclusion that sincethe Returning Officer rejected the nomination paper of thepetitioner on the ground that the proposer's age was provedto be below 21 years, he did not feel the necessity of en-quiring into the proposer's identity.
In support of his contention that the age as enteredin the electoral roll is conclusive for all purposes and can-not be enquired into either by the Returning Officer or bythe Election Tribunal, in order to determine the qualifi-cation or disqualification of a person as an elector or as acandidate, the learned counsel for the petitioner has re-ferred us to section 36(7) (a) of the Representation of thePeople Act, 1951, which runs as under:—
"the production of any certified copy of an entrymade in the electoral roll of any constituency shall be con-clusive evidence of the right of any elector named in thatentry to stand for election or to subscribe to a nominationpaper, as the case may be, unless it is proved that the candi-date is disqualified under the Constitution or this Act, orthat the proposer or seconder, as the case may be, is dis-qiialified under sub-section (2) of section 33".
He has also relied upon rules 18,19 and 20 of the Re-presentation of the People (Preparation of Electoral Rolls)Rules, 1950, relating to the decision of the Revising Autho-rity regarding claims and objections, final publication ofelectoral rolls and revision of electoral rolls after publica-tion in special cases, respectively, and has contended thatthe entries made in the electoral roll cannot be correctedexcept by resorting to the procedure laid down in theserules, and if any person has not challenged these entriesas provided in these rules, he cannot subsequently do soas the same became conclusive. The rules Nos. 18, 19 and20 run as under:—
18. Decision of the Revising Authority regarding
"E.L.R.] HAKIKATULLAH V. NATHU SINGH 17
claims and objections.—(1) The decisions of the RevisingAuthority shall be final. Every such decision shall becommunicated to the Electoral Registration Officer whoshall cause the electoral roll to be amended in accordancetherewith. (2) The Revising Authority shall also directthe Electoral Registration Officer to correct any clerical orprinting errors which the Revising Authority may himselfdiscover in the roll. The Electoral Registration Officeralso may, at any time before the final publication of theelectoral roll under rule 19, either himself correct anyclerical or printing errors which he may discover in theelectoral roll or cause such correction to be made in theroll by any person employed by him under sub-section (2)of section 22 of the Act.
19. Final publication of electoral rolls.—The elec-toral roll so amended shall be republished in the mannerspecified in rule 9 and where it is an electoral roll firstprepared under the Act, shall come into force immediatelyupon such republication, and where it is an electoral rollsubsequently prepared under the Act, shall come intoforce on the first day of October immediately succeedingsuch republication:
Provided that if for any reason an electoral roll forany constituency or part of a constituency is in any yearnot republished before the first day of October next afterthe qualifying date by reference to which that roll is pre-pared, the electoral roll shall come into force immediatelyupon republication.
20. Revision of electoral rolls after final publication inspecial cases.—(1) When the Election Commission directsthe revision of the electoral roll of any constituency underclause (a) of section 25 of the Act, the roll shall be revisedby the preparation of a list containing additions to, omis-sions from, or alterations in, such roll and all the provi-sions of these rules shall apply in the case of every suchlist in like manner as they apply in the case of electoralrolls:
Provided that the Election Commission may directsuch modification in any of the prescribed forms as it mayconsider necessary for the purpose of such revision.
EL 3
IS HAKIKATTTLLAH V. NATHtT SINGH [VOL. VI
(2) Any person whose name is not included in theelectoral roll of a constituency for the time being in forceand who is entitled to be registered therein may applyto the Election Commission for an amendment of the rollby the inclusion of his name therein, and if the ElectionCommission is satisfied after such notice and such enquiryas it thinks fit, that the applicant is entitled to be regis-tered therein, the Election Commission may direct theamendment of the electoral roll by inclusion therein of anentry relating to the applicant:
Provided that an application under this sub-ruleshall not be entertained if it is not accompanied by a feeof rupees fifty, which shall in no case be refunded.
(3) When any list is republished under sub-rule (1)or a direction is issued under sub-rule (2) the electoral rollto which such list or direction relates shall be deemed tohave been revised accordingly.
As against this the contention of the learned counselfor the respondent No. 1 is that according to article 326 ofthe Constitution "every person who is a citizen of Indiaand who is not less than twenty-one years of age on suchdate as may be fixed in that behalf by or under any lawmade by the appropriate Legislature and is not otherwisedisqualified under this Constitution or any law made bythe appropriate Legislature on the ground of non-residence,unsoundness of mind, crime or corrupt or illegal practice,shall be entitled to be registered as a voter at any suchelection", and there is nothing in the words of section 36(7) (a) of the Representation of the People Act, 1951,which suggests that the entry in the electoral roll by itself,shall be conclusive so far as the qualifications of an electorare concerned. It merely says that the entry in the elec-toral roll shall be conclusive evidence of the right of anyelector named in the entry" to stand for election or to sub-scribe to a nomination paper, which is entirely differentand distinct from making the said entry conclusive regard-ing the possession of the requisite qualifications by aperson whose name is so entered, to be an elector so as tosubscribe to a nomination paper. The words "evidence ofright" in section 36 (7) (a) of the Representation of thePeople Act, 1951, mean that in the absence of any other
E.L.E.] HAKIKATTTLLAH V. NATHU SINGH 19
evidence to the contrary, the entry in the electoral rollshall be conclusive evidence of the right of any electornamed therein to stand for election or to subscribe to anomination paper, as the case may be. Therefore, it fol-lows that if there is any evidence which negatives theright of any person to be entered in the electoral roll, asrequired by the provisions of article 326 of the Constitu-tion, it can be enquired and looked into for the purpose ofdetermining whether the person in question is duly quali-fied to be an elector or a candidate for the House of the Peo-ple or State Legislature, as the case may be. Our attentionhas been drawn to some of the cases decided on this point,under the old law and also under the present law, as tothe powers of the Returning Officers and the ElectionTribunals to hold an enquiry into the age of a candidatein spite of an entry in the electoral roll giving the requisiteage, in order to determine whether the candidate in fact,possesses the requisite qualifications as required by theprovisions of law, on the qualifying date, which was fixedas 1st day of March, 1950, according to section 21 of theRepresentation of the People Act, 1950. This could bedone by the Returning Officer at the time of scrutiny ofthe nomination papers, under section 36 (2) (a) and (6)of the Representation of the People Act, 1951. The con-sensus of opinion of the Election Tribunals, in case of anenquiry into the qualifications or disqualifications of acandidate for being chosen to fill the seat under the Con-stitution or the Representation of the People Act, 1951, isthat the entries in the electoral rolls are not final, and theReturning Officers and the Election Tribunal can enquireinto the said qualifications or disqualifications of thecandidate in order to find out his eligibility to fill in a seatunder the Constitution or the Representation of the PeopleAct. This view of the law has been adopted by the Elec-tion Tribunal, Madras, in the case of K. Subramanyam v.Abdul Hameed Khan (J) and it has been held thereinthat the entry in the electoral rolls as regards the age ofa candidate is not conclusive and it was open to him tosatisfy the Returning Officer that he was in fact more than25 years which is the qualifying age for a candidate. Wehave very carefully gone through the judgments of the
(1) 1 E.L.Tt. 432.
20 HAKIKATtTLLAH V. NATHTT SINGH [VOL. VI
various Tribunals dealing with the question whether theentry of age of a candidate as entered in the electoral rollis conclusive or not and whether an enquiry as to his cor-rect age could be made by the Returning Officer or theElection Tribunal and we are of the opinion that there isno provision either in the Act or the Representation of thePeople (Preparation of Electoral Rolls) Rules, 1950, whichmay suggest that the entry as to the age of a candidate inthe electoral roll is final and conclusive and cannot beenquired into at the time of the scrutiny or by the ElectionTribunal. To be of a proper age required for being anelector or a candidate is a statutory qualification, theabsence of which is a statutory disqualification aboutwhich there can be no waiver. If a person is really below21 years or 25 years, which are the qualifying ages for anelector, and a candidate respectively, then he is inherentlylacking in the statutory qualification to become eitheran elector or a candidate as the case may be.
The real question which is involved for considerationin this case, is whether the Returning Officer had powerto enquire into the qualifying age of the proposer Bahadur,as an elector. No doubt the question of the eligibility ofa proposer who should not be less than 21 years, on thequalifying date, is somewhat different from that of acandidate, but in our opinion, when the question relates tothe possession of a statutory qualification by an electoron the qualifying date, the entry in the electoral roll as tothe age cannot be said to be conclusive and a bar to theholding of an enquiry by the Returning Officer or the Elec-tion Tribunal as to such qualification. To take a contraryview would permit a boy of ten years whose name happensto be in the electoral roll with 21 years as his age, becom-ing an elector and a proposer or a seconder, though he isunder a statutory disqualification. The electoral roll istherefore not final if the person whose name appears there-in is under a statutory disqualification to be an elector, viz.,that he was below 21 years on the qualifying date, whichcan be looked into by the Returning Officer or the ElectionTribunal. As the minimum age of 21 years for an electorhas been prescribed by the provisions of the Constitution,any contrary interpretation of any provisions of. theRepresentation of the People Act, 1950 or 1951, or of the
E.L.E.] HAKIKATTJLLAH-V. NATHTJ SINGH 21
Representation of the People (Preparation of the Elec-toral Rolls) Rules, 1950, will not be valid as it would defeatthe provisions of the Constitution. On a consideration ofthe relevant provisions of the Constitution of India andthe law made by the Parliament relating to elections wehave come to the conclusion that the lack of statutoryqualifications or statutory disqualifications, specially of apersonal nature, can be considered both by the ReturningOfficer and the Election Tribunal, whether it is the caseof a candidate or a proposer.
An argument has been advanced by the learnedcounsel for the respondent No. 1 that according to section36 (7) (a) of the Representation of the People Act, 1951, itis only a certified copy of an entry made in the electoralroll of any constituency which shall be conclusive evidenceof the right of any elector named in that entry to standfor election or to subscribe to a nomination paper butwhere no such certified copy is filed, this provision shallnot apply. In view of the above opinion expressed by uswe do not think it necessary to go into this point as wehave already held that the Returning Officer or the Elec-tion Tribunal has power to enquire into the correct age ofan elector who subscribes to the nomination paper.
Now the next question that arises for consideration iswhether it has been proved before us that the age of theproposer Bahadur was 21 or below 21 years on the qualify-ing date. We do not propose to consider this question onthe materials placed by the parties before the ReturningOfficer, as there is some difference between the parties, asto the evidence led by them before him. The parties haveled their evidence on the question of age of the proposerBahadur, before us and the question now for considerationis whether it is proved from the evidence that Bahadurwas 21 years of age on the qualifying date. [The Tribu-nal referred to the evidence and continued:] So we cometo the conclusion that the petitioner has failed to provebefore us both the identity and the age of the proposerBahadur and as such we are of the opinion that the peti-tioner's nomination paper has not been improperly rejectedby the Returning Officer and answer this issue accordingly.
(ii) In view of our finding on the first part of this
22 HAKIKATTTLLAH V. NATHTT SIKGH [VOL. VI
issue, this part of the issue, viz., whether the improperrejection of the petitioner's nomination paper has material-ly affected the result of the election, does not arise.
Issue No. 2.—This issue which relates to the rejectionof the nomination paper of Shri Barkatullah Khan, therespondent No. 3, arises out of the petitioner's allegationcontained in paras. 7 and 8 of the petition, viz., that thenomination paper of this respondent was improperlyrejected by the Returning Officer on the ground that byvirtue of his being the Chairman of the Jodhpur Munici-pality, he was holding an office of profit and as such wasdisqualified for being chosen as a member of the RajasthanLegislative Assembly under article 191 (1) (a) of theIndian Constitution. It may be mentioned here that therespondent No. 1 in para. 5 of his reply to the petition, hasdenied these allegations and has further stated that thisnomination paper was rightly rejected by the ReturningOfficer, and that the office of Chairman of the JodhpurMunicipality which was being held by the respondent No.3 was an office of profit as defined by article 191(1) (a) ofthe Indian Constitution, inasmuch as (i) he was drawingan allowance of Rs. 130 per month from the StateTreasury, (ii) the Jodhpur Municipality was being financedby the Government of Rajasthan and (in) he was notliable to be dismissed without the sanction of the Govern-ment. On 14th February, 1953, we, in order to clear upthe point as to the nature of remuneration which wasbeing received by the Chairman of the Jodhpur Munici-pality, enquired from the learned counsel of the petitioner,who stated that the respondent No. 3 was getting Rs. 130per month as an honorarium.
In connection with this issue we find that the peti-tioner has failed to produce the nomination paper of therespondent No. 3 and also the order of rejection passedthereon by the Returning Officer, which, in our opinion,are two most important and necessary documents, in theabsence of which it has become very difficult for us to gointo the question of improper rejection of the nominationpaper in question. It is not very clear from the allegationscontained in the petition and also the reply that the onlyground on which this nomination paper was rejected, wasthat the respondent No. 3 was holding an office of profit
E.L.K.] HAKIKATULLAH V. NAlHtT SINGH 23
as Chairman of the Jodhpur Municipality. In the absenceof these two documents, which has not been explained atall, we are of the opinion that we should not go into thequestion of propriety or otherwise of the order which hasbeen made the very object of attack by the petitioner, butsince the point has been put in issue and evidence also ledon it we are inclined to go into it.
It is an admitted position that the respondent No. 3was the Chairman of the Jodhpur Municipality, at thetime of the filing of the nomination paper, and in suchcapacity he was getting Rs. 130 per mensem as an hono-rarium from the Municipality though in the evidence led bythe petitioner, an effort has been made to show that thesum of Rs. 130 per mensem was not an honorarium, but acar allowance. In view of a very clear admission of thecounsel of the petitioner recorded in his statement on 14thFebruary, 1953, that the respondent No. 3 was getting Rs.130 per month as honorarium, we are not going to consi-der the suggestion that it was a car allowance. The realpoint for consideration is whether the office of the Chair-man of the Jodhpur Municipality held by this respondentfalls within the provisions of the Indian Constitution, asan office of profit under the Government of Rajasthan,and in order to decide this question, we have to see (i)whether the office of Chairman held by the respondent No.3 was an office of profit, and (ii) whether it was under theState Government, viz., the Government of Rajasthan.The broad dictionary meaning of the word "profit" is anyadvantage or gain, improvement, benefit, addition togoods or value, which need not necessarily be in theshape of money, and even the enjoying of a status or posi-tion, in some cases, including the case under consideration,would constitute an office of profit without any moneycompensation attached to it. It has further been describedin Law Lexicon by Ramanatha Iyer as "an office towhich salary, compensation, or fee are attached" and theamount of the salary or compensation is not material.Thus it would appear that pecuniary advantage is an essen-tial element, but not the only element, although oncethere is, or there can be pecuniary gain, its quantumseems to be immaterial. This case of the respondent No. 3would have changed its aspect to a very great extent, if
24 HAKII£ATUL;LAH V. NATHTJ SINGH [VOL. VI
the honorarium of Rs. 130 per mensem had not beenattached to the post of the President of the JodhpurMunicipality and this is sufficient to constitute "profit" ascontemplated by the provision of law applicable to thiscase, viz., article 191 (1) (a) of the Indian Constitution.So we hold that the office of the Chairman of the JodhpurMunicipality held by the respondent No. 3 falls within theexpression "office of profit" on account of the receipt ofhonorarium of Rs. 130 per month and also the status andposition enjoyed by him as such.
The next question for consideration is wheth'er therespondent No. 3's office which was, no doubt, of profit,was "held under the Government of a State" so as toentail a disqualification against him under the provisionsof article 191 (1) (a) of the Indian Constitution. In decid-ing this question various tests can be applied, viz., (1)whether the State Government held the power of appoint-ing or removing from office the President of the JodhpurMunicipality, (2) whether it has power to issue directionsto the President and compel obedience to such directions,and (3) whether the profit in question was derived byrespondent No. 3 from the Government of the State. It isnot necessary that all these tests should be cumulativelyapplied in order to come to a decision whether a person isholding "an office of profit under the Government of aState", but in our opinion it is enough if any one or twotests can bring us to the conclusion one way or the other.So, keeping in view this principle which has been adoptedby a great majority of the Election Tribunals both beforeand after the passing of the present Constitution, we haveto examine whether the respondent No. 3's office was "anoffice of profit under the Government of a State".
In this connection, our attention has been drawn tothe provisions contained in sections 53, 59, 66, and 69 ofthe Jodhpur Municipal Act, 1943, which relate to the ap-pointment, removal and status of the President respec-tively, which, for purpose of convenience, are reproducedbelow:—
53. Appointment of President.--The President of theBoard will be a non-official elected by the members of theBoard from among themselves subject to the approval ofthe Government.
E.L.R.] HAKlKATtTLLAH V. NATHIT SINGH 25
59. Removal of President or Vice-President.—A Presi-dent or a Vice-President may be removed from the officeby Government on the ground of persistent failure to per-form his duty and shall not be eligible for re-appointmentuntil so declared by the Government.
Provided that when the Government propose to takeaction under this section, it shall give the President orVice-President concerned an opportunity of explaininghis conduct, and shall in the event of taking such actionplace on record the reasons therefor.
66. Application of the Jodhpur Government ServiceRegulations to the Municipal servants.—The JodhpurGovernment Service Regulations will apply to all officersand servants of the Municipality.
69. Municipal Officer to be Public Servant.—Everymember and every municipal officer and servant shallbe deemed to be a public servant within the meaning ofsection 21 of the Mewar Penal Code.
Whether the post of a Chairman of any particularMunicipality held by any person, will be deemed to be anoffice of profit under the Government of a State, willdepend upon the various provisions of the Municipal Actwhich governs the said Municipality. So it will not beproper and safe for us to rely upon the judgment of anyTribunal on this point as the provisions of that MunicipalAct may be different from those of the Jodhpur Munici-pal Act, the relevant provisions of which have been verycarefully considered by us and we are of the opinion thatsection 53 in fact gives a hand to the Government in theappointment of the President which cannot be made untiland unless the Government agrees to it, and section 59makes every member a public servant within the mean-ing of section 21 of the Mewar Penal Code. The under-lying idea of these provisions of the Jodhpur MunicipalAct, which was passed by the former Government ofJodhpur, before the formation of the State of Rajasthan,was that the Jodhpur Municipality, should not be a full-fledged local self-governing body like some of the Munici-palities in the former provinces of Bombay, Bengal,Madras, United Provinces etc. but should remain underthe direct control of the Government in some respects in-
EL—4
26 HAKIRATULLAH V. NATHU SINOtt [vOL. VI
eluding the appointment and removal of its President andVice-President. These provisions, as a matter of fact, willnot ordinarily be found in the Municipal Acts governingthe Municipalities which are fully self-governing bodies,in which the election of the President or the Vice-Presi-dent (which otherwise is legal and valid) is never subjectto the control of the Government nor is their removal inthe hands of the Government as it is in the case of theJodhpur Municipality. The reason, obviously, seems tobe that the Jodhpur citizens, in the days of then JodhpurGovernment were not considered as advanced and progres-sive in the sphere of Local Self Government as the peopleof the major provinces in India, where they had made avery appreciable advance in this direction. With thisbackground it is clear to us that the Jodhpur MunicipalAct does not make the President and the Vice-Presidentof the Jodhpur Municipality absolutely independent of theGovernment but they have, on account of these provi-sions, been under the control of the Government so far .astheir appointment, removal etc. are concerned. In thisconnection, it is also necessary to clear up one more pointwhether the provisions of the Jodhpur Municipal Act,1943, have undergone any change after the integration ofthe Jodhpur State into the State of Rajasthan and wehave been informed by the learned counsel of the respon-dent No. 1 that by Ordinance No. 1 of 1949 issued by theRajpramukh, the Government of the State of Rajasthan,has been substituted in place of the word "Government"appearing in the various laws in force in the covenantingStates which merged into Rajasthan. So the word"Government" appearing in the Jodhpur Municipal Act,which originally referred to the Jodhpur Government willnow mean the Government of the State of Rajasthan.
There is one more point to be taken into considera-tion to determine whether the office of the President ofthe Jodhpur Municipality will amount to "an office ofprofit" within the provisions of the Indian Constitutionand it is that the Jodhpur Municipality gets some annualgrant from the Government of Rajasthan, which has beenadmitted by the respondent No. 1 in his evidence, thoughin our opinion this factor by itself, will not be of anyassistance to us. Therefore, taking into consideration the
B.L.R.] HA.KIKATULLAH V. NATHIT SINGH 27
above provisions of the Jodhpur Municipal Act, 1943, whichare of a very peculiar nature, we have no hesitation incoming to the conclusion that out of the above three tests,the first two tests can very safely be made applicable tothe office of the President of the Jodhpur Municipality,which in our opinion are quite sufficient for deciding thisquestion, so as to bring it within the provisions of article191(1) (a) of the Indian Constitution. Accordingly we holdthat the respondent No. 3 as such President did hold anoffice of profit under the Government of the State ofRajasthan and as such, his nomination paper was rightlyrejected by the Returning Officer, and answer this issueaccordingly.
In view of our finding that the nomination paper ofthe respondent No. 3 has been properly rejected by theReturning Officer, the question whether its improper rejec-tion has materially affected the result of the election doesnot arise.
Issue No. 3.—This issue relates to the allegations con-tained in the petition that the nomination paper of therespondent No. 1 has been improperly accepted as he is aJagirdar holding three villages in Jagir from the State ofRajasthan, the income of which he realises for the serviceswhich he renders to the State, and as such holds an officeof profit under the State of Rajasthan, which is a dis-qualification according to article 191(1) (a) of the IndianConstitution. During the course of arguments, the learn-ed counsel for the petitioner admitted that there was noevidence on the record to prove these allegations and assuch he dropped this issue. We also find that the petitionerhas failed to prove that the respondent No. 1 holds anoffice of profit under the State of Rajasthan so as to besubject to the disqualification contained in article 191(1)(a) of the Indian Constitution and answer the issue ac-cordingly.
Issue No. 4.—In para. 11 of his reply, respondent No.1 has contended that the petitioner's nomination paperwas liable to be rejected on the ground that the age of hisagent was below 21 years. It appears from the nomina-tion paper that the petitioner had appointed the aboveBahadur who was his proposer, as his agent and as such
28 MADAN PAL V. EAJDEO UPADHYA [VOL. VI
since the question of his age has been discussed underIssue No. 1, it is not necessary to discuss this point overagain.
Issue No. 5.—In the result, therefore, our conclusionis that the petitioner has failed to prove that either hisnomination paper or that of the respondent No. 3 hadbeen improperly rejected or the nomination paper of res-pondent No. 1 had been improperly accepted and we,therefore, dismiss the petition with costs. Since the peti-tioner has failed on all the grounds urged by him in hispetition, we order that he should bear his own costs andalso those incurred by the respondent No. 1. We fixRs. 250 as advocate's fees for the respondent No. 1.
The Election Petition No. 283 of 1952 is dismissed.The petitioner shall bear his costs and shall pay to the res-pondent No. 1 his costs including Rs. 250 as advocate'sfee.
Petition dismissed.
[ELECTION TRIBUNAL, GORAKHPUR.]
MADAN PALv.
RAJDEO UPADHYA AND OTHERS.BRIJ NARAIN (Chairman), BRIJ BBHARI LAL and SUKHDEO
PRASAD (Members).April 30, 1953.
Corrupt practice—Procuring services of Government servants—Emplo-yee of Cane Development Union and Adalati Panches and Sarpanches, whe-ther Government servants—Appointment as polling agents outside theirjurisdiction—False allegations of bribery of officials—Election petition—Parties—Candidates who have withdrawn—Effect of joinder after limita-tion—Bepresentation of the People Act, 1951, ss. 82, 100, 123 (5) & (8)—U. P. Sugar Factories Control Bules, 1948, r. 4-A—U. P. Pancha.yat RajBules, 1947, r. 61-A.
An employee of a Cane Development Union formed in pursuance ofthe United Provinces Sugar Factories Control Eules, 1948, is not a gov-ernment servant within the meaning of section 123(8) of the Representa-tion of the People Act, 1951, even though the appointment of such emplo-yee is subject to the approval of the Cane Commissioner of the U.P. StateGovernment, as he does not receive any salary from the Government andis not directly under the control of the Government.
E.L.R.] MADAN PAL V. RAJDEO UPADHYA 29
Adalati Panches and Adalati Sarpanches are Government servants eventhough they are appointed by election, as they are village officers employ-ed in the State and Explanation (b) to section 123 (8) includes suchvillage officers within the definition of Government servants.
A candidate would be guilty of a corrupt practice under section 123(8)if he procures the services of Adalati Panches and Adalati Sarpanches aspolling agents even if they are appointed as polling agents in places out-side their jurisdiction.*
Candidates who have withdrawn their candidatures are necessaryparties to an election petition but a petition is not liable to be dismissedfor non-joinder of such candidates. They may be added as parties if anapplication is made for that purpose, and the fact that they are added onlyafter the period of limitation for filing the petition has expired, will notmake the petition time-barred as against the respondents against whomthe petition was filed in time.
A false allegation that the petitioner had bribed Government officialsand got a false report from them is not a mere expression of opinion or ot*a trivial or limited character but a serious allegation about the personalcharacter of the petitioner and it would amount to major corrupt practiceunder section 123(5) and is a ground for setting aside an election undersection 100(2)(b).
Swaroop Narain v. Durga Narain (3 Jagat Narain 22), Hansa JivrajMehta v. Indu Bhai Amin (1 E.L.E. 171), Ghasi Bam v. Bam Singh (4E.L.E. 124), Chaudhri Allahdad Khan v. Safi Abdul Hameed Khan (1Doabia 63), Jadunandan Mahto v. Musahib Singh (1 Doabia 46), SheikhMohammad Sadiq v. Dr. Saif Uddin Kitchlew (2 Doabia 117), SitaramHirachand Birla v. Yograj Singh Shanker Singh Parihar (2 E.L.E.. 283),Lakshmana Pillai v. Changam Pillai (2 E.L.E 103), Menghraj v. BhimanDas (2 E.L.E. 301), Pre?n Nath v. Bam Kishen (1 E.L.E. 271), undPritamSingh v. Char fin Singh (2 E.L.E. 276), referred to.
ELECTION PETITION NO. 253 OF 1952.
Ram Narain Lai, Sahebzada Singh and RamanujVankteshwar Narayan Singh, for the petitioners.
Harihar Prasacl and Govinrt Misra, for the respondentNo. 1.
Gupta Misra, for respondent No. 2.ORDER.
This is an election petition under section 81 of the Re-presentation of the People Act (Act XLIII of 1951) on be-half of Sri Madan Pal praying that the election of the res-
• Note.—The Supreme Court has since held in Satya Dev Bushahri v. PadamDev and Others, Civil Appeal No. 52 of 1954, decided on 25th May, 1954, that themere appointment of a Government servant as a polling agent would not in itself bea corrupt practice under section 123 (8).
30 MADAK PAL V. RAJDEO UPADHYA [VOL. VI
pondent No. 1, Sri Rajdeo Upadhya, held on 25th January,1952, be declared void and the opposite party No. 2, SriJagarnath Dube, be declared as disqualified and the peti-tioner be declared elected. The petitioner has alleged thathe and the opposite parties Nos. 1 to 3 were validly nomi-nated candidates from the Hata North Constituency ofDeoria district in the last general election held under theConstitution of the Union of India. The polling took placeon the 25th January, 1952, and after counting of votes therespondent No. 1 was declared elected and his name waspublished in the U.P. Gazette, dated February 26, 1952, inaccordance with the provisions of section 67 of the Repre-sentation of the People Act, 1951.
According to the petitioner, the respondents Nos. 1 and2 and their agents and supporters freely indulged in masscanvassing till the polling day and the respondent No. 1used a private carrier No. UPQ 68 for conveyance of theelectors at Khadda polling station on 25th January, 1952,and his agents openly and freely carried on canvassing inbooth compounds for the respondent No. 1 at Khadda poll-ing station in spite of protests and complaints of the agentsof the petitioner. It has further been alleged that therespondent No. 1 in the course of his election propagandaassured and promised to the electorate that if he is electedhe would arrange to provide land to those who had lessthan 5 acres land or none at all and he further promisedto many of the electors that their relations would be em-ployed in various Government services if they managed tosecure votes for him. The respondent No. 1 is furtherstated to have threatened some electors of the consti-tuency to get them arrested if they did not withdraw theirsupport to the petitioner. The respondent No. 1 is alsoalleged to have freely utilized the services of chaukidars,patwaris, mukhias, panchas and sarpanchas of Gaon Sabhasand Adalati Panchayats in this election. The respon-dent No. 1 is stated to have got 4000 copies of pamphletspublished through his agent Kalika Lai and in this pam-phlet certain false statements in relation to the personalcharacter and candidature of the petitioner which wereknown to be false by the respondent were published andthese leaflets were freely distributed by the respondent No.l,his supporters and agents throughout the constituency
E.L.R.] MADAN PAL V. RAJDEO TTPADHYA 31
to prejudice the prospects of the petitioner. It has furtherbeen stated that the opposite party No. 2 got 8000 copiesof a pamphlet published through Sri Moti Lai Singh andfalse statements were made in this pamphlet also in rela-tion to the personal character and candidature of thepetitioner, which the respondent No. 2 and Motilal Singhknew to be false and baseless, and these pamphlets werealso freely distributed amongst the voters with the resultthat there was no free and fair election and the respon-dents Nos. 1 and 2 secured more votes than the petitioner.Lastly, it has been alleged that the returns of electionexpenses lodged by the respondents Nos. 1 and 2 areirregular, incorrect and illegal.
The respondent No. 1 has contended in his writtenstatement that the allegations in the petition are vague,indefinite and very general, and neither he nor his agentsnor his supporters canvassed on the polling day or in thepolling booths at Khadda. The allegation regarding theuse of private carrier for conveyance of electors has alsobeen denied and it has further been denied that this res-pondent was guilty of any corrupt practice or that anycorrupt practice was committed within his knowledge orwith his consent. The allegation regarding the publicationof any pamphlet by Kalika Lai at the instance of the res-pondent No. 1 has also been denied. It has further beencontended that the case of the petitioner was worse thanthat of any other candidate because he has been a veryold and confirmed opponent of labour movement and as-pirations and he has been opposing popular causes and isvery closely associated with hardened capitalists andreactionaries. The return of election expenses filed by therespondent No. 1 is said to be quite regular, correct andlegal. The allegation that Vijai Bahadur Singh acted asagent of respondent No. 1 has also been denied. Accord-ing to respondent No. 1 if any irregularities were com-mitted at all, they Were committed contrary to his ordersand without his consent or connivance and such practiceswere of trivial nature and limited character and they didnot affect the result of the election and the respondentNo. 1 took all reasonable precautions and adopted allreasonable means for preventing the commission of corruptor illegal practices at the election and in all resj)ects the
32 MADAN PAL V. feAJDEO tTPADHYA [VOL. Vl
election was free from all corrupt or illegal practices onthe part of this respondent and his agents. Lastly, it hasbeen contended that the petitioner procured a number ofprivate carriers and motor cars of Lakshmiganj, Ram Kolaand Chhitauni Mills for conveyance of the electors toKhadda, Khutahi, Singaha and Barwa Bazar pollingstations and the petitioner thereatened the voters gener-ally that if they would not vote for him, purzis for supplyof sugarcane to the Mills would not be issued to them,and the Mill employees of Chitauni Sugar Mills were alsothreatened by the petitioner that if they would not votefor him he would have them dismissed. The petitioner isfurther stated to have given money to many voters asconsideration for their voting for him, and he is alsostated to have carried on canvassing even on the pollingday and at the polling booths, and the return of electionexpenses filed by the petitioner is also said to be incorrect.The present election petition is also said to be time-barred.
The respondent No. 2 has also denied the allegationsof the petitioner regarding corrupt practices and it hasfurther been denied that Sri Moti Lai ever published anynotice with the consent or connivance of this respondent.Lastly, it is been urged that in case respondent No. 1 isheld to be disqualified, this respondent should be declaredvalidly elected, as he had secured the largest number ofvotes after the respondent No. 1. Both these respondentshave claimed costs against the petitioner in case this peti-tion is dismissed by this tribunal. The other respondentshave not filed any written statement.
The following issues* were framed:—5. Did any panchas or sarpanch of Gaon Sabha and
Adalati Panchayat work for the opposite party No. 1 ashis agents and supporters? Did they do so at the instanceof the opposite party No. 1 ? If so, with what effect?
6. Did the opposite party No. 1 get any pamphletcontaining false allegations published against the peti-tioner and did he get the same distributed?
7. Did Kalika Lai publish any pamphlet at theinstance and expense of the opposite party No. 1 as hisagent and supporter?
* Only those issues which are material for thia report are printed here.
E.L.R.] MADAN PAL V. RAJDEO TTPADHYA 33
11. Was the result of the election materially affectedby the irregularities alleged by the petitioner?
12. Was the return of expenses filed by the oppositeparty No. 1 irregular, incorrect and illegal in any materialparticulars? If so, to what extent and with what effect ?
13. Did the opposite party No. 1 himself indulge inany corrupt practice or was it committed by his agent, ifat all, contrary to his order and without the sanction andconnivance of the opposite party No. 1 ?
14. Were the corrupt practices, if any, of a trivialnature which did not affect the election and did they occurdespite all reasonable precautions adopted by the oppositeparty No. 1 ?
15. Did Bijai Bahadur Singh work as an agent forthe opposite party No. 1 ?
10. Can the petitioner not be declared elected in anycase as the opposite party No.l was himself not guilty ofany corrupt practices and the corrupt practices were, if atall, of trivial nature and limited character and the oppo-site party took all reasonable precautions and adopted allreasonable means for preventing the commission of suchpractices?
17. Is the present petition time-barred?18. Were Sri Shy am Narain and Sri Samunder also
duly nominated candidates for the seat contested by theparties? If so, what is the effect of their not been madeparties to this petition?
19. To what relief, if any, is the petitioner entitled?Issues Nos. 5 and 15.—Both these issues can conveni-
ently be taken uptogether for consideration. Sri RajdeoUpadhya, respondent No. 1, has admitted in cross-exami-nation that the name of KalikaLal (R. W. 2) is printed onthe programme, Ex. 15, but he has tried to show that hisname was printed there by mistake, as Kalika Lai was alabour leader and a servant of the Cane DevelopmentDepartment and he did not belong to the Congress Mandal,Khadda; but the respondent No. 1 had to admit that hedid not inquire from Sri Shyam Badan up to the date ofhearing of this case as to why he had obtained the signa-
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34 MADAK PAL V. RAJDEO UPADHYA [VOL. VI
tures of Kalika Lai on Ex. 15 and the respondent No. 1also failed to inquire from Kalika Lai as to why he hadsigned Ex. 15. In fact the respondent No. 1 never caredto have any talk regarding Ex. 15 up to the date on whichhe was cross-examined in this case. The respondent No. 1has however admitted that he acted on the programmelaid down in Ex. 15. Kalika Lai (R. W. 2) has admittedin his statement that he was the agent of the respondentNo. 1 in Dhuan Tikar polling station. Similarly MahabirSingh (R. W. 8) has admitted that he is the Vice-Presidentof Hata Tahsil Congress Committee and he worked as thepolling agent of the respondent No. 1 at Bolahwa pollingstation. In cross-examination this witness had to admitthat he is the Adalati Sarpanch and the Gram Sabhapati ofKhadda.
Regarding Bijai Bahadur Singh it was alleged in itemNo. 7 of the list appended to the petition that Sri BijaiBahadur Singh, Adalati Panch, worked as polling agentof the respondent No. 1 during this election but this versionwas denied in para. 34 of the written statement. It is how-ever established from the return of election expenses ofthe respondent No. 1, [vide form No. (2)C, paper No. 259C/23 at item No. 10] that Rs. 3/8/- were paid to BijaiBahadur Singh, polling agent on account of travellingexpenses and diet money: vide Ex. 23. It is thus provedin this case that Mahabir Singh and Bijai Bahadur SinghAdalati Panches worked for the respondent No. 1 in thiselection as polling agents and Kalika Lai, a servant of theCane Development Department, also worked as pollingagent of the respondent No. 1.
It has been contended on behalf of the petitioner thatthe respondent No. 1 would be deemed to be guilty of amajor corrupt practice as he utilized the service of Panches,Sarpanches and Government servants for furthering theprospects of his election. Section 123(8) is in point and itruns as follows:—
"123. The following shall be deemed to be corruptpractices for the purposes of this Act:
(8) The obtaining or procuring or abetting orattempting to obtain or procure by a candidate or hisagent, or by any other person with the connivance of a
E.L.E.] MADAN PAL V. RAJDEO TTPADHYA 35
candidate or his agent, anj^ assistance for the furtheranceof the prospects of the candidate's election from any personserving under the Government of India or the Government ofany State other than the giving of vote by such person.
Explanation.—For the purposes of this clause—(a) A person serving under the Government of
India shall not include any person who has been declaredby the Central Government to be a person to whom theprovisions of this clause shall not apply;
(b) A person serving under the Government of anyState shall include a patwari, chaukidar, dafedar, zaildar,shanbagh, karnam, talati, talari, patil, village munsif,village headman or any other village officer, by whatevername he is called, employed in that State, whether the officehe holds is whole-time office or not, but shall not includeany person (other than any such village officer as afore-said) who has been declared by the State Government tobe a person to whom the provisions of this clause shall notapply."
A perusal of this sub-section clearly shows that if acandidate obtains any assistance for the furtherance of theprospects of his election from any village officer by what-ever name he is called and employed in the State, thecandidate will be deemed to have been guilty of a majorcorrupt practice. We have, therefore, to see whetherKalika Lai, Mahabir Singh and Bijai Bahadur Singh canbe deemed to be persons employed in the U.P. State forthe purposes of sub-section (8) of section 123 of the Act.
Regarding Kalika Lai it is clear from the evidence ofKalika Lai himself that he has admitted that he is em-ployed in the Cane Development Department and SriRajdeo Upadhya, respondent No. 1, has also admitted thisfact. The learned advocate for the respondent No. 1 hasurged that as Kalika Lai and Sri Rajdeo Upadhya havenot admitted that this Cane Development Department isof the Government of Uttar Pradesh, Kalika Lai cannotbe deemed to be an employee of the State. It has beencontended that the actual working of the Cane Develop-ment Department is that the A. C. D. 0. organizes onthe spot Cane Development Unions of cane growersand he functions as the Secretary of the Unions in
36 MADAN PAL V. RAJDEO UPADHYA [VOL. VI
order to guide and help them and these Unions employvarious servants. These servants are servants of theseUnions registered under the Co-operative Societies Act.Even though their appointments are subject to the appro-val of the Cane Commissioner, these servants remain ser-vants of the Unions: vide the United Provinces SugarFactories Control Rules 1948, R. 4-A, paras. 1 to 6. Thepetitioner has himself mentioned in item No. 7 of the listthat Kalika Lai is an employee of the Cane DevelopmentUnion of Khadda and so it is to be seen whether he canbe deemed to be a Government servant or not. It hasbeen contended on behalf of the petitioner that theGovernment need not necessarily be the employer ofKalika Lai but if the Government exercises control overhim, he will be deemed to be a Government servant. InWharton's Law Lexicon, 12th Edition, a servant is said tobe a person who is called for the assistance of others andthe master is supposed to exercise control over the ser-vant.
'Servant' has been defined by Webster as one whoserves or does service voluntarily; a person who is employ-ed for another for menial offices or for other labour and issubject to his command; a person who labours or exerciseshimself for the benefit of another, his master or employer;a subordinate helper. A servant is one who is employedto render personal service to his employer, otherwisethan in pursuit of an independent class, and who insuch service remains entirely under the control anddirection of the latter who is called his master. Any personwho works for another for a salary is a servant in the eyeof law. The term servant is very broad and if taken inits legal sense would embrace all classes of persons retain-ed, hired or employed in the business of another: vide theLaw Lexicon by P. Ramanatha Aiyar, 1940 Edition.
The above definitions clearly lay down a number oftests in order to determine whether a particular personcan be legally deemed to be a servant of another and thesetests are:
(1) Whether the person who is said to be the ser-vant of another has been appointed and can be dismissedby the alleged master,
E.L.E.] MADAN PAL V. EAJDEO TTPADHYA 37
(2) Whether he is under the control and worksaccording to the directions of the master,
(3) Whether he receives any remuneration (emolu-ment) from the master, and
(4) By the functions discharged by him he assistshis master.
As Kalika Lai does not receive any salary from theGovernment, U. P., he is not directly under the controlof the Government and he does not work at the behest ofthe Government and as appointments to the staff of theCane Development Unions are made by the Cane Develop-ment Officer in consultation with the Central CaneMarketing Board to which the Union is affiliated and theadministrative control of the union staff including theirtransfer, punishment or removal is vested in the CaneDevelopment Officer subject to the superintendence of theCentral Cane Marketing Board [vide rule No. 34 of theModel Bye-laws for Central Cane Development andMarketing Union Ltd.] we think that Kalika Lai cannotbe deemed to be a Government Servant and simply be-cause he worked as a polling agent of the respondentNo. 1, the respondent No. 1 will not be deemed to havecommitted any major corrupt practice on this account.
The cases of Mahabir Singh, Adalati Sarpanch, andBijai Bahadur Singh, Adalati Panch, however, appear tobe different. We have already mentioned that the res-pondent No. 1 tried to conceal the fact that Bijai BahadurSingh worked as his polling agent in the pleadings butthis fact is proved by the return of his election expenses.Applying the tests mentioned above to the cases ofMahabir Singh and Bijai Bahadur Singh we find thatthey do not receive any emoluments from the Govern-ment but they have been appointed under the U. P.Panchayat Raj Act. It has been contended that theyhave been appointed by election and so their appoint-ment should be deemed to be made by the entire villagepopulation. It has further been contended that MahabirSingh and Bijai Bahadur Singh worked outside theircircles and so the respondent No. 1 cannot be deemed tobe guilty of any corrupt practice as rule 61-A of the U. P.Panchayat Raj Act Rules provides that if any Sarpanch
38 MADAN PAL V. RAJDEO UPADHYA [VOL. VI
or Panch of a Panchayati Adalat or his son or brother orany other close relation desires to stand for election to alocal body other than a Gaon Panchayat or PanchayatiAdalat or to the State Legislature from the area in whichhe exercises jurisdiction the Sarpanch or Panch concernedshall inform the prescribed authority concerned of suchintention. The prescribed authority shall immediatelytake steps to ensure that the Sarpanch or Panch does nottake part in any Bench for the disposal of cases or suitsor proceedings of the area to which the election relates.No Sarpanch or Panch shall take part in any election toa local body other than a Gaon Panchayat or PanchayatiAdalat or to the State Legislature in any area within hisjurisdiction otherwise than by casting his own vote as anelector. According to this rule the Sarpanch or Panch of aPanchayati Adalat has been empowered to take part inelection outside the local area of his jurisdiction. TheIT. P. Panchayat Raj Act was passed on the 5th June,1947, and it received the assent of the Governor-Generalof the Dominion of India on the 7th December, 1947, andit came into force on the 27th December, 1947. The Re-presentation of the People Act, 1951, came into force lateron and so the provisions of section 123, sub-section (8),cannot in any sense be governed by rule 61-A of theU. P.Panchayat Raj Act Rules and so, if Mahabir Singh andBijai Bahadur Singh can be deemed to be village officersemployed in the State, the provisions of rule 61-A of theU. P. Panchayat Raj Act Rules cannot help the respondentNo. 1 even though these people worked outside their terri-torial jurisdiction for the respondent No. 1. The learnedadvocate for the respondent No. 1 has urged that theseAdalati Panches are not appointed by the Governmentbut they are only recognized as such and as they receiveno remuneration and they do not work on any regularbasis at regular intervals they cannot be deemed to beGovernment servants. Reliance has been placed onSwaroop Narain v. Durga Narain(l), in which it has beenheld that District Board servants are not Governmentservants and are not prohibited from taking part inelections and also on Sarin's Indian Election Law, p. 503.But as Mahabir Singh and Bijai Bahadur Singh are not
(1) 3 -Jagat Narain, p. 22 at p. 49.
E.L.B.] MADAN PAL V. RAJDEO UPADHYA 39
servants of the District Board or the Municipal Board,these rulings do not help the respondent No. 1 in anyway.
The language of sub-section (8) of section 123 clearlyshows that the acid test which ought to be appliednow in order to determine whether any person alleged tohave worked for a candidate is a person serving underthe Government of any State under clause (b) of the Ex-planation is that the person should not be able to conferany advantage on the candidate of the influence whichsuch person as a Government servant or village officer byreason of his position is supposed to have with the public.The fact that he doesnot receive a regular pay from the Gov-ernment Treasury will not be of any material consequencenor will the fact that the appointment is made by electionbe of any material importance. The Representation of thePeople Act, 1951, has included in the category of personsserving under the Government of any State the patwari,chaukidar, dafadar, ziledar, shanbagh, karnam, talari,patil, village munsif, village headman or any other villageofficer by whatever name he is called, employed in thatState. It clearly covers the cases of all the village officerswhether they receive any salary from the Government ornot. The village headman and the village munsif do notreceive any salary from the Government. The Sarpanchesand Panches of Adalati Panchayats and Sabhapatis ofGram Sabhas are undoubtedly village officers serving in theState as they discharge certain duties under the control andsupervision of the State and in exercise of these functionsthey command immense influence in the village. TheAdalati Panches are invested with judicial functions andthey are included in the term 'Magistrates' as denned inthe General Clauses Act, and revisions from their decisionsare heard by the High Court and also by S. D. Ms. andMunsifs. They have to function under the authorityand control of prescribed authority appointed by theProvincial Government, viz., the District Magistrate underrule 83. The District Magistrate is also empowered toreceive their resignations and he is further empoweredto remove them from office. They are public servantsunder section 28 of the U. P. Panchayat Raj Act and asChapter VII of the U. P. Panchayat Raj Act provides for
40 MADAN PAL V. EAJDEO UPADHYA [VOL. VI
the external control over these Panches and Sabhapatis itbecomes clear that they are serving as village officers inthe State of U. P.
An 'office' (as defined by Cowell) is a function byvirtue whereof a man has some employment in the officeof another. Webster defines it to be a duty, charge ortrust. He who performs a duty of a public office is anofficer. He who has a public charge or employment or evena particular employment affecting the public is said tohold or be in office. A village officer would thus meanevery functionary in the village invested with some power,authority or control of the office of the village, and asSabhapati, Adalati Sarpanch and Panch are invested withsufficient powers and control in the affairs of the village,they will be deemed to be village officers serving in theU. P. State within the meaning of clause (6) of the Expla-nation to sub-section (8) of section 123 of the Represen-tation of the People Act, 1951: HansaJivraj Mehta v. Indu-bhai B. Amin and Others^).
Section 123 (8) of the Act does not lay down anyexception in case of Panches and Sarpanches who work inthe election in different villages near about their territorialjurisdiction as was the case in rule 61-A of the U. P.Panchayat Raj Act Rules and so it becomes clear thatthe fact that Mahabir Singh and Bijai Bahadur Singh ofPanchayati Adalat worked as polling agents of the respon-dent No. 1 goes to establish that the respondent No. 1 hasbeen guilty of a major corrupt practice by taking workof polling agents from these Panches. Looking to theduties of a polling agent which are primarily to safeguardthe interests of a candidate in the election there cannot beany doubt that the assistance given by a polling agent isin furtherance of the prospects of the candidates' election:Ghasi Ram v. Earn Singh and others^).
We therefore hold that Mahabir Singh, Sarpanch,Panchayati Adalat, and Sabhapati, Gram Sabha, Knadda,and Bijai Bahadur Singh, Adalati Panch, worked as thepolling agents of the respondent No. 1 in the last electionsand as they have been village officers serving in the U. P.State their working for the respondent No. 1 in furtherance
(1) 1 E.L.R. 171. (2) i E.L.R. 124.
E.L.R.] MADAN PAL V. EAJDBO T7PADHYA 41
of the prospects of his election amounts to a major corruptpractice under section 123, sub-section (8), of the Repre-sentation of the People Act, 1951, We decide both theseissues in favour of the petitioner,
Issues Nos. 6 and 7.—Both these issues are connectedand can be conveniently taken up together.
The petitioner has produced a printed copy of theleaflet which is alleged to have been issued by Kalika Lai,[vide Ex. 11, paper No. 56/A1] and the original pamphlethas also been produced [vide Ex. 11/1, paper No. 172/A1]and Gopalji (P.W. 15) has been examined to prove thesedocuments. The letters dated 20th April, 1952, Ex. 8 and25th April, 1952, Ex. 14 as well as the postal receipt, Ex.2, show that the petitioner made certain inquiries fromthe press about this leaflet and the reply dated 2nd May,1952, Ex. 13, was received by him: vide also the letters,Exs. 6 and 12. The petitioner has tried to show that theallegations made in the leaflet, Ex. 11, had been substan-tially mentioned in the prior pamphlet issued by MotiLalwho worked for the respondent No. 2, [vide the printedpamphlet, Ex. 10, paper No. 57/A1] and the originalpamphlet, Ex. 10, paper No. 162/1 which have been provedby Sri B.P. Gupta, proprietor of Gupta Industries, Betia(P.W. 11). The petitioner had made inquiries about thisleaflet by means of the letters dated 23rd April, 1952,Ex. 7: vide the postal receipt, Ex. 1.
According to the petitioner's allegations the leaflet,Ex. 11 was published by Kalika Lai, agent of the respon-dent No. 1 with the knowledge of this respondent. KalikaLai has tried to show that he never got the leaflet, Ex. 11published or printed and the leaflet Ex. 11 does not bearhis signatures and so it is to be seen: (i) whether KalikaLai took a leading part in canvassing for the respondentNo. 1, (ii) whether Ex. 11 was printed and published byKalika Lai, (Hi) whether the printing and publishing ofEx. 11 was done by Kalika Lai with the knowledge, con-sent and at the expense of respondent No. 1, (iv) whetherthe pamphlets, Ex. 11, were distributed amongst the voters,(v) whether the statements contained in Ex. 11 were falseand defamatory, and (vi) whether the publication of the
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42 MAD AN £AL V. RAJDEO UPADHYA [VOL. VI
pamphlet, Ex. 11, was calculated to affect the result of theelection. [The Tribunal found points (i) to (iv) against therespondent and continued.]
The imputations made against the petitioner in thisleaflet are (1) the sucker of tenants' blood, (2) one who re-sorts freely to underweighing, (3) one who by impropermethods won over the officers who made the inquiry, (4)one who was capable of enormous loot on tenants, (5) onewho is wholly anti-national, (6) one who was responsiblefor lathi charge on Sri Shibban Lai and other volunteers,(7) one who abetted the burning of Patlahwa village, (8)one who rejoiced at the murder of Gandhi Ji, (9) one whobadly and in numerous ways crushed the labourers in 1946,(10) one who suspended the employees of the mills whowent to attend Pt. Jawahar Lai Nehru's speech, (11) onewho pays wages at Re. 1 or Rs. 1/8/- instead of Rs. 2/2/-fixed by the Government, (12) one who deprives thelabourers of their sugar and drives the same to blackmarket and (13) one who sheds tear for the British Gov-vernment having ended.
Sri Madan Pal Singh petitioner (P.W. 14) has deniedall these allegations and he has produced the order Ex.16, paper No. 201/A, which shows that he did not suspendanybody for attending the lecture of Pt. Jawahar LaiNehru (now the Hon'ble Sri Jawahar Lai Nehru, PrimeMinister of India): vide also Ex. 17. The letter dated 20thJune, 1941, Ex. 18, paper No. 203/A1, has been produced toshow that the charge of under-weighment of cane was notestablished after a thorough departmental inquiry by theGovernment. The voucher Ex. 19 and the bill Ex. 20 havebeen produced to show that the petitioner never rejoicedon the death of Mahatma Gandhi. On the other handsufficient money was spent on charity in that connectionby the Chituani Mills. Sri Shibban Lai Saxena has beenexamined by the petitioner to prove that he and othervolunteers were not lathi charged by the petitioner. Theaccusation of under-weighment was not proved in 1939and Kalika Lai or the respondent No. 1 had absolutely nojustification to attack the personal character of the peti-tioner by repeating the allegation at the time of this elec-tion in Ex. 11.
E.L.R.] MAD AN PAL V. RAJDBO UPADHYA 43
Baikunth Narain (R. VV. 3) has stated that he did notknow about the truth or falsity of the allegations made inleaflet Ex. 10 from before but on reading its contents itappeared to him that the contents were mostly true andso the respondent No. 1 tried to justify the allegationsmade in the leaflets, Exs. 10 and 11. Kalika Lai (R. W. 2)however denied the publication of Ex. 11 in court and hehas stated that on reading the contents of the leaflet Ex.11 he thought that the contents were not correct. RajdeoUpadhya respondent No. 1 has stated that he read theleaflet Ex. 11 for the first time on 30th or 31st January,1952, when Kalika Lai gave it to him. But he has statedfurther on that he had a discussion with Kalika Lai re-garding the contents of this leaflet Ex. 11 after he hadread it and he had asked Kalika Lai as to whether thecontents of Ex. 11 were correct or not. It thus becomesclear from the evidence of the respondent No. l's wit-nesses that the allegations made in the leaflet Ex. 11 whichare per se defamatory were not correct and the respondentNo. 1 did not believe them to be true, for if he had doneso he would never have discussed with Kalika Lai aboutthe correctness or otherwise of these allegations. The res-pondent No. 1 and his agents proclaimed through the leafletEx. 11 that the petitioner had bribed Government officialsand got a written report from them regarding underweigh-ment of sugar-cane. These allegations have been provedto be false and these allegations do not come within theword 'expression of opinion, however, unfavourable abouta rival candidate' and so the ruling reported in ChaudhriAllahdad Khan v. Sufi, Abdul Hameed Khan^) does not applyto this case. These allegations cannot be deemed to beof a trivial and limited character and so they cannot beignored in the present case and the ruling of JadunandanMahto v. Musahib Singh(2) also does not help respondentNo. 1. Similarly the ruling in Sheikh Mohammad Sadiq v.Dr. Saif Uddin Kitchlew(3) which lays down that where theword 'ghaddar' was not used with reference to the peti-tioner's personal character or conduct and it was obviouslyused in the sense of 'a traitor to the Muslim cause', it hada reference to his political conduct and so the use of thisword would not amount to a major corrupt practice also
(1) 1 Doabia 63. (2) 1 Boabia 46, (3) 2 Doabia 117,
44 MADAN PAL V. RAJDEO TJPADHYA [VOL. VI
does not help the respondent No. 1. As in this case the twoallegations mentioned above were directly against thepersonal character of the petitioner and as these allega-tions were false the respondent No. 1 would be deemed tohave committed a major corrupt practice by issuing theleaflet Ex. 11 or by conniving at their being issued throughhis agent Kalika Lai. The legal consequence of the publi-cation of the pamphlet Ex. 11 in our opinion clearly is thatthe election of the respondent No. 1 would be declaredvoid under section 100(2) (b) which runs as follows:—
"Subject to the provisions of sub-section (3), if theTribunal is of opinion that any corrupt practice specified insection 123 has been committed by a returned candidate orhis agent or by any other person with the connivance ofthe returned candidate or his agent, the Tribunal shalldeclare the election of the returned candidate to be void".
Sub-section (3) of section 100 does not apply to thiscase because it has been shown in the present case that Ex.11 was published by Kalika Lai and others jointly at theexpense of the respondent No. 1 and with his connivanceand this corrupt practice is not of a trivial nature and therespondent No. 1 never took any steps to prevent the com-mission of this corrupt practice. The ruling reported inY. Gadilingana Gowd v. H. Sitarama Reddi and other sQ)clearly lays down that the election of a successful candi-date should be set aside on the ground of having publisheda defamatory pamphlet with false allegations and so wecome to the conclusion that the election of the respondentNo. 1 is liable to be set aside on the ground of his havingpublished the false and defamatory leaflet Ex. 11 againstthe personal character of the petitioner during the courseof the election as this amounts to a major corrupt practiceunder section 123(5) of the Representation of the PeopleAct, 1951.
We decide both these issues accordingly in favour ofthe petitioner.
Issue No. 11.—We have shown above that the resultof the election was materially affected by the publicationof the leaflets, Exs. 19 and 11, and also on account of the
(1) Gazette of India Extraordinary Part II, sec. 3, No, 62, dated 9th March.1983, p. 767 at p. 783.
E.L.B.] MADAN PAL V. RAJDEO TJPADHYA 45
respondent No. l's committing major corrupt practices bytaking help from village officers and also by using theprivate carrier No. U.P. 68 on the polling day. We holdthat the result of the election was materially affected bythe irregularities and corrupt practices mentioned abovewhich were committed by the respondent No. 1.
Issue No. 12.—The return of election expenses of therespondent No, 1, Ex. 23, is said to be irregular, incorrectand illegal because it was filed unsigned, the descriptionsof the payees were not given, there were no vouchers insupport of certain items of expenditure and the expen-diture of Rs. 75 on 23rd January, 1952, has been fictitiouslyshown in the return of election expenses. It has furtherbeen urged that 10 persons have been shown as workers ofthe respondent No. 1 and they have been paid from 1stDecember, 1951, to 25th January, 1952, on account of food-ing charges and T. A. and 8 of them have been shown againas polling agents and separate T. A. and fooding chargeshave been shown as against their names and so double pay-ments have been shown. These allegations have beenproved to be correct by the election return itself. A sumof Rs. 154 has been shown in the return of election expensesas having been paid to Sant Lai Gupta. Sant Lai Gupta(R. W. 12) who is also known as Sant Parsad has clearlyadmitted before this tribunal that he got no remunerationfrom the respondent No. 1. Again, a sum of Rs. 150/- issaid to have been paid to one Hameed who is alleged tohave worked as a clerk but the statement of Sant LaiGupta shows that there was no one else for doing writingwork and so this entry also appears to be very suspicious.A sum of Rs. 4/8/- is said to have been paid to SampatParsad as T. A. but Sampat Parsad (R. W. 10) has admittedbefore this tribunal that he did not receive any diet moneyor other allowance for working as polling agent for therespondent No. 1. Similarly another sum of Rs. 4/8/- hasbeen shown to be paid to Baikunth Nath (R. W. 3) onaccount of his T. A. and fooding charges for the pollingday but Baikunth Nath has also stated before this tri-bunal that he did not receive any such sum and he gotonly the price of paper and pen.
Again, the expenses incurred on petrol before 22ndJanuary, 1952, have not been shown in the return of election
46 MADAN PAL V. BAJDEO TIPADHYA [VOL. VI
expenses and the expenses incurred on the driver of thejeep as well as price of mobil oil and distilled water andexpenses on stationery have not been shown. This showsthat the return of election expenses which was filed by therespondent No. 1 was incorrect in material particulars andeven though the defect of not signing the return was con-doned (vide Ex. 3) it was irregular and so the respondentNo. 1 will be deemed to have committed a minor corruptpractice under sub-section (4) of section 124 of the Repre-sentation of the People Act, 1951, but this does appear tohave materially affected the election. We hold accordinglyand we decide this issue in favour of the petitioner.
Issues Nos. 13 and 14.—We have already shown abovethat the respondent No. 1 himself indulged in the corruptpractices already mentioned by publishing false pamphletswhich materially affected the result of the election and bytaking assistance from village officers serving under theU. P. State and also by using a truck on the polling day.The evidence on the record clearly proves that thesecorrupt practices were committed by the respondent No. 1and they had not been committed contrary to his ordersand without his sanction and connivance. It is also clearfrom the evidence on the record that these corrupt prac-tices were not of a trivial nature and the respondent No. 1took no precautions to see that these corrupt practiceswere not actually committed.
We, therefore, decide both these issues against therespondent No. 1.
Issue No. 16.—The petitioner has claimed a seat forhimself in this case and it has been contended on behalfof the respondent No. 1 that the petitioner should not begiven the seat as the corrupt practices committed by therespondent No. 1, if at all were of trivial nature andlimited character and the respondent No. 1 took all rea-sonable precautions and adopted all reasonable means forpreventing the commission of such practices. We haveshown above that the contention of the respondent No. 1mentioned above is not correct but we feel that the peti-tioner should not be given the declaration that he hasbeen duly elected because it has not been proved that butfor the votes obtained by the returned candidate by cor-rupt or illegal practices the petitioner would have obtained
E.L.R.] MADAN PAL V. BAJDEO TJPADHYA 47
a majority of the valid votes: vide section 101 of the Re-presentation of the People Act, 1951. As such, we holdthat the petitioner should not be declared elected in thepresent case and we decide the issue accordingly.
Issue No. 17.—This plea has not been pressed and themere fact that Sri Shyam Narain and Sri Samunder weremade parties to this petition after the expiry of the periodof limitation by an order of this tribunal dated 21st Janu-ary, 1953, will not make this petition time-barred as againstthe respondents Nos. 1 to 3, against whom the petition hasbeen filed within the prescribed period of limitation. Inany case the petition against the respondents Nos. 1 to 3cannot be deemed to be time-barred. The respondents Nos.4 and 5 have not come forward to contest this case and sothere is no reason for holding that the present petition istime-barred. We decide these issues against the respondentNo. 1.
Issue No. 18.—-It has been held by this tribunal bymeans of the order dated 21st January, 1953, that SriShyam Narain and Sri Samunder, respondents Nos. 4 and5, were duly nominated candidates and so they were neces-sary parties to this petition. These respondents have notfiled any written statements before us and as the conten-tions of the petitioner and the respondents Nos. 1 and 2have been fully dealt with in the order dated 21st January,1953,* we think, for reasons given there, that the presentpetition could not fail on account of non-joinder of neces-sary parties. This issue is also decided against therespondents Nos. 1 and 2.
Issue No. 19.—In view of our findings above we holdthat the election of Raj Deo Upadhya, respondent No. 1,dated 25th January, 1952, is liable to be declared voidunder section 100, sub-section (2), clause (6), but the peti-tioner is not entitled to be declared elected under section101(6) of the Representation of the People Act, 1951, noris the respondent No. 2 to be declared disqualified.
We therefore order that the election of the respondentNo. 1 from Hata North Constituency of Deoria District isvoid, but we do not exercise our discretion in favour ofthe petitioner so far as his prayer for being allowed the
* See p. 48 infra.
48 MADAN PAL V. RAJDEO TJPADHYA [VOL. VI
seat is concerned. The petitioner will get his costs from therespondents No. 1 and 2 amounting to Rs. 647/4/- only.The respondents Nos. 1 and 2 will bear their own costs.The respondents Nos. 3 to 5 will neither pay nor receiveany costs.
Election declared void.ORDER*
(21st January, 1953.)Issue No. 18.— Were Sri Shyam Narain and Sri Sam-
under also duly nominated candidates for the seat contest-ed by the parties? If so, what is the effect of their not be-ing made parties in this petition?
Elaborate arguments for both the sides were address-ed to us by the learned counsel of the parties upon thisissue. The question is whether Sri Shyam Narain and SriSamunder should be made parties to this petition or not.
Admittedly two persons, Sri Shyam Narain and SriSamunder, who had been nominated as candidates and whohad been accepted as such by the Returning Officer butwho had subsequently withdrawn their nomination with-in the time allowed have not been made parties to thiscase. Section 82 of the Representation of the People Actof 1951 (hereinafter called the Act) lays down that a peti-tioner shall join as respondents to his petition all thecandidates who were duly nominated at the election otherthan himself if he was so nominated. The discussionturns on the term 'duly nominated' and it has to be seenwhether a candidate who has withdrawn his candidatureis one who is duly nominated. For the petitioner it wasurged that the term 'duly nominated' which is not de-fined in the Act, is interchangeable with the term 'validlynominated'. The expression 'duly nominated' is used insections 36(3), 52, 53, 54(6), 82 and the proviso to sub-sec-tion (4) of section 158. As against these, under section 38the Returning Officer after the expiry of the period withinwhich candidates may be allowed to withdraw, is requiredto prepare and publish a list of valid nominations. Sec-tion 54, sub-clause (5), lays down that in this section ref-erence to candidates shall be construed as reference tocandidates who were duly nominated and who had not
* See p. 47 supra.
E.L.R.] MADAN PAL V. RAJDBO UPADHYA 49
withdrawn their candidature in the manner and within thetime specified in sub-section (1) of section 37. Further, insection 52 if a candidate who has been duly nominatedunder this Act dies after the date fixed for the scrutiny ofnominations and the report of his death is received by theReturning Officer 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 referenceto the election shall be commenced anew in all respectsas if for a new election Provided further thatno person who has under sub-section (1) of section 37given a notice of withdrawal of his candidature beforethe countermanding of the poll shall be ineligible for beingnominated as a candidate for election after such counter-manding. The expression in sections 52 and 54 while ref-erring to the duly nominated candidates appear to excludea candidate who has withdrawn his candidature from theterm 'duly nominated'.
This very point has been the subject of discussion inseveral cases decided by the Tribunals in India underthe Act as well as by the High Court of Bombay. Inthe case of Sitarmn Hirachand Birla v. Yograj SinghShankar Singh Parihar^), Special Civil Application No.2017 of 1952, decided on 19th December, 1952, a certifiedcopy of which is before us, the Hon'ble Chief JusticeChagla and Justice Dixit discussed this point in theirjudgment, and held that a candidate who has withdrawnis not a duly nominated candidate within the meaning ofsection 82 and that by his withdrawal he relegates himselfto the position of a mere elector.
The object of section 82 is that all parties who wereconcerned with the actual election and who contested theelection should be before the tribunal. The Hon'bleJudges laid emphasis on the fact that section 82 did notlay down "all the candidates who were duly nominated",but used the expression "all the candidates who were dulynominated at the election". They considered the distinc-tion between the terms "for the election" and "at the
(1) 2 E.L.R. 283.E L - 7
50 MADAN PAL V. feAJDEO tJPADHYA [VOL. VI
election". The latter term qualified "duly nominatedcandidate" in section 82, The Hon'ble Bench of the Bom-bay High Court held that a candidate who had withdrawndid not come within the purview of the term "duly nomi-nated candidate" used in section 82 of the Act.
The Election Tribunal, Madras, in deciding the elec-tion petition of Lakshmana Pillai v. Changam Pillai andOthers^), had a similar case before them. The discussionbefore them was whether the terms 'duly nominated' and'validly nominated' had the same meaning and wereinterchangeable. The Madras Tribunal impleaded thetwo candidates who had withdrawn their candidaturewithin the time allowed by the Act. They considered itunreasonable to insist on persons who had withdrawntheir candidature to be made parties to an election peti-tion. Considering the various sections of the Act the}'came to the conclusion that 'validly nominated candidates1
are only those whose names were published under section 38while the term 'duly nominated candidate' w'as consideredmore comprehensive and included at least all those whosenominations were accepted though some of them mighthave subsequently withdrawn. They expressed their viewthat all validly nominated candidates were also dulynominated but conversely it could not be said that allduly nominated candidates were also validly nominated,The term 'validly nominated candidate' is defined in rule2, sub-clause (/) , of the Representation of the People(Conduct of Elections and Election Petitions) Rules, 1951.It was urged that while the rules did not explain the Actunder which they were made, they could be used inunderstanding the intention of the Legislature. It is truea definition in the rules cannot govern the interpretationof the Act but at the same time it is instructive.
The Election Tribunal, Ajmer, in the case of LulaMenghruj v. Bhiman Das and Others^2) discussed thisvery point. They came to the conclusion that the defectof non-joinder of a necessary party was not fatal to thepetition if the petitioner had not claimed a seat for himself.
The Election Tribunal, Julundhar, in the case of PremNath v. Earn Kishen and Others^) had a similar question
(1) 2 E.L.E. 103. (2) 2 E.L.R. 301. (3) 1 E.L.R. 271.
E.L.R.] MADAN PAL V. RAJDEO TJPADHYA 51
before them. They found that a candidate who had with-drawn his candidature was included within the term 'dulynominated candidate' under section 82 of the Act. Thistribunal impleaded the withdrawn candidates. They alsocame to the conclusion that non-joinder of a necessaryparty under section 82 did not necessitate a dismissal of thepetition. In the case of Pritatn Singh v. Charan Singhi1),the Election Tribunal at Lucknow held that the withdrawncandidate was a duly nominated candidate within themeaning of section 82 and non-joinder was fatal to thecase. This tribunal further considered the effect of sec-tion 80 of the Act and held a petition which did not join anecessary party was not a proper petition under the Act.The Election Tribunal at Allahabad in the case of SaligRam Jaiswal v. Sheo Kumar Pande, a true copy ofwhich is on this file, were unanimous on the point that awithdrawn candidate did not come within the category ofa duly nominated candidate and was not a necessaryparty.
The Election Tribunal at Rewa in the case of KeshoPrasad v. Brij Raj Singh and Others, a true copy of whichis filed, came to the unanimous conclusion that the non-joinder of a candidate who had withdrawn was not fatal tothe maintenance of the petition. One of the Members, SriG. L. Srivastava, however, held that a withdrawn candi-date was a duly nominated candidate and Avas a necessaryparty under section 82.
Under the old election rules if a petitioner claimed aseat for himself even withdrawn candidate was a necessaryparty and without the presence of necessary parties pro-per relief cannot be given to the petitioner and as such,in cases where all the necessary parties were not before theTribunal the petition was dismissed. Under the presentAct the relation of the joinder of parties with the relief isnot maintained. It is true an election petition is not amatter of concern only for the parties but for the entireelectorate and it is, therefore, necessary that all the neces-sary parties should be before the Court.
The question of joinder of parties is a matter of pro-cedure. Civil Procedure Code has been made applicableunder the Act under section 90 which runs as below;—
(1) 2 E.L.R. 276.
52 MADAN PAL V. RAJDEO UPADHYA [VOL. VI
" (2) Subject to the provisions ofthis Act and of any rules made thereunder, every electionpetition shall be tried by the Tribunal, as nearly as may be,in accordance with the procedure applicable under theCode of Civil Procedure, 1908, to the trial of suits".
The Code of Civil Procedure is not to be followed incases where there is an express direction in the Represen-tation of the People Act. On points where the Act is silentthe Code of Civil Procedure will apply. The Act has notprovided any penalty for contravention of section 82.Where there is an omission in the procedure a penalty ofdismissal would not be justifiable.
The cases cited above are not rulings binding onthis tribunal but they are entitled to consideration. Wehave considered the reasons in each of those cases andcome to the conclusion that a withdrawn candidate comeswithin the meaning of a duly nominated candidate andhis joining to the petition was necessary.
When there is so much divergence of opinion upon apoint of law we would not blame the petitioner in notjoining the candidates who had withdrawn their candida-ture and the omission appears to be a bona fide one. Wehave considered the relevant sections of the Act and wethink it equitable to interpret the Act in the spirit whichaccords with the public benefit. The Election Law is atechnical law but it must not be made too technical. Thepetitioner has made an application for joining these twopersons and we would allow the application.
We would, however, keep the question of the effect ofnon-joinder of these two persons open as it will not bedesirable to decide it till we have heard the parties whoare to be joined now.
The issue is, therefore, decided accordingly.
Issue, decided accordingly.
E.L.R.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 5 3
[ELECTION TRIBUNAL, AKOLA.]
BHIKAJI KESHAO JOSHIv.
BRIJLAL NANDLAL BIYANI AND OTHERS (No. 2).D. K. SONTAKE (Chairman), A. S. ATHALYE and
P. B. SATHE (Members).May 1, 1953.
Election petition—Power of Election Tribunal to consider whether peti-tion complies with ss. 81, 83 or 117 after admission by Election Com-mission—Limitation—Condonation of delay by Election Commission—Power of Tribunal to reconsider—Improper verification—Power to allmvamendment—Joint petition—Maintainability—Parties—Candidates whohave withdrawn—Whether necessary—Presentation of petition—Authorityin writing—Authenticity—Burden of proof—He presentation of the People.Act, 1951, ss. 81, 82, 83, 90(4), 117'.
Notwithstanding the fact that the Election Commission has admittedan election petition, the Election Tribunal which is constituted to hearthe petition has power to decide whether the petition does or does notcomply with the provisions of sections 81, 83 and 117 of the Eepresenta-tion of the People Act, 1951.*
The provisions relating to verification contained in the Kepresenta-tion of the People Act, must be strictly complied with and a petitionwhich is not duly verified is liable to he dismissed under section 90(4).The tribunal has no power to allow the verification to be amended.*
Candidates who have withdrawn their candidature are necessaryparties to an election petition and a petition is liable to be dismissed ifsuch candidates are not joined as parties.*
An Election Tribunal has power to dismiss an election petition astime-barred in spite of the condonation of the delay by the Election Com-mission, if the tribunal is of opinion that there was no sufficient cause forthe delay. In re-considering the question of limitation the ElectionTribunal does not sit in appeal over the decision of the Election Commis-sion but will hear the matter afresh.*
*Note. The Supreme Court has since held in Dinabandhu Saliu v. JadumoniMangaraj, Civil Appeal No. 25 of 1954, decided on 23rd April 1954: (1) that thedecision of the Election Commission condoning delay in the presentation of an elec-tion petition is final and the tribunal has no power to reconsider the question, and(2) if the Election Commission does not dismiss a petition for want of proper veri-fication and constitutes a tribunal for hearing the petition the matter is thereaftergoverned by section 90(4) and it is a matter of discretion with the tribunal either todismiss the petition for defective verification or not, and if the tribunal allowsthe verification to be amended, the Supreme Court will not interfere with thediscretion exercised by the tribunal. The Supreme Court has also held inJagannath v. Jaswant Singh, Civil Appeal No. 100 of 1953, decided on 20th January,1954, that omission to implead a candidate who has withdrawn his candidature isnot fatal to the maintainability of the petition and that the tribunal may allow suchcandidate to be impleaded as a party even after the expiry of the period of limita-tion, if his presence is necessary for the disposal of the petition. These decisionswill be reported fully in due course.—Ed.
54 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
If the particulars given in the list of particulars of corrupt practicesare not clear and definite there is non-compliance with section 83(2), andthe petition can be dismissed under section 90(4) and though the parti-culars given can be amended, no fresh instances can be allowed to be added.
Purshottamdas Ranchoddas Patel y. Shantilal Girdharlal Parekli(1 E.L.R. 223) followed.
The election law contemplates joint petitions and even if a petition isfiled by two or more persons jointly a security of Es, 1,000 is enough asthere is only one petition.
Delay in the presentation of the petition, even if it is only for oneday, cannot be condoned if it was due to negligence of the petitioner.
Where an instrument purporting to authorise W to present a petitionwas in typewriting but the name of W was written in pen and ink and theplace where it was to be presented was also altered from 'Nagpur' to 'NewDelhi', and the evidence showed that the petitioner had handed over theauthority to G and not to W:
Held, per SONTAKE and ATHALYE (SATHE dissenting)—that therewas a presumption that the instrument was duly executed and the burdenwas on the respondent to prove that W was not duly authorised by thepetitioner to present the petition. Per SATHE.—There was no such presump-tion in the circumstances of the case and the burden was on the petitionerto prove that he had duly authorised W to present the petition.
ELECTION PETITION NO. 1 of 1952.
ORDER.
D. K. SONTAKE and A. S. ATHALYE.—-This is an elec-tion petition under section 80 of the Representation of thePeople Act, 1951 (Act XLIII of 1951). The election was heldfor the Akola constituency of the Provincial State Assem-bly of Madhya Pradesh on 31st of December, 1951. Therespondents 1 to 4 were candidates at the election and therespondent No. 1, Shri Brijlal Nandlal Biyani, was return-ed as a successful candidate. The petitioners Bhikaji andMukund were electors in the Akola constituency. Theyquestioned the election of the respondent No. 1 and theyhave made this petition for a declaration that the electionbe declared to be wholly void and in particular, of the res-pondent No. 1. Among other grounds on which theyclaimed the relief, the main grounds are the illegal and cor-rupt practices alleged to have been resorted to by the res-pondent No. 1.
2. The election petition was presented to the Assis-tant Secretary, Election Commission, India, at New Delhion 19th April, 1952, by Shri C. G. Walimbe. It was found
E.L.B.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (No. 2) 55
by the Election Commission, that the petition was filedlate by one day and it was thus barred by time. The peti-tioners were thereupon given notice to show cause why thepetition should not be dismissed under section 85 of theAct as it was in contravention of section 81, sub-section(1) of the Act, by a letter dated 8th July, 1952, Ex. P. 7.To this the petitioners sent a reply on the 17th of July,1952 (Ex. P. 8), stating that they had already made anapplication dated the 28th April, 1952, along with a dulysworn affidavit explaining the delay and praying for thecondonation thereof. They also attached a copy of theapplication with that reply. Ex. P. 4 is that copy. Ongetting this reply from the petitioner the Election Com-mission condoned the delay and admitted the petition. Areply to that effect was sent, which is Ex. P. 5. The Elec-tion Commission thereupon appointed this Tribunal undersection 86 of the Act for the trial of the petition.
3. The respondents 1 to 3 filed their written state-ments. The respondent No. 4 did not file any. The casewas ex parte against him. The respondents 2 and 3 sup-ported the petition. The only contesting respondent wasthe respondent No. 1. He filed his written statement rais-ing preliminary objections to the maintainability of thepetition. These objections may be classified under thefollowing heads:—
(i) Absence of authority to the person, viz., Shri C.G. Walimbe on behalf of the petitioners;
(ii) Failure to file the petition within the timeprescribed;
(iii) Failure to join necessary parties to the peti-tion, and
(iv) Failure to comply with the provisions regard-ing the contents of the petition and its verification.
Each one of the above points has been further sub-divided into minor details. It is needless to give these de-tails here as they could be readily seen from the issuesframed. The respondent No. 1 prayed that all the abovequestions should be tried as preliminary issues.
4. To the written-statement of the respondent No. 1the petitioners filed their reply. They denied that thepetition was not maintainable on the grounds alleged by
56 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (No. 2) [VOL. VI
the respondent No. 1. They further pleaded that in viewof the fact that the petition was duly admitted by theElection Commission the objections raised by the respon-dent No. 1 do not survive for the consideration of thetribunal and the tribunal has no jurisdiction to entertainand try them.
5. Since a question of the jurisdiction of the tribu-nal was involved, we framed a preliminary issue in thatrespect. By our finding dated the 15th of January, 1953,we came to the conclusion that in view of section 90, sub-section (4), of the Act the Tribunal had jurisdiction todecide the preliminary objections raised by the respondentNo. 1. Thereupon all the preliminary issues were tried andnow we have to record our findings on those issues.
6. The following are the preliminary issues framedand our findings thereon are given against them:—
1. Whether the election petition is bad in law andinvalid inasmuch as
(a) It does not contain a concise statement of theallegations of facts showing where and how the cause ofaction arose, and
(6) It does not state that deposit of security undersection 117 has been made?—No.
2. (a) Whether the election petition does not containa'concise statement of material facts on which the peti-tioners rely?—But it is not fatal.
(6) Whether the list of particulars given in the peti-tion and in the schedule are not in compliance with sec-tion 83 (2) as alleged by the respondent No. 1 in paras. 9(a) to (e) of his written statement?—No. They are not.
(c) Whether the petition is, therefore, bad in lawand invalid?—Yes.
3. Whether the election petition is also bad in lawand invalid for the following reasons:—
(a) The verification of the petition and the list isdefective as alleged by the respondent 1 in para. 5 of thewritten statement?—Yes.
(6) It has been presented jointly, and without giv-ing security separately?—No.
(c) It has been addressed to the Election Tribunal,Madhya Pradesh, Nagpur?—No.
E.L.R.] BHIKAJI KESHAO JOSHI 1). B. K. BIYANI (NO. 2) 57
4. (a) Whether Shri Sohoni, Shri Kulkarni and ShriKothatkar were candidates duly nominated at the elec-tion within the meaning of section 82?—Yes.
(b) Whether they were necessary parties to the elec-tion petition?—Yes.
(c) Whether the petition is invalid in law by reasonof their non-joinder and is, therefore, liable to be dis-missed?—Yes.
5. (a) Who authorised Shri Walimbe to present thepetition at Delhi?
(i) Whether the petitioners themselves?--Yes.or
(n) Shri Gole?—Not proved.(&) In case Shri Gole had authorised Shri Walimbe
to present the petition whether he could legally do so?-—Does not arise.
(c) Whether Shri Walimbe was not a person dulyauthorised by the petitioners to present the petition atDelhi as alleged by the respondent 1?—Does not arise.
id) Whether the presentation of the petition is invalidin law?—-No.
(e) Whether the acceptance of the petition was in-duced by misrepresentation and fraud as alleged by therespondent No. 1 and whether on that ground also thepresentation of the petition is invalid?—No.
6. (a) Was there sufficient cause for delay in present-ing the petition?—No.
(6) Was there negligence on the part of the petition-ers and their counsel in the matter of presenting the peti-tion as alleged by the respondent No. 1?—Yes.
(c) What is the effect of the findings on the abovetwo issues?—-Dismissal of the petition.
7. Whether this tribunal has no power to condonethe delay?—Yes, it has by implication.
8. (a) Whether the petitioners were bound to showthe date of cause, of action in the petition and the groundsfor exemption from the operation of law of limitation inthe petition itself?—No.
(b) Whether the petition is liable to be dismissed fortheir failure to do so?—No.
EL—8
58 BHIKAJl KESHAO JOSHI V. B. K. BlYANI (NO. 2) [VOL. VI
9. (a) Whether the Election Commission was boundto dismiss the petition on the grounds that it was in con-travention of sections 81, 82 and 83?—Its act cannot bequestioned by us.
(b) Whether it had, therefore, no jurisdiction toappoint a tribunal to try the petition?—Does not arise
(c) Whether this tribunal has consequently no juris-diction to try the petition as alleged by the respondentNo. 1?—Yes. It has.
7. In spite of our finding that the tribunal has juris-diction to try the preliminary issues under section 90 (4)of the Act, the learned counsel for the petitioners has againraised this point from another point of view. He contendsthat though section 90 (4) of the Act confers jurisdictionon the tribunal, that jurisdiction cannot be exercised solong as the order of the Election Commission admittingthe petition stands. In other words his contention is thatthe tribunal has jurisdiction if there is no decision of theElection Commission, but it cannot exercise it if there isany such decision. It is argued that where a legislatureconfides the decision of a thing to the executive's opinion,satisfaction or discretion, such a decision is conclusive andbeyond the periphery or area of the jurisdiction of thecourt. The court can investigate only if the executivehas acted mala fide or beyond its powers. In support ofthis proposition he relies on In re Banwarilal Roy^), HubliElectric Company Ltd. v. Province of Bombay i^), Provinceof Bombay v. Khushaldas(3).
8. On the basis of this principle it is contended byhim that the Election Commission has been authorised toreceive the election petition and to admit it aftersatisfying themselves whether they comply with theprovisions of sections 81, 83 and 117 of the Act. TheElection Commission in the present case satisfied itselfthat the petition complied with those provisions and hasadmitted the petition. The admission of the petitionimplied a decision by the Election Commission that thepetition complies with the above provisions. That deci-sion is final and so long as it stands this tribunal cannottry those very points. We agree with the proposition of
(1) 48 C.W.N. 766. (2) A.I.R. 1947 Bom. 276.(3) A.I.R. 1950 S.C. 222.
E.L.R.] BHIKAJI KBSHAO JOSHI V. B. Nt BIYANI (NO. 2) 59
law on which the learned counsel of the petitioners relies.But in our opinion that proposition is not applicable tothe present case. In all the cases cited the authorityconcerned was the sole authority appointed to decide thematter under the particular Acts. Such is not the casewith the Election Commission under the Representationof the People Act, 1951. The Election Commission hasnot been appointed as the sole authority to determinewhether the election petition complies with the provi-sions of sections 81, 83 and 117 of the Act. That isclear from the wording of section 90(4). The word'notwithstanding' is significant and it shows that theLegislature has vested the Tribunal with powers toinvestigate and decide the very questions which theElection Commission is also called upon to decide. Inour opinion, therefore, the Tribunal has jurisdictionunder section 90(4) of the Act to investigate and decidewhether a petition does or does not comply with sections81, 83 and 117 of the Act.
9. In view of the clear provisions of section 90(4) itis not necessary for us to look into the intention of theLegislature in making these provisions. The point, how-ever, has been argued before us at length by both the sidesand we may, therefore, discuss the purpose for which, ac-cording to us these particular provisions were made in thenew Act. Such a provision does not find place in the oldElection Law. This provision appears to have been madewith some purpose. The rules for elections were made inIndia twice during the British regime. After the Montague-Chelmsford Scheme the rules were made in the year 1920and after that when the Government of India Act wasamended and more rights were conferred on the people bythe British Sovereign the election rules were again framedin 1936. In the year 1920 all election petitions were to bepresented to the Governor-General while in the year 1936when more rights were conferred on the people the petitionswere presented to the Governor. The whole power wascentred in their individual judgment and the decisions werefinal in the matter of admission of election petitions. Thepresent Act—The Representation of the People Act—waspassed in 1951 in entirely changed circumstances. TheElection Law has undergone change with the ushering of
60 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
the democratic Government in India. The election peti-tions are now required to be filed before the Election Com-mission set up by the Constitution. The Commission isauthorized to receive the petition and is empowered to dis-miss it if it does not satisfy the provisions of sections 81,83 or 117 of the Act. In the old Election Law the deci-sions of the Governor-General and the Governor werefinal. That law might have been made to suit the politicalconditions then prevailing. But now there is a change inthe political conditions. The whole power now vests inthe people, who are represented by an elected Legislature.The purpose appears to be to get judicial decision, afterthe appearance of the other side, in respect of those mat-ters. According to the concept of the democratic princi-ples the person against whom the petition is made is inter-ested in the matter of acceptance or rejection of the peti-tion. The decision taken by the Election Commission isbehind his back. Consequently all the necessary facts whichare likely to come up before the Tribunal as a result of in-quiry after contest by the opposite party may not be pre-sented before the Commission. It is for this reason thatsection 90(4) has been enacted to decide the matter judi-cially after giving full opportunity to the parties concern-ed. We are, therefore, of opinion that in spite of theadmission of the petition by the Election Commission wecan yet exercise our jurisdiction under section 90(4) toentertain those very objections and decide them.
10. Before coming to the actual discussion of theissues we must bear in mind that we have to apply theElection Law. The Representation of the People Act isa self-contained enactment so far as elections are con-cerned which means that whenever we have to ascertainthe true position in regard to any matter connected withthe elections we have only to look at the Act and therules framed thereunder. The Election Law is a creature ofthe statute. It is a special law and it must be construedstrictly. The following observations in N. P. Ponnuswarniv. The Returning Officer, Namakkal Constituency^) are per-tinent in this respect.—
"A jurisdiction of that kind is extremely special andone of the obvious incidents or consequences of such a
(1) 1 E.L.R. 133.
E.L.B.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 61
jurisdiction must be that the jurisdiction, by whomsoeverit is to be exercised, should be exercised in such a way thatit should as soon as possible become conclusive and enablethe constitution of the Legislative Assembly, to be dis-tinctly and speedily known".
"The right to vote or stand as a candidate for elec-tion is not a civil right, but is a creature of statute orspecial law and must be subject to the limitations imposedby it. Strictly speaking, it is the sole right of the Legis-lature to examine and determine all matters relating to theelection of its own members, and if the legislature takes itout of its own hands and vests it in a special tribunal entire-ly new and unknown jurisdiction, that special jurisdictionshould be exercised in accordance with the law whichcreates it".
We are, therefore, bound to apply the provision of theRepresentation of the People Act strictly and only look tothe general law or other provisions of law when there is noexpress provision in the Act.
11. Issue No. i. -Obviouslj7, how the petition shouldbe framed is not stated in section 83. It should be likethe plaint. But from section 83, it would not necessarilyfollow that the date of the cause of action should be given.But in this particular case, it was necessary to do so. Inour view, the application contains a concise statement,but a very imperfect and incomplete statement of facts.But on that ground the application need not be rejectedas it is not covered by section 82(1) and (2). The pointswhich are not given in the application could be amendedunder section 90, sub-clause 2. There are no special rulesmade for the purpose and when no special rules are madethe provisions of the Civil Procedure Code could be appli-cable as far as it may be. We, therefore, decide point l(a)in the negative. As regards point (b) this point was notstressed. The deposit was actually made in time.
12. Issue No. 2{a).—This issue is something like issueNo. l(a). It is a matter of opinion as to whether it con-tains a concise statement of the material facts. There-fore, on that ground the application need not be dismissedor rejected. We decide this point in the negative.
62 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
13. Issues Nos. 2(b) and 3(a).—This is an importantpoint. According to section 83, an election petition shallcontain a concise statement of the material facts on whichthe petitioner relies, and shall be signed by the petitionersand verified in the manner laid down in the Code of CivilProcedure, 1908, for the verification of pleadings. Itwould thus appear that the question of verification arisesin the election petition not on the ground that theprovisions of the Civil Procedure Code are to be madeapplicable to the proceedings before the Election Commis-sion under section 90(2) of the Election Law, but themanner of verification is embodied in the Election Lawitself in section 83, and it must, therefore, be strictly com-plied with. Under Order 6, rule 15, C.P.C., a personverifying shall specify by reference to the numberedparagraphs of the pleadings, what he verifies of his ownknowledge and what he verifies upon information receivedand believed to be true. Then, the verification shall besigned by the person making it, and shall state the date onwhich and the place at which it was signed. The verifica-tion namely "the contents of the plaint are true to thebest of my knowledge and belief", though substantial, isnot a strict compliance with the requirements of the law.(Vide paragraph A- 189, page 589, of the Civil ProcedureCode by Chitaley, Abridged Edition, 1947, and the casesreferred to thereunder). Under the Civil Procedure Code,Order 6, rule 15, finds place in the Orders which regulatethe procedure. But when the matter is embodied in the sta-tute law, its provisions ought to be strictly complied with.(Vide N. P. Ponnuswami v. Returning Officer, Namalckal^).
14. In this particular case, it would appear that theverification is as follows:—
"The above-named applicants affirm that the contentsof the above petition are true to the information receivedfrom the press reports and several other electors, andbelieved by them to be true".
This verification does not refer to any numbered para-graphs nor does it bear any date. It would thus appearthat this is not a sufficient compliance with the provisionsof Order 6, rule 15, of the Civil Procedure Code. The argu-ment of the respondent No. 1 that the petition is not
(1) 1 E.L.B. 133.
E.L.E.] BHIKAJI KESHAO JOSttI V. B. K. BIYANI (NO. 2) 63
properly verified as required by section 83(1) is therefore,quite correct.
15. It was argued that this is a matter of minor impor-tance, and that such small mistakes could be correctedunder section 83(3) of the Election Law. This section, i.e.,83(3) states:—
"A Tribunal may, upon such terms as to costs andotherwise as it may direct at any time, allow the parti-culars included in the said list to be amended or ordersuch further and better particulars in regard to any matterreferred to therein be furnished as may in its opinion benecessary for the purpose of ensuring a fair and effectualtrial of the petition".
It would thus appear that the scope of this section isvery narrow, and only the particulars included inthe list could be amended. Therefore, the view of therespondent No. 1 that the -verification cannot be amendedappears to be correct. The question of verification so faras this Act is concerned is not a matter of procedure whichcould be rectified by the provisions of section 90, sub-section(2) of the Election Law. The manner of verification isembodied in section 83(1) of the Act. Thus the mannerof verification does not now remain a matter of procedure,but it becomes a part of the statute law and ought to be,therefore, strictly complied with and when the petition isnot verified according to the provisions of the statute lawcontained in section 83, sub-section (1), of the Election Lawit offends the provisions of that particular section and isliable to be dismissed under section 90(4) of the ElectionLaw.
16. About the list of particulars, it must be saidthat the list is considerably defective. Section 83(2) ofthe Election Law is very clear. It demands from theapplicant full particulars of any corrupt or illegal practicewhich the petitioners allege, including as full a state-ment as possible as to the names of the parties alleged tohave committed such corrupt and illegal practices, and thedate and place of the commission of each such practice. Aliteral compliance of this provision is necessary for thesimple reason that unless this is done, the whole matterwould not be clear and there would be a difficulty at the
64 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
stage of evidence. The idea underlying this law is thatthe trials of these cases should be quickly finished. In thiscase, the defects are as follows:—
(i) The corrupt practices are mentioned in para-graphs l(a), (b), (c) and (d), but it has not been mentionedas to who did so, whether the respondent himself or anyone on his behalf; and when it was so done and whatamounts were paid and to whom.
(ii) In paragraph 2, it is not stated who threatenedthe voters for respondent No. 1 and when. It is furthernot stated who removed the posters and how they wereconnected with respondent No. 1 and when.
(iii) In paragraph 4, it is not stated who issued thepamphlets and hand-bills, and when,
(iv) In paragraph 5, it is not stated who collectedthe ballot papers bundled together and put them in theballot box. Then, it is also not stated who were the per-sons working for and on behalf of the respondent No. 1who had accepted illegal gratification. The persons, whodid so with the connivance of the respondent No. 1 arealso not named.
(v) In paragraph 6, it is not stated whose persona-tion was made and when.
(vi) In paragraph 7, the names of persons who an-nounced on loud speakers something derogatory to Dr.Joglekar are not mentioned, nor is the date given. Thename of the person, who called Dr. Joglekar as Mishra'sman is also not given. All these allegations are veryvague.
(vii) In paragraph 8, the names of those personscarrying the voters to the polling station in hired cars arenot mentioned, much less their relation to the respondentNo. 1 shown.
17. Clearly then, all these details which were neces-sary are wanting. If the application had been heard onmerits, there would have been a confusion. The law laysdown that the facts should very clearly be stated. It ispossible that when the names are given, there is a possi-bility of those persons being won over. But if the namesand dates are allowed to remain in secret, then any evi-dence could be brought before the tribunal. The evil in
E.L.E.] BHIKAJI KESHAO JOSH1 V. B. N. BIYANI (NO. 2) 65
the second case outweighs the evil in the first case. Thelaw, therefore, under section 83(2) is very clear, and itought to be complied with, and in this case, there is nodoubt that the list of particulars does not comply with theprovisions of section 83(2) of the Election Law. There isno application for amendment of these particulars beforeus.
18. The particulars given in the list can be amendedindeed. But fresh instances cannot be given [vide Nanak-chand's Law of Election, page 385, and the cases referred tothereunder]. In this particular case, however, we have al-ready noted that the particulars are absolutely vague.There is a purpose of the law why the particulars are re-quired to be clear. A petitioner makes very serious allega-tions against the other party. He makes allegations that acertain person did something which offends against theelection law. The question then arises as to whether thishas so happened and whether that particular person wasauthorised by the opposite party to act on his behalf. Itis easy to make vague allegations and to raise dust but ifthat is permitted the whole trial would be clumsy andcould be changed at any time and the other party wouldalways be in the dark. The law does not contemplate that.The law desires that specific allegations should be made,the names of the persons should be given and the datesalso should be given so that everything should be knownto the opposite party who should be asked to meet thatease. In this particular case no such allegations are madeand it would perhaps be doubtful whether, as the electionpetition stands, the amendment could be made. Buteven if that could be, it is very clear that at present thereis no application for amendment before the tribunal and,therefore, as the particulars given in the list of parti-culars are not absolutely clear, the provisions of section83(2) are violated and the application is on that groundliable to be dismissed under section 90(4) of the ElectionLaw. Even if such application for amendment could bemade, time to do so has long been passed now, and noamendment could be allowed at this stage. Therefore,the application as it stands offends against the provisionsof section 83(2), and is liable to be dismissed under section
EL—9
66 BHIKAJI KESHAO JOSH! V. B. N. BIYANI (NO. 2) [VOL. Vt
90(4). Under these circumstances, there is no doubt thatthe election petition is bad in law and invalid.
19. This point was considered and decided in Pur-shottamdas Ranchhoddas Patel v. Shantilal GirdharlalParihh^1). The tribunal held that when the particulars werenot given correctly the application was liable to be dis-missed on that ground. In that case also, the list was notverified according to the manner provided in the Civil Pro-cedure Code and the petition was not accompanied by alist verified, as required by section 83(2) of the Act. Inthat case also, the particulars were so vague that theywere no particulars at all. (Vide paragraphs 10 and 11 ofthat order). We respectfully agree with the reasoning ofthat tribunal. We find the issues accordingly.
20. Issue No. 3(b)—It would appear from section 110that the law contemplates joint petitions. Therefore, anapplication filed by the 2 petitioners without giving 2separate securities is proper. This point can, therefore,be decided in the negative.
21. Issue No. 3(c)—Even though the applicationshows that it was addressed to the Election Tribunal,Madhya Pradesh, Nagpur, the application was as a matterof fact received by the Election Commission, Delhi, and theclerical mistake in writing is merely an irregularity. Theelection petition cannot be said to be bad on that ground.For all these reasons, we decide these three points (a), (b)and (c) in the negative.
22. Issue No. 4 (a).'—There is no doubt that these per-sons, viz., Shri Sohoni, Shri Kulkarni andShriKothatkarwere nominated candidates. It would appear from rule 2 (f)at page 184 of the Manual of Election Law, that a validlynominated candidate means a candidate who has beenduly nominated and has not withdrawn his candidature inthe manner and within the time specified in sub-section (1)of section 37, or sub-section (4) of section 39, as the casemay be. The position then is as follows. There are candi-dates. Then there are duly nominated candidates. Thenthere are validly nominated candidates. Everyone whostands for an election is a candidate. When he is legally
(1) 1 E.L.B. 223.
E.L.B.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 67
nominated and supported, he becomes a duly nominatedcandidate, and when his nomination paper is acceptedand he does not withdraAV within the time allowed by thelaw, he becomes a validly nominated candidate. Underthese circumstances, then, it was necessary for the appli-cants to make these 3 persons, Shri Sohoni, Shri Kulkarniand Shri Kothatkar, who were duly nominated but whowere not validly nominated inasmuch as they had with-drawn their candidature, as parties to these proceedings.Under section 82, a petitioner shall join as respondents tohis petition all the candidates, who were duly nominatedat the election other than himself, if he was so nominated.Therefore, the applicants were bound to make these per-sons parties to this application. The point is that every-one who was interested in the election some way or theother, ought to have a say in the matter. A candidate whosimply wishes to stand gets interest in the election onlywhen he is duly nominated, and not till then. The entirepetition must fail on account of the petitioners' failure tojoin all the duly nominated candidates as respondents.(Vide page 395 of the Indian Election Law by H.L. Sarin).
23. In this connection it would be pertinent to referto paragraph No. 2 contained in the reply of the petitionersto the written statement of the respondent No. 1 on 16thOctober, 1952:
"Without prejudice to the above, the petitionerssubmit that they have joined all the duly nominatedcandidates at the election as defined under rule 2(f) of theRules and whose names were published under rule 11under the Representation of the People Act in the MadhyaPradesh Gazette. Shri Sohoni, Shri Kulkarni and ShriKothatkar were not so duly nominated candidates at theelection". It would thus appear that the petitioners aredefining the duly nominated candidates in their own way.It is true that the term duly nominated- candidate is notdefined in this Act, but "validly nominated candidate" hasbeen defined in rule 2(f) of the Rules, page 184 of theManual of Election Law. "Validly nominated candidate"means a candidate who has been duly nominated and hasnot withdrawn his candidature in the manner and with-in the time specified in sub-section (1) of section 37 or in
68 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
that sub-section read with sub-section (4) of section 39,as the case may be.
24. To this provision the petitioners have referredin their reply to para. 2 of the written statement of therespondent No. 1. They consider that the candidatesdenned in this provision were all made parties. But avalidly nominated candidate includes a duly nominatedcandidate. In other words, the circle of validly nominatedcandidate includes the circle of duly nominated candidates.The nomination paper is given in Schedule II page 253 ofthe Manual of Election Law. In that nomination paperthe heads Nos. 13 to 16 show that the nomination is to beseconded by a person, who is himself entitled to vote. Inother words a person is nominated by one and when he isduly seconded by another person competent to second himhe becomes duly nominated. We thus find that the gene-ral term is "candidates". Out of the candidates some areduly nominated candidates and out of those duly nominat-ed candidates some are validly nominated candidates. Theapplicants have made only validly nominated candidatesas parties to this petition. They admit that these three per-sons are candidates, which does not exclude the possibili-ty of their being duly nominated candidates as understoodby section 79(6) (sic) of the Act. There is thus no denialof the fact that they are duly nominated candidates. Thisoffends against the provisions of section 82 of the Elec-tion Law. These provisions contained in section 82 aremandatory and they ought to be strictly complied with.The reason is that e'veryone, who had something to say inthe matter of election, ought to have a chance to state hisgrievances before the Election Tribunal. (Vide- Nanak-chand's Election Cases, page 377 and the cases referredto thereunder). For these reasons, therefore, we considerthat the petitioners did not make all the duly nominatedcandidates parties to this election petition and their appli-cation is liable to be dismissed as not in conformity withthe provisions of section 82 of the Election Law.
25. For these reasons points 4(a), (b) and (c) are alldecided in the affirmative.
26. Issue 5(a) to (e).—The petitioners' case is thatthey had duly authorised Shri Walimbe in writing to
E.L.R.] BHIKAJI XESHAO JOSHI V. B. N. BIYANI (NO. 2) 69
present the petition at New Delhi to the Election Com-mission and he has done accordingly. The respondent No.1 denies this. The pleadings of the respondent No. 1 in thisrespect are contained in para. 3 (i) to (x) of the writtenstatement. Having denied that Shri Walimbe had author-ity in writing to present the petition, the respondent No. 1further suggests that it was Shri Gole who had authorisedShri Walimbe to present the petition and, therefore, thepetition cannot be considered to have been presented by aperson authorised in writing in this behalf by the personmaking the petition. This suggestion is based on assump-tions and not on facts. It can hardly be considered to be aproper pleading according to the rules of pleadings. Thepleading of the respondent No. 1 in this respect is notthus precise. It is vague and inferential.
27. Section 81 (2) (a) permits presentation by aperson authorised in writing in this behalf by the personmaking the petition. The words "authorised in writing"do not mean that the entire instrument of authorityshould be in his handwriting. All that it means is that theinstrument should be in writing and it should be signedby him. If a person signs the instrument which iswritten by somebody else on his behalf that would besufficient compliance of the above provisions. All that isnecessary to see is whether the petitioners have them-selves authorised a person and whether that authorityis in writing and signed by them.
28. The petition was presented by Shri Walimbe tothe Election Commission at New Delhi. Ex. P. 1 is theinstrument of authority to Shri Walimbe. It bears thesignatures of the petitioners. The petitioner Bhikaji hasentered the witness box and swears that he and the otherpetitioner M. V. Dhamankar have signed it. The signa-tures of the petitioners have not been questioned. Thereis thus an instrument of authority in writing which hasbeen signed by the petitioners. As mentioned by meabove, the contents of the instrument may have beentyped or written by any other person. That is im-material. The question as to who filled in the contentsof Ex. P. 1 is not important. What is important iswhether the contents were written or typed at the in-stance of the petitioners. If the petitioners had autho-
70 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
rized Shri Walimbe it is needless to consider who typedthe contents and who put in the name of Shri Walimbetherein. It is also needless to consider when and where thename was put in in the instrument of authority, providedit was there at the instance of the petitioners and not atthe instance of anybody else.
29-36. Bearing in mind this principle, we now proceedto discuss the evidence on record. Before doing so it isnecessary to consider the question of burden of proof.Before us there is a written authority in writing Ex. P. 1.It purports to have authorised Shri Walimbe (sic.) by thepetitioners. Under this authority, Shri Walimbe pre-sented the petition before the Election Commission and itwas accepted as validly presented. These circumstancesthrow the burden of proof on the respondent No. 1 toestablish that Shri Walimbe was not authorised by thepetitioners. It is true that the burden is to prove anegative fact, but that would not change the position oflaw. It has to be discharged, however difficult it maybe. [The learned members discussed the evidence andcontinued:]
Bhikaji, A.W. 1, further says that he does not re-member, who wrote the words "Shri Walimbe" in Ex.P-l. He also says that he does not remember when thetyped word "Nagpur" in Ex. P-l, was substituted by"New Delhi". Ex. P-l is not dated. He, however, definitelystates that the words "Shri Walimbe" were already writtenin Ex. P-l before he signed it.
37. That is all the material appearing in the cross-examination of Bhikaji, A.W. 1. Now, are these circum-stances sufficient to hold that the petitioners did notauthorise Shri Walimbe? Bhikaji, A.W. 1, has given expla-nation of the circumstances which stand against the peti-tioners. In our opinion the conduct of Bhikaji raises meresuspicion. This suspicion is not enough to outweigh hissworn testimony. It is a fundamental principle of justicethat suspicion and conjectures cannot be made the founda-tion of a judicial decision. Though evidence has beenadduced before us it is so scanty and it is of such a naturethat the question of burden of proof assumes importance.On consideration of the evidence before us we find thatthe respondent No. 1 has not discharged the burden ofproof. We find the issues accordingly.
E.L.B.] BHIKAJl KESHAO JOSHI V. B. N. BiYANI (NO. 2) 7l
38. Issues 6 (a), (b) and (c) and 7.—These issues coverthe point of limitation. The petition was admittedlybarred by time by one day. The petitioners made an ap-plication to the Election Commission to condone thatdelay of one day. Ex. P-4 is a copy of that application.The application was allowed and the Election Commissioncondoned the delay under the proviso to section 85 of theAct. The petition was admitted and the present tribunalwas appointed by the Election Commission under section86.
39. Section 81 requires that the petition maybe pre-sented within the period of limitation prescribed and wehave given our finding that under section 90(4) we havejurisdiction to investigate into the question of limitationand arrive at our conclusions. It is contended by the res-pondent No. 1 that the powers of the Election Commissionunder section 85 of the Act are not co-extensive with thepowers of the tribunal under section 90(4). It is arguedthat the Election Commission has powers to condone thedelay under the proviso to section 85 and no such powersare conferred on the tribunal under section 90 (4). It isaccordingly urged that the tribunal should dismiss thepetition as it is barred by time and should not look intothe question of condoning the delay.
40. It is true that the wording of the two sections isnot identical. Their wording is as under:—
Section 85:—"If the provisions of section 81, section 83 or section
117 are not complied with, the Election Commission shalldismiss the petition:
Provided that if a person making the petition satisfiesthe Election Commission that sufficient cause existed forhis failure to present the petition within the period pres-cribed therefor, the Election Commission may in its discre-tion condone such failure".
Section 90(4):—"Notwithstanding anything contained in section 85,
the Tribunal may dismiss an election petition which doesnot comply with the provisions of section 81, section 83 orsection 117".
The wording of the two sections makes it clear that
72 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
the tribunal has discretion to dismiss the election petitionas barred by time in spite of the condonation of delay bythe Election Commission. It may agree with the ElectionCommission in that respect or it may not agree. Thatnecessarily follows from the word "may" used in section90(4). The Legislature has advisedly used the word "may"and not "shall".
41. The contention of the respondent No. 1 would holdgood if the word "shall" had been used. The use of theword "may" definitely indicates that the tribunal is in-vested with the power of looking into the question of thedelay in making the petition. The tribunal on makinginquiry into the question may dismiss the petition if itfinds on the basis of material produced before it that thedelay is not excusable. It may also not dismiss it if itfinds the delay is excusable and thus agree with the Elec-tion Commission. The word "may" indicates discretionand the discretion in the matter cannot be exercised unlessthe question of delay is taken into consideration. We areof definite opinion that the provisions of section 90(4)cannot be effectively exercised unless the question of delayis investigated and taken into consideration by us. It istrue that the tribunal has not been expressly empoweredto condone the delay but that power follows by implicationby the wording of section 90(4). If the tribunal is em-powered not to dismiss the petition when the matteris agitated before it by the parties, that in substance meansthat it is empowered to condone the delay though thepower has not been given in express words. The powersof condonation are given in express words to the ElectionCommission because it is entrusted with the function ofadmitting the petition. Before the tribunal there is noquestion of admitting the petition. It has to see whetherthe petition complies with certain sections of the Act andit is empowered to dismiss the petition if there is no com-pliance. While doing so it necessarily has to consider thequestion of delay while deciding the point of limitation.That in substance is whether the delay should be condonedor not. We find issue No. 7 in the affirmative.
42. The question is whether we should exercise thediscretion vested in the tribunal by the provisions of sec-tion 90 (4). The tribunal does not sit in appeal over the
tJ.L.R.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 73
decision of the Election Commission while exercising itsdiscretion under that section. It has been empowered tolook into the matter afresh. The Election Commission hasto take decision ex parte. In our opinion it has to seeprima facie whether the petition complies with the provi-sions of sections 81, 83 and 117 and, on being satisfied, thatit is so, it has to admit the petition and appoint a tribunal.The person against whom the petition is made is interestedin the matter covered by sections 81, 83 and 117. By beingelected he has obtained certain rights. He is entitled tosee that he is not deprived of those rights except in duecourse of law. As such he is entitled to contest the validpresentation of the petition, including its presentationwithin limitation. Justice demands that he should havean opportunity to exercise those rights. In the days ofdemocracy where the rights vest in the people they cannotbe denied to them by mere executive acts done behindtheir back. It is for this reason that section 90(4) has beenenacted. It empowers the tribunal to reconsider the pointsagain in the presence of the parties and that is just in con-sonance with the principles of justice. If some facts whichwere not before the Election Commission are brought beforethe tribunal, it may not agree with the Election Commis-sion.
43. In our opinion the power granted to the tribunalunder section 90(4) is important and we ought to exerciseit. For this principle we rely on Gabdoov. Bajanfj) and onCommissioner of Police v. Gordhandas Bhanjii?). Thefollowing observations in the above two rulings are perti-nent in this respect:
"When a statute confers an authority to do a judi-cial act in a certain case, it is imperative on those so autho-rised to exercise the authority, when the case arises andits exercise is duly applied for by a party interested, andhaving the right to make the application": (1953 N.L.J.,page 7 at page 10).
"An enabling power of this kind conferred for publicreasons and for the public benefit is, in our opinion,coupled with a duty to exercise it when the circumstances sodemand": (A.I.R. 1952, Supreme Court, page 16 para. 28).
(1) 1953 N.L.J. 7 (10). (2) A.I.R. 1952 S. 0.16 (21).
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The respondent No. 1 has contended before us that theapplication should be dismissed as barred by time. Weare empowered to dismiss it under section 90(4) and we,therefore, ought to consider the point of limitation whichinvolves the question of justification for delay.
44. The grounds for condonation of delay are men-tioned in the petitioners' application dated 28th April, 1952,Ex. P-4. They are contained in paragraphs 3 to 6 of theapplication. They pray that they were under two bona fidebeliefs contained in those paragraphs and it was due tothem that there was delay. The two beliefs are as under—
(i) They were under the belief that notice under rule113 of the rules framed under the Act was published onthe 5th of April, 1952, in the Official Gazette of the State ofMadhya Pradesh, when in fact it was published on the 4th.
(ii) They were under the belief that an officer con-templated by section 81 of the Act must have been appoint-ed by the Election Commission for every State and they,therefore, felt that it would be possible to present the peti-tion at Nagpur, the capital of the State of MadhyaPradesh. But as a matter of fact none was appointed.
On behalf of the respondent No. 1 it is argued that thepetitioners were grossly negligent and there were no bonafide beliefs.
45. Let us now scrutinize the evidence and find outwhether the petitioners acted under bona fide belief ornegligently. Out of the two petitioners it appears fromthe evidence of Bhikaji that the other one took no activepart whatsoever. He alone was the prime mover. He isa fairly educated man and knows English. He appearedto us intelligent. He was present at Akola at the time ofelection. He decided to file the election petition twomonths prior to its drafting. What did he do after takingthis decison for a period of two months? He did not readrule 113 of the Representation of the People Rules nor didhe read rule 119. He did not look into the Gazette to findout the date of publication. He did not care to know whatwas the period of limitation prescribed. He has not seeneven now the publication in the Gazette. He did not careto know from proper and authoritative sources whether thepetition could be presented at Nagpur. Some persons told
E.L.R.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 75
him that it could be presented there. He admits that hedid not know the law and did not study it. Thus for aperiod of two months he did not care to knoAV the date ofthe publication in the Gazette and the place where thepetition was to be presented.
46. It was only 4 or 8 days prior to the drafting ofthe election petition that he moved in the matter. Tillthen he was inactive. Within 3 or 4 days before the draft-ing of the petition he collected the funds by making con-tributions and some 4 or 8 days prior to the drafting hesought the advice of the legal practitioners Shri Gole andShri Sohoni. Besides this he did nothing. He says that herelied solely on his legal advisers. It is clear that he him-self did not act with due care and attention.
47. As for the belief in respect of the place of pre-senting the petition he admits that his legal advisers toldhim to file the petition at Delhi. He says that the beliefthat it could be filed at Nagpur was created as a result ofinformation received from Puradupadhye and others. Thesewere not legal practitioners and he has not shownwhat source of knowledge they had. None of them hasbeen examined to show that they were responsible forcreating the belief in the petitioners. It is surprising thathe relied on these persons and went to the length ofaddressing the petition to the Election Commission atNagpur and putting the words Nagpur in Ex. P-l andsending Shri Gole to Nagpur. Having first stated that hislegal advisers told him to file the petition at Delhi he lateron admits that they were not in a position to decide wherethe petition could be presented at the time when the peti-tion was finally drafted. That drafting was on the nightof the 17th. Shri Gole started for Nagpur on the 18thmorning by mail which must be at 4 or 5 A.M. When didthe legal advisers tell him that the petition should be pre-sented at Delhi and when did Puradupadhye and otherstell him that it could be presented at Nagpur? That couldbe only on the night of 17th. Why did he not then relyon the words of his legal advisers? Why did he gavepreference to Puradupadhye and others?
48. As for the belief in respect of the date of thepublication he says that it was entertained by him on in-formation given by his friends and lawyers. Who were
76 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
those friends and lawyers? He does not name themspecifically. He did not examine them to show that theywere responsible for creating that belief in him. The evi-dence on record clearly shows that the petitioners werenegligent in the matter of presenting the petition.
49. Taking for granted that the petitioners entirelyrelied on the legal advisers, where is the reliable evidenceto show that this is a fact? He should have examined thelegal advisers. He alone cannot be relied on. Moreovertaking for granted that he relied on legal advisers it shouldhave been shown that they gave him the advice in goodfaith and they were not negligent. Prima facie, if thelegal advisers do not care to know the essential facts forpresentation of an election petition, namely, relating tolimitation and place of presentation it is difficult to saythat they acted in good faith. Failure to get thatessential information would amount to negligence ontheir part also. It was necessary for the petitioners toexamine them.
50. The petition was drafted on the 17th night.Even according to the bona fide belief of the petitionersthere was only one day left. The legal advisers told himthat Delhi was the place while some others told him thatit could be presented at Nagpur. That must have createdsome doubt. Why did the petitioners leave the presenta-tion and preparation of the petition till 17th night? thatalso shows negligence. The following observations inPandit Krishna Rao v. Trimbak (*) are very important anduseful for the purpose of this case:—
"When the time for filing an appeal has once passed,a very valuable right is secured to the successful litigantand the Court must, therefore, be fully satisfied of thejustice of the grounds on which the appellant seeks toobtain an extension of time for attacking the decree andthus perhaps depriving the successful litigant of the advan-tage which he has obtained".
"It is the duty of a litigant to know the last date onwhich he can present his appeal, and if through delay onhis part, it becomes necessary for him to ask the Court toexercise in his favour the power contained in section 5 of
(1) I.L.E. 1938 Nag. 409.
E.L.E.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 77
the Indian Limitation Act, the burden rests on him ofadducing distinct proof of the sufficient cause on which herelies".
"An appellant, who wilfully leaves the preparationand presentation of his appeal to the last day of the periodof limitation prescribed therefor, is guilty of negligenceand is not entitled to an extension of time if some unex-pected or unforeseen contingency prevents him from filingthe appeal within time".
"The Court while exercising its discretion under sec-tion 5 of the Indian Limitation Act will necessarily lookinto the conduct of the appellant and will only exerciseits discretion in favour of a person who is found to bediligent and not in favour of one who is guilty of lachesor negligence". See also Karansing v. Kartarsing(x).
51. Thus, the petitioners have been extremely negli-gent. If they relied on the legal advisers—which has notbeen established-—the mistakes committed by them alsoshow negligence. The question is whether this negligenceshould be ignored and we should not dismiss the petitionas barred by time.
52. It is argued for the petitioners that the delaywas only of one day and inasmuch as they acted honest-ly they should be considered to have acted in good faith.According to them there was sufficient cause for delay.In the absence of any test laid down for the tribunalwhile exercising the powers under section 90(4), we takesufficient cause as the test. That test is laid down in sec-tion 85 and may in general be considered to be the propertest. What is sufficient cause? We find the expressionused in section 5 of the Limitation Act. The judicial deci-sions in point explaining that term may be made use of infinding out its meaning. The expression "sufficient cause"has been held to mean a cause which is beyond the controlof the party invoking the aid of the section. In otherwords it means a bona fide cause—an act done bona fideor in good faith. As for good faith it is defined in theLimitation Act as under: "Nothing shall be deemed to bedone in good faith—which is not done with due care andattention". Thus, if the party has not acted with care and
(1) A.I.B. 1961 Punjab 170.
78 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
attention he cannot be considered to have acted in goodfaith and it cannot be said that there is sufficient cause.It follows that if a party acted negligently he cannot beconsidered to have acted bona fide and it cannot then besaid that there is sufficient cause.
53. It is contended for the petitioners that thedefinition of the term "good faith" as given in the GeneralClauses Act should be applied. Under those provisionsan act may be done honestly and in perfect good faithalthough it may have been done negligently. When anyaction is barred by time a valuable right is created infavour of the opposite party and the right so secured can-not lightly be ignored. From that point of view we preferto follow the definition given in the Limitation Act.Negligence has not been held to be a sufficient excuse fordelay in the cases coming under section 5 of the Limi-tation Act. That section is applicable to an appeal, revisionand certain applications. As observed above by usthe Election Law is to be strictly applied. It is tobe applied more strictly than the law under which appeals,revisions and applications under section 5 are contem-plated. Thus a stronger case for condonation is requiredin the case of election than any other law. If negligenceis no sufficient cauSe for condoning dealy in the cases ofother laws it can hardly be a sufficient cause in the elec-tion law; so if there is negligence even of only one day thedelay cannot be condoned. We, therefore, come to theconclusion that the petitioners were negligent. The delaycannot be condoned and the petition is liable to be dismis-sed as barred by time. We find the issues accordingly.
54. Issue No. 8.—The ingredients of the plaint aregiven under Order 7, rule 1, of the Civil Procedure Code.Under rule 6 of the same Order, where a suit is institutedafter the expiration of the period prescribed by the law oflimitation the plaint shall show the ground upon whichexemption from such delay is claimed. Under section90(2), the procedure of the Civil Procedure Code is to beapplied under such circumstances. It was, therefore, neces-sary for the applicants to state the cause of delay in theapplication itself. The Election Commission asked for anexplanation, and the applicants gave the cause in theirapplication dated 28th April, 1952 (Ex. P. 4). That should
E.L.E.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 79
have formed part of this petition. However, when it is onrecord, it cannot be said that the petition and that appli-cation together do not show that the reason for the delayhas not been shown. It was not incumbent on them toshow the date of the cause of action in the sense of theCivil Procedure Code. These are mere irregularities, andsuch irregularities could be amended, because they do notcome under the provisions of either section 80 or 82 or 83,which expressly make provision about the contents of theelection petition. These two points are, therefore, decidedin the negative.
55. Issue No. 9.—As a matter of fact, these pointswere not pressed by the respondent. We have- consideredthese points in the beginning of this order, and it hasbeen found by us that it is not the function of this tribunalto say what the Election Commission ought to have done.This Election Tribunal will say what it can do and what itshould do, under section 90(4) of the Election Law. Thistribunal cannot question the jurisdiction of the ElectionCommission to appoint this Election Tribunal. The Elec-tion Commission has been constituted by the Constitutionand its powers have been defined in the Election Law in sec-tions 81 to 85. The Election Tribunal which is createdby the Election Commission gets all the powers conferredon it by the Election Law. The Election Commission willthus decide questions according to the law under thepowers conferred on it and so will the Election Tribunal do.The question, therefore, of the Election Tribunal sittingin appeal or revision over the findings of the ElectionCommission would not arise at all. As a matter of factthe Election Tribunal comes into being because the Elec-tion Commission assumes jurisdiction and creates an Elec*tion Tribunal. These points in issue No. 9 were not pressedby the respondent No. 1 and rightly so. We, therefore,decide points (a) and (b) in the negative and point (c) inthe affirmative.
56. The cumulative effect of all the findings is thatthe petition fails and is liable to be dismissed.
P. B. SATHE.—I have been in general agreementwith the order passed by my colleagues on all otherissues. Unfortunately, it is not possible for me to agree
80 BHIKAJI KESHAO JOSHI V. B. Hf. BIYANI ( K O . 2) [VOL. VI
with them in their findings on issue No. 5. It is an issueabout the valid presentation of the election petition byShri Walimbe alleged to have been presented on behalfof the petitioners. It was argued by the petitioners thatwhen there was Ex. P-l signed by them and it wasreceived by Shri Walimbe, the matter had ended andthere was a presumption in their favour, and the presump-tion was proper.
2. A point about the burden of proof was raised bythe petitioners in this case. It was argued that theburden lay very heavily on the respondent No. 1 to provethat the petition was not properly presented by a personduly authorized in this behalf by the petitioners, underthe provisions of section 114 of the Evidence Act. On theother hand, the respondent No. 1 urges that this parti-cular case is not governed by the provisions of section114 of the Evidence Act, but by section 106. Section 114of the Indian Evidence Act runs as follows :—
"The Court may presume the existence of any factwhich it thinks likely to have happened, regard being hadto the common course of natural events, human conductand public and private business, in their relation to thefacts of the particular case".
3. Now, in this case, Ex. P-l is the power signed bythe petitioners. I have already discussed the evidentiaryvalue of this document, which according to me is not asatisfactory proof. The fact that the power has beensigned is clear. It is not dubbed as forged. All the same,what the petitioners have got to prove is that it was signedin favour of the person whose name was not typed butseems to have been added by whom the applicant is unableto say. This cannot be said to be a common course ofnatural events. The common course of natural eventswould be to have all the matter written and then thesignature taken. The human conduct referred to in section114 is not the conduct of interested persons, but of ordi-nary human beings and ordinary human being would writethe entire matter and then sign it, and would not leavesomething to be written later. In my opinion, therefore,the provisions of section 114 of the Evidence Act do notapply to this case. The provisions of section 106 would.The reasons are the following:—
E.L.B.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 81
4. The petitioners say that they had decided to whomthe power should be given. The name was suggested bytheir own friend. Shri Gole took the power from Akola toDelhi. Under such circumstances, it was within theknowledge of these 3 persons to tell us what had actuallyhappened. But the persons proposing the name of ShriWalimbe or Shri Gole, who were in the know of thingswere not examined, and it is found that the applicant is anunreliable person. Under such circumstances, no inferencecould be drawn from section 114, but the burden would lieon the petitioners under section 106 of the Evidence Act.The illustration (g) to section 114 of the Evidence Act isas follows:—
"The evidence which could be and is not producedwould, if produced, be unfavourable to the person whowithholds it".
Here the evidence has actually been withheld.5. There is a distinction between a presumption of
law and an inference from facts. At the most in this case,an inference might be drawn, but no presumption could,because presumption has more sanctity than inference; andno inference could be drawn in this particular case, becausewe find from the evidence of the only witness of the peti-tioners that he is an unreliable person. The facts whichare within his knowledge ought to be disclosed by theperson having that knowledge. But apart from what hasbeen said so far, the question of burden of proof becomesimmaterial when we have all the evidence that can beadduced by both the parties before us. When all thecircumstances have been ascertained so far as the partieshave thought fit to ascertain them, discussion on thepoint of onus of proof becomes immaterial. The questionof onus becomes important if the circumstances are ambi-guous. (Vide Sarkar's Evidence Act, page 772, 9th Edition,and the cases referred to thereunder). In this case I donot find that there is any ambiguity.
6. In my humble view, therefore, when all the evi-dence is on record and when both parties had an oppor-tunity to give full evidence, the question of burden ofproof would not be very material: Now, even apart from
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82 BHIKAJI KBSHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
that, this case would be governed not only by the Evi-dence Act which governs the manner in which the evi-dence has to be weighed, but it comes under article 329 (b)of the Constitution. Under that article "No election toeither House shall be called in question except byan election petition presented to such authority and insuch manner as may be provided for by or under any lawby the appropriate Legislature".
Therefore, when an election petition is filed, it isnot only incumbent on the petitioners to satisfy theElection Commission that the mandatory provisions of thelaw have been complied with, but they must also satisfythe Election Tribunal which has an independent exis-tence, and which considers these points notwithstandinganything done by the Election Commission in that behalfunder the provisions of section 90(4) of the Election Law.It was, in my humble view, therefore, necessary for thepetitioners to satisfy this Election Tribunal indepen-dently about the proper presentation of the electionpetition, and the burden under article 329 (b) of theConstitution was on them to prove that fact.
7. I shall now take up issue No. 5 on merits. Ex.P-l is the alleged authority by the applicants to ShriWalimbe to present the petition at New Delhi. Theauthority is a type-written one. The heading shows thatit was addressed to the Secretary to the Election Com-mission, Nagpur. But then, "Nagpur" has been scoredout and "New Delhi" has been substituted. The type-written matter is "We the undersigned persons makingthe election petition in respect of the election of theAkola constituency, hereby authorize Shri to presentand deliver the accompanying petition".
It is to be noted that in this power, even when theprefix 'Shri' has been typed, the name has not been typed.
[After considering the deposition of the applicant,the learned member continued.]
11. The suspicious nature of Ex. P.-l, coupled withthe fact that the evidence of A.W. 1, Bhikaji, is unreliable,thus leads me to the conclusion that after all Shri Walimbewas not authorized by the applicants themselves to
E.L.R.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 83
present the petition at Delhi, when Shri Gole left Akolafor Nagpur.
12. It might be argued that such blank powers aregenerally sent and nobody objects to them. This maybe so in practice. But when it comes to actual appre-ciation of the facts, we have got to find out whetherthe provisions of the relevant law have or have not beencomplied with. Section 81 (2) lays down:—
"An election petition shall be deemed to have beenpresented to the Election Commission—(a) when it isdelivered to the Secretary to the Commission or to suchother officer as may be appointed by the Election Commis-sion in this behalf—
(i) by the person making the petition, or(ii) by a person authorized in writing in this behalf
by the person making the petition".Now, it is not proved that Shri Walimbe was authori-
zed in writing in this behalf by the persons making thepetition. This we find from the evidence on record. Onthe other hand, strict proof of compliance with the lawunder section 81(2) was necessary.
13. It was argued that under section 149 of the Con-tract Act, a duly appointed agent could validly delegatehis powers and thereby make that delegate an agent ofthe principal directly. In this connection, the facts of thepresent case do not warrant an inference that Shri Golewas authorized to appoint a delegate. According to theapplicants Shri Walimbe's name had already been men-tioned in the power (Ex. P-l), which fact we find has notbeen proved. But apart from that, when the law laysdown that a certain procedure should be followed, it hasgot to be followed. The law lays down a particular pro-cedure in section 81(2), and that has got to be followed.Even under the ordinary law, when the special power ismentioned, the general power available under the ordi-nary law is withdrawn: vide Vyankatesh Deshpande v.The Grown(l). In that case, the Provincial Government hadreleased the applicant under the provisions of section 401of the Criminal Procedure Code, which was a generalpower of release. The order was subsequently withdrawnby the Provincial Government, and it was argued in that
(1) I.L.E. 1940 Nag. 1 at p. 6.
84 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
case that the authority which could pass the order couldalso revoke it, under section 21 of the General ClausesAct. The learned Judge, on page 6, observed that—"Afterlooking to sub-section (3) of section 21 of the GeneralClauses Act, when any condition on which the sentencehas been suspended or remitted was not fulfilled, then theGovernor-General or the State might cancel the suspensionor remission. When there was such a provision, the Pro-vincial Government could not cancel the order of remis-sion". In this case, therefore, when the law definitely laysdown that the petition should be presented by a personauthorized in writing in this behalf by the applicants, theprovisions of that law alone must be fulfilled.
14. The applicants have stated in paragraph 12 oftheir application as follows:—
"Shri Gole was entrusted with the work in his capa-city as a legal adviser when he left with the petition forNagpur. But he was not authorized to personally presentthe petition. Shri Gole agreed to do the work in his capa-city as legal adviser".
Now, at the most, Shri Gole could be a delegate; anda delegate could not delegate his powers to somebody else.The point can be made further clear like this. If the poweris delegated by Shri Gole to Shri Walimbe, then therewould be no privity of agreement between Shri Walimbeand the applicants. If Shri Walimbe would not do whatwas expected of him, he could not, under such circum-stances, be liable to the applicants. It is on this groundthat the equitable principle that a delegate cannot dele-gate the authority to somebody else is based. But in thisparticular case Shri Gole was not a delegate, and accord-ing to the applicants, the power was given by them direct-ly to Shri Gole, which is found to be not supported bysatisfactory evidence. Under the provisions of article 329read with article 327 of the Constitution, we have got tolook to the provisions of the law contained in section 81(2) and if these provisions are found to be not compliedwith, then we must come to the conclusion that the pre-sentation of the application was not proper.
15. The Election Commission gives its findings on thematerial placed before it. The material under the circum-
E.L.R.] BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) 85
stances is bound to be scanty, viz., what the applicantchooses to place. The respondent No. 1 who was not thenin Akola and who could have no information, could not,therefore, lead any direct evidence. Under such circum-stances then, the finding could be based on the materialthat is placed before it and it is limited to that materialonly. But it is not unlikely, as is the case in this particularcase that there may be circumstances which were notplaced before the Commission either purposely or negli-gently, or for any reason whatsoever. And if those factscome before the Election Tribunal under such circum-stances, it will have more facts before it than were beforethe Election Commission. Under such circumstances, tosay that the Election Tribunal should only accept thefinding of the Election Commission would be to ask theElection Tribunal to refuse to consider certain facts whichare brought before it during investigation. This, no courtwould permit, and thus in my humble view, cannot becountenanced by law.
16. While, therefore, the Election Tribunal will tryto accept the finding of the Election Commission as far aspossible, it must be open to it to consider all the factsthat are before it for giving findings on the issues, underrules 81, 83 and 117. That is the reason why this newaddition, viz., section 90(4) has been added to the ElectionLaw.
17. It is possible that all the facts might not beplaced before the Election Commission. If those factswere brought to the notice of the Election Commission,the Election Commission might sometimes take a differentview. There may be a purpose in withholding those factsor there may not be any purpose at all and if there wasa purpose there would be a fraud in the moral sense ofthe term. Misrepresentation is defined in section 18 of theIndian Contract Act. The section 18, sub-section (2), runsas under—
"Misrepresentation means and includes any breach ofduty which, without an intent to deceive, gains an advan-tage to the person committing it, or any one claimingunder him, by misleading another to his prejudice or tothe prejudice of any one claiming under him".
86 BHIKAJI KESHAO JOSHI V. B. N. BIYANI (NO. 2) [VOL. VI
18. It would thus appear that under such circum-stances as is the case here, there may be misrepresenta-tion which may not necessarily be wilful. And if there issuch a misrepresentation, then the finding that is basedon such misrepresentation could not be said to be bind-ing on the party which was not present before the Elec-tion Commission, and whose interests are being affectedby that finding. In this particular case the acceptance ofthe petition has affected the interests of the respondentNo. 1, and therefore, he would under such circumstancesbe entitled to raise these points again in equity and thistribunal, in my humble view, would not only be entitledbut be bound to consider all the facts before it, and givea finding thereon: vide Snell's Principles of Equity,Chapter III, pages 404, 409 and 410, 13th Edition, 1912.
19. For these reasons, therefore, my findings onthe points in issue No. 5 will be as follows:—
(a) (i) It is not a fact that the petitioners had actual-ly authorized Shri Walimbe to present the petition.
The finding is in the negative.(ii) It is not quite certain that Shri Gole did it.
(b) In view of the findings on points (a)(i) and (a)(ii),this question would not arise.
(c) For the reasons given above, it could not be saidthat Shri Gole could legally authorize Shri Walimbe topresent the petition.
(d) For the same reasons, the reply to this issuewould be in the affirmative.
(e) As I have discussed the evidence above, I findthat all the facts were not disclosed to the Election Com-mission. Ex. P-l prima facie showed to the ElectionCommission that Shri Walimbe was authorized by theapplicants to present the petition to him. The ElectionCommission, therefore, accepted the petition. But thefacts before us clearly show to me that possibly the formsof power were blank when they were sent from Akola, andthe facts which are disclosed in the evidence and whichwe have already discussed above, could not be known tothe Election Commission. There could be legal frauds oftwo kinds—suppressio veri and suggestio falsi. If onedoes not give the whole truth, there is as much fraud as
E.L.R.] DAULAT BAM V. MAHAEAJA ANAND CHAKD 87
if one tells a lie. The intensity of those two things maydiffer. All the same, we are not at present concerned withthe question of a criminal offence. The fact remains thatthe facts that are before me to-day clearly show to methat the alleged power in favour of Shri Walimbe couldnot have been executed by the applicants. I decide thispoint in the affirmative.
Order of the Tribunal.—As a cumulative effect of allthe findings on the issues recorded by us the petition isliable to be dismissed and we, therefore, hereby order thatit stands dismissed with costs. The petitioners shall payto the respondent No. 1 his costs of these proceedings.Pleaders' fees Rs. 250.
Petition dismissed.
[ELECTION TRIBUNAL, BILASPUR.]
DAULAT RAMv.
MAHARAJA AN AND CHAND AND OTHERS.V. B. SARWATE (Chairman), R. B. PARSHOTAM LAL
and D. P. NAIR (Members).May 2, 1953.
Disqualification of candidates—"Office of profit"—Buler getting allow-ance as privy purse under Agreement of Merger—Director of Bank inwhich Government is interested—Corrupt practice—•Bribery—Customary"hospitality—'Entertainment before holding out as prospective candidate—•Representation of the People Act, 1961, ss. 7(a), (d) & (e), 8(e), 123(l), 168•—Constitution of India, arts. 102,191.
An ex-Ruler of an Indian State who receives a sum of moneyannually as privy purse from the Central Government under an Agree-ment of Merger in consideration of his having given up his rights as aRuler does not hold an office of profit under the Government within themeaning of article 102 or 191 of the Constitution.
A person would not be disqualified under section 7 (e) of the Repre-sentation of the People Act, 1951, by being a Director of a Bank in whichthe Government has a financial interest unless the office of such Directoris declared by Parliament by law to so disqualify its holder.
88 DATJLAT RAM V. MAHARAJA ANAND CHAND [VOL. VI
Entertainment not exceeding the limits of customary hospitality-would not amount to "gratification" within section 123(1).
Shambhu Nath v. Gobind Prasacl Singh (2 Doabia 411) referred to.Section 123(1) would not apply to a gratification which was offered
before the person who offered it began to hold himself out as a prospectivecandidate.
ELECTION PETITION NO. 7 of 1952.
ORDER.
V. B. SARWATE and D. P. NAIR.—This election peti-tion is by an elector in the Parliamentary Constituency ofthe State of Bilaspur for a declaration that the election ofthe respondent No. 1, Maharaja Anand Chand, who is re-turned to the House of People from that constituency isvoid. The respondents 2 and 3, Hargobind Singh andRam Lai, and Hardial Singh who was joined in the peti-tion as the 4th respondent but who is since dead, were dulynominated, but Hardial Singh and the respondents 2 and 3withdrew their nominations under section 87 of the Re-presentation of the People Act, 1951, with the result thatthe respondent No. 1 being left as the only person validlynominated, was declared to be duly elected under section53(2) of the Act. The petitioner calls this election in ques-tion on various grounds of bribery and undue influence andeight instances of corrupt practices alleged in paragraph 11of the petition and of the alleged improper acceptance ofthe nomination of the respondent No. 1 who as a Directorof the Bank of Bilaspur Ltd. and as a person in receipt ofa privy purse as the ex-Ruler of the Bilaspur State is saidto be disqualified for being chosen as a member of theParliament. It is also urged that the election is void forthe reason that public notice of the election under section31 of the Representation of the People Act, 1951, was notproperly given because it was published by the ReturningOfficer on 10th October, 1951, fixing 15th October as thelast date for filing nominations whereas the notice did notreach several places where it was directed to be publishedtill the 17th October.
2. The corrupt practices charged against the respon-dent No. I are that he promised gratification to HardialSingh and thus induced him to withdraw his candidature;that he first offered gratification to respondent No. 2 to
E.L.R.] DAULAT RAM V. MAHARAJA ANAND CHAND 89
induce him to stand for election by filing his nominationand later by offer of gratification induced him to withdrawhis candidature; that similarly he offered and paid to the3rd respondent gratification, first to induce him to standfor election and later to withdraw from it; that he resortedto feeding on a large scale the members of the villagepanchayats to influence the voters; that he had threatenedto cause physical injury and pecuniary loss to HardialSingh and so interfered with the free exercise of his elec-toral right by Hardial Singh; that he threatened an electorMan Singh with injury when Man Singh wanted to offerhimself as a candidate for the election; that he obtainedassistance of certain Government servants named, forfurtherance of the prospects of his election and that his re-turn of election expenses was false in material particulars.
3. All the respondents including Hardial Singh filedtheir written statements in which they controverted theallegations of the petitioner and averred that the allega-tions of corrupt practices were false and baseless. HardialSingh who died after the filing of his written statementcategorically denied therein that he was threatened withany injury or was offered anything as inducement to with-draw his nomination. He stated that he filed his notice ofwithdrawal under section 37 because he found that withthe respondent No. 3, Ram Lai, in the contest in oppositionto him and with the split in the local congress party andthe likelihood of the District Congress working in supportof Ram Lai, he could have no chance in the election.
4. On the pleadings the issues in this case are*:—(2) Was the first respondent under a disqualification
to be elected a member of Parliament by reason(a) that he was a Director of the Bank of Bilaspur
Limited, in which the Government of India has financialinterest; and
(b) that he held an office of profit under the Gov-ernment by reason of being previously the Ruler of BilaspurState and also by reason of his being in receipt of anallowance from out of the State revenue?
(9) Was respondent No. 1 guilty of treating by giving"Issues Nos. 2 and 9 alone are material for this report.
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90 DAULAT EAM V. MAHARAJA ANAND CHAND [VOL. VI
food on a large scale to the members of village panchayatsat Bilaspur in his palace on 2nd October, 1951.
7. Issue No. 2.—The respondent No. 1 is no doubt aDirector of the Bank of Bilaspur. He is in fact the Presi-dent of the Board of Directors. We have some doubt ifin the Bank of Bilaspur we could find the Government ofIndia to have any financial interest, so that being itsDirector would make for disqualification for being a mem-ber of the House of the People under section 7 (a) read withsection 2(1) (a) of the Representation of the People Act.It seems to us that this disqualification was pleaded bythe petitioner without any thought to the saving providedin the following section 8(1) (e), according to which not-withstanding anything in section 7 a person shall not bedisqualified under clause (e) of that section by reason ofhis being a Director unless the office of such Director isdeclared by Parliament by law to so disqualify its holder.No such law is shown to have been passed by Parliamentand the disqualification in issue No. 2(a) does not thereforeoperate.
8. The other disqualification in issue No. 2(b) is notalso in our view operative. The respondent No. 1, underthe Agreement of Merger, Ex. R-19, has no doubt beenguaranteed a sum of Rs. 70,000 a year by the CentralGovernment in return for giving up his rights to the Stateof Bilaspur, but the point is whether by virtue of thisarrangement he has rendered himself a holder of anoffice under the Government of India which should dis-qualify him under article 102(1) (a) of the Constitution.The privy purse granted by the Government is unques-tionably profit. But what is the office to which the res-pondent No. 1 can be said to be appointed by this mergeragreement? Under the agreement he has been allowed toretain certain dignities as the ruler and has been assureda succession to such dignities and the privy purse also forhis descendants, but we cannot find that the privilegeallowed to him of continuing to enjoy these dignities makeshim the holder of office under the Government of India towhom he has surrendered his territory. An office, as theLaw Lexicon puts it, may be a right to exercise a public orprivate employment, or in other words, the discharge ofpublic functions. We do not find any public functions
E.L.B.] DAULAT KAM V. MAHARAJA ANAND CHAND 91
which the respondent No. 1 can be said to have undertakento discharge for or on behalf of the Government of Indiafor which he is being granted the amoxmt of the privypurse. We have been referred to articles 366, 362 and 291of the Constitution but cannot find anything in them tosustain the argument that as the ex-Ruler of Bilaspur State,the respondent No. 1, has accepted a position which shouldmake him an employee of the Government of India. Section168 of the Representation of the People Act, 1951, wouldnot, in our view, have been necessary if the Rulers of theformer Indian States who have all entered into Agreementsof Merger like the respondent No. 1 had been disqualifiedunder article 102 or 191 of the Constitution for being chosenas and for being members of Parliament or of State Legis-lature as holders of office of profit under the Governmentof India. We find that the respondent No. 1 is not disqua-lified.
32. Issue No. 9.—This issue arises out of the parti-culars, No. 8, which are stated as under:
"On 2nd October, 1951, at Bilaspur Town at Maharaja'spalace, Maharaja Anand Chand (respondent No. 1) gavefeeding on a large scale to the members of village pan-chayats with a view to influence them and other voters".
The reference here is to a meeting called by the res-pondent No. 1 at his palace on 2nd October, 1951, to whichthe Panches from all over the State, numbering, we aretold, about 60 persons had been invited. The respondentNo. 1 in his evidence has explained who these Pancheswere. He states:
"Previously there existed Halqa Committees in theState. After merger the Central Government enforcedthe Punjab Panchayat Act in the State and Panches wereelected by the various panchayats so established, previousHalqa Committees having been dissolved".
33. The election of these Panches had taken placein April, 1951. The respondent No. 1 was in Bilaspur afterthese elections till June when he left for Bombay. Hereturned from there towards the end of September and on26th September, 1951, he issued invitations to all the Pan-ches in the form like Exhibits P. 1 and P. 3, inviting themto a meeting at his palace in Bilaspur on 2nd October,
92 DAULAT RAM V. MAHARAJA ANAND OHAND [VOL. VI
1951, at 2 P.M. The invitation contained the request to theinvitees to reach Bilaspur before 12 noon that day. Inresponse to these invitations nearly all the Panches whohad been invited attended. The Raja was not in thepalace at the time when these guests arrived. He had goneto village Ghumarwin to attend a 'mock election' there.He returned from there in the afternoon at about 4 P.M.Then he met the invitees and talked to them and addressedthem. Meantime, Hargobind Singh, with the help of palaceservants, had made arrangements for providing meals tothe invited persons. There was lunch at noon, tea wasserved in the afternoon and the Panches dined at thepalace at night and then dispersed.
34. There is no dispute about the above facts. Thedispute is only as regards the object with which this meet-ing had been called and what was spoken to the assembledpeople by the respondent No. 1 and whether what tookplace that day would amount to the corrupt practice ofbribery under section 123(1) of the Representation ofthe People Act, 1951.
35. The petitioner's case is that these Panches hadbeen invited with the object of enlisting their support inthe impending election since the Raja contemplated offeringhimself as a candidate—the idea being to approach theentire electorate of the State through these representativePanches. The respondent No. 1 on the other hand hasstated in his evidence that he had no such purpose inview and had called the Panches for a meeting as hadbeen customary with him while he was Ruler of the Stateto occasionally meet the representatives of the people anddiscuss with them—some hospitality being extended tothem on such occasions. According to him this was one ofthose traditional meetings and he had wanted to meet thepeople for three things in particular: (1) to renew acquaint-ance with these people as great many of them had beenin the old Halqa Committees also; (2) to inform them aboutthe talk which he had with the State Ministry concerningthe Advisory Board about the Bhakra project which Boardhad to consider the interests of landowners of the 13 or 14Halqas of the State which would be sub-merged in theBhakra reservoir, and of the people in these who hadconsequently to be rehabilitated in the other Halqas of
E.L.R.] DAULAT RAM V. MAHARAJA ANAND CHAND 93
the State—some of those Panches being actually co-optedon the Advisory Board subsequently; and (3) to discusswith the Panches about the reply to be given to the AllIndia Congress Committee about his own organisation ofthe Kehloor Congress—a number of invited Panches beingmembers of Ad hoc Committee of that Kehloor Congress.
36. On the petitioner's side three of these invitedpersons have given evidence. They are Han want Singh,P.W. 1, Sunder Lai, P.W. 4, and Khazan Singh, P.W. fi.They state that the Raja had talked to all the Panches tohelp him to be elected to the Parliament from the BilaspurConstituency and to carry on propaganda in his favour inthe constituency. The question is whether we should acceptthe word of these witnesses that the Panches had beenaddressed about the election only.
37. We have been referred to the terms of the letter ofinvitation. The invitation mentions about the return of theRaja to Bilaspur on the previous day and then proceeds:
"I have heard this news with great pleasure thatafter the elections you have entered upon the respon-sibility of the office of panchayat.
Now several important questions regarding Bilaspurhave to be considered "
Now, it is urged for the petitioner that the importantmatter to be considered at the time could be the electiononly because it was going to be an important event in theaffairs of Bilaspur State for which the invitations had tobe issued so hurriedly immediately after the return of theRaja to Bilaspur, and that if this had been a meeting inthe traditional style of the Ruler of the State graciouslyinviting his subjects to meet him or for congratulating thePanches only on their election to the panchayats, thereshould have been no such hurry in the matter. It is alsopointed out that the elections to the panchayats hadtaken place in April and after that if there was to be anymeeting for congratulating the Panches on their elections,they could have been called in the months of May andJune while the Raja was still in Bilaspur. The respondenthas offered an explanation of this by referring us to theGazette Notification about the election of these Pancheswhich appeared towards the end of May. It is pointed
94 DATTLAT RAM V. MAHARAJA ANAND CHAND [VOL. VI
out that the Panches must have entered upon their officesafter these notifications which made the election final.When they so entered upon their offices, he was not inBilaspur but had left for Bombay and for this reason hetook the earliest opportunity of calling them as soon ashe had returned to the State at the end of September. Ourattention is invited to the terms of invitation letter refer-ring to the assumption of office and not to the success atelections. We think there is nothing in the terms of theletter of invitation from which we could infer that themeeting was to be for the purpose of forthcoming electiononly and could not have been intended for other purposesas deposed to by the Raja.
38. In fact the respondent No. 1 Avants to say that, at the time he issued these invitations or even when hemet these Panches, he had not made up his mind to standfor the election and had not begun to hold himself out asa prospective candidate. He wants to say that he couldnot do it then because of his delicate position as anex-Ruler of the State. For this purpose he had a consul-tation with the Prime Minister of India and President ofthe Congress, Pandit Nehru, on 5th October after which hemade up his mind to stand for election and held himselfout as a candidate. Against this we have been referredon the petitioner's side to exhibit R. 9 which is a letter bythe Chief Electoral Officer of Bilaspur to the Raja inform-ing him of the programme of election rehearsals or 'mockelections' as they have been referred to by the witnessesand "to suggest that you may attend these programmesand see for yourself the way in which the actual electionsare to be conducted". These words it is urged are signi-ficant and show that the Chief Electoral Officer was awareon 1st October, 1951, of the fact that the Raja proposed tocontest the election. We may not infer any such thingfrom the terms of this letter or from the fact that the res-pondent No. 1 did actually attend the rehearsal atGhumarwin on the 2nd of October, the day on which hehad invited the Panches to the palace. We think that theRaja's word should be accepted that he would have stayedbehind to receive the Panches instead of going to Ghumar-win if his object in calling them had been to humour themand to win them over for the forthcoming election. There
E.L.E.] DAULAT BAM V. MAHARAJA ANAND CHAND 95
had been an election rehearsal at Bilaspur on 23rd Septem-ber while the Respondent No. 1 was away at Bombay. Itis not suggested that any one had an idea then about theRaja's intention to stand for the election. Still in his ab-sence the Chief Electoral Officer had issued an invitationto his Personal Assistant. We think such invitations wereissued to prominent individuals and office bearers of someparty organisations as persons who would be interested inknowing how elections were going to be conducted and notbecause the Electoral Officer had been made aware of theintentions of any such persons to offer themselves ascandidates.
39. On the side of the respondent besides Raja's ownstatement, the evidence of one man Balak Ram, R. W. 5, hasbeen given to show that at the meeting nothing was talkedabout the election. Balak Ram has been severely criti-cised as a man of doubtful character. We think that theonus of proving that what was said at the meeting wouldbring the case within the charge of bribery under section123(1), was on the petitioner, and the point is whetherwe are in a position to accept the statement of petitioner'sthree witnesses that election was the only matter referredto and the Raja pleaded for efforts by the Panches in sup-port of his candidature. The main difficulty in acceptingthese statements as true is that they are coming from per-sons who were known to be in the group of political op-ponents of the Raja and amongst the invited Panchesthere were several others who were known politically notto be well disposed towards him. If his intention was toinvite persons with the object of canvassing supportthrough them he would have invited only those whocould be expected to help him in the election and not theothers who might try to come in his way on getting ap-prised of his intention to stand. We are not disposedtherefore to accept the statement of the petitioner's wit-nesses that at the meeting on 2nd October the respondentNo. 1 talked about support for his election. To attractsection 123(1) it is necessary to show that the gratifica-tion, (which according to the Explanation would includeall forms of entertainment) should be offered by a candi-date and the respondent contends that he was not a candi-date on 2nd October since it was only after the 5th of
96 DAULAT RAM V. MAHARAJA ANAND CHAND [VOL. VI
October that he began to hold himself out as a prospectivecandidate. Since we have accepted this statement of hiswe cannot relate the entertainment to his candidature ac-cording to the definition of candidate in section 79, clause(6), of the Representation of the People Act. Further, wefind that it has been traditional with the respondent asRuler to provide meals to the people when they were invit-ed from long distances to meet him at Bilaspur whichtradition he had continued to maintain even after heceased to be a Ruler after merger. We are not told thatthe entertainment offered was anything more than ordinarymeals which persons of the status of those Panches wouldtake during the course of a day's stay. The entertainmentoffered was not thus exceeding the limits of customaryhospitality and we agree with the view in Shambhu Nathv.Gobind Prasad Singhi1) that such customary hospitality isnot within the term 'gratification5. We accordingly findthat no corrupt practice under issue No. 9 is proved.
44. In the result therefore we find that the petitionerhas failed to make out a case for setting aside the electionand the petition should be dismissed. We hereby dismissit and order the petitioner to pay the costs of the respon-dents which we assess at Rs. 200 for respondent No. 1 andRs. 50 each for respondents Nos. 2 and 3.
R. B. PARSHOTAM LAL.—I concur and would like toadd a few words. Mr. Tek Chand, to whom the tribunalis indebted for his very able presentation of the peti-tioner's case, urged three main points:—
(1) that the respondent No. 1 was disqualified underarticle 102(1) (a) of the Constitution from contesting theelection by reason of his holding an "office of profit"under the Government of India;
(2) that the said respondent had offered "gratifica-tion" to B. Hardial Singh to withdraw from the election;and lastly
(3) that the same respondent had fed the Panches ofthe State on the 2nd of October, 1951, with a view to can-vass support for his candidature and he was thus guiltyof a corrupt practice.
(1) 2 Doabia 411.
E.L.E.] DAULAT RAM V. MAHARAJA ANAND OHAND 97
On the first point the learned counsel referred to thedefinition of 'Ruler' contained in article 366(22) of theConstitution of India. He emphasized that a 'Ruler' is aRuler so long as he is recognised as such by the President;the moment recognition is withdrawn his privileges as aRuler come to an end and he ceases to be entitled to hisprivy purse. In view of the above he urged that the res-pondent No. 1 must be held to be holding an "office ofprofit". The rights and privileges of the respondentNo. 1 flow from the Instrument of Merger executed byhim and even though these privileges, etc., have been modi-fied in a vital respect by the Constitution of India, theInstrument in question must be looked at for a proper deci-sion of the point in dispute. Under the Instrument therespondent No. 1 transferred his powers of governance andadministration of the State to the Government of Indiabut reserved to himself for his privy purse a sum ofRs. 70,000 a year from the revenues of the State. It wouldnot be a correct way of looking at the matter to say thatthe Government of India had agreed to allow Rs. 70,000a year to the respondent No. 1 in consideration of his sur-rendering his powers of governance and administration ofthe State. The correct way, to my mind, of looking at thematter is that the privy purse represents the "reserved",or so to say, the unalienated portion of the revenues ofthe State. It was not a political pension of a Jagir whichwas granted to the respondent No. 1 by the Governmentof India. There was thus no question of the respondentNo. 1 holding an office of profit under the Government ofIndia.
The legal position to my mind is so clear that a ref-erence to section 168 of the Representation of the PeopleAct appears to be hardly necessary. This section providesfor suspension of certain privileges of the Rulers in casethey choose to stand for election to Parliament or to a StateAssembly. If the Rulers as a class are disqualified fromcontesting elections, the legislature would not have foundit necessary to make any provision for suspension of theirrights and privileges when standing for election. The sec-tion is, therefo;i-A, relevant to show that in the opinion ofthe legislature le Rulers are not disqualified from con-
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98 DATJLAT &AM V. MAHARAJA AKAND CHAND [ V O L . VI
testing elections. If it had been clear that a Ruler inreceipt of a privy purse is a holder of an "office of profit"within the meaning of the term as used in article 102(1) (a)of the Constitution section 168 could not have helped therespondent No. 1, but if there is any ambiguity about themeaning of the term in question, section 168 of the Repre-sentation of the People Act is certainly helpful from thepoint of view of the respondent No. 1. He must, there-fore, be held not to be disqualified from contesting the elec-tion by reason of the above-mentioned provision in theConstitution of India.
[The Tribunal held that the allegation of bribery wasnot proved and continued.]
Lastly, as to the entertainment of the Panehes on the2nd of October. It is necessary to emphasize in this con-nection that a corrupt intention is a necessary ingredientto change innocent treating into bribery. Where the enter-tainment does not exceed the limits of customary hospi-tality it does not constitute bribery. The status of personsinvited, the occasion for the invitation, the relations sub-sisting between the host and the invitees and the possibi-lity or otherwise of the invitees being influenced by theoffer of food and drinks are all relevant matters in thisconnection. It is not denied that the Ruler had entertainedprominent people of his State on previous occasions aswell and it is not suggested that there was anythingextraordinary in the hospitality extended to the Paneheson the 2nd of October. It was just of a routine character.Moreover, all the Panehes including those who were hostileto the Ruler had been invited. It was difficult under thecircumstances to take the view that the invitation hadbeen extended with any corrupt intention of influencingthe Panehes in the matter of votes. The respondent No. 1has stated that he finally made up his mind on the 5thof October after interviewing the Prime Minister at Delhiand that there was consequently no question of hisapproaching the Panehes on the 2nd of October for support.In view of this statement and of the fact that the enter-tainment did not exceed the limits of customary hospita-lity it would not be a fair inference from the circumstancesthat the respondent No. 1 had invited the Panehes with aview to influence them in the matter of voting at the
E.L.R.] SURAIN SINGH V. WARYAM SINGH 99
coming election. The charge of treating, therefore, mustalso fail.
The petition must, therefore, be dismissed with costs.Petition dismissed.
[ELECTION TRIBUNAL, JULLTJNDUR.]
SURAIN SINGHv.
WARYAM SINGH AND OTHERS.SHAMSHER BAHADUR (Chairman), CHHAJU RAM and
MOHINDRA SINGH PANNUN (Members).May 6, 1953.
Corrupt practice—Procuring assistance of Government servants—Getting signature of Government servant as proposer—•Representation of thePeople Act, 1951, s. 133(8).
Obtaining the signature of a Government servant as a proposer to anomination does not amount to procuring any assistance from him forthe furtherance of the prospects of an election within the meaning ofsection 123(8) and is not a corrupt practice.*
ELECTION PETITION NO. 193 of 1952.
ORDER.
CHHAJU RAM.—The election in Amritsar Constitu-ency No. 88 of the Punjab State Legislative Assembly washeld from 7th to 23rd January, 1952. The respondentsNos. 1 to 21 were duly nominated candidates. The res-pondent No. 1, S. Waryam Singh of Sultanwind, was dulyelected by securing 23,872 votes. Respondent No. 4, S.Khem Singh of Tung Pain was also elected from thereserved seat, as this was a double member constituency.He secured 23,839 votes. The petitioner is a voter in ZailFatehpur Rajputana in the said Amritsar Constituency.He has brought this election petition for a declarationthat the election of S. Waryam Singh, respondent No. 1, beheld void. It is alleged in the petition that S. WaryamSingh, respondent No. 1, was proposed by village headmen
*Note.—This view has since been approved by the Supreme Court in Raj KrushnaBase v. Binod Kanungo, Civil Appeal No. 239 of 1953, decided OH 4th February, 1954,and Satya Dev Bushahri v. Padam Dev, Civil Appeal No. 52 of 1954, decided on25th May, 1954. The Judgments in these cases will be reported indue course.—Eel.
100 SURAIN SINGH V. WARYAM SINGH [VOL. VI
and thus he procured assistance for the furtherance of hisprospects as a candidate at the election from the personsserving under the Government of the Punjab State andthereby committed a corrupt practice detailed in section123(8) of the Representation of the People Act, 1951; thatthe respondent No. 1 was assisted in procuring votes bythe said village headmen from their villages and ilaqa; thatthey worked for him during the election and thereby fur-thered his prospects as a candidate; that the agents orother workers of S. Warj^am Singh, with his connivance,hired or procured motor vehicles for the transport of elec-tors and thereby committed a major corrupt practice de-tailed in section 123(6) of the aforesaid Act; that thenomination papers of S. Buta Singh, respondent No. 2, alambardar, were improperly accepted and those of ShriShingara Singh, Shri Bidhan Singh and Shri Faqir Singhwere improperly rejected, which materially affected theresult of the election; that the boxes used were so con-structed that they could be opened and ballot papersdrawn therefrom without the seals being broken, so thatthe provisions of rule 21 were not fulfilled and the ballotpapers not being secured in the ballot boxes, it could notbe said that there was a fair election and that the provi-sions of rule 46 (vi) requiring one box to be opened at atime and the marks and symbols checked and the ballotpapers counted before proceeding with the next box, werenot complied with, inasmuch as four boxes were beingsimultaneously opened and counted and the count wasnot disclosed, so that the candidate or his election agentcould not keep any check as required by the rule and theelection could, therefore, not be said to be a fair one.
All the respondents were duly served, out of whomonly respondent No. 1 contested this petition. He raisedseveral preliminary objections on which the following fourpreliminary issues were framed on 8th November, 1952. Ofthese issues Nos. 1, 2, 4 were not pressed and No. 3 wasfound against the respondent No. 1.
The respondent No. 1 denied that he obtained anyassistance in connection with his election from any villageheadmen and pleaded that he filed six nomination papersall of which were accepted; that as far as the proposers inhis two nomination papers, namely, Balwant Singh and
E.L.B.] STJRAIN SINGH V. WARYAM SINGH 101
Gurbachan Singh, were concerned, even if they were head-men there was no bar to their exercising the right of voteor to propose candidates; that the decision of the Return-ing Officer regarding the relevant two nomination paperswas quite correct; that even if it be assumed that thesetwo nomination papers were invalid, the nomination ofrespondent No. 1 as a candidate was perfectly lawful andvalid; that no agent or worker of respondent No. 1 noranybody else hired or procured any motor vehicle for thetransport of electors, with his connivance or otherwise;that the ballot boxes could not be opened and the ballotpapers could not be withdrawn without breaking the seals;that the procedure prescribed by the relevant rules wasfully complied with; that the provisions of the law govern-ing the procedure of the counting of votes were fully com-plied with and that the petition was liable to be dismissed.
As the allegations contained in paragraph 8 of thepetition regarding the alleged improper acceptance of thenomination papers of S. Buta Singh, respondent No. 2,and those relating to the alleged improper rejection of thenomination papers of Shri Shingara Singh, Shri BidhanSingh and Shri Faqir Singh, were given up by the learnedcounsel for the petitioner, there was no necessity of fram-ing any issue in respect of the allegations contained in thatparagraph.
The following issues were framed on merits on 6thDecember, 1952:—[Issue No. 1 alone is reportable and isprinted below].
1. Did respondent No. 1, the returned candidate,commit a corrupt practice as alleged in paragraph No. 5 ofthe petition? If so, what is its effect?
Issue No. 1.—It is common ground that out of thesix nomination papers filed by respondent No. 1, one wassubscribed as proposer by S. Balvant Singh, lambardarand one by S. Gurbachan Singh, lambardar. The peti-tioner contends that as these village headmen had spon-sored the nomination papers of respondent No. 1, it mustbe deduced as an inescapable inference under section 123(8)of the Representation of the People Act, 1951, that amajor corrupt practice was committed by obtaining res-pondent No. l's assistance for the furtherance of the
102 STJRAIN SINGH V. WARYAM SINGH [VOL. VI
prospects of his election. We are definitely of opinionthat this contention of the petitioner is without subs-tance and cannot, therefore, prevail. From the evidenceadduced by the petitioner which was discussed above weare not at all satisfied that the said lambardars renderedany assistance to respondent No. 1. We now seek tosolve the legal problem covered by this issue whether thesignature per se of a lambardar as a proposer on the nomi-nation paper of a candidate amounts to obtaining orprocuring by a cadidate, any assistance for the further-ance of the prospects of his (the candidate's) election.In our opinion, the utmost that can be said is that bysubscribing as a proposer the lambardar merely showedhis intention to support the candidature of respondentNo. 1. It has been conceded that the mere subscribingas a proposer does not entail any obligation on the part ofthe lambardar even to vote for the candidate. By impli-cation it amounts to only this that the proposer consi-ders the person proposed as a fit candidate. At this stagethe proposer does not even know which other candidateswould be contesting the election. It can never be saidwith certainty that the proposer will in the end vote forhis nominee, much less support him. The act of subs-cribing as a proposer can thus at the utmost be regarded asa mere promise to vote which may never be fulfilled. Byany stretch of language or imagination it cannot amountto the obtaining or procuring, or abetting or attemptingto obtain or procure, by a candidate any assistance for thefurtherance of the prospects of the candidate's election.It is possible that a nomination paper subscribed by aproposer may not be presented at all or it may be rejectedon scrutiny or a candidate may withdraw his candidatureafter he has been validly nominated. So, at the stagewhen a nomination paper is merely subscribed by aproposer there is no question of assistance within themeaning of section 123(8) of the Act.
Under section 33(2) of the Act any person whose nameis registered in the electoral roll of the constituency andwho is not subject to any disqualification mentioned insection 16 of the Representation of the People Act, 1951,(XLIII of 1951) may subscribe as proposer or seconder asmany nomination papers as there are vacancies to be filled,
E.L.R.] StTRAIN SINGH V. WARYAM SINUS 103
but no more. The lambardars in the present case couldsubscribe as proposer, as they were registered in the elec-toral roll of the constituency and were not subject to anydisqualification mentioned in section 16 of the Represen-tation of the People Act, 1951.
Under section 36(2) of the Act the Returning Officermay refuse any nomination on any of the five grounds (a)to (e). It may be noticed that there is no mention insection 36(2) that the nomination will be refused if it isproposed by a lambardar. Had there been such bar ordisqualification in the case of a lambardar the legislaturewould have been careful to specify it. The right of sub-scribing given by the statute has not been expressly takenaway and so it cannot amount to corrupt practice. It isa well-settled principle that a penal statute must be con-strued strictly. For the reasons given above, we hold thatthe subscribing of the nomination papers by the villageheadmen Balwant Singh and Gurbachan Singh as pro-posers does not amount to the obtaining or procuring byrespondent No. 1 of any assistance for the furtherance ofthe p/ofepects of his election and it cannot, therefore, bedeerrfed to be the corrupt practice mentioned in section123 (o) of the Act. It seems to us that the true intention ofthe legislature as mentioned by P. Nanak Chand on page 4of his book on the Law of Elections, 1951, was to preventvillage officials from canvassing votes for a particularcandidate. We decide this issue against the petitioner.
In view of our findings above, the petition fails and isdismissed with costs. Having regard to all the facts andcircumstances of this case we assess Rs. 100 (Rupees onehundred) as the total costs which are to be paid by thepetitioner to respondent No. 1, Shri Waryam Singh. Thecosts are to be realised from the amount of Rs. 1,000deposited by the petitioner.
MOHINDRA SINGH PANNUN.—I agree.
SHAMSHER BAHADUR.—I agree.
Petition dismissed.
104 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
[ELECTION TRIBUNAL, FAIZABAD.]
BHOLANATHv.
KRISHNA CHANDRA GUPTA AND OTHERS (No. 2).D. N. ROY (Chairman), A. SANYAL and
M. U. FARUQI (Members).April 18, 1953.
Disqualification of candidates—"Office of profit"—Member of LegislativeAssembly drawing fixed salary—"Contract to supply goods"—Lessee of landunder Collector—Election agents—Lawyer engaged to appear before Beturn-inci Officer, whether agent—Representation of the People Act, 1951, ss. 7(d),123(7)—Rules of 1951, r. 118—U. P. Land Utilization Act, 1948, ss. 3, 4.
A person to whom the Collector has leased out land under section 4of the U. P. Land Utilization Act, 1948, is not disqualified under section7(d) of the Eepresentation of the People Act, 1951, as the transaction isnot a contract express or implied, between the lessee and the State Govern-ment, for the supply of goods to or the performance of any services under-taken by, the State Government.
Section 7(d) must be strictly construed and is not applicable unlessthere is a contract with the Government which fulfils the requirements ofthe Constitution with regard to such contracts.*
Observations in Maharaja of Parlakimedi v. Bijay Chandra Das andOthers (4 E.L.E. 101) dissented from. Prabhudas Bamjibhai Mehta^.Lallubhai Kishordas Maniar (1 E.L.E. 154) relied on.
Province of Bengal v. S. L.Puri (51 C.W.N. 753), K. Perumal Mudaliarv. Province of Madras (A.I.E. 1950 Mad. 194), Debi Prasad Sri KrishnaPrasad Ltd. v. Secretary of State (A.I.E. 1941 All. 377), J. K. Gas PlantManufacturing Go. v. Emperor (A.I.E. 1947 E.C. 38), Countess of Bothes v.Kirkcaldy and Dysart Water Works Commissioners (7 A.C. 694), Horen Jonesv. Mohansingh and Others (2 E.L.E. 147), Shankar Nanasaheb Karpe v.Maruti Sitaram Sawant and Others (1 E.L.E. 302), Dr. Kannabhiran v.A. J. Arunachalam and Others (2 E.L-E- 167) referred to.
A member of the Legislative Assembly of a State drawing a fixedsalary and travelling and daily allowances does not hold an office of profitunder the State Government and is not therefore disqualified undersection 7(d).
Yograjsing Shankarsing Parihar v. Sitaram Hirachand Birla andOthers (3 E.L.E. 439) and Md. Bahsh v. Md. Abdul Baquikhan (A.I.E. 1924All. 134) referred to.
*Note. — The Supreme Court lias since held in Chathurbhuj Vithaldas Jasani v.Moreshiuar Parashram and Others, Civil Appeal No. 155 of 1953, decided on 15thFebruary, 1954, that section 7(d) of the Representation of the People Act, 1951, doesnot require that the contracts at which it strikes should be enforceable against theGovernment and that all that it requires is that the contracts should be for thesupply of goods to the Government. This Judgment will be reported in full in duecourse.—Ed.
E.L.R.] BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) 105
The engagement of a lawyer "to represent the candidate before theEeturning Officer to argue the matter on his behalf at the time of thescrutiny of the nomination papers would not be "employment" within themeaning of that term in Schedule VI framed under rule 118 of the Eepre-sentation of the People (Conduct of Elections and Election Petitions)Eules, 1951. '
ELECTION PETITION NO. 267 of 1952.
ORDER.
The petitioner, Sri Bhola Nath, and the opposite party,Sri Krishna Chandra Gupta, were nominated candidatesfor election to the Legislative Assembly of Uttar Pradeshfrom Sitapur Sowth-East Constituency for the generalelection held in 1951-52. The petitioner contested the elec-tion on the Bhartiya Jan Sangh ticket. Sri KrishnaChandra Gupta, respondent No. 1, contested it on the Con-gress ticket. The other opposite parties contested the elec-tion on behalf of other political parties. The constituencyis a single member constituency. As a result of the elec-tion held on the 22nd of January, 1952, the opposite partyNo. 1, viz., Sri Krishna Chandra Gupta was declared by theReturning Officer to have been duly elected. The peti-tioner challenged the election of Sri Krishna ChandraGupta and prayed that his election be declared null andvoid and that the petitioner be declared to be duly elected.The election has been challenged on the ground that thenomination paper of the opposite party No. 1 was impro-perly accepted by the Returning Officer inasmuch as theopposite party No. 1 was disqualified under section 7 (d)of the Representation of the People Act, 1951, because theDeputy Commissioner, Sitapur, acting on behalf of theU.P. Government and with the object of the utilization ofparti land for cultivation under section 3, clause (4), of theU.P. Land Utilization Act, No. V of 1948, let out certainplots of land specified in the petition to Sri KrishnaChandra Gupta, respondent No. 1, on Rs. 167-9-0 per yearas rent; that section 4 of that Act provides that Sri KrishnaChandra Gupta who is the tenant and is cultivating suchland shall on demand by the Collector sell to the StateGovernment one-half of the grain produced over the landmentioned above at such rate as may be fixed by the State
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106 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
Government from time to time;'that under the obligationaforesaid Sri Krishna Chandra Gupta has a share andinterest in a contract for the supply of goods to, or forthe performance of services undertaken by, the U. P. Gov-ernment; that Sri Krishna Chandra Gupta is further dis-qualified by reason of the fact that he holds an office ofprofit under the U. P. Government as a member of theLegislative Assembly where he has been drawing a salaryof Rs. 200 per month from the Government; that the U.P.Government has not passed any Removal of Disqualifica-tion Act for the members of the U. P. Legislative Assem-bly as has been done by other States; that consequentlythe nomination paper of Sri Krishna Chandra Guptashould have been rejected by the Returning Officer; thatthe wrongful inclusion of the name of Sri Krishna ChandraGupta in the list of validly nominated candidates hasmaterially affected the result of the election; that thenomination paper of opposite party No. 1 was also invalidbecause he had not appointed an election agent previousto the filing of the nomination paper as contemplated bysection 40 of the Representation of the People Act, 1951;* * * that the election expenses return is primafacie incorrect as the opposite party No. 1 has not shownthe cost of the general stamp regarding the declarations;that the cost of Polling Agent Forms and Counting AgentsForms and Election Expenses Return Forms have not beenshown in the return; that the return disclosed that a feewas paid by respondent No. 1 to a lawyer at the time ofscrutiny of the nominations which should not have beenshown in the return in view of the provisions of ScheduleVI framed under rule 118 of the Representation of thePeople (Conduct of Elections and Election Petitions) Rules,1951; that the ballot paper account supplied by the Pre-siding Officers at different polling stations disclosed thatthe ballot papers found in the boxes did not tally with thestatement prepared by the Presiding Officers; that anexamination of the ballot paper account discloses thatmore ballot papers have been found in the boxes than wereissued at particular polling stations; that the number ofballot papers found in the boxes were at certain pollingstations less than the total number of ballot papers issuedfor polling; and that on account of these irregularities and
E.L.E.] BHOLANATH V. KBISHNA CHANDRA GUPTA (NO. 2) 107
corrupt practices, the election of respondent No. 1 isvitiated.
The respondents were duly served, but only SriKrishna Chandra Gupta, respondent No. 1, and Sri NawalBehary, respondent No. 4, have entered appearance andhave filed their written statements. The former alone hascontested the petition. The latter, viz., Sri Nawal Beharyhas lent support to the petition of Sri Bhola Nath. SriKrishna Chandra Gupta admitted that the Deputy Com-missioner, Sitapur, let out the plots mentioned in thepetition to him under section 3, clause (4), of the U.P.Land Utilization Act, 1948, at a rental of Rs. 167-9-0 peryear, but he contended that it did not entail any dis-qualification from being chosen as a member of the U.P.Legislative Assembly. .Sri Krishna Chandra Gupta furtheradmitted that he has been a member of the LegislativeAssembly since 1948 and has been receiving an allowanceof Rs. 200 per month as such besides the usual travellingallowance and halting allowance, but he contended thatthat too did not bring him within the purview of thewords "holding an office of profit under the Government"within the meaning of articles 102 and 191 of the Constitu-tion of India so as to entail a disqualification. The othergrounds raised by the petitioner have been traversed byrespondent No. 1 and he has contended that he has beenrightly nominated and elected. Nine issues were framedin the case which were as follows:—
(1) Is the petition liable to be rejected for want ofproper verification?
(2) Is the petition liable to be rejected for non-compliance with the provisions of section 83 (2) and sec-tion 117 of the Representation of the People Act?
(3) Are the allegations of corrupt and illegal practicesin paragraphs 27 to 36 vague and indefinite and shouldnot be entertained for that reason?
(4) Can the allegations of corrupt and illegal prac-tices in paragraphs 27 to 36 be entertained in the absenceof a list of such practices and in the absence of properverification of such list as required by section 83 (2) of theAct?
(5) Was the respondent No. 1 disqualified from
108 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
being chosen as a member of the U.P. Legislative Assemblyas alleged in paragraphs 12 to 17 of the petition?
(6) Was the nomination paper of respondent No. 1invalid for the alleged reason that he has not appointedany election agent previous to the filing of his nominationpaper as contemplated by section 40 of the Act?
(7) Are the allegations in paragraphs 19 to 26 and37 to 39 true? And if so, was the result of the electionmaterially affected by such facts or any of them?
(8) Are the allegations relating to corrupt and illegalpractices contained in paragraphs 31 (a), (b), (c) and (e)true? If so, was the result of the election materiallyaffected?
(9) To what relief, if any, is the petitioner entitled?The preliminary issues Nos. 1 to 4 and 6 were heard and
were disposed of by us by our findings, dated 17th January,1953. These findings are contained in Annexure "A" ofthis judgment and we would riot reproduce them here(1).These findings necessitated an amendment of issuesNos. 7 and 8. Issues Nos. 7 and 8 as stated above standin their amended form.
We are therefore now left with the determination ofissues Nos. 5, 7, 8 and 9 for the purposes of this case. Weshall take up issue No. 5 at this stage.
The petitioner contends that Sri Krishna ChandraGupta, respondent No. 1, was disqualified from being chosenas a member for the Legislative Assembly of U.P. and washit by the provisions of section 7 (d) of the Representa-tion of the People Act, 1951 inasmuch as the DeputyCommissioner, Sitapur, acting on behalf of U.P. Govern-ment granted him a lease under section 3, clause (4), ofthe Land Utilization Act, No. V of 1948, on a yearly rentalof Rs. 167-9-0 and under the provisions of section 4 of thatAct, Sri Krishna Chandra Gupta as a tenant has to sell tothe State Government on demand by the Collector half ofthe grain produced over the land at such rate as may befixed from time to time. The petitioner contends thatSri Krishna Chandra is disqualified also on the groundthat he holds an office of profit under the U.P. Govern-
(1) This preliminary order is reported at 3 E.L.B. 288, et seq.
E.L.E.] BHOLANATH V. KBISHNA CHANDRA GTTPTA (NO. 2) 109
ment as a member of the Legislative Assembly drawing asalary of Rs. 200 per month and is therefore hit by arti-cles 102 and 191 of the Constitution of India. And in thisconnection it has further been stated in the petition that"the U.P. Government has not passed any Act removingthe disqualification of its members as has been done byother States". It has been urged on behalf of respondentNo. 1 that the lease under section 3, clause (4), of the-U.P. Land Utilization Act, V of 1948, and the provisions ofsection 4 of that Act would not attract the provisions ofsection 7 (d) of the Representation of the People Act, 1951.It has further been urged that the salary and allowancepaid to members of the State Legislature would notbring them within the scope of holding "an office of profitunder the Government" so as to attract the operation ofarticles 102 and 191 of the Constitution of India. Beforewe proceed to consider the validity of the contentionsadvanced by the respective parties we would state herewhat these different provisions of the Acts are. Section 7(d) of the Representation of the People Act, 1951 laysdown that a person shall be disqualified for being chosenas, and for being, a member of a Legislative Assembly, if,whether by himself or by any person or body of personsin trust for him, or for his benefit, or on his account, hehas any share or interest in a contract for the supply ofgoods to, or for the execution of any works or the per-formance of any services undertaken by, the appropriateGovernment. The question would therefore be whetherthe lease brought about in favour of respondent No. 1under section 3 (4), of the U.P. Land Utilization Act, Vof 1948, and the provisions of section 4 of that Act wouldbring respondent No. 1 within the mischief of section 7 (d)of the Representation of the People Act, 1951. Section 3of the U. P. Land Utilization Act, 1948, inter alia, says thatnotwithstanding anything contained in the United Pro-vinces Tenancy Act, 1939, or any other enactment for thetime being in force, the Collector may, by notice in writingin the fornx specified in the schedule, call upon the landlordof any land situated within his jurisdiction, which is notgrove land or land let to or held by a tenant, and whichhas not been cultivated, or, if previously cultivated, hasnot been cultivated during the Babi and Kharif immedi-
110 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
ately preceding the commencement of this Act to let outsuch land or pre-arrange for the cultivation thereof with-in fifteen days from the date of the service of such noticeor within such further period as the Collector may extend.The notice aforesaid is required to be served on the land-lord in the manner provided by that section. The sectionfurther lays down that if the landlord within one weekfrom the date of the service of the notice shows to thesatisfaction of the Collector that the land is not capableof being cultivated, or that it is already being cultivatedor has been let out for cultivation, the Collector shall can-cel the notice. Clause (4) of that section says that if thenotice is not complied with within the time allowed undersub-section (1) or is not cancelled under sub-section (3),the Collector may get such land cultivated on behalf ofthe Provincial Government for such period as he thinksnecessary or may let out such land to a tenant for cultiva-tion. Section 4 of the U. P. Land Utilization Act, 1948,says that where any land is brought under cultivation inaccordance with the provisions of this Act, the landlordor the tenant cultivating such land shall, on demand bythe Collector sell to the Provincial Government one-halfof the grain produced over such land at such rates as maybe fixed by the Provincial Government from time to time.The relevant documents concerning this lease are Exs. H,G, and K on the record. Ex. H is an application, datedthe 7th of January, 1951, by respondent No. 1 to theDeputy Commissioner, Sitapur, by which respondent No. 1applied to the Deputy Commissioner that since thepolicy of the Government was to utilize uncultivated landwith a view to increasing the production of foodstuffs, theland in question should be utilized for such purpose andshould be given to him on lease. The Collector gave thelandlord the requisite notice under section 3 of the Actand thereafter passed the order Ex. K on the 15th ofFebruary, 1951, which was to the following effect:—
"As the landlord has failed to let out the land incompliance with the "notice under section 3 of the Act itis let out to Sri Krishna Chandra Gupta, M.L.A., on Rs.167-9-0 per annum. Let necessary entries be effected inthe papers."
E.L.E.] BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) 111
On the basis of the order passed by the Collector, theSub-Divisional Officer, Sitapur, passed the order, Ex. G,dated 24th of February, 1951, directing the Tahsildar tomake necessary entries in the record of rights. The peti-tioner's contention is that all these factors would bringrespondent No. 1 within the scope of the provisions of sec-tion 7(d) of the Representation of the People Act and hehas contended that it is a contract with the Governmentexpress or implied. On the other hand it is contended bythe respondent that there was no contract, either expressor implied, between respondent No. 1 and the Government;that this transaction lacks all the elements of a valid con-tract as known to law; that a contract must be a contractwith the volition of the parties and not by operation ofsuch penal provisions of law; that once the order, Ex. K,came into effect respondent No. 1 became by operation oflaw the tenant of the landlord and has to pay to himRs. 167-9-0 per annum as rent; that the Deputy Commis-sioner, Sitapur, was the agent of the landlord by force ofstatute; that there is no continuing relationship betweenthe Deputy Commissioner, Sitapur, and respondent No. 1as promisor and promisee and the Deputy Commis-sioner, Sitapur, became functus officio after the date ofthat order; that the provisions of section 4 of the U. P.Land Utilization Act, No. V of 1948, are no part of thecontract of tenancy but provided for a method of acqui-sition of part of the produce of the soil by the Collectorafter the land is brought under cultivation in accordancewith the provisions of the Act, a breach of which doesnot give rise to a suit for damages but is penalizedunder section 7 of that Act with imprisonment for a termwhich may extend to six months or with fine or with bothand that any such conditions imposed by a statute wouldnot be a contract. We have examined Exs. G, H and Kand the oral evidence bearing upon these questions, andwe have also examined the different sections quoted above,and we are of opinion that the transaction in question isnot a contract, express or implied, between respondentNo. 1 and the U. P. Government. It lacks all the ele-ments of a valid contract. We may cite here the decisionin K. Perumal Mudaliar v. Province of Madras^), Debi
(1) A.I.R. 1950 Mad. 194.
112 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. Vt
Prasad Sri Krishna Prasad Ltd. v. Secretary of State^),and also the decision in Province of Bengal v. S.L. Puri(?),J. K. Gas Plant & Manufacturing Co. v. Emperor (3) andthe provisions of section 175(3) of the Government ofIndia Act, 1935, which bear upon the question as to howcontracts with the Government should be made in orderto have a binding effect. If the transaction in the presentcase is to be considered as a contract with the Government,it does not satisfy the provisions of law discussed in thesecases. In Election Petition No. 1 of 1951, PrabhudasRamjibhai Mehta v. Lallubhai Kishordas Maniari^) decidedby the Bhavnagar Election Tribunal on the 23rd of June,1952, a similar question came to be considered in relationto a registered stock-holder in Saurashtra in iron and steelwhere it was contended that such a registered stock-holderhad an interest or share in the performance of services•undertaken by the Saurashtra State, and where it wasfurther contended that there was an implied contractbetween the stock-holder and the Saurashtra Governmentfor the performance of such services, and it was held thatin the conception of a "contract" there is always a volitionof the parties contracting and also provision for breachesof the terms and conditions agreed to between the parties;that under the Iron and Steel Control Order there was noprovision for the breach of the contract, but it was astatute which created offences for breach and providedfor the punishment of such breaches and everything wasbeing done in conformity with and in pursuance of thesaid enactment and the rules framed thereunder; and thatunder the circumstances no volition was left to the partiesto go against the provisions of the law or the rules madethereunder without incurring the punishment providedtherein and that therefore there was no implied contractbetween the stock-holder and the Saurashtra Govern-ment in carrying out or performing the several functionsunder the Iron and Steel Control Order and that it wassimply the "enforcement of the law enacted and not theperformance of the services as contemplated in section7 (d) of the Representation,of the People Act, 1951". Thesame observations would apply with equal force to the
(1) A.I.R. 1941 All. 377. (2) 51 0. W. N. 753; 84 C. L. J. 275.(3) [1947] F.G.R. 141. (4) 1 E.L.R. 154.
E.L.R.] BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) 113
facts of the present case. The terms and conditions bear-ing upon this question in the present case lack mutuality.There was no volition on the part of the landlord whenthe Deputy Commissioner of Sitapur granted the lease onhis behalf and gave the land to the respondent No. 1under the provisions of the statute. The U. P. LandUtilization Act, No. V of 1948 does not contain anythingfor the breach of the provisions of section 4 beyond whatis contained by way of punishment in section 7. No voli-tion was left to the parties to go against the provisions oflaw without incurring a punishment provided therein. Weare, therefore, of opinion that there was no express orimplied contract between respondent No. 1 and the U. P.Government for the supply of goods to, or the executionof any works or the performance of any services under-taken by, the Government so as to bring respondent No. 1within the mischief of section 7 (d) of the Representationof the People Act, 1951.
We are not oblivious of the English and Indian deci-sions bearing upon the general policy provided for (sic.) thedisqualification stated under clause 7(d) of the Representa-tion of the People Act, 1951, against persons chosen formembership of democratic Legislative bodies. The deci-sions have a value for the light they throw upon the policywith which democracy guards the freedom and inde-pendence of its elected representatives. The principle thatno person should be elected if there will be likelihood of aconflict between his duty and interest need not be doubtedat all. But we cannot at the same time overlook the princi-ple which we have to observe in interpreting the disqualifi-cation clause in an enactment. The disqualification clauseshould be very strictly construed because it is penal innature.
Learned counsel for the petitioner has relied upontwo English decisions in support of his contention that acontract may be created by statute without the volition ofthe parties. The first of these decisions is (1851) 20 L.J.R.(N.S.) 414; and the other decision is a decision of theHouse of Lords in the Countess of Rothes v. The Kirkcaldyand Dysart Water Work Commissioners^). We have exa-mined the facts of these cases and the law propounded in
(1) 7 A.C. 694.EL—15
114 BHOLANATH V. KRISHNA CHANDRA GTTPTA (NO.2) [VOL. VI
them and we are of opinion that we cannot draw theanalogy of those cases, since the facts of the present caseand the law bearing upon it are entirely different.
Learned counsel for the petitioner has relied upon anobservation contained in Maharaja of Parlakimedi v. BijayChandra Das^), where it was observed as follows:—
"We think, therefore, that the word "contract" isused in a comprehensive and a popular sense. It is meantto embrace all cases where a person agrees to supply goodsto the Government. We think that in construing clause 7(d) of the Act we are not fettered by the technical rules oflaw in the Indian Contract Act regarding formation ofcontracts and that words employed in statutes regulatingthe qualifications for entry into legislatures are propersubject-matter for beneficial construction that wouldadvance the object of the statute".
We are unable to give that interpretation to the word"contract" under section 7(d) of the Representation ofPeople Act and our view is supported by the decision ofthe Bhavnagar Tribunal in Prabhudas Ramjibhai Mehta'scase cited above where it has been held that the words ofthe statute must be strictly construed. The majority ofour tribunal took a similar view in the decision in Elec-tion Petition No. 272 of 1952, Hanuman Prasad Misra v.Tar a Ghand and Others^). The Shillong Election Tribunalin Election Petition No. 28 of 1952, Horen Jones v. MohanSingh and Others^), observed that section 7(d) of theRepresentation of the People Act is a disabling enact-ment and it is well settled that an enactment of thiskind must be strictly construed. The tribunal reliedupon article 299 of the Constitution of India whichrequired that an agreement had to be expressed in writingas made by the Governor or some body on his behalf andas authorised by him, before it may be a "contract" towhich the Government may be legally held to be a party.The tribunal further held, relying upon the decision inProvince of Bengal v. 8. L. Puri(4), that this provision wasmandatory and that when a statute provided a particularmethod by which a contract should be made there mustbe a compliance with the provision of the statute. This
(1) 4 E.L.K. 101 (111) (2) 5 E.L.R, 446.(3) 2 E.L.E. 147. (4) 51 C.W.N. 753; 84 C.L.J. 275.
E.L.R.] BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) 115
is wanting in the present case altogether. Here there wasno contract in law with the appropriate Government forthe supply of the grain, but it was an obligation imposedby section 4 of the U. P. Land Utilization Act, No. V of1948.
The decision of the Bombay' Tribunal in Election/Petition No. 66 of 1952, Shankar Nanasaheb Karpe v.Maruti Sitaram Sawant and Others^) and of the VelloreTribunal in Election Petition No. 109 of 1952, Dr. Kanna-bhiran v. A. J. Arunachalam^) relied' upon by the peti-tioner cannot be attracted to the facts of the present case.We are, therefore, of opinion that respondent No. 1 wasnot hit by the provisions of section 7(d) of the Represen-tation of the People Act, 1951, in relation to the leasegranted in his favour under section 3, clause (4), of theU.P. Land Utilization Act, No. V of 1948, or in relation tothe provisions of section 4 of that Act.
The next question which has been urged before us isthat respondent No. 1 was disqualified on the ground thathe was a member of the Legislative Assembly of UttarPradesh since the year 1948 and has been drawing a salaryof Rs. 200 per month from the Uttar Pradesh Govern-ment, besides other allowances, and consequently he hasbeen holding an office of profit under the U.P. Govern-ment and is hit by the provisions of articles 102 and 191of the Constitution of India. It is admitted by respondentNo. 1 that he has been a member of the U.P. LegislativeAssembly since 1948 and has been drawing Rs. 200 permonth besides other allowances. His contention howeveris that it does not entail a disqualification for being amember of the Legislative Assembly because he is notholding "an office of profit under the U.P. Government".Under article 195 of the Constitution of India, it is pro-vided that members of the Legislative Assembly and theLegislative Council of a State shall be entitled to receivesuch salaries and allowances as may from time to time bedetermined by the Legislature of the State by law, and,untilt provision in that respect is so made, salaries andallowances at such rates and upon such conditions aswere immediately before the commencement of the Con-stitution applicable in the case of members of the Legisla-
(1) 1 E.L.R. 302. (2) 2 E.L.R. 167.
116 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
tive Assembly of the corresponding Province. If we lookinto the frame of the Constitution of India, we wouldfind that the disqualification which attached to theMinisters for the Union or for the States by reason oftheir holding "an office of profit under the Governmentof India or the Government of the State" was removedunder the Constitution itself by reason of the provisions ofarticles 102 and 191 of the Constitution. Articles 106 and195 of the Constitution provide for salary and allowancesof members of the Houses of Parliament and members ofthe Legislative Assembly and the Legislative Council of aState. In these articles we do not find any such provisionregarding the removal of disqualification as in the case ofthe Ministers as contained in articles 102 and 191. Theframers of the Constitution would not have framed articles106 and 195 in the manner that they did if" they had incontemplation that the members of the House of Parlia-ment and of the State Legislature hold "an office of profitunder Government". For, in that event, they would haveincorporated in articles 106 and 195 of the Constitution,provisions similar to those in articles 102 and 191 in thecase of the Ministers for the Union and Ministers for theStates. If the argument advanced on behalf of the peti-tioner on this question is to be accepted, viz., that themembers of the U.P. Legislative Assembly hold an "officeof profit under the Government", it would bring the wholematter into an absurdity; for, in that event, a memberwho was a member of the previous Legislative Assemblywould enter with a disqualification, and a new memberwould be disqualified as soon as he entered the new Legis-lative Assembly. Such a proposition as has been advancedby the learned counsel for the petitioner has only got tobe stated to show that it bears no force whatsoever. Wehave already stated above that in paragraph 17 of thepetition, the petitioner alleged that the U.P. Governmenthad not passed any Act for the removal of disqualificationof the members of its Legislature as had been done byother States. We are not aware of any such legislationhaving been passed by any State by which it may be sug-gested that the members of the Legislative Assembly havebeen held to be holding an "office of profit under the Gov-ernment" and where the alleged disqualification has been
E.L.R.] BHOLAHATH V. KRISHNA CHANDRA GUPTA (NO. 2) 117
removed by any Act of the Legislature. No such Act hasbeen produced before us. And learned counsel for thepetitioner conceded that the allegation on this point inparagraph 17 of the petition is not correct and was byway of a mere "nourish in the art of pleadings".
The words "office" and "profit" have nowhere beendefined in the Representation of the People Act, 1951, orin the Constitution of India. We have therefore to relyupon the dictionary meaning of these words. An exactlysimilar question came to be considered by the ElectionTribunal of Bombay in Election Petition No. 72 of 1952,Yograjsing Shankarsing Parihar v. Sitaram HirachandBirla and Others^), and it was held that the member-ship of the outgoing assembly at the date of theelection was "an office" and that what respondentNo. 1 received as salary was "profit", but the positionheld by respondent No. 1 cannot be deemed to be"an office of profit under the Government", which wasintended to disqualify a person either from being chosen,or for continuing, as a member of the Legislature. Theoffice of the Legislator cannot in our opinion be deemed"under the Government", and, unless that office can bedeemed to be an "office of profit under Government", therewould be no disqualification under article 191 of the Con-stitution of India. A reference to articles 191 to 193 and195 would support us on this point. Article 191 refers to"an office of profit under the Government of India or theGovernment of any State". The expression "State Govern-ment" has been defined in the Indian General Clauses Act,section 3 (60) and definition (b) therein is:
"As respects anything done or to be done after thecommencement of the Constitution, shall mean, in a Part AState, the Governor, in a Part B State, the Rajpramukh,and in a Part C State, the Central Government".
This indicates that the term "Government" as used inarticle 191 of the Constitution was intended to be synon-ymous in Part A States with the Governor, and, there-fore, office of profit under the Government means oneunder the Governor. In fact it will be seen that while inthe case of all Government servants the powers are exer-
(1) 1 E.L.B. 389,
118 BHOLANATHV. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
cised by the Governor, in the case of the members of theLegislature the powers are exercised not by the Governorbut by the Speaker. That the remuneration received asan elected member of the Legislative Assembly could nothave been deemed to be a disqualification under article191 of the Constitution of India is very clear if article193 is read. It will appear from article 193 that a penaltyis prescribed for continuing to sit in the Assembly wherea member sits and votes without making oath, or whenhe incurs disqualification as mentioned in article 191. Ifunder article 195 a member were to receive a salary, andif that salary were to be regarded as "profit while holdingoffice under the Government", it would mean a disqualifi-cation under article 191. If such were the meaningto be attached to salary, it means that immediatelyafter election as soon as a member receives salary as pro-vided in article 195 he would become disqualified underarticle 191 to sit and vote so as to incur penalties men-tioned in article 193. It would never have been intendedby the framers of the Constitution of India that a mem-ber elected to the Legislature should be disqualified im-mediately on election as soon as he receives salary. Theinevitable conclusion, therefore, is that the disqualificationmentioned in article 191 was not intended to refer to salaryreceived by an elected member of the Legislature, andtherefore such a member receiving salary is not one whoholds "an office of profit under the Government". Obvi-ously, therefore, respondent No. 1 was not holding "anoffice of profit under the Government" as contemplated byarticles 102 and 191 of the Constitution of India, so asto disqualify him from being chosen at the date of thelast election. The view that we take is supported by thedecision of the Bombay Election Tribunal in Election Peti-tion No. 72 of 1952, Yograjsing Shankersing's case, a ref-erence to which has already been made above. Underarticle 102(1) (a) of the Constitution what is contemplatedis employment, and nothing short of it. We are fortified inour view by Basu's Commentary on the Constitution ofIndia, 2nd Edition, at page 346. The distinguished com-mentator has based his commentary on the quotation fromBlackstone, which suggests that "office of profit" mustmean employment with "fees and emoluments thereunto
E.L.R.] BHOLANATH ^ KRISHNA CHANDRA GU?TA (NO. 2) 119
belonging". This was the view taken by Mears, C.J. andPiggot, J. in Mohomed Baksh v. Muhammad Abdul BaqiKhan(l). That decision involved an interpretation of thewords "office of profit" used in the U.P. Municipalities Act.
Giving the matter our most careful and earnest con-sideration we are of opinion that respondent No. 1 wasnot disqualified from being chosen as a member of theU.P. Legislative Assembly as alleged in paragraphs 12 to17. of the petition and he was not hit by the provisions ofsection 7(d) of the Representation of the People Act, 1951.This disposes of issue No. 5.
We now come to issue No. 8. It covers the questionas to whether the allegations relating to corrupt and illegalpractices contained in paragraph 13(a), (b), (c) and (e) aretrue? If so, was the result of the election materially affect-ed? In paragraph 31 (a), (b) and (c) of the petition ithas been stated that the election expenses return isprima facie incorrect as respondent No. 1 has not showntherein the expenses of the general stamp regarding thedeclarations and the costs of Polling Agents Forms, Count-ing Agents Forms and the Election Expenses ReturnForm. Two general stamps containing the declarationswere worth Rs. 4. Respondent No. 1 stated in evidencethat he did not show these expenses in his return of ex-penses because he had been advised by his lawyers thatthe expenses up to the date of the election, viz., the 22ndof January, 1952, were alone to be shown in the return.He further stated that in regard to the cost of the formfor the return of election expenses he had been advised byhis lawyers that since that cost had been incurred afterthe date of the election, it had not to be shown in thereturn. The cost of the form was only nominal. Res-pondent No. 1 also stated that the form was given to himby the U.P. Congress Parliamentary Board and he had nothad to pay for it. There is no reason to doubt the state-ment of respondent No. 1 on this point. RespondentNo. 1 also stated that he used nearly' 600 forms for the ap-pointment of polling and counting agents; that thoseforms were saleable and were worth two pice each; thathe had not had to pay for the same; and that they hadbeen given to him by the District Congress Committee free
(1) A.I.E. 1924 All. 135.
120 BHOLANATHV. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
of charge; and on that account he had not shown theirprice in the election expenses return. He deposed thatthere could not have been any possible reason for with-holding such expenses from the election expenses returninasmuch as he could have made a total expense of Rs.8,000/- whereas his total expenses at this election came toabout Rs. 6,000/- only. We see no reason to disbelieverespondent No. 1 and we are of opinion that the allega-tions contained in paragraph 31 (a), (b) and (c) of the peti-tion do not amount to any corrupt and illegal practices andthat the result of the election was not materially affectedthereby.
A point which was not taken in the petition at allwas advanced in argument and was based upon the state-ment given by the respondent No. 1 at one place in hiscross-examination. It was in relation to the expensesincurred by the respondent in going over to Delhi severaltimes in connection with securing a Congress ticket forthis election. These visits to Delhi were obviously prior tothe date of the nomination and the election. The exactamount of these expenses were not elicited in cross-exami-nation of respondent No. 1 but they could not have beensuch that if included into the election expenses returnsubmitted by respondent No. 1, the total would haveexceeded the sum of Rs. 8,000/- which was the limit up towhich respondent No. 1 could have gone. RespondentNo. 1 stated that the expenses in going to Delhi for thatpurpose were not part of the election expenses. Whetheror not we agree with his view, the fact remains thatthese expenses could not have been such that if includedwithin the election expenses return they would by anychance have swelled the amount to a total sum of overRs. 8,000/-. Consequently, in view of this considerationand in view of the fact that the point was not specificallytaken as a ground of attack in the petition by the peti-tioner, we do not think that it was a corrupt or illegalpractice so as to affect the result of the election materi-ally.
In paragraph 31 (e) of the petition it was stated thatrespondent No. 1 paid certain fee to a lawyer at the timeof the scrutiny of his nomination paper and this feeshould not have been paid by him and should not have
E.L.R.] BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) 121
been shown in the return of election expenses because itwas in violation of Schedule VI framed under rule 118 ofthe Representation of the People (Conduct of Electionsand Election Petitions) Rules, 1951, and that such an ap-pointment amounted to a major corrupt practice undersection 123(7) of the Representation of the People Act,1951. It is not disputed that at the time of the scrutinyof the nomination paper, respondent No. 1 had engagedSri Mustafa Ali, Vakil, to be present before the ReturningOfficer and he had argued the matter on his behalf beforethe Returning Officer and he had been paid a fee of Rs. 100for that purpose. That fee is admittedly shown in theelection expenses return. It has been urged on behalfof the petitioner that since Schedule VI framed underrule 118 of the Representation of the People (Conduct ofElections and Election Petitions) Rules, 1951, specifies thepersons who may be employed for payment by candidatesor their election agents in connection with the electionand further specifies that till elections, one election agent,one counting agent and one clerk and one messenger maybe employed, the employment of Sri Mustafa Ali, Vakil,was unauthorised and consequently, under section 123(7) ofthe Representation of the People Act, 1951,the employmentof Sri Mustafa Ali, Vakil, in contravention of the provisionsof the Act or of the rules made thereunder and the incur-ring of expenditure for him was unauthorised and amount-ed to a major corrupt practice. We are unable to agreewith this view propounded on behalf of the petitioner.The engagement of a lawyer to represent respondent No. 1before the Returning Officer to argue the matter on hisbehalf at the time of the scrutiny of the nominationpapers would not be "employment" within the meaningof that term in Schedule VI framed under rule 118 of theRepresentation of the People (Conduct of Elections andElection Petitions) Rules, 1951. We are supported in thisview if we look into the provisions of section 36 of theRepresentation of the People Act, 1951. That sectionlays down that on the date fixed for the scrutiny of thenominations, the candidates, their election agents, oneproposer and one seconder of each candidate and one otherperson duly authorised in writing by each candidate, but
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122 BHOLANATH V. KRISHNA CHANDRA GUPTA (NO. 2) [VOL. VI
no other person, may attend at such time and place asthe Returning Officer may appoint and the ReturningOfficer shall give them all reasonable facilities for examin-ing the nomination papers of all candidates which havebeen delivered within the time and in the manner laiddown under section 33. It further lays down that theReturning Officer after examining the nomination papersshall decide all objections which may be made to anynomination and may, either on such objection or on hisown motion, after such summary inquiry, if any, as hethinks necessary, refuse any nomination on any of thegrounds stated in section 36. Obviously therefore, ifunder section 36 of the Representation of the People Act,1951, respondent No. 1 was authorised to get "one otherperson duly authorised in writing" (which in the presentcase was Sri Mustafa Ali, Vakil), such a person would notcome within Schedule VI of rule 118 of the Representa-tion of the People (Conduct of Elections and ElectionPetitions) Rules, 1951. Consequently, it cannot be saidthat Schedule VI framed under rule 118 is exhaustiveand excludes the engagement'of a lawyer at the time ofthe scrutiny of the nomination papers which is clearlypermitted under section 36 of the Representation of thePeople Act, 1951. The fee paid to Sri Mustafa Ali, Vakil,was therefore legitimate and proper and would not be hitby the provisions of section 123(7) of the Representationof the People Act, 1951, and would not amount to a major-corrupt practice.
We now come to issue No. 7 which is to the effect asto whether the allegations in paragraphs 19 to 26 and 37 to39 are true? If so, was the result of the election materiallyaffected by such facts or any of them ? The allegationscontained in these paragraphs have been stated by us indetail in the earlier part of the judgment and we wouldnot restate them here. Most of these allegations haveneither been attempted to be proved by evidence nor werethey seriously pressed in the course of the arguments.[After referring to the evidence the Tribunal concluded asfollows:].
Issue No. 7 has not at all been substantiated by thepetitioner and the allegations contained in that issue donot materially affect the result of the election in any way.
E.L.R.] RADHEY SHYAM V. CHANDRA BHANTJ 123
This brings us ultimately to issue No. 9 which is tothe effect as to whether the petitioner is entitled to anyrelief. In view of what we have held above we are clearlyof opinion that the petitioner is not entitled to any reliefand that the election petition should be dismissed.
Order of the Tribunal.—The election petition is accord-ingly dismissed. The petitioner shall pay respondent No. 1the cost of the petition inclusive of Rs. 1,000/- as counsel'sfee. The petitioner and respondent No. 4 are to bear theirown costs.
Petition dismissed.
[ELECTION TRIBUNAL, LUCKNOW.]
RADHEY SHYAM SHARMAv.
CHANDRA BHANU GUPTA AND OTHERS.N. S. LOKTIR (Chairman), S. N. MITRA and AZIZUL
HAQUE FAKHRTJDDIN (Members).April 18, 1953.
Election petition—Signature and verification—Petition typed on blanksigned papers—Validity—List of corrupt practices not signed and verified—•Maintainability of petition—Election Tribunal—Power to allow amend-ment of verification—Limitation—Striking out allegations not supported byverified list—Representation of the People Act, 1951, ss. 80, 83(2) & (3),85, 90(4)—Civil Procedure Code, 1908, 0. IV, r. 1; 0. VI, rr. 15, 17.
"Where the draft of an election petition was fully approved by thepetitioner and the petition was afterwards typed on some blank paperswhich the petitioner had signed beforehand at the proper places: 'Held,that the petition was not invalid and could not be rejected on the groundthat it was not signed, though the corrections not initialled by the peti-tioner might be ignored.
Omission of the word "my" before "knowledge" and "belief andknowledge" in a verification would not invalidate the verification.
In the case of an election petition and the list accompanying it, theabsence of verification is not a mere irregularity as in the case of thepleadings in a civil court and the Tribunal has no power to allow the defectto be cured by the addition of the petitioner's signature and verificationto the list*, or by the production of a new list duly signed and verified,especially after the time for the presentation of the petition has passed.
Even assuming that the Tribunal has power to permit the petitionerto amend the list by adding his signature and verification, unless the
* See Note at p. 132 infra.
124 RADHEY SHYAM V. CHANDRA BHANTT [VOL. VI
Tribunalexpressly excuses the delay, the respondents would not be deprivedof their right to plead the bar of limitation.
Permitting the petitioner to cure the want of signature and verifica-tion after excusing delay is an equitable relief and-if the petitioner hasconcealed the real facts and has not come with clean hands, the Tribunalmay refuse to permit him to amend the petition.
The mere fact that the petition refers to the list of the corrupt prac-tices and the petition is duly verified will not absolve the petitionerfrom the duty of filing a verified list of particulars.
Shiva Dutt and Others v. Bansidas Dhangar and Others (5 E.L.R. 55)not followed.
The mere fact that the petition is not accompanied by a verified listcontaining full particulars of corrupt practices alleged in the petition isnot a ground for rejecting the petition altogether, if other grounds arealleged in the petition for setting aside the election. In such a case theallegations of corrupt practices must be struck off and the other allega-tions must be enquired into.
Mukti Nath Bai v. Uma Shanker Misra and Others (3 E.L.E. 109)disapproved.
ELECTION PETITION NO. 256 of 1952.
Shiva Prasad Sinha, Harkaran Nath Misra, BishunSingh, Onkar Singh, Jagdish Oopal Mathur and Kr.Khushwakt Rai, for the petitioner.
S. K. Bar and B. K. Dhaon, for respondent No. 1.
ORDER.
This is an election petition made under section 81 ofthe Representation of the People Act, 1951, (hereinafterto be called "the Act") by the petitioner, Radhey ShyamSharma, for a declaration that the election of respondentNo. 1 to the Uttar Pradesh Legislative Assembly from theLucknow City (East) Constituency is void, and that theelection as a whole is void, and also for having respondentNo. 1 disqualified, on various grounds set out in the bodyof the petition and the schedules accompanying it. Res-pondent No. 1 contends, inter alia, that the petitionshould be dismissed as it is not duly signed and verifiedby the petitioner, and as the lists accompanying it arealso not duly signed and verified and do not set forth fullparticulars of the alleged corrupt and illegal practices, asrequired by section 83(2) of the Act. On this contention,the following preliminary issues were framed and tried,namely:—
E.L.R.] RADHEY SHYAM V. CHANDRA BHANU 125
1. Is the petitioner's application accompanied by allthe necessary lists required by section 83, sub-section (2),of the Representation of the People Act, 1951?
2. Do they set forth full particulars as required bythe said sub-section?
3. Are they and the petition duly signed and veri-fied?
4. What would be tlie effect of a finding in the nega-tive on any of the above issues?
5. What orders should be passed in view of the find-ings on the above issues?
It will be convenient to deal first with the thirdissue.
At the last election to the Uttar Pradesh LegislativeAssembly the petitioner and the respondents were thecandidates duly nominated for the Lucknow City (East)Constituency. At the poll respondent No. 1 secured thehighest number of votes (20,145) and was declared elect-ed. The petitioner, who was a candidate set up by theKisan Mazdoor Praja Party, secured only 5,116 votes.The declaration of respondent No. l's election was pub-lished in the Uttar Pradesh Government Gazette on 26thFebruary, 1952, and the lodging of the return of his elec-tion expenses and the declaration made in respect thereofwere published in the Gazette on 26th April, 1952. Underrule 119 of the Representation of the People (Conductof Elections and Election Petitions) Rules, 1951, an elec-tion petition under section 81 of the Act has to be presentednot later than fourteen days thereafter. Hence the lastdate for filing the present petition was the 10th of May,1952; and in fact it was presented before the ElectionCommission at Delhi on that very day by Sheonarain LaiSaxena, who had been authorised by the petitioner to doso.
The case put forward on behalf of respondent No. 1to challenge the validity of the petition may be brieflystated. The Kisan Mazdoor Praja Party, whose candidatewas defeated, decided to have the election challenged bythe petitioner, but he had already gone with his family toBhimtal in Kumaon Hills and was to stay there till theend of the summer vacation in July, 1952, His signatures
J26 RADHEY SHYAM V. CHANDRA BHANU [VOL. VI
were, however, obtained on blank sheets of paper. Hissignatures were expected to be required in the right sidebottom corner on two sheets—one on which the body ofthe petition was expected to end and the other for theverification of its contents. In case of their being spoilt,two more similarly signed spare sheets were thoughtnecessary. Besides these four sheets, several more sheetsrequired for the contents of the petition were, signed bythe petitioner cross-wise in the left side lower corner inthe margin. When such signed papers were obtained fromthe petitioner there seems to have been no idea that seve-ral lists or schedules which were to accompany the peti-tion had also to be signed by the petitioner and duly veri-fied. Thereafter, the petition and the schedules weredrafted at Lucknow, and given to a typist for being typedon the blank sheets already signed by the petitioner. Hetyped the first twelve pages of the body of the petition onthe sheets with the signatures in the margin, and the lastpage 13 and the verification page 14 were typed on thesheets bearing the petitioner's signatures at the right sidebottom. Then there remained only two sheets with signa-tures at the right side bottom and all the other sheetshad been signed in the margin. Schedules Nos. 7 and 9were typed on the former and the remaining seven sche-dules were typed on the sheets with signatures in themargin. Even then no verification was typed on any ofthe nine schedules, either because it was not then realisedthat the schedules also had to be verified or because thetypist could not type the verification cross-wise above thesignatures in the margin. So, on two of them SheonarainLai wrote out the verification and on the other sevenBhattacharya wrote out the verification. All this havingbeen done behind the back of the petitioner, both thepetition and the schedules cannot be said to have beenduly signed and verified by the petitioner and the petitionis, therefore, liable to be dismissed.
The petitioner denies these allegations. According tohim he went to Bhimtal on 7th June, 1952. The petitionwas drafted in his presence at Lucknow on 8th May, butthe drafting of the schedules could not be completed assome more materials had to be collected for them. Ashis son was ill at Banaras, he went back, leaving instruc-
E.L.R.] RADHEY SHYAM V. CHANDRA BHANTT 127
tions with Sheonarain Lai and Bhattacharya to completethe draft of the schedules, to get the petition and theschedules typed and to take them to Banaras for beingsigned by him. Accordingly they got them typed, butthey did not get any verification typed on the schedulesas they were not sure whether the petitioner wanted toverify them as true according to his knowledge or accord-ing to his belief. When he was asked at Banaras, he toldthem that the contents of the schedules were true accord-ing to his belief. Verifications were accordingly writtenout on the schedules by Sheonarain Lai and Bhattacharya,and after reading the documents the petitioner made hissignatures wherever required. This was done in his houseat Banaras at 1-20 A.M. on 9th May. All the three thenwent to Lucknow to verify the payment of the deposit ofRs. 1,000 which had to be made in the Treasury there,and then Sheonarain Lai went with the necessary papersto Delhi and presented them to the Election Commissionon the 10th of May, 1952.
We have now to see to what extent each of these ver-sions is proved.
[The Tribunal referred to the evidence and continued:]Our conclusion, therefore, is that the corrections in
the petition were made and initialled by some one behindthe back of the petitioner and without his authority. Afterapproving of the draft of the petition, the petitioner musthave gone to Banaras having supplied a sufficient numberof blank sheets with his signatures both for the executionand the authentication of the petition, losing sight of thenecessity of his signature and verification on the schedulesalso.
To sum up, after a careful scrutiny of the petition,the schedules and the letter of authority, and a considera-tion of the able arguments on both the sides, we havearrived at the following conclusions—
(1) The petitioner is not proved to have been atBhimtal at the material time.
(2) He duly authorized Sheonarain Lai to present hiselection petition before the Election Commission at Delhiand the letter of authority is duly signed by him.
(3) The petitioner gave four blank sheets of paper
128 RADHEY SHYAM V. CHANDRA BHANU [VOL. VI
with his signatures at the bottom in the right hand side,and several others with his signatures in the margin, andthey were used for typing the petition and the schedules.
(4) He had read and * approved of the draft of thepetition, but had not known about the contents of theschedules, which were drafted behind his back.
(5) He made no signature or initials nor did he seeany of the 26 pages after they were typed.
(6) The initials at the corrections made in the peti-tion were not made by him.
(7) The schedules were not signed or verified by thepetitioner as required by section 83(2) of the Act. x
(8) The petition and its verification were typed onpreviously signed blank papers in accordance with a draftalready approved of by him.
After announcing these conclusions, we heard furtherarguments on behalf of both sides. Shri Dar, the learnedadvocate for respondent No. 1, contends that even thepetition itself should be regarded as not properly signedand verified. But the petitioner had seen and approved ofthe draft, including the verification, before it was typed,and he admits that the petition has been typed accordingto that draft. So the fact that he had made his signaturesbeforehand at the proper places does not vitiate itsvalidity. The corrections, not initialled by him, may beignored. The objection that the word "my" should havebeen used before the words "knowledge" and "belief andknowledge" in the verification has no substance in it. Evenwithout that word, the "knowledge" and the "belief"obviously refer to that of the person making the verifica-tion. We, therefore, hold that the petition is duly signedand verified by the petitioner, while the schedules or listsaccompanying it, which were drafted and typed withouthis knowledge and behind his back, are neither signed norduly verified by him, and therefore must be discarded; inother words, the petition must be deemed to have beenpresented without any lists accompanying it.
Elaborate arguments regarding the effect of this find-ing were addressed to us on both sides. In the course ofthe arguments an application was made on behalf of thepetitioner requesting permission to him to sign and verify
E.L.E.] RADHEY SHYAM V. CHANDRA BHANTJ 129
the schedules. The application is opposed on the groundthat this tribunal has no power to allow such an amend-ment of the petition. In support of the application ShriSinha, for the petitioner, cited numerous cases where aplaint in a civil suit, not properly signed or verified by theplaintiff, was allowed to be amended by a proper signatureand verification, even after the period of limitation hadexpired: Ali Muhamad Khan v. Ishaq Ali Khan(l), RamanLalji v. Ookul Nathji(2), Piare Lai v. Bhagwan Da$(s),Qunayat Husain v. Sajidunnissa Bibi^) and Subbiah Pillaiv. Sankarapandian Pillai (5). The whole law on the sub-ject was fully considered in the comprehensive judgmentof Bhagwati, J., in Prince Line v. Trustees of the Port ofBombay (B), where it is thus summed up:—
"The position therefore which emerges on theseauthorities is that the court has always got the discretionif a plaint is not properly presented or is not signed andverified in accordance with the provisions of Order 6, rule14 and Order 6, rule 15, Civil Procedure Code, to allow theplaintiff to remedy the defect at a later stage even thoughthe period of limitation may already have expired. Butthat is a matter for the discretion of the court which thecourt exercises after due consideration of all the factsand circumstances of the case before it. If after a duedeliberation of all these facts, the court comes to the con-clusion that it is just that, in the exercise of its discretion,it should allow the defect to be cured it can do so irrespec-tive of the fact that the defendant has vested in him bythat time a right to plead the bar of limitation. Butwhere, while granting the amendment or the opportunityto the plaintiff to cure the defect, the court reserves untothe defendant, the right to plead the bar of limitation, theposition in my opinion would be quite different. In sucha case the defendant would not be deprived of his right toplead the bar of limitation and the plaintiff would have tomeet that point when properly raised by the defendant atany subsequent stage".
The same principle was applied to an election petition(1) I.L.B. 54 All. 57 F.B. (2) I.L.B. 39 All. 343.(3) I.L.B. 55 All. 216. (4) A.I.R. 1949 All. 499.(5) A.I.R. 1950 Mad. 3G9. (6) A.I.R. 1950 Bom. 130.
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130 RADfiEY SHYAM V. CHANDRA feHANTT [VOL. VI
by a Division Bench of the Bombay High Court in SitaramHirachand Birla v. Yograj sing Shankar sing (1). In that casethe petition was accompanied by a verified list of theparticulars of the alleged corrupt practice, but theverification was defective and the particulars were notfull. The petitioner's application to amend them wasallowed by the tribunal. The reason given was that"So far as the verification and the particulars of the listare concerned, the amendment sought is not of a substan-tial nature but only of a formal character, more or less inthe nature of simplification of the original verification andthe list". In distinguishing it from Purshottamdas Ranchod-das Patel v. Shantilal O. Parikh and Other si?) where thepetitioner was not allowed to amend the petition bysupplying verification to the list, the tribunal observed:—
"It was a case of absence of verification at the footof the list and consequently the tribunal held that therewas non-compliance of section 83(2) of the Act. But thepetition before us is not a case of absence of verificationboth in regard to the petition or the list".
The respondent, who was the successful candidate atthe election, then applied to the High Court at Bombayfor a suitable writ under articles 226 and 227 of the Con-stitution of India, directing the tribunal to dismiss thepetition. In a well-considered judgment, Chagla, C.J., heldthat the tribunal had jurisdiction to allow the amend-ment, and refused to issue any writ. It is not necessaryto differ from that decision as the case we are dealing withfalls under the first category, as we have held that thereis a total absence of verification at the foot of the lists.The judgment of the learned Chief Justice, however, doesnot pointedly refer to the distinction pointed out by thetribunal, but is based on the general and wide powers ofamendment which a civil court possesses and which areconferred upon the Election Tribunal by sub-section (2) ofsection 90 of the Act. That sub-section says:—
"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 Civil
(1) 2 E.L.B. 283. (2) 1 E.L.R. 223.
B.L.E.] RADHEY SHYAM V. CHANDRA BHANU 131
Procedure, 1908 (Act V of 1908), to the trial of suits".It is thus clear that the application of the procedure
under the Civil Procedure Code, 1908, to trials beforean Election Tribunal is subject to the provisions of theAct and of the rules thereunder; and the scheme of theAct shows that an Election Tribunal cannot exercise thewide powers of amendment conferred by the Code upon acivil court. Section 83 of the Act provides—
"(1) An election petition shall contain a concise state-ment of the material facts on which the petitioner reliesand shall be signed by the petitioner and verified in themanner laid down in the Code of Civil Procedure, 1908(Act V of 1908), for the verification of pleadings.
(2) 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".
Section 80 of the Act says:"No election shall be called in question except by an
election petition presented in accordance with the provi-sions of this Part".
This wording is more peremptory than the wording ofO. IV, r. 1, of the Civil Procedure Code, 1908, which says*—
"(1) Every suit shall be instituted by presenting aplaint to the Court or such officer as it appoints in thisbehalf.
(2) Every plaint shall comply with the rules con-tained in Orders VI and VII, so far as they are applicable".
In the Code no penalty is expressly prescribed if aplaint does not comply with the rules contained in OrderVI and Order VII, which include the necessity of verifi-cation of pleadings (Order VI, r. 15). A plaint can berejected on the four grounds specified in Order VII, r.11, which do not include the absence of or defect inverification, and it has been held in several cases thata court has no power to reject a plaint merely becausejt is defective in that it does not comply with some pro-
132 RADHEY SHYAM V. CHANDRA BHANTI [VOL. VI
visions of law. On the other hand, section 85 of the Actprovides that if the provisions of sections 81 and 83 arenot complied with, the Election Commission shall dismissthe petition. The provision is mandatory and gives nooption to the Election Commission to allow an amendment.If the defect of want of full particulars in the list escapesthe notice of the Election Commission and the petition issent to an Election Tribunal, then sub-section (3) of sec-tion 83 empowers the tribunal to allow the particulars inthe list to be amended or further and better particulars tobe supplied. This may be compared with the wording ofOrder VI, r. 17, of the Code which confers very widepowers of amendment on a civil court. It says:—
"The Court may at any stage of the proceedings alloweither party to alter or amend his pleadings in suchmanner and on such terms as may be just, and all suchamendments shall be made as may be necessary for thepurpose of determining the real questions in controversybetween the parties".
Had the Election Tribunal the same powers to allowan amendment as are possessed by the civil court, thensub-section (3) of section 83 of the Act, restricting thepowers to allow amendment, would be out of place. Hencein the case of an election petition and the list accompany-ing it, the absence of verification is not a mere irregularityas in the case of the pleadings in a civil court and withall respect to the learned Chief Justice, we are inclined tohold that we have no power to allow the defect to becured by the addition of the petitioner's signature andverification to a list prepared by another, or by the pro-duction of a new list duly signed and verified, especiallyafter the time for the presentation of the petition beforethe Election Commission has passed.*
*Note,—With regard to verification, in Civil Appeal No. 25 of 1954 decided onthe 23rd April, 1954 (Dinabandhu Sahu v. Jadumoni Mangaraj and Others) theSupreme Court has held that if the Election Commission, without dismissing apetition under section 85 for non-compliance with section 83, passes an order undersection 86 appointing an Election Tribunal for hearing the petition, the matter isthereafter governed by section 90(4). Under that section it is a matter of discretionwith the Election Tribunal either to dismiss the petition for defective verificationor not, and if the tribunal directs the verification to be amended, and declines todismiss the petition for defective verification it will not be acting illegally or inexcess of jurisdiction and its order cannot be interfered with.—Ed,
E.L.R.] RADHEY SHYAM V. CHANDRA BHANTJ 133
The "powers" of a court or a tribunal are to be dis-tinguished from the "procedure", that is to say, the stepsto be taken for the exercise of those powers: vide Mozleyand Whitley's Law Dictionary, 4th edition, p. 243. Thisdistinction is pointedly brought out by the heading ofsection 92 of the Act as "Powers of the Tribunal" andthat of section 90 as "Procedure before the Tribunal". TheCode of Civil Procedure, 1908, confers upon a civil courtcertain powers required for the proper conduct of the pro-ceedings before it, and also defines the mode of exercisingthose powers. In the Representation of the People Act,1951, the powers are specified, and for the mode of exer-cising them the procedure laid down in the Code of CivilProcedure, 1908, is to be followed, subject to the provi-sions of the Act and the rules made thereunder. A com-parison of Orders XI, XVI to XIX and XXVI of theCode with the various clauses of section 92 of the Act willshow how the powers given to a civil court by the formerare specifically conferred by the Act upon an ElectionTribunal. The power to direct a party to appear in personis given by the proviso to section 91 and to order the pay-ment of the costs by section 99(1) (b) of the Act. Some ofthe powers of the civil court are conferred upon the Elec-tion Tribunal in a qualified manner, as in the case of with-drawal of an election petition (Chapter IV) and theamendment of the list accompanying an election petition(sub-section (3) of section 83). If the word "procedure"used in section 90 of the Act was intended to include the"powers" also, then there was no need to confer thoseupon the tribunal by a categorical enumeration. Theobvious intention of the Legislature is to define the powersof an Election Tribunal specifically, and to allow it tofollow the procedure laid down- in the Civil ProcedureCode, 1908, in order to exercise those powers. An ElectionTribunal cannot claim to possess powers not conferredupon it specifically by the statute whereby it has beenconstituted.
It is a sound principle of natural justice that the suc-cess of a candidate who has won at an election should notbe lightly interfered with, and any petition seeking suchinterference must strictly conform to the requirements ofthe law. It is this principle which underlies the provisions
134 RADHEY SHYAM V. CHANDRA BHANTJ [VOL. VI
of section 85 of the Representation of the People Act, 1951,which enjoins the Election Commission to dismiss a peti-tion which does not comply with the provisions of sections81 and 83 of the Act which lay down how an election peti-tion should be presented, and what its contents should be.No discretion is given to the Election Commission tocondone the non-compliance with those provisions. In thisconnection, we may quote the following pertinent passagesfrom pp. 263 and 303 of Abraham's New York ElectionLaw, which contains similar provisions regarding thenecessity of verification of an election petition:—
"An election contest is not an action at law or a suitin equity, but is purely a statutory proceeding unknown tothe common law. The court possesses no common lawpowers. Such statutory provisions are special and summaryin their nature. Therefore, as a general rule, a strictobservance of the statute is required, so far as regards thesteps necessary to give jurisdiction".—p. 263.
"The statutory requirement of Election Law, section335, must be strictly observed. The statute in part com-mands 'A special proceeding shall be heard upon averified petition and such Oral or written proof as may beoffered'. The authority vested in the court to relieve ofmistake or error is never exercised in relation to an un-verified petition The failure to verify a judicial peti-tion was held to be a jurisdictional defect affecting thevalidity of the petition The consequences which resultin the omission of properly verified pleadings are far-reach-ing. The discovery, when observed, usually deprives thecourt to direct the correction, since such an order wouldviolate the time requirement for the institution of legalproceedings".—p. 303.
Our attention is drawn to the fact that in the case ofShiva Butt and Others v. Bansidas Dhangar and Others^) theAssistant Secretary to the Election Commission gave anotice to the petitioner calling his attention to the absenceof verification at the foot of the list accompanying his peti-tion as required by sub-section (2) of section 83 of the Act,and calling upon him to make good the deficiency withinfifteen days, failing which his petition would be dismissedunder section 85. That notice is published on p. 908 of the
(1) 5 E.L.R. 55.
E.L.R.] RADHEY SHYAM V. CHANDRA fcHAtflT 135
U.P. Government Gazette, Part I-C, dated 8th November,1952. If the defect was removed, the petition could betreated as presented on the day it was removed, and if thepetitioner satisfied the Election Commission that sufficientcause existed for his failure to present the petition inproper form within the period prescribed therefor, theElection Commission might, in its discretion, condone suchfailure under the proviso to section 85 of the Act. In orderto make this clear, the said notice specifically stated atthe end:—
"This letter is to be read without prejudice to theprovisions of law applicable to the case".The preliminary issues in that case were decided onlyon 17th March, 1953, and the decision has not yet beenpublished, but we have seen a certified copy of it. Thedecision is by a majority—the two members of the tribu-nal—the Chairman having differed from them. Accordingto the judgment of the majority, the petition could not bethrown out for two reasons, namely, that the fact thatafter the petitioner supplied duly verified lists as called for,the Commission appointed a tribunal for trying it, showsthat the delay in the production of the list was condonedunder the proviso to section 85., and that even otherwisethe lists having been mentioned in the petition, the verifi-cation of the petition amounted to a verification of thelists also. We are not concerned with the first ground,since the lists in this case were not even subsequentlyverified properly before the Election Commission. Asregards the second ground, with all respect, we differ fromthe view taken by the majority and prefer to accept theview of the Chairman which is in consonance with theclear wording of section 83 (2) of the Act.
Assuming that we have power to permit the petitionerto amend the lists by adding his signature and verifi-cation to them, still as pointed out by Bhagwati, J., inPrince Line's caseQ) cited above, unless we expressly excusethe delay, the respondents would not be deprived of theirright to plead the bar of limitation, and in this case we seeno reason to excuse the delay.
Shri Sinha, the learned advocate for the petitioner,(1) A.I.R. 1950 Bom. 130.
136 RADHEY SHYAM V. CHANDRA BSANtT [VOL. VI
urges that when an election petition is filed, 'it is in thepublic interest that it should be heard and disposed of onits merits, and should not be throttled by reason of anytechnical defect. He points out that even if the petitionerwants to withdraw it, he can do so only with permission,and even then others are to be given an opportunity tocontinue the petition (sections 108 to 110 of the Act). Thisis true in the case of a properly presented petition, but ifthe petition itself is fatally defective, there is no validpetition and the question of its being continued does notarise.
It is true that section 85 of the Act peremptorily re-quires the Election Commission to dismiss a petition whichdoes not comply with the provisions of sections 81, 83 and117 and even if it does not do so, sub-section (4) of sec-tion 90 says that the tribunal may do so. This may beinterpreted as enabling us to hear the petition on itsmerits, even though it does not comply with the provi-sions of sections 81, 83 and 117 but we cannot do so unlesswe excuse the delay and allow the lists to be duly verified,since section 80 provides that no election shall be called inquestion except by an election petition presented inaccordance with the provisions of sections 81 to 84.
Permitting the petitioner to cure the defect of wantof verification, after excusing the delay, is an equitablerelief, and "Equity does not supply the deficiency ofthose things which are required by positive law" (Morgan,Legal Maxims). Moreover, he who seeks equity mustcome with clean hands, but the petitioner has allalong been trying to bluff and deceive us into the beliefthat he made his signatures after the schedules were typedand the verification was written out. Had he told thetruth and frankly disclosed the circumstances under whichhe made his signatures on blank sheets of paper, we mightperhaps have been induced to consider his application foramendment sympathetically. But having successfully gotthrough the summary scrutiny of his petition by the Elec-tion Commission he hoped to succeed here also by conceal-ing the true facts. Hence no application for amendmentwas made until we announced our conclusions regardingthe signatures and the verification. In these circumstances,we are not prepared to put a premium upon fraud by
E.L.R.] RADHEY SSYAM 1). CHAKDRA BHANtT 137
condoning the absence of signed and verified lists requiredby sub-section (2) of section 83 of the Act to accompanythe petition or permit them to be supplied at this latestage. Although section 85 of the Act says that if the pro-visions of section 81, 83 or 117 are not complied with, theElection Commission shall dismiss the petition, yet sub-sec-tion (4) of section 90 says that notwithstanding anythingcontained in section 85, the tribunal may dismiss such apetition. So we have a discretion to dismiss the petitionwholly or to proceed with it, ignoring the grounds of cor-rupt and illegal practices about which the list required bysub-section (3) of section 83 is not furnished with thepetition. Election Petitions Nos. 199 and 269 of 19520were wholly dismissed for want of duly signed and veri-fied lists, though the petitions contained some othergrounds besides illegal and corrupt practices. But wethink it fair that only those grounds should be shut outwhich cannot be urged owing to lack of the necessary listsand in our discretion we allow the petition to be pro-ceeded with on the remaining grounds.
Scrutinizing the petition from this point of view, wefind that all the grounds set out in it, except those inparagraph 8 are based on corrupt or illegal practices, asthe following analysis will show:—
Thus the grounds set out in paragraphs 1 to 7 and 9to 12 fall within the categories of corrupt or illegal prac-tices and in the absence of the lists required by sub-section (2) of section 83 of the Act, all these grounds haveto be left out of consideration. The only ground that re-mains is what is stated in paragraph 8, namely, that theballot boxes were such that ballot papers could be takenout or inserted in without the seals being broken, thatthey were also tampered with and that the ReturningOfficer did not comply with the provisions contained inrule 21 of the Rules. If this ground is proved to havematerially affected the result of the election, then the elec-tion of respondent No. 1 will have to be declared voidunder section 100(2) (c) of the Act. Hence issues willnow be framed only with regard to the ground containedin paragraph 8 of the petition and further hearing of the
(1) See Mukti Nath Bai v. Uma Shanker Misra & Others (3 E.L.R. 109) andDebi Prasad v. Md. Nazecr and Others (3 E.L.K. 137).
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138 DEO CHAND V. VASHIST NARA1N [VOL. VI
petition on those issues will be proceeded with.Thus our findings on the five preliminary issues are:Issue No. 1.—In the negative.Issue No. 2.—Does not survive.Issue No. 3.—The petition is duly signed and verified,
but not the schedules accompanying it.Issue No. 4.—The grounds relating to corrupt and
illegal practices should be left out of consideration.Issue No. 5.—The trial of the petition should be con-
fined to the ground contained in paragraph 8 only andshould be proceeded with.
Issues found accordingly.
[ELECTION TRIBUNAL, ALLAHABAD.]
DEO CHAND AND OTHERSv.
VASHIST NARAIN AND OTHERS.V. G. OAK (Chairman), N. N. MUKERJI and
BABU RAM AVASTHI (Members).May 4, 1953.
Election petition—Joint petition—Security—Nomination of candi-dates—Serial No., age, etc., of wrong person given—Validity of nomi-nation—Improper acceptance—'Burden of proof that result of election hasbeen materially affected—Guiding principles—Distribution of wasted votesin proportion to other candidates—Legality—• Result of election", materi-ally affected", meanings of—Corrupt practice—Procuring help of govern-ment servants—Mukhias, sabhapatis and panches of U. P., whether govern-ment servants—Acting as polling agent, whether amounts to assisting—Elec-tion agent—Separate declaration of appointment,\wheiher necessary—U. P.Panchayat Baj Rules, r. 61-A—'Validity—Representation of the PeopleAct, 1951, ss. 33(1), 33(3), 36(2) (d), 100(1) (c), 123(8).
An election petition can be presented by two or more electors jointly.There is also no objection to a candidate and some electors making ajoint petition.
In the case of a joint petition, a single security of Es. 1,000 is suffi-cient even if there are two or more petitioners.
A nomination form in which in columns 3, 7 and 8, the serial number,age, father's name, etc. of a different elector of the same name are givendoes not comply with the provisions of section 33(l) of the Bepreaenta"
E.L.R.] DEO CHAND V. VASHIST NARAIN 139
tion of the People Act, 1951, and can be rejected on this ground undersection 36 (2) (d), even though the candidate's name is entered as anelector in a different village of the same constituency.
Where an election is impugned on the ground that the nomination ofa person other than the returned candidate was wrongly accepted, theburden is on the petitioner to prove that the result of the election wasmaterially affected by such improper acceptance.
Pyare Lai v. Amba Prasad (4 Jagat Narain 4) distinguished.The "result of the election" in section 100(1) (c) means the names of
the candidates in the order of the poll with the number of votes for eachand not necessarily the declaration of the result; and "materially affected"means that the majority of the returned candidate would have beenmaterially reduced.*
Bellary Mohammadan Bural Constituency, 1947 (Sen andPoddar 136)followed.
The view that in the case of an improper acceptance the wasted votesshould be distributed to the other candidates on a percentage basis iswrong. The correct principle is that if the number of votes secured bythe candidates whose nomination was improperly accepted is lower thanthe difference between the number of votes secured by the returned candi-dates and the candidate who has secured the next highest number of votes,the result cannot be materially affected. In other cases it has to bedecided on the evidence whether the result of the election has been materi-ally affected.*
* Note —The decision of the Tribunal in this case was reversed by the SupremeCourt on an appeal preferred by the first respondent. The Supreme Court has laiddown the following propositions [see Vashist Narain Sharma v. Den Chandra <&Others, Civil Appeal No. 151 of 1953, decided on the 20th May, 1954]:—
(1) Before an election can be declared to be wholly void under section 100(l)(c),the tribunal must find that "the result of the election has been materially affected".
(2) The language of section 100(1) (c), clearly places the burden upon theobjector to substantiate the objection that the result of the election has beenmaterially affected.
(3) The result of the election should not be judged by the mere increase or de-crease in the total number of votes secured by the returned candidate but by proofof the fact that the wasted votes would have been distributed in such manner bet-ween the contesting candidates as would have brought about the defeat of the re-turned candidate.
(4) In the case of improper acceptance of a nomination (a) if the nomination ac-cepted was that of the returned candidate, the result must be materially affected; (b)if the difference between the number of votes secured by the returned candidateand the next highest number of votes is more than the wasted votes the resultcannot be affected at all; (c) if the number of the wasted votes is greater than themargin of votes between the returned candidate and the candidate securing the nexthighest number of votes it cannot be presumed that the wasted votes might havegone to the latter and that result of the election has been materially affected. Thisis a matter which has to be proved; though it must be recognised that the petitionerin such a case is confronted with a difficult situation, he cannot be relieved of theduty imposed upon him by section 100 (1) (c) and if the petitioner fails to adducesatisfactory evidence to enable the court to find in his favour on this point, theinevitable result would be that the Tribunal would not interfere in his favour andwould allow the election to stand.—Ed,
MO DEO CHAND V. VASHIST NABAIN [VOL. VI
Bulandshahar District (East) 1921 (Hammond 217) and UdainaihSingh v. Jagat Bahadur Singh (3 E.L.R. 26) not followed.
Lakhan Lai Mishra v. Tribeni Kumar (3 E.L.E. 423) followed.Where the number of votes obtained by the candidate whose nomi-
nation was improperly accepted was 1983 and the difference between thevotes of the returned candidate and the next candidate was 1872, it washeld that it cannot be assumed that even 56 votes out of the 1983 wouldhave gone to the returned candidate and the election must be held to havebeen materially affected by the improper acceptance.
Mukhiyas, sabhapatis and panches of U. P. are not employed by theState and are not therefore Government servants within the meaning ofsection 123(8).
Eule 61-A of the U. P. Panchayat Eaj Eules which lays down thatno sarpanch or panch shall take part in any election to a local body orto the State Legislature is not ultra vires the State Government.
Where a panch works as a polling agent for a candidate it amountsto assisting the candidate within rule 61-A, U.P. Panchayat Eaj Eules, andthere is a contravention of the rules, but under section 100(2) (c) of theEepresentation of the People Act, an election cannot be set aside on thisground unless it is shown that this non-compliance with the rules hasmaterially affected the result of the election.
Under section 33(3) of the Act there should be a separate decla-ration of appointment of election agent in addition to the nominationpaper.
ELECTION PETITION NO. 270 of 1953.
A. P. Pande, for the petitioners.S. C. Khare, for respondent No. 1.
OBDEB.
This is an election petition by three persons, DeoChand, Chandrahas and Vishwanath, challenging theelection of Shri Vashisht Narayan Sharma to the U. P.State Legislative Assembly from Ghazipur (South-East)Constituency No. 345. The petitioners' case is that theyare three electors in the said constituency. The eightrespondents were nominated as candidates for the elec-tion. Respondents Nos. 6 to 8 withdrew their candida-ture, and respondents Nos. 1 to 5 continued the contest.After the poll Sri Vashisht Narayan Sharma, respondentNo. 1, was found to have secured the largest number ofvotes. He was, therefore, declared elected from the con-stituency. But the election of the respondent was vitiatedby a number of irregularities and illegalities in the con-duct of the election, and corrupt and illegal practices
E.L.E.] DEO CHAND V. VASHIST NARAIN 141
committed by respondent No. 1. One of the candidates forelection was Dudh Nath, respondent No. 4, who is a residentof village Gahmar. But he personated another Dudh Nath,who is a resident of village Baruin. The nomination ofDudh Nath candidate was vitiated on account of this per-sonation and fraud. Nevertheless, Dudh Nath's nomina-tion was improperly accepted by the Returning Officer.The nomination papers of respondents Nos. 1 and 4 werenot accompanied by separate declarations under section33(3) of the Representation of the People Act, 1951 (here-inafter referred to as the Act). These nomination paperswere liable to be rejected. Counting of votes was irregular.The design of ballot boxes did not conform to rules. Thearrangement of booths for female voters was unsatisfac-tory at several polling stations. An additional booth forfemales was created near the booth for male voters atReotipur polling station without informing the voters.Consequently several female voters of Reotipur pollingstation went away without casting their votes. Severalpanches, sarpanches, sabhapatis, mukhiyas, assessors andlicensees freely canvassed for respondent No. 1. Further,these men exercised undue influence over voters. Thisconduct amounted to violation of sections 123 and 124 ofthe Act, and rule 61-A of the Panchayat Raj Rules. Thepetitioners, therefore, prayed for a declaration that theelection of respondent No. 1, the returned candidate, isvoid, and that Sri Vireshwar Nath Rai, respondent No. 2,has been duly elected. In the alternative, it was prayedthat it be declared that the election is wholly void.
The petition was opposed by Shri Vashist NarayanSharma, respondent No. 1, the successful candidate. Hepleaded that the petition does not comply with the provi-sions of section 81 of the Act, and is not maintainablebecause the petition has been filed by three persons, andthe petitions include one candidate and two electors, andthe petitioners deposited security of Rs. 1,000 instead ofRs. 3,000 for three petitioners. Respondent No. 1 deniedthat Dudh Nath, respondent No. 4, personated for anotherDudh Nath, as alleged by the petitioners. It was deniedthat the nomination of respondent No. 4 was improperlyaccepted. It was denied that the filing of nominationpapers of respondents Nos. 1 and 4 was in any way defec-
142 DEO CHAND V. VASHIST NARAIN [VOL. VI
tive. It was denied that the persons named in the list ofparticulars canvassed for respondent No. 1. In the alter-native it was urged that, such canvassing by the said per-sons was not in violation of law. It was denied that pollingarrangements were defective as alleged in paragraph 10(b)of the petition. It was also denied that the design ofballot boxes was defective, or that counting of votes wasirregular. Respondent No. 1 urged that the alleged com-mission of corrupt practices ought to be condoned, becausehe had taken precautions to prevent the commission ofsuch corrupt practices. Sri Vireshwar Nath Rai, respon-dent No. 2, appeared before us during the hearing of thepetition, but did not file any written statement. Upon thepleadings contained in the election petition and the writtenstatement of respondent No. 1, the following issues wereframed:—
1. Whether the petition does not comply with theprovisions of section 81, Representation of the People Act,1951, and is not maintainable owing to:
(a) The petition having been filed jointly by threeelectors instead of by 'an elector'.
(b) The fact that only one amount of Rs. 1,000 hasbeen deposited as security instead of an amount of Rs.3,000 in view of three petitioners having joined in thepetition.
(c) The fact that one candidate and two electorshave joined as petitioners.
2. (a) Whether Dudh Nath, respondent No. 4, person-ated another Dudh Nath as detailed in paragraph (7) ofthe petition?
(b) Was the nomination of respondent No. 4 impro-perly accepted?
(c) If the answer to (a) or (b) is in the affirmative,whether the result of the election was thereby materiallyaffected?
3. (a) Whether the persons specified in the listattached to the petition were employed by, or worked forrespondent No. 1 as his polling agents and canvassers?Did they exercise improper influence as detailed in para-graphs 8, 8 (a) and 8(b) of the petition? If so, whetherrespondent No. 1 is guilty of commission of major and
E.L.E.] DEO CSAND V. VASHIST KAKAtN 143
minor corrupt practices under section 123(2), (7) and (8)with Explanation (b), section 124 and section 100(2),clauses (a) and (b) of the Representation of the People Act,1951?
(b) Whether by employing panches, sarpanches,presidents of gaon panchayats or gaon sabhas, licensees,assessors, village headmen, and presidents of panchayatiadalats specified in the list appended to the petition, res-pondent No. 1 is guilty of non-compliance with, andbreach of, statutory rules within the meaning of section100(2)(c), Representation of the People Act, 1951, readwith rule 61-A of the Panchayat Raj Act Rules?
4, 5, 6 and 7.—[Not material for this report.]8. To what relief, if any, are the petitioners entitled?9. Were the nomination papers of respondent Nos.
1 and 4 improperly accepted for reasons given in para-graph (9) of the petition?
Issue No. 1.—The petition purports to have been filedby three electors of the constituency, to which the elec-tion relates. Respondent No. 1 conceded that the threepetitioners are electors in the constituency. But it ispointed out that Chandrahas, petitioner No. 2, was alsoa candidate for the election. This fact has been admittedby the petitioners. That is why Chandrahas was againimpleaded in the petition as respondent No. 7. The ques-tion for consideration is whether the filing of the petitionby the three petitioners is regular.
Section 81 of the Act deals with the presentation ofpetitions. "An election petition calling in question anyelection maybe presented by any candidate at suchelection or any elector " It was urged on behalf of therespondents that it is open to one candidate or one electorto file an election petition. But it is not open to two elec-tors, or one candidate and one elector, to file a joint elec-tion petition. It is true that there is no specific provisionin the Act for the filing of an election petition by two elec-tors, or by a candidate and an elector. But there is sec-tion 13 of the General Clauses Act, 1897, which lays downthat, "In all Central Acts, words in the singular shallinclude the plural". And the principle of Order I, rule 1,Civil Procedure Code, may be reasonably applied. It lays
144 DEO OHAND V. VASHIST NARAItf jvOL. VI
down that "All persons may be joined in one suit as plain-tiffs in whom any right to relief in respect of or arisingout of the same act, is alleged to exist , whether jointly,severally or in the alternative, where, if such personsbrought separate suits, any common question of law orfact would arise". Moreover, section 87 of the Act enablesa tribunal to consolidate two connected election petitionsin respect of the same election. There is no materialdifference between the consolidation of two identical elec-tion petitions and the filing of one election petition bytwo or more electors or candidates. If two or more elec-tors or candidates have to challenge an election petitionon identical grounds, there is not much point in filingseparate election petitions. In our opinion it is permis-sible for three electors to join as petitioners in an electionpetition. There can also be no objection if one candidateand two electors join in an election petition.
Section 117 of the Act deals with deposit of security.It says: "The petitioner shall enclose with the petition aGovernment Treasury receipt showing that a deposit ofone thousand rupees has been made by him as securityfor the costs of the petition". It is true that the section re-quires the petitioner to deposit Rs. 1,000. But the sectioncontemplates a deposit of" Rs. 1,000 per petition. Theobject of demanding the security is to provide for costs ofthe petition. The costs of the petition Avould be the samewhether the petition is filed by one person or by threepersons. In our opinion it was sufficient for the three peti-tioners to deposit a sum of Rs. 1,000 as security undersection 117 of the Act. The objections raised underclauses (a), (b) and (c) of this issue are without force. Wedecide issue No. 1 against respondent No. 1, and hold thatthe election petition is maintainable. It complies with theprovisions of section 81 of the Act.
Issue No. 2 (a).—This issue relates to the nominationof Dudh Nath, respondent No. 4. The petitioners' case isthat Dudh Nath, candidate, in his nomination paper gavereference to another Dudh Nath of village Baruin. It isconceded on behalf of respondent No. 1 that there is an-other man Dudh Nath referred to in the petition. ThatDudh Nath was produced before the tribunal as D.W. 22.It is common ground that Dudh Nath, candidate, is a
E.L.R.] DEO CHAND V. VASHIST NARAIN 145
permanent resident of village Gahmar, that he used towork as a teacher at Zamania High School, and that thesecond Dudh Nath is a Kahar by caste. It will be con-venient to refer to the candidate as Dudh Nath Singhteacher, and to the second Dudh Nath as Dudh NathKahar. In his nomination paper Dudh Nath candidate,mentioned that he was an elector shown at serial No. 593in the electoral roll for village Baruin in Ghazipur (South-West) Constituency No. 346. According to the petitionersthe entry at serial No. 593 relates to Dudh Nath Kahar.According to respondent No. 1, the entry relates to DudhNath Singh teacher. The entry in dispute runs thus:
"Serial No. House No. and name of village Name593 167 Baruin Dudh Nath
Name of father or husband Male or female. AgeEarn Krit Male 31"
The entry contains particulars of Dudh Nath elector. Inorder to decide whether the entry relates to Dudh NathSingh teacher or to Dudh Nath Kahar it is necessary toconsider the full description of the two men.
[After discussing the evidence the tribunal held asfollows: From all these considerations we are satisfied that,the entry in dispute shown at serial No. 593 in the elec-toral roll of village Baruin relates to Dudh Nath Kaharand not to Dudh Nath Singh candidate.]
It has been pointed out on behalf of respondent No. 1that, apart from the entry in dispute, the teacher was anelector from his own village Gahmar. Ex. K is a copyfrom the relevant entry in the electoral roll of villageGahmar. That entry runs thus:
Serial No.5256
Name of father or husbandSheodeni
House No. and name of village1400 GahmarMale or female
Male
NameDudh Nath
Age39"
Raghunayak Rai (D.W. 36), who is Vice-Chairman of theDistrict Board, said that Dudh Nath Singh's house No. is1400. Thus the teacher's description tallies with the des-cription given in Ex. K. Respondent No. 1 has provedthat Dudh Nath Singh candidate, was an elector in villageGahmar. It was urged by Sri S. C. Khare, appearing forrespondent No. 1, that the candidate had no reason topersonate another Dudh Nath in view of the fact that the
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146 DEO CHAND V. VASHIST NAfeAlN [VOL. VI
teacher was an elector in his own village Gahmar. It maybe that the teacher was unaware of the entry Ex. K, whenhe filed the nomination paper on 24th November, 1951.Otherwise he would not have filed a copy of the electoralroll of Baruin which is in another constituency. Thatappears to be the reason why the teacher found it neces-sary to make use of his temporary residence at villageBaruin.
In the nomination form (Exs. A and 4), the candi-date gave his name as Dudh Nath, and not Dudh NathSingh. The parentage given was Shivadeni alias RamKrit. The age noted was 31 years. The address wasvillage and post office Gahmar. Serial No. 7 of the nomi-nation paper was for the constituency in which the candi-date is an elector. Here the candidate mentioned Gahmar(South-West), No. 346. Serial No. 8 of the form was forthe serial number of the electoral roll. Here the candi-date noted No. 593 of circle Baruin. The candidate musthave known that his father's name was not Ram Krit, andthat the candidate's age was not 31 years. Dudh NathSingh made wrong entries against items Nos. 7 and 8 in thenomination paper in order to make it appear that thecandidate was Dudh Nath elector of Baruin. We holdthat Dudh Nath, respondent No. 4, personated Dudh NathKahar, as pleaded by the petitioners.
* * * *Now we come to part (b) of issue No. 2. Sri A. P. Pande
appearing for the petitioners urged that Dudh Nath'snomination paper was not properly presented as requiredby section 33 of the Act, and the Returning Officer im-properly accepted Dudh Nath's nomination. Section 33of the Act deals with presentation of nomination paperand requirements for a valid nomination. Section 36 dealswith scrutiny of nominations. Sub-section (2) of section36 empowers the Returning Officer to reject a nominationon a variety of grounds. Five grounds have been speci-fied under clauses (a) to (e) of section 36(2). Clause (a) is"that the candidate is not qualified to be chosen to fill theseat under the Constitution or this Act". We have seenthat, although Dudh Nath Singh teacher was not an elec-tor from Baruin, he was an elector in village Gahmar. As
E.L.R.] DEO CHAND V. VASHIST NARAIN 147
such, the candidate was qualified to fill the seat. Therewas no disqualification under clause (a) of section 36(2). SriPande, however, relied upon clause (d) of section 36(2).Clause (d) is "that there has been any failure to complywith any of the provisions of section 33 or section 34". Itwas urged that Dudh Nath Singh candidate failed tocomply with the provisions of section 33(1). Section 33(1)requires that "each candidate shall deliver to theReturning Officer a nomination paper completed in theprescribed form ". Sri S. C. Khare urged that DudhNath's nomination paper was completed in the prescribedform. This position was not accepted by Sri Pande.
No doubt Dudh Nath Singh filled up all the entries inhis nomination form. But we have seen that the entriesmade by him against serial numbers 3, 7 and 8 of the formwere incorrect. The object of filling up the nomination formis to satisfy the Returning Officer (and perhaps also othercandidates) about the identity and eligibility of the candi-date for election. If the candidate is an elector from someother constituency, the Returning Officer compares theentries of the nomination paper with the electoral roll ofthat constituency in order to satisfy himself that thecandidate is an elector in that constituency. The words"completed in the prescribed form" necessarily implythat the entries must be true or substantially correct.Giving wrong particulars is worse than keeping thenomination paper blank. Dudh Nath Singh candidategave wrong references in his nomination paper in order topass off as Dudh Nath elector of village Baruin. In viewof the wrong particulars supplied, it cannot be said thatthe nomination paper was completed in the prescribedform. Sub-section (4) of section 36 states: "The Return-ing Officer shall not reject any nomination paper on theground of any technical defect which is not of a substan-tial character."- The defects in Dudh Nath Singh's nomi-nation paper cannot be treated as technical defects. Hedeliberately gave wrong particulars in the nominationpaper in order to mislead the Returning Officer. DudhNath Singh did not appear before us. We, therefore, donot wish to be severe upon him. But we cannot help re-marking that Dudh Nath Singh candidate deceived the
148 DEO OHAND V. VASHIST NAB.AIN [VOL. VI
Returning Officer. Had the Returning Officer been awareof the fraud, he could not accept the nomination. TheReturning Officer cannot be blamed for accepting DudhNath Singh's nomination form. For, Sri Vireshwar NathRai did not produce evidence before the Returning Officerin support of the objection. But upon the material beforeus we have found that there was a serious defect in DudhNath Singh's nomination paper. The nomination paperwas not presented as prescribed by section 33(1) of theAct. The nomination should have been rejected underclause (d) of section 36(2). We hold that the nominationof respondent No. 4 was improperly accepted.
Issue No. 2{c).—The question now arises whether theresult of the election has been materially affected as aresult of improper acceptance of the nomination of respon-dent No. 4. According to section 100(1) (c) of the Act,the tribunal has to declare the election to be wholly voidif the result of the election has been materially affected bythe improper acceptance or rejection of any nomination.Section 100 (1) (c) contemplates three cases; (1) rejectionof any nomination, (2) improper acceptance of the nomi-nation of the returned candidate, and (3) improper accept-ance of the nomination of any other candidate. There isample authority in support of the proposition that in thecase of the rejection of any nomination, a presumptionarises that the result of the election is materially affected.For, in such a case the electors are deprived of an oppor-tunity to return the candidate who was wrongly disquali-fied. In the second case also it is obvious that the resultof the election is materially affected. For, in such cases,voters were induced to return a candidate who was infact disqualified. Such a situation arose in Pyare Lai v.Amba Prasad (x). It was found that nomination of thereturned candidate Amba Prasad had been improperlyaccepted. The Election Commissioners observed:—"It isnow well settled that when the nomination paper of acandidate has been improperly rejected, the ordinary pre-sumption is that the result of the election has been materi-ally affected. Improper acceptance or refusal of a nomi-nation paper by the Returning Officer in our view is sograve an irregularity that this presumption would require
(1) 4 Jagat Narain 4,
E.L.R.] DEO CHAND V. VASHIST NARAIN 149
the strongest and most conclusive proof for its rebuttal,and it lies heavily on the respondent to rebut the presump-tion so raised. Since the nomination paper of the returnedcandidate had been improperly accepted, there was reallyno difficulty in holding that the result of the election hadbeen materially affected." If the observations just quotedwere meant to apply to the case of the improper accep-tance of the nomination of a candidate other than thereturned candidate, the language was perhaps unduly wide.We agree with Sri S. C. Khare that, it is for the peti-tioners to prove that the result of the election has beenmaterially affected by the improper acceptance of thenomination.
In order to interpret section 100(1) (c) of the Actcorrectly, one has to find out the real meaning of the twoexpressions, 'result of the election' and 'materially affect-ed'. The expression 'result of the election' is capable oftwo meanings. The expression may mean the declarationthat a certain candidate has been duly elected. Or theexpression may mean the result sheet mentioning the num-ber of votes obtained by the various candidates. If theexpression is understood in the first sense, it is difficult tounderstand how the result can be materially affected. Theelection of the returned candidate has either to stand orto fall. One cannot properly conceive of an intermediatestage. But the expression 'materially affected' suggestsvarious grades of effects. In Bellary Mohammadan RuralConstituency 1947 case(1), it was held that the result of theelection means the names of the candidates in the orderof the poll with the number of votes polled for each, andthat 'materially affected' means that the majority of thereturned candidate would have been materially reduced.We are inclined to accept this interpretation of clause (c)of section 100(1) of the Act.
The tribunal has to decide upon evidence whetherthe result of the election has been materially affected as aresult of improper acceptance of the nomination. In thepresent case respondent No. 1, who was the successfulcandidate, secured 12,868 votes. Respondent No. 2 received10,996 votes. Dudh Nath, respondent No. 4, got 1,983votes. The difference of votes captured by respondents
(1) Sen & Poddar 136.
150 DEO CHAND V. VASHIST NARAIH [VOL. VI
Nos. 1 and 2 was 1,872. It is to be noted that the diff-erence of votes received by respondents Nos. 1 and 2 wasless than the votes received by DudhNath, respondent No.4. In Bulandshahar District (East), 1921 (x) the Elec-tion Commissioners made calculation in order to find outthe approximate number of votes that were likely to goto different candidates during the period for which votinghad to be suspended.
Sri S. C. Khare placed strong reliance upon a decisionof the Election Tribunal at Rewa dated 26th March, 1953,in Udainath Singh v. Jagat Bahadur Singh(z). In thatcase Jagat Bahadur Singh, respondent No. 1, was the re-turned candidate. He received 6,137 votes. It was foundthat Shiva Bahadur Singh respondent No. 2, who received4,317 votes, was not qualified for election. The tribunalobserved: " The petitioner must prove in this casethat the respondent No. 1 would not have succeeded inthe election if he (Raja Shiva Bahadur Singh), the dis-qualified candidate, respondent No. 2, was not in the field
It may, therefore, be safely inferred that in the ab-sence of respondent No. 2 his votes would have not goneon en bloc to respondent No. 3, but would certainly havebeen divided among the other candidates. The usualmanner of distributing such votes is to act on the per-centage of votes obtained by such candidates". We arenot aware of any such general practice of distributing thewasted votes on percentage basis.
Sri A. P. Pande relied upon a decision of the ElectionTribunal, Bhagalpur, Lalchan Lai Mishra v. Tribeni Kumar& Other s(3). There also the tribunal had to find out whe-ther the result of the election had been materially affecteddue to improper acceptance of the nomination. Thetribunal observed as follows:—"If the number of votessecured by the candidate whose nomination paper hasbeen improperly accepted is lower than the difference bet-ween the number of votes secured by the successful candi-date and the candidate who has secured the next highestnumber of votes, it is easy to find that the result has notbeen materially affected. If, however, the number ofvotes secured by such a candidate is higher than the differ-ence just mentioned, it is impossible to foresee what the
(1) Hammond 217. (2) 3 E.L.R. 26. (3) 3 E.L.R. 423.
E.L.K.] DEO CHAND V. VASHIST NARAIN 151
result would have been if that candidate had not been inthe field. It will neither be possible to say that the resultwould actually have been the same or different nor thatit would have been in all probability the same or differ-ent". We respectfully agree. The principle lays downa sound working rule in deciding in such cases whetherthe result of the election has been materially affected as aresult of improper acceptance of the nomination.
In such cases the tribunal has to decide whetherupon the evidence the result of the election has been mate-rially affected. If circumstances are such that it can be saidwith reasonable certainty that the returned candidate wasbound to be elected even in the absence of the provedirregularity, the tribunal may say so. But the ElectionTribunal cannot usurp the functions of the electorate. Itis for the electors to say whether this candidate or thatcandidate should be returned. An Election Tribunal is notentitled to substitute its judgment for the wishes of theelectorate. In the present case we have seen that DudhNath, respondent No. 4, received 1,983 votes, and the diff-erence of votes of respondents Nos. 1 and 2 was 1,872. SriS. C. Khare argued that even if respondent No. 1 had re-ceived only 56 out of DudhNath's 1,983 votes, respondentNo. 1 was sure to get elected. The argument is sound so faras it goes. But how can we be sure that respondent No. 1was bound to get at least 56 out of Dudh Nath's 1,983votes? Chandrahas (P.W. 1) said that had Dudh Nathnot been in the field, all those votes would have gone torespondent No. 2. On the other hand defence witnessessaid that Dudh Nath's votes would have gone to respon-dent No. I. We are not impressed with this oral evidenceabout the probable fate of votes wasted on Dudh NathSingh. Considering that Dudh Nath, respondent No. 4,received more votes than the margin of votes by whichrespondent No. 1 was returned we are constrained to holdthat there was a reasonable possibility of respondent No.2 being elected in place of respondent No. 1, had DudhNath Singh not been in the field. We hold that the resultof the election was materially affected due to improperacceptance of the nomination of respondent No. 4.
Issue No. 3(a).—The allegation under this issue isthat several persons, such as village panches, mukhiyas,
152 DEO CHAND V. VASHIST NARAIN [VOL. VI
etc., who were disqualified under section 123(8) of the Act,canvassed for respondent No. 1. Section 123 of the Actcontains a list of major corrupt practices. Section 123(8)says:—"The obtaining or procuring or abetting or at-tempting to obtain any assistance for the further-ance of the prospects of the candidate's election from anyperson serving under the Government of India or the Gov-ernment of any State other than the giving of vote bysuch person.
Explanation.—For the purposes of this clause (b)a person serving under the Government of any State shallinclude a patwari, chaukidar, defedar, zaildar, shanbagh,karnam, talati, talari, patil, village munsif, village head-man or any other village officer, by whatever name he iscalled, employed in that State, whether the office he holdsis whole-time office or not... ". The question for decisionis whether panches, mukhiyas, etc. come within the prohi-bited class denned by section 123(8).
The prohibition under consideration is with respectto "any person serving under the Government of India orthe Government of any State". This expression roughlycorresponds to the common phrase "Government servant".The expression "Government servant" usually implies twothings: (a) appointment and control by Government, and(b) relationship of employer and employee with remuner-ation. The principle underlying section 123 (8) appearsto be this. The Legislature was anxious to secure fairelections. Government servants are likely to come underthe influence of the party which happens to be in powerat the moment. It was, therefore, considered expedient toprohibit Government servants from taking part in elec-tions.
Clause (b) of the Explanation to section 123 (8) of theAct contains a long list of village officers. The question fordecision is whether panches, mukhiyas, etc. are villageofficers within the meaning of clause (b). Sri S. C. Kharereferred to local laws of different States in India in order toshow that some sort of remuneration is attached to everyoffice named in clause (b). For example, section 16 of theBombay Land Revenue Code, 1879, mentions stipendiarypatels. Section 28 of the Punjab Land Revenue Act of
B.L.R.] DEO CHAND V. VASHIST NARAIN 153
1887 refers to payment to be made by Government tozaildars. It is well known that patwaris and chaukidarsin U.P. are paid by Government. The question was raisedwhy it was necessary at all to mention patwari and chauki-dar in the explanation. For, they are obviously Govern-ment servants. It may be that no doubt about patwarisand chaukidars was likely to arise in Uttar Pradesh. Butconditions of service of patwaris and chaukidars in otherStates may be different. It was made clear in clause (b)that it was immaterial whether service is wholetime ornot.
The term "village headman" used in clause (b) createssome difficulty.' Sri A. P. Pande urged that mukhiyas arevillage headmen. But Sri S. C. Khare argued that muk-hiyas of U. P. are not village headmen. Section 45, Cr. P.C. lays down that, village headmen, accountants, etc. arebound to report certain matters to the police. Section45(3), Cr. P. C, states: " The District Magistrate orSub-Divisional Magistrate may from time to time appointone or more persons, with his or their consent, to performthe duties of a village headman under this section whethera village headman has or has not been appointed forthat village under any other law". U. P. Government hasmade certain rules on the subject. According to para-graph 1099 of the Manual of Government Orders, the Dis-trict Magistrate shall appoint one or more village headmenfor the purpose of section 45, Cr. P. C, in each inhabitedvillage in his district. Parties were agreed that personsappointed by the District Magistrate under paragraph 1099of the Manual of Government Orders are commonly knownin U. P. as mukhiyas. It is, therefore, fairly clear that amukhiya of U. P. is a village headman for purposes of sec-tion 45, Cr. P. C.
But Sri S. C. Khare argued that mukhiyas are notvillage headmen for the purposes of section 123(8) of theAct. The language of section 45, Cr. P. C, suggests thatvillage headmen might be appointed under laws other thanthe Code of Criminal Procedure. In Abdul Roufv. MakhtarAUQ) the Election Tribunal had to deal with gaonburahsof Assam. The tribunal found that a gaonburah is really
(1) 2 E.L.R. 340.
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154 DEO CHAKB V. VASHIST 2* ABAIN [VOL. VI
a village headman employed by the Government of Assamfor performing some public duties. He is a person servingunder the Government, and that for consideration receivedin the shape of revenue remission for some land held byhim. Similarly in Lahri Singh v. Attar Singh^) the Elec-tion Tribunal observed that a lambardar was a villageheadman according to the connotation of that term inPepsu. It is to be remembered that the Representationof the People Act, 1951, is an Act passed by the Parliamentfor the whole of India. The expression "village headman"appearing in clause (b) of section 123(8) of the Act musthave been used in a general sense, and not in the restrictedsense of a mukhiya of U. P. It was conceded that muk-hiyas of U. P. do not receive any remuneration from theGovernment. But there is reason to believe that villageheadmen in other parts of India receive some kind of remu-neration.
After specifying a number of posts, clause (b) pro-ceeds—"or any other village officer, by whatever name heis called, employed in that State". Sri Pande argued thatthe offices of panches, mukhiyas, etc. are covered by thegeneral expression "any other officer, by whatever namehe is called, employed in that State". Under explanation(b) every village officer is not disqualified. The disquali-fication attaches to only those village officers who are em-ployed in that State. The expression "employed in theState" raised a certain amount of controversy. In theConcise Oxford Dictionary the meaning of the verb "toemploy" is given as follows:—
"Use (thing, one's power, etc. for, in, on, about, anobject); use services of (person); keep (person) in one'sservice; busy, keep occupied (oneself, others, doing, inetc.)". Sometimes the verb "to employ" is used to denotekeeping occupied. But the primary meaning of the verb"to employ" appears to be to keep a person in one's service.It is to be remembered that the expression "employed inthat State" appears in an explanation. Sri A. P. Pandeargued that an explanation may enlarge the scope of themain section. But the object of an explanation in a statuteis to clarify the meaning of obscure or doubtful language
(1) 3 E.L.R. 403.
E.L.R.] DEO CHAND V. VASHIST NARAIN 155
of the main section. Clause (b) of the explanation itselfopens with the words "a person serving under the Govern-ment of any State shall include". Thus the context sug-gests that, the expression "serving under the Governmentof any State" and "employed in that State" are analogousexpressions. So the expression "employed in that State"should be taken in the sense of service under Government.It, therefore, appears that the prohibition contained insection 123 (8) and clause (b) of the explanation is con-fined to Government servants. We have seen that muk-hiyas of U. P. receive no remuneration from Government.Mukhiyas cannot, therefore, be classed as Governmentservants. They do not come within the prohibition ofsection 123(8).
Now we have to see whether village panches are withinthe prohibited class. For this purpose it becomes neces-sary to examine the provisions of the U.P. PanchayatRaj Act, 1947. Section 4 of the Act provides for incorpora-tion of gaon sabhas. The gaon sabha elects a Presidentunder section 11 of that Act. Gaon panchayats are formedunder section 12 of that Act by election. Section 128 ofthat Act lays down that every member of a panchayatiadalat or a gaon panchayat shall be deemed to be a publicservant within the meaning of section 21 of the IndianPenal Code. It is true that under section 28, U.P. Pan-chayat Raj Act, panches have been declared to be publicservants. But it does not follow that they must be Gov-ernment servants. The expression "public servant" hasbeen defined in section 21, I.P.C., while the expression"servant of Government" has been defined in section 14,I.P.C. Section 14, I.P.C., states: "The words 'servant ofGovernment' denote any officer or servant continued, ap-pointed or employed, in India by or under the authorityof Government". It has been seen that panches are elect-ed and not appointed by Government. They receive noremuneration. They cannot, therefore, be considered to beGovernment servants. The same remark applies to sabha-patis.
In Bejaysingh v. Narbada Gharan Lal^), it was held bythe Election Tribunal, Bhopal, that an assessor does nothold any office under Government. An assessor attends the
(1) 2 E.L.B. 42Q,
156 DEO CHAND V. VASHIST NARAIN [VOL. VI
Sessions Court to assist in the trial of cases. No doubt hereceives some payment from the court to compensate himfor the loss of his time. But this payment cannot betreated as salary paid by Government. It is merely anallowance to compensate him for the loss of his time. Weagree with the Election Tribunal, Bhopal, that an assessoris not a person serving under Government. Similarly, itmay be shown that a licensee is not a Governmentservant. Frequently, a shopkeeper receives a license fromGovernment for selling cloth, grain, etc. But such licencedoes not make the shop-keeper a Government servant.We, therefore, hold that a mukhiya, a sabhapati, a panch,an assessor, or a licensee is not a person serving under theGovernment of India or the Government of any State forpurposes of section 123(8), Representation of the PeopleAct, 1951.
Petitioners produced a good deal of evidence to showthat several mukhiyas, panches and sabhapatis canvassedfor respondent No. 1. We have shown that such canvas-sing is not prohibited by section 123(8) of the Act. So, forpurpose of issue No. 3(a), it is not necessary to decide thequestion whether these persons indulged in canvassing forrespondent No. 1, as alleged by the petitioners. The peti-tioners also alleged that these persons exercised undueinfluence on voters. For example, Ram Prasad Tewari(P.W. 18) said that, certain persons brought pressure uponvoters to vote for Vashist Narayan. This evidence aboutalleged undue influence by village officials is not reliable.Since the commission of any corrupt or illegal practice hasnot been proved, clauses (a) and (b) of sub-section (2) ofsection 100 of the Act have no application. We decidepart (a) of issue No. 3 against the petitioners.
Issue No. 3(b).—Under this issue we have to considerwhether respondent No. 1 has violated rule 61-A of thePanchayat Raj Rules. Rule 61-A lays down that " nosarpanch or panch shall take part in any election to alocal body other than a gaon panchayat of panchayatiadalat, or to the State Legislature in any area within hisjurisdiction otherwise than by casting his own vote as anelector". This rule has been made by the State Govern-ment under section 110 of the U.P. Panchayat Raj Act. SriS. C. Khare argued that rule 61-A is ultra vires the StateGovernment.
E.L.B.] DEO CHAND V. VASHIST NARAIN 157
In support of this contention Sri Khare referred usto a decision of the Allahabad High Court dated 20thNovember, 1951, upon a writ application, Bam. Nath Dubev. The State of U.P. (x). In that case the High Court hadto consider the validity of rule 12 of the Municipal Servants'Conduct Regulations. Rule 12 ran thus: "Election toa local authority, a panchayati adalat or legislative bodies.—A municipal servant shall not, by canvassing or other-wise, interfere or in any way, use his influence in connec-tion with, or stand as a candidate, in any election to alocal authority or a panchayati adalat or a legislativebody, or continue to be an elected member of office there-of, but may vote in such an election, if qualified to do so,in which case he shall avoid giving any indication of themanner in which he proposes to vote or has voted". TheHigh Court held that the State Government was not com-petent to make the rule. Rule 12 purported to have beenmade by the State Government under the powers con-ferred upon it by section 296 of the U.P. MunicipalitiesAct, 1916. Section 296 of the U.P. Municipalities Act states:"(1) The State Government shall make rules consistentwith this Act in respect of the matter described in sections29, 43-A, 44-A, 95, 127, 153, 235 and 248. (2) The' StateGovernment may make rules consistent with this Act (a)providing for any matter for which power to make provi-sion is conferred expressly or by implication on the StateGovernment by this or any other enactment in force atthe commencement of this Act, and (b) generally forguidance of a Board or any Government Officer in anymatter connected with the carrying out of the provisionsof this or any other enactment relating to Municipalities".Rule 61-A now in dispute was framed by the State Gov-ernment under section 110 of the U.P. Panchayat RajAct. Section 110(1) of the U.P. Panchayat Raj Actstates: "The State Government may, subject to the con-dition of previous publication by notification in the OfficialGazette, make rules consistent with this Act to carry outthe purposes of this Act". On comparing the language ofsection 110 of the U.P. Panchayat Raj Act with thelanguage of section 296, U.P. Municipalities Act, one findsthat the power conferred upon the State Government under
(1) Civil Miscellaneous No. 7095 of 1951,
158 DEO CHAND V. VASHIST NARAIN [VOL. VI
section 110 of the U.P. Panchayat Raj Act, is somewhatwider than the power conferred by section 296 of the U.P.Municipalities Act. Under section 110, U.P. PanchayatRaj Act, the State Government may make any rule con-sistent with the Act to carry out the purposes of the Act.One may not agree with the principle of rule 61-A. Butthe rule cannot be declared invalid on the ground of un-reasonableness. The rule is not inconsistent with theAct. The State Government might have felt that it wasnot proper for a member of a panchayati adalat to indulgein party politics. In making rule 61-A the State Govern-ment did not exceed the power conferred upon it by sec-tion 110, U.P. Panchayat Raj Act.
Sri Khare referred to articles 327 and 328 of the Con-stitution. Article 327 deals with the power of Parliamentto make provisions with respect to elections to Legisla-tures. Article 328 deals with the power of a Legislatureof a State to make provisions with respect to elections tosuch legislature. Article 328 states: "Subject to the pro-visions of this Constitution and in so far as provision inthat behalf is not made by Parliament, the Legislatureof a State may from time to time by law make provisionwith respect to all matters relating to, or in connectionwith, the elections to the House or either House of theLegislature of the State ". This articleclearly recognises the power of a State Legislature relatingto election matters. Under section 123(8), Representationof the People Act, 1951, Parliament made a law prohibit-ing Government servants from taking part in elections.But we have already seen that section 123(8) of the Actdoes not touch panches of village panchayats. It was,therefore, open to the State Legislature to make a law pro-hibiting panches from taking part in elections to theState Legislature. Under section 110, U.P. PanchayatRaj Act, the State Legislature authorised the State Gov-ernment to make rules consistent with the Act to carryout the purposes of the Act. By implication the Legis-lature authorised the State Government to make provi-sion for efficient administration of panchayati adalats.We are of opinion that, rule 61-A of the U.P. PanchayatRaj Rules is not ultra vires the State Government.
• For purposes of this issue it is not necessary to con-
E.L.R.j DEO CHAND V. VASHIST NARAIN 159
sider the alleged canvassing by mukhiyas and sabhapatis.It will be sufficient to consider the evidence led by peti-tioners to show that certain panches canvassed for res-pondent No. 1. On the evidence the tribunal found thatcertain panches canvassed for respondent No. 1.
The petitioners have proved that certain panchesworked as polling agents for respondent No. 1. It wasargued for respondent No. 1 that working as a pollingagent does not amount to assistance contemplated by rule61-A, U.P. Panchayat Raj Rules. We do not agree. It maybe that a polling agent is sometimes of help to the presid-ing officer of the polling station. But that is not the maintask of the polling agent. The primary object of a pollingagent is to safeguard the interest of his principal, at thepolling station. The polling agent watches whether thepolling arrangements are satisfactory, whether his candi-date's supporters are getting facility to cast their votes,and whether fictitious votes are being cast in the ballotboxes of rival candidates. There is, therefore, no doubtthat a polling agent assists the candidate for whom he isworking.
Section 100(2) (c), Representation of the PeopleAct, 1951 states: "If the Tribunal is of opinion thatthe result of the election has been materially affectedby any non-compliance with the provisions of any rulesor orders made under this Act or of any other Act orrules relating to the election, the Tribunal shalldeclare the election of the returned candidate to be void".Under section 100(2) (c) it is not enough to show thatany rule has been violated. The petitioners have furtherto show that the result of the election has been materiallyaffected by such non-compliance with the rule. In thepresent case the petitioners have proved that certainpanches canvassed for respondent No. 1, and worked as hispolling agents. This conduct amounted to a breach of rule61-A of the U.P. Panchayat Raj Rules. But the petitionershave not shown to what extent this irregularity affectedthe result of the election. We are prepared to assume thatthe canvassing by the six panches influenced a few voters.But it is not enough to show that there was some effectof the canvassing. The petitioners have to show that theresult of the election was materially affected. If polling is
160 DEO CHAND V. VASHIST NARAIK [VOL. VI
conducted in a regular manner, the working by a pollingagent may not affect the election at all. So our finding onthis issue is that, although there was a breach of rule 61-Aof the U.P. Panchayat Raj Rules, it has not been provedunder section 100(2) (c) of the Representation of thePeople Act, 1951, that the result of the election wasmaterially affected due to non-compliance with rule 61-A.
Issues Nos. 4, 5, 6 and 7.—[Omitted].Issue No. 9.—The question raised under this issue
relates to the nomination papers of respondents Nos. 1and 4. Reference was made to section 33(3) of the Actwhich runs thus: "Every nomination paper deliveredunder sub-section (1) shall be accompanied by a declara-tion in writing subscribed by the candidate that thecandidate has appointed as his election agent for theelection either, himself or another person and whoshall be named in the declaration, and by such otherdeclarations, if any, as may be prescribed; and no candi-date shall be deemed to be duly nominated unless suchdeclaration is, or all such declarations are, delivered alongwith the nomination paper". The form of nominationpaper has been prescribed in Schedule II of the Represen-tation of the People (Conduct of Elections and ElectionPetitions) Rules, 1951. This form provides for a ref-erence to the appointment of election agent. Under thisentry respondent No. 1 mentioned that he had appointedhimself as his election agent. It is of course permissiblefor a candidate to appoint himself as his election agent.But the question has been raised whether the appointmentshould be in the nomination paper itself or separately.Section 33(3) of the Act lays down that the nominationpaper shall be accompanied by a declaration about theelection agent. Further, such declaration has to be deli-vered along with the nomination paper. The language ofsection 33(3) shows that there should be a separate de-claration in addition to the nomination paper. Respon-dent No. 1 filed certain forms, which purport to be declara-tions appointing himself as polling agent. The signatureson these forms of appointment of election agent have notbeen proved. But they appear to have been filed beforethe Returning Officer on 24th November, 1951. The nomi-nation paper of respondent No. 1 was also filed on the
E.L.B.] DEO CHAND V. VASHIST NARAIN
same day. We, therefore, take it that the necessary de-clarations were delivered along with the nomination papersof respondent No. 1, as prescribed by section 33(3).
As regards the nomination paper of respondent No. 4,the position is slightly different. Ex. A is a copy of thenomination paper of respondent No. 4. At the bottom ofpage one of this form we find an entry relating to theappointment of an election agent. The form provides forthe appointment of some other person, or the candidatehimself in the alternative. But neither of these two alter-natives has been cancelled in Ex. A. The form does not,therefore, show whether Dudh Nath appointed himself oranybody else as his election agent. There is no separatedeclaration contemplated by section 33(3). It appearsthat Dudh Nath's nomination paper was not filed as re-quired by section 33(3).
But section 36(4) enables the Returning Officer tocondone technical defects. It has not been shown thatthe irregularity committed by Dudh Nath candidate hasprejudiced any other candidate on merits. We, therefore,hold that so far as the requirements of sub-section (3) ofsection 33 of the Act are concerned, there was no defectrelating to the nomination papers of respondent No. 1 andthat there was irregularity relating to the nominationpaper of respondent No. 4, but the irregularity could becured under sub-section (4) of section 36 of the Act. Thisissue is decided against the petitioners.
Issue No. 8.—We have found under issue No. 2 thatthe nomination of respondent No. 4 was improperlyaccepted, and that the result of the election was therebymaterially affected. The present case, therefore, fallsunder clause (c) of section 100(1), Representation of thePeople Act, 1951. This tribunal must, therefore, declarethe election to be wholly void. Since the election is whollyvoid, there is no question of our declaring that respondentNo. 2 has been duly elected. There must be re-electionin the constituency.
As regards costs, we note that the election is beingdeclared void, because the nomination of respondent No.4 was defective. Sri Vireshwar Nath Rai, respondent No. 2,
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162 HTJKAM SINGH V. SABDUL SINGH [VOL. VI
raised an objection before the Returning Officer, butdid not adduce evidence before him in support of theobjection. Respondent No. 1 has supported the nomina-tion of respondent No. 4 as valid nomination throughoutthe hearing of the election petition. In these circum-stances we decide that respondent No. 1 should be orderedto pay the petitioners Rs. 500 towards their costs.
OBDEB.—The election petition is allowed. Under sec-tion 100(1)(c), Representation of the People Act, 1951, wedeclare the election to the U.P. State Legislative Assemblyfrom Ghazipur (South-East) Constituency, Ghazipur No.345, held in January and February, 1952, to be whollyvoid. The seat in the U.P. Legislative Assembly from thisconstituency is still lying vacant. Under section 99, Re-presentation of the People Act, 1951, it is declared that nocorrupt or illegal practice has been proved against respon-dent No. 1. We direct that Sri Vashisht Narayan Sharmashall pay the petitioners Rs. 500 as costs. The respondentsshall bear their own costs. The petitioners are entitled toget refund of their security deposit of Rs. 1,000.
Election declared void.
[PBPSTT HIGH COUBT.]
HUKAM SINGH AND ANOTHERv.
SARDUL SINGH AND OTHERS.TEJA SINGH, C.J., and PASSEY, J.
April 28, 1953.High Courts—Power to issue writ against order of Election Tribunal—
When writ will be issued—Guiding principles—Delay in applying forwrit, effect of—Election petition—Parties—Candidates who have withdrawn—Whether necessary parties—Power to implead at a later stage—Power toamend pleadings generally—Representation of the People Act, 1951, ss. 82,90(2), 105—Constitution of India, arts. 226, 227, 829(b).
Per TEJA SINGH, C. J., and PASSEY, J.—An Election Tribunal con-stituted to determine an election petition after the result of the electionhas been declared, is subject to the superintendence and control of theHigh Court under article 227 of the Constitution. The High Court wouldnot, however, interfere under article 227 in any matter which relates to
E.L.R.] HUKAM SINGH V. SARDUL SINGH 163
the merits of the election petition. Section 105 of the Eepresentation ofthe People Act, 1951, cannot take away the powers of the High Courtwhich were expressly given to it by articled 226 and 227 of the Constitu-tion.
PASSEY, J.—Candidates who have withdrawn their candidature areduly nominated candidates and consequently must be made parties to anelection petition. But omission to join them as parties would not entail anautomatic dismissal of the petition. The question of the result of suchnon-joinder will have to be considered and decided by the tribunal andit has the power to throw out the petition, or make an order for impleadingthem as parties, in order that the petition may comply with the provisionsof section 82; and if the tribunal allows the inclusion of such candidatesas parties it does not act in contravention of any law nor does it transgressthe jurisdiction with which it is vested, and the High Court will not inter-fere under article 226 or 227.
If a party aggrieved by an order of the Election Tribunal seeks to in-voke the extraordinary and discretionary remedy of writ to avoid mis-carriage of justice, he must do so as early as possible. In cases where thereis other remedy also available, a long and un-explained delay in makingthe petition might render it liable to be dismissed on that score, but if theaggrieved party has no other remedy under the law, the delay in filing apetition may not by itself be a sufficient ground for rejecting it outright.
Per TEJA SINGH, C. J.—Candidates who have withdrawn theircandidature are duly nominated candidates and should be made parties toan election petition, but if they have not been impleaded, the ElectionTribunal has no power to allow them to be made parties, as the powers ofthe tribunal to amend the pleadings are very limited.* As the object ofarticles 226 and 227 is, however, not to enable the High Court to correctevery error, but merely to see that the subordinate tribunals do not actoutside the jurisdiction given to them by law, the High Court will notinterfere under article 226 or 227 with an order allowing the impleadingof such candidates as parties, even though such an order may not strictlybe legal.
Boiler Flour Mills, Patiala v. Income-Tax Officer (A.I.E. 1953 Pepsu88), Beg. v. Commissioners for the Special Purposes of Income-Tax ((1888)21 Q.B.D. 313), Ebrahim Aboobakar v. Custodian General of Evacuee Pro-perty (1952) S.C.E. 696; A.I.E. 1952 S.C. 319), Shanlcar Nanasaheb v.Beturning Officer, Eolaba (l E.L.E. 13; A.I.E. 1952 Bom. 277), referred to.
CIVIL MISCELLANEOUS PETITION NO. 38 OF 1953.
Application under articles 226 and 227 of the Consti-tution of India for a writ of certiorari against an orderof the Election Tribunal of Patiala, dated 29th November,1953, in Election Petition No. 268 of 1952, allowing an
*Note.—The Supreme Court has since decided that the Election Tribunal haspower to allow candidates who have withdrawn, to be added as parties: See Editor'snote, at p. 53, supra.
164 HUKAM SINGH V. SARDUL SINGH [VOL. VI
application for impleading certain parties as respondentsto the petition.
Amar Singh, for the petitioners.Bhagwati Parshad, for the 1st respondent.
JUDGMENT.
PASSEY, J.—yThis is a petition by S. Hukam Singha-nd S. A jit Singh under articles 226 and 227 of the Con-stitution of India for the issue of a writ of certiorari orany other writ, direction or order setting aside or quash-ing the order of the Election Tribunal, dated 29th Novem-ber, 1952, whereby respondents 8 to 11, who were notoriginally made parties to his petition under section 82 ofthe Representation of the People Act (XLIII of 1951)hereafter called the Act, by respondent 1, but were appliedfor to be impleaded as such parties subsequently, wereallowed to be retained as respondents for opposing thepetition. For the two seats, one being meant for the Sche-duled castes, required to be filled in the House of thePeople, from the Kapurthala-Bhatinda double-memberconstituency, the petitioners and respondents 1 to 11, ac-cording to their eligibility, had entered into a contest inthe last general elections. Their nomination papers wereaccepted by the Returning Officer under section 36 of theAct, but respondents 8 to 11 withdrew their candidaturesunder section 37 within the time fixed therefor. As aresult of the polling that took place from 15th January,1952 to 24th January, 1952, the petitioners were declaredto be duly returned. On 15th May, 1952, S. Sardul SinghCaveeshar, respondent 1, presented an election petitionunder section 81 of the Act, before the Election Commis-sion calling in question the validity of the election of thereturned candidates, and the same was published in' theGazette of India on 16th August, 1952. The petition waslater sent for trial to the Election Tribunal consisting ofthe respondents 12 to 14. In the petition respondents 2to 7 and the two petitioners were arrayed as the oppositeparty, and notice of the petition was issued to them bythe tribunal for 17th September, 1952. On that date thepetitioners appeared and objected to the tenability of thepetition. They urged that under section 82 of the Act, it
E.L.R.] HTJKAM SINGH V. SARDTTL SINGH 165
was imperative for respondent 1, S. Sardul Singh Cavee-shar, to implead all the duly nominated members, andsince he had failed to join respondents 8 to 11, who fellin that category, the petition could not be entertainedand was liable to be thrown out. On the next date, viz.,30th September, 1952, respondent 1 submitted an applica-tion to the tribunal praying that respondents 8 to 11 bemade pro forma parties to his petition. It was stated inthat application that his failure to implead them was dueto his ignorance about their having been duly nominated.The application came up before respondent 12, Chairmanof the tribunal, on 30th September, 1952, and he made anorder that the names of the respondents 8 to 11 be put onthe election petition. Respondent 1 was allowed to makethe necessary amendment in the election petition but asthe objection raised by the petitioner could not be decidedby the Chairman alone, it was left to be determined dur-ing the trial of the petition. On the same day respondent 1submitted the amended petition containing the namesof respondents 8 to 11 and they were described as proforma parties. Notice was issued to respondents 8 to 11. Outof them respondent 8 put in appearance through his coun-sel on 20th October, 1952, and opposed the petition stress-ing in particular that the petition should be re-publishedso that he could exercise the right of recrimination. Inhis election petition S. Sardul Singh Caveeshar had askedfor a declaration that the election of S. Hukam Singh andS. Ajit Singh was void and that he and respondent 7 hadbeen duly elected, or in the alternative that the whole elec-tion was void. The tribunal drew up four preliminaryissues covering the points on which the parties were atvariance. In deciding those issues on 29th November,1952, the tribunal held that the respondents 8 to 11 werenecessary parties to the petition, that the effect of theirnon-joinder initially within the period fixed for filing elec-tion petitions was not to render the petition unmaintain-able; but that S. Sardul Singh's failure to implead themwithin the prescribed time should deprive him of the rightto ask for a declaration that he and respondent 7 had beenduly elected and that since the tribunal would depriverespondent 1 of that right, it would be unnecessary to giveeffect to the objection of respondent 8 that the election
166 HTJKAM SINGH V. SARDUL SINGH [VOL. VI
petition required to be re-published under section 90 ofthe Act. As a consequence respondents 8 to 11 were notstruck out but were retained as parties. The present peti-tion was filed on 17th February, 1953, and by an ordermade on 2nd March, 1953, the tribunal before whom thecase had become ripe for arguments was asked not to pro-nounce its final decision during its pendency.
Shri Bhagwati Parshad, appearing for respondent 1,made a double-pronged attack by way of preliminary objec-tions against the maintainability of the petition. His con-tention was that article 329 (b) of the Constitution of Indiaand section 105 of the Act, precluded this court frominterfering in matters exclusively relating to' an election,as those matters could only be entertained, investigatedand decided by an authority constituted under the Act.Article 329 (b) provides a bar to interference by courts inelectoral matters and lays down, inter alia, that notwith-standing anything in the Constitution no election to eitherHouse of Parliament or to the House or either House ofthe Legislature of a State shall be called in question ex-cept by an election petition presented to such authorityand in such manner as may be provided for, by or underany law made by the appropriate Legislature. This arti-cle falls in Part XV of the Constitution relating to elec-tions and is the last in that Part. The Parliament, byenacting the Representation of the People Act, 1951, asits preamble would show, has made provision for the con-duct of elections to the Houses of Parliament and to theHouse or Houses of the Legislature of each State, thequalifications and disqualifications for membership ofthose Houses, the corrupt and illegal practices and otheroffences at or in connection with such elections and thedecision of doubts and disputes arising out of or in con-nection with such elections. In the light of the provisionsof article 329 (b), therefore, it is the Election Commissionor Election Tribunal constituted under the Act, that iscompetent to deal with disputes arising out of or in con-nection with elections and the jurisdiction of the courtsin matters concerning elections, to which Part XV of theConstitution applies, must be held to be barred. Thatmust, however, be different from saying that the jurisdic-tion of the High Court ensured by article 227 of the Con-
E.L.R.] HITKAM SINGH V. SARDTJL SINGH 167
stitution is also barred. Clause (b) of article 329 prohibitsthe calling in question of an election to either House ofParliament or to the House or either House of Legislatureof a State except by an election petition presented to suchauthority and in such manner as has been provided by theAct. In the present case, the election petition is beingdealt with by a tribunal constituted under the Act andnot by any court, so that the provisions of article 329 (b)are being adhered to. The Election Tribunal is function-ing within the territories of the Pepsu State and, therefore,within the territories in relation to which this court exer-cises jurisdiction. It is a tribunal whose procedure isregulated by," and whose powers are derived from, a parti-cular enactment known as the Representation of the Peo-ple Act, but it is undeniably a court of justice exercisingjudicial or quasi-judicial powers. As laid down by article227 of the Constitution, the High Court has superinten-dence over all courts and tribunals throughout the terri-tories to which its jurisdiction extends. An exception tothis jurisdiction is, however, created by clause (4) of thisarticle in favour of courts or tribunals constituted by orunder any law relating to the Armed Forces. It is thusclear that the court or tribunal intended to be taken outof the jurisdiction of superintendence by the High Court,has been mentioned in the Constitution itself. If a simi-lar exception were intended by the Constitution to bemade in favour of the Election Tribunals as well, the factwould have been expressly specified in article 227 or someother appropriate article. The Election Tribunals do notstand as a class by themselves over which the High Court'spower to see whether they are discharging their dutieswithin the four corners of the law which they are re-quired to administer, does not .exist. It is a differentmatter that the High Court would not interfere unless itfinds that the proceedings before the tribunal are void fortotal want of jurisdiction or the defect of jurisdiction isapparent on the record; but there appears to me to be noforce in the contention that it has no jurisdiction to takenote of and pass necessary orders even when the order ofan Election Tribunal is patently ultra vires or where theinitial jurisdiction to entertain an election petition is lack-ing. The Act, no doubt, does not provide for an appeal
168 HUKAM SINGH V. SABDUL SINGH [VOL. VI
or a revision against any order of the Election Tri-bunal; but it cannot follow as a corollary that the tribunalhas been made independent of the High Court's power ofsuperintendence so specifically stated in article 227 of the.Constitution to be exercisable over all courts and tribu-nals functioning within its jurisdiction. An ElectionTribunal created to determine an election petition, afterthe result of the election has been declared, is in my viewnot immune from the superintending control of the HighCourt. The High Court would have, of course, no powerto interfere in any matter which relates to the merits ofthe election petition, and it would exercise its powersunder article 227 very sparingly and only where the errorcomplained of infringes the fundamental rights of a partyor is likely to cause a miscarriage of justice.
The other bar on the jurisdiction of this court toentertain a petition for a writ, as contended by ShriBhagwati Parshad, is the one created by section 105 ofthe Act which provides that every order of the tribunalmade under the Act shall be final and conclusive. Thequestion was considered by this Bench in Shri OianChcmd v. The State (x), and it was held that so far as theRepresentation of the People Act is concerned, therecould be no hesitation in saying that it could not takeaway the powers of the High Court which were expresslygiven to it by article 226. Those observations applyequally with regard to the High Court's powers underarticle 227.
Next to be considered is the objection of the respon-dents' learned counsel that the petition is liable to bethrown out as it was submitted about 2 | months afterthe tribunal had made the order in question. The objec-tion to the tenability of the election petition had beentaken by the petitioners in their written statement. Theywere advised and represented by a counsel and were con-scious of the benefit that the success of their objectionwas to bring them. They had fought out the point butlost on 29th November, 1952. After the tribunal had madeits order on 29th November, 1952, the respondent 1 led hisevidence and it was not till he had closed it that the peti-tioners moved this court asking it to exercise its extraordi-
(1) Civil Miscellaneous No. 189 of 1951.
E.L.R.] HUKAM SINGH V. SABDTTL SINGH 169
nary power of issuing a prerogative writ. The petitionershave obviously been guilty of laches and no explanationof the delay was given in their petition to this court norwas any suggested by their counsel S. Amar Singh, whilereplying to the arguments of Shri Bhagwati Parshad. Itis the uniform opinion of the various High Courts in Indiathat a party aggrieved by an order of a court or tribunal,if he seeks to invoke the extraordinary but discretionaryremedy of a writ to avoid miscarriage of justice, must doso as early as possible. In cases where there is other re-medy also available, a great and unexplained delay inmaking the petition might render it liable to be dismissedon that score. It is, however, doubtful if in a case wherethe aggrieved party can knock at no other quarters forrelief as he has no other remedy under the law, the delayin filing a petition can by itself be a sufficient ground forrejecting it outright. There is no time specified in theIndian Limitation Act or any other law within which apetition for the issue of a writ must be filed, but a rule ofpractice has grown up which insists upon such petitionsbeing made promptly. -As to what would constitutepromptitude would depend upon the facts of each particularcase. The rule enunciated is not too rigid or inflexible.In a proper case a lenient view of the delay can be takenand that delay can be condoned. In the case before usthe order of the tribunal is final and conclusive. There isno subsequent stage at which it can be impugned and thepetitioners have no other course open to get rid of itsadverse effects. The petition has passed the stage of pre-liminary hearing and notice was issued to the respondentson 20th February, 1953. An order restraining the tribu-nal from pronouncing their final decision was also madeon 2nd April, 1953. These are circumstances which wetake into consideration in proceeding to consider if thereis any force in the grounds on which the petition is found-ed.
It is contended by S. Amar Singh that the tribunalhad no jurisdiction to entertain a petition which did notstrictly comply with the requirements of section 82 of theAct, and that the tribunal had again no jurisdiction topermit respondent 1 to amend his petition so as to include
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170 HTTKAM SINGH V. SAEDUL StNGH [VOL. Vl
the names of respondents 8 to 11 and thereby remove thelacuna, the presence of which had made the petition notmaintainable. To support the first part of his argumenthe has referred us to sections 80 and 82 of the Act. Boththose sections fall in Part VI of the Act relating to pre-sentation of election petitions to the Election Commission.Section 80 provides that no election shall be called in ques-tion except by an election petition presented in accord-ance with the provisions of that Part. Section 82 laysdown that a petitioner shall join as respondents to hispetition all the candidates who were duly nominated atthe election other than himself if he was so nominated.His argument precisely is that since the petition by S.Sardul Singh Caveeshar did not comply with the impera-tive requirements of section 82 inasmuch as it did not con-tain the names of the respondents 8 to 11, it should havebeen thrown out summarily. It is also contended that inthe framework of the Act there is no provision exceptclause (3) of section 83 which has no relevancy to thequestion involved in these proceedings which empowers atribunal to permit amendment of an election petition.
As mentioned above section 82 of the Act insists thatthe petitioner must implead all duly nominated candidatesas respondents to his petition. According to the peti-tioner's counsel the word 'shall' in the section connotes acommand requiring an act to be done in a particular man-ner and the failure to comply with the provisions of thesection in the manner specified in it would constitute abreach of that command the penalty for which would bedismissal of the petition.
Some distinction between duly nominated and validlynominated candidates was attempted to be drawn by ShriBhagwati Prashad with a view to show that while a candi-date of the latter category would be a necessary party toan election petition, a candidate who belongs to the for-mer class would at best be a proper party. Under the Actvalidly nominated candidates would be those whose namesafter scrutiny of nominations under section 36 and with-drawals, if any, under section 37, has been published undersection 38; whereas the expression 'duly nominated candi-date' would mean candidates whose nominations were ac-cepted by the Returning Officer, but whose names were
E.L.E.] HTJKAM SINGH V. SAKDTJL SINGH 171
not published under section 38; because they had, subse-quent to the acceptance of their nominations, withdrawntheir candidatures within the time fixed. It would, thus,be evident that whereas all validly nominated candidatesmust also be duly nominated ones, the converse cannot betrue, as all those who were duly nominated need not neces-sarily be validly nominated candidates. The withdrawalof a candidate after acceptance of his nomination does nothowever take him out of the definition of a duly nomi-nated candidate. Although, therefore, respondents 8 to 11had withdrawn their candidatures within the time pres-cribed for the purpose and had ceased to have any self-interest in the election, and were relegated to the positionof electors only, their status as duly nominated candi-dates had not terminated. Apparently those candidateswho had fought the election were mainly interested in theresult of the election. They must be regarded to be neces-sary parties to an election petition if one is filed and thethe object of which is to get the election upset. In thepresent case all the validly nominated candidates hadbeen made parties by respondent No. 1. The respondentsNos. 8 to 11, by the very act of their withdrawal had ceasedto have any interest in the result of the petition so far astheir own candidatures were concerned. Looked at fromthat point of view they would be proper parties; by fictionof law the expression 'duly nominated candidates' conti-nues to apply to them and the Act requires that all dulynominated candidates must be made parties to an electionpetition. They are in that sense necessary parties whoseinclusion in the petition as respondents so far as the personmaking the petition is concerned, is indispensable.
It is undisputed that the respondent No. 1 had notcomplied with the provisions of section 82, as he had failedto join as respondents the four duly nominated candidatesforming the set of respondents 8 to 11. What has to beconsidered is what would be the effect of such a failure,and whether the tribunal had at all the power to permittheir joinder after the time for making the petition hadexpired. In either the Act itself or the rules made there-under there is no provision that can .determine the ques-tion. The word 'shall' in section 82, no doubt, casts onthe petitioner a duty to implead all the duly nominated
172 HUKAM SINGH V. SARDTJL SINGH [VOL. VI
candidates as respondents, but neither that section norany other section of the Act provides any penalty in theevent of his failing to do so, much less a penalty of dis-missal. The Act does not make it imperative for the tri-bunal to dismiss the petition as soon as it finds that itdoes not conform to the requirements of section 82, nordoes it say that no tribunal shall take cognizance of orproceed with an election petition in which all duly nomi-nated candidates have not been joined as parties. Theprescription provided by the word 'shall' has, therefore, tobe considered as merely directory, the neglect of which doesnot affect the validity of the petition or involve any otherconsequence than a liability to a penalty if any were to beimposed by the tribunal for breach of the prescription. Inthe present case, all the validly nominated candidates hadbeen impleaded, and it cannot be said that without respon-dents 8 to 11, the tribunal's final order would not be effec-tive. In any case the failure of respondent No. 1 to joinrespondents 8 to 11, would not bring into effect an auto-matic dismissal of his petition. The question of the resultof such a non-joinder will have to be considered and decidedby the tribunal. It will be for the tribunal to accept theomission as fatal to the continuance of the petition or tohold that the non-joinder of a duly nominated candidatewho had withdrawn does not affect its maintainability.The tribunal is the only authority competent to determinewhether all the necessary parties have been brought beforeit in an election petition, and if it finds that some havebeen omitted, it has the power to throw out the petitionor make an order bringing them before it. There are onlytwo sections in the Act which deal with the power of theElection Commission or Election Tribunal to dismiss anelection petition summarily. They are sections 85 and90(4). Under section 85 the Election Commission isempowered to dismiss an election petition summarily ifthe petitioner has not complied with the provisions of sec-tions 81, 83 and 117 of the Act. The same power has beenconferred by section 90 (4) of the Act upon the ElectionTribunal and is exercisable even in cases where the Elec-tion Commission has not dismissed a petition under section85. Neither section 85 nor section 90 (4) covers the casein which the requirements of section 82 have not been
E.L.R.] HUKAM SINGH V. SARDUL SINGH 173
fulfilled. It would, therefore, be not far-fetched to inferthat if the non-observance of the provisions of section 82were necessarily to bring about a summary dismissal, sec-tion 82 would have been included in sections 85 and 90(4).The reason for non-inclusion of section 82 in those twosections is obvious. The Election Commission or the tri-bunal cannot off-hand know if any necessary party hasbeen left out and the tribunal has to find out after enquiryif all the necessary parties have been joined.
It has been argued by S. Amar Singh that if the tri-bunal were to be regarded to have the power to add orpermit the addition of parties, the provisions of the Actdealing with the form of the petition and the period withinwhich it can be submitted, etc., would be rendered nuga-tory. Although the question whether the petition is inproper form and has been presented within the statutoryperiod would be very relevant in considering whether anelection petition should be permitted to continue after thedefect of non-joinder of the necessary parties is dis-covered, yet those are not matters that really militateagainst the existence of the power in the tribunal to adju-dicate upon questions arising out of the non-joinder of anecessary party or proper party. No consequence of thefailure of the petitioner to observe the provisions of sec-tion 82 having been provided in the Act, it has to be pre-sumed that the Legislature has intended to leave the ques-tion of the effect of non-joinder to be appropriately dealtwith by the tribunal. In this view of the law, there can beno hesitation in holding that the petition of respondent 1was not liable to fail automatically or necessarily for thedefect objected to by the petitioners and that the tribunalhad the jurisdiction to decide whether a petition with adefect of that nature could survive or not. The objectbehind enacting section 82 appears to have been that thetribunal should have before it all the duly nominatedcandidates so that all the facts and the circumstances sur-rounding the election may be brought out in the proceed-ings before it. If, therefore, the tribunal with that end inview, by its order, makes the petition to be in consonancewith the provisions of section 82 by allowing inclusion ofa party or parties, who by fiction of law have to be regardedas duly nominated candidates, it does not act in contra-
174 HTJKAM SINGH V. SARDTJL SINGH [VOL. VI
vention of any law nor does it transgress the jurisdictionwith which it is vested. Assuming that the order in ques-tion of the tribunal was wrong in law and that it shouldhave in the circumstances of the case dismissed the peti-tion, it could not be said that it had no jurisdiction, be-cause it gave a wrong decision.
It was argued for the petitioners that the only powerthat the tribunal had under the Act to allow amendmentwas the one conferred by sub-clause (3) of section 83, andthat since that section did not apply in this case, the pro-visions of Order I, rule 10, Civil Procedure Code, could notbe invoked to assume jurisdiction. The learned counselmaintained that only those provisions of the Civil Pro-cedure Code applied to the proceedings before the tribunalas governed the trial of suits, meaning thereby that thoseprovisions of the Civil Procedure Code as have a directbearing on the conduct of proceedings commencing withthe trial of the suit are alone applicable. From the otherside the contention is advanced that section 90, clause (2),of the Act makes the provisions of the Civil ProcedureCode applicable to election petitions and the term 'trial'should include proceedings in the suit from the inceptionstage to the final judgment that the court pronounces. Itwas further pointed out that Order I, rule 10, Civil Pro-cedure Code, confers ample powers upon the tribunal toadd those persons as parties to the election petition whowere necessary or proper parties, but had been left out. Ithink it is unnecessary for us to go so minutely into thatcontroversial question, as we are of the view that the tri-bunal is competent to decide if an election petition shouldor should not fail for want of joinder of necessary parties.If it can decide that the defect of non-joinder should notbe fatal, it would follow as a reasonable deduction that itcan also have the omitted parties before it, whether thataddition be called an amendment or given any other name.If a court or tribunal has the jurisdiction to decide a ques-tion, it can decide it correctly or wrongly and the merefact that it decides wrongly would not make its order with-out jurisdiction or one made illegally in the exercise ofjurisdiction. In this connection, it would be profitable torefer to the observations of the learned Chief Justice in aDivision Bench case, Roller Flour Mills, Patiala v, Income-
E.L.K.j HUKAM SINGH V. SARDUL SINGH 175
Tax Officer^). This is what his Lordship said:"Now, it is clear from these cases that so far as the
English courts are concerned they have consistently takenthe view that the tribunals established by and workingunder the Income-tax law belong to the class of the tri-bunals to which the second part of the formula laid downby Lord Esher in Beg. v. The Commissioners for the SpecialPurposes of the IncomeTax(2) relates and that all pointsarising out of and affecting the assessment, whether theybe points of fact or law, must be raised before, and ad-judicated upon, by those tribunals, and no writs are issuedagainst those tribunals except when their proceedings arevitiated by total want of jurisdiction or the defect of juris-diction is apparent on record".
The observations of Lord Esher in (1888) 21 Q. B. D.313, were set out and followed in that judgment and wereas follows:
"When an inferior court or tribunal, or body, whichhas to exercise the power of deciding facts is first esta-blished by an Act of Parliament, the Legislature has to con-sider what powers it will give that tribunal or body. Itmay in effect say that, if a certain state of facts exists andis shown to such tribunal or body before it proceeds to docertain things, it shall have jurisdiction to do such things,but not otherwise. There, it is for them conclusivelyto decide whether that state of facts exists, and, if theyexercise the jurisdiction without its existence, what theydo may be questioned, and it will be held that they haveacted without jurisdiction. But there is another state ofthings which may exist. The Legislature may entrust thetribunal or body with a jurisdiction, which includes thejurisdiction to determine whether the preliminary state offacts exists as well as the jurisdiction, on finding that itdoes exist, to proceed further or do something more.When the Legislature are establishing such a tribunal orbody with limited jurisdiction, they also have to considerwhatever jurisdiction they give them, whether there shallbe any appeal from their decision, for otherwise there willbe none. In the second of the two cases I have mention-ed, it is an erroneous application of the formula to saythat the tribunal cannot give themselves jurisdiction by
(1) A.I.R, 1953 Pepsu 88. (2) (1888) 21 Q.B.D. 313.
176 HUKAM SINGH V. SARDTJL SINGH [VOL. VI
wrongly deciding certain facts to exist, because the Legis-lature gave them jurisdiction to determine all the facts—including the existence of the preliminary facts, on whichthe further exercise of their jurisdiction depends; and ifthey were given jurisdiction so to decide, without anyappeal being given, there is no appeal from such exerciseof their jurisdiction".
The parties' counsel concede that the Election Tribu-nal would fall within the second category enunciated byLord Esher. In that event the tribunal had the jurisdic-tion to decide the point of non-joinder raised before it.The legislature has given the Election Tribunal jurisdic-tion to determine the existence of the preliminary factson which further exercise of its jurisdiction would depend.It is, therefore, not correct to say that the tribunal can-not by wrongly deciding or assuming that the preliminaryfacts exist, confer jurisdiction upon itself. I may alsoreproduce here the observations of Mahajan, J., in EbrahimAboobakar v. Custodian General of Evacuee Property^):
"A writ of certiorari cannot be granted to quash thedecision of an inferior court within its jurisdiction on theground that the decision is wrong. Before such a writ isissued, it must be shown that the authority which passedthe order acted without jurisdiction or in excess of it or inviolation of the principles of natural justice Once it isheld that the court has jurisdiction but while exercisingit, it made a mistake, the wronged party can only takethe course prescribed by law for setting matters rightinasmuch as a court has jurisdiction to decide rightly aswell as wrongly".
I would, therefore, hold that a writ in this case can-not be issued, as there was no breach of any fundamen-tal rule of justice and the decision on the point in ques-tion was given by the tribunal in the exercise of its juris-diction. The petition is dismissed. In view of thedifficult points of law involved we leave the parties tobear their own costs.
TEJA SINGH, C. J.—I agree with my learned brotherin the conclusion reached by him and would like to add afew words.
(1) [1952] S.C.R. 696; A.I.R. 1952 S.C. 319.
E.L.R.] feUKAM SINGH V. SARDTJL SIHGH 17*7
The first question to be decided in this petition iswhether the election petition presented to the ElectionTribunal by S. Sardul Singh Caveeshar was a proper peti-tion. Section 82 of the Representation of the People Act,1951, lays down that a petitioner shall join as respondentto his petition all the candidates who were duly nomi-nated at tbe election other than himself if he was so nomi-nated. Mr. Bhagwati Parshad, counsel for S. Sardul SinghCaveeshar, contended that though the words used in sec-tion 82 are "duly nominated", in a petition in which elec-tion of persons who are returned as elected is questionedonly they are necessary parties and all other candidateswho are duly nominated are merely proper or pro formaparties. In my judgment, this contention is without force,because the words of section 82 do not make anydistinction between candidates who were elected and whowere not elected but were validly nominated or even dulynominated. According to the well-known canon ofconstruction of statutes every word of a section must begiven full effect to and since the section makes it impera-tive that every duly nominated candidate should be joinedas a respondent to the petition, the petition which leavesout some duly nominated candidates, cannot be regardedas a proper petition. With a view to finding out whetherthe provisions of section 82 are complied with, all that wehave to see is whether every duly nominated candidate ismade a party to the petition regardless of the fact whethersuch a candidate withdrew from the election or he ceasedto have any active interest in the result of election. Aftera good deal of argument Mr. Bhagwati Parshad was cons-trained to admit that as respondents 8 to 11 were notoriginally joined as respondents to the petition it was nota proper petition.
The second question that we have to determine iswhether the Election Tribunal had the power to allowrespondents 8 to 11 to be made parties to the petition andthe petition to be amended. Mr. Bhagwati Parshad arguedthat the tribunal had such power under Order I, rule 10,Civil Procedure Code, which has been made applicable tothe proceedings before Election Tribunals by sub-section(2) of section 90 of the Representation of the People Act.
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178 HUKAM SINGH V. SARDTJL SINGH [vOL. VI
Mr. Amar Singh Ambalvi, counsel for Sardars HukamSingh and Ajit Singh who are the petitioners before us, onthe other hand, argued that Order I, rule 10, Civil Pro-cedure Code, had no applicability to proceedings before thetribunal and the scope of sub-section (2) of section 90 isaltogether limited. Learned counsel argued that the Re-presentation of the People Act was a complete code andonly those provisions of the Civil Procedure Code couldbe availed of by the tribunal which were specificallymentioned either in clause (2) of section 90 or section 92.
The heading of section 90 is "Procedure before theTribunal". The first clause of the section lays down thatthe tribunal shall, as soon as may be, cause a copy of thepetition together with a copy of the list of particulars ref-erred to in sub-section (2) of section 83 to be served oneach respondent and to be published in the Official Gazette,and at any time within fourteen days after such publica-tion, any other candidate shall, subject to the provisionsof section 119, be entitled to be joined as a respondent.Then comes sub-section (2) which reads as follows:
"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 (Act Vof 1908), to the trial of suits".To this sub-section are appended two provisos. The firstproviso says:
"Provided that it shall be sufficient for the Tribunalto make a memorandum of the substance of the evidenceof any witness examined by the Tribunal and it shall notbe necessary for the Tribunal to take down the evidence ofany witness in writing at length unless the Tribunal is, onthe application of any party or otherwise, satisfied thatthere is any special reason for so doing".The second proviso lays down that
"the Tribunal shall have the discretion to refuse forreasons to be recorded in writing to examine any witnessor witnesses if it is of the opinion that their evidence isnot material for the decision of the petition or that theparty tendering such witness or witnesses is doing so onfrivolous grounds or with a view to delay the proceed-ings".
E.L.E.] HUKAM SINGH V. SAEDUL SINGH 179
Sub-section (3) says that"the provisions of the Indian Evidence Act, 1872
(Act I of 1872), shall, subject to the provisions of this Act,be deemed to apply in all respects to the trial of an elec-tion petition".
The words of section 92 which deals with the"Powers of the Tribunal" are:
The Tribunal shall have the powers which are vestedin a court under the Code of Civil Procedure, 1908, whentrying a suit in respect of the following matters:—
(a) discovery and inspection;(b) enforcing the attendance of witnesses, and re-
quiring the deposit of their expenses;(c) compelling the production of documents;
. (d) examining witnesses on oath;(e) granting adjournments;(f) reception of evidence taken on affidavit;
and (g) issuing commissions for the examination of wit-nesses,and may summon and examine suo motu any personwhose evidence appears to it to be material; and shall bedeemed to be a civil court within the meaning of sections480 and 482, Criminal Procedure Code, 1898.
Explanation.—For the purpose of enforcing theattendance of witnesses, the local limits of the jurisdictionof the Tribunal shall be the limits of the State in whichthe election was held.
It cannot be" denied that the Civil Procedure Codenot only lays down the procedure that a court has to fol-low in the course of proceedings before it, but also definesits powers. If the intention of the framers of sub-section(2) of section 90 was that the whole of the Civil ProcedureCode should apply to the proceedings before an ElectionTribunal, and subject to the provisions of the Act a tribu-nal should follow the same procedure and possess the samepowers as a civil court follows and possesses, there was nonecessity whatsoever to insert section 92 dealing speciallywith the powers of the tribunal. I am, therefore, of theopinion that sub-section (2) of section 90 is limited onlyto the procedure that a tribunal is to follow while tryinga petition. This procedure is laid clown in Order 18. It
180 HUKAM SINGH V. SARDUL SINGH [VOL. VI
is true that the heading of the said Order is "Hearing ofthe Suit and Examination of Witnesses", but hearing andtrial mean the same thing. Reference in this connectionis invited to Wharton's Law Lexicon (fourteenth edition),at page 1011 of which "Trial" is defined "as the hearingof a case, civil or criminal, before a Judge, who has juris-diction over it, accordingvto the laws of the land". Theconclusion that section 90 of the Act dealt with the samesubject that is dealt with by Order 18, Civil ProcedureCode, is further strengthened by the fact that the provi-sions of sub-section (2) which I have reproduced aboverelate to the examination of witnesses. As regards section92, the powers to which it refers are the powers given tothe civil court by other Orders:—Discovery and inspection(Order 21), Enforcing of the attendance of witnesses(Order 16), Compelling the production of document (OMers21 and 13), Examining witnesses on oath (Order 18),Granting adjournments (Order 17), Reception of evidencetaken on affidavits (Order 19) and Issuing commissions forthe examination of witnesses (Order 26). I repeat thatif the effect of sub-section (2) of section 90 was to makethe whole of the Civil Procedure Code applicable to theproceedings before Election Tribunals, section 92 is al-together redundant, but it is well recognised that no pro-vision of a statute and no part of a section should beregarded as redundant and superfluous. I may also referin this connection to section 91 headed "Appearance beforeTribunal" which says
"Any appearance, application or act before the Tri-bunal may be made or done by the party in person or bya pleader duly appointed to act on his behalf: Providedthat it shall be open to the Tribunal to direct any partyto appear in person whenever the Tribunal considers itnecessary".This provision is almost identical with that contained inOrder 13, and if sub-section (2) of section 90 was intendedto have such a wide meaning as Mr. Bhagwati Parshadwould have us hold, where was the necessity of enactingthis section?
The relevant part of Order I, rule 10, upon which Mr.Bhagwati Parshad relied is clause (2) which gives the civil
E.L.R.] HTJKAM SINGH V. SARDUL SINGH 181
court very wide powers to strike out and add parties. Thewords of the clause are:
"The Court may at any stage of the proceedings,either upon or without the application of either party,and on such terms as may appear to the Court to be just,order that the name of any party improperly joined,whether as plaintiff, or defendant, be struck but, and thatthe name of any person who ought to have been joined,whether as plaintiff or defendant, or whose presence beforethe Court may be necessary in order to enable the Courteffectually and completely to adjudicate upon and settleall the questions involved in the suit, be added".
Clause (4) of the rule provides for the amendment ofthe plaint when a defendant is added. It says:
"Where a defendant is added, the plaint shall, unlessthe Court otherwise directs, be amended in such manneras may be necessary, and amended copies of the sum-mons and of the plaint shall be served on the newdefendant and, if the Court thinks fit, on the originaldefendant."
As will be seen from sub-section (1) of section 90 ofthe Representation of the People Act, that contains a pro-vision for joining as respondents the duly nominatedcandidates other than those that are impleaded by thepetitioner, but such candidates can be joined only if theyapply within fourteen days of the publication of theelection petition with a copy of the list of particularsreferred to in sub-section (2) of section 83 in the OfficialGazette. As regards the amedment of the petition poweris given to the tribunal by sub-section (3) of section 83which lays down that:—
"The Tribunal may, upon such terms as to costs andotherwise as it may direct at any time, allow the parti-culars included in the said list to be amended or ordersuch further and better particulars in regard to anymatter referred to therein to be furnished as may in itsopinion be necessary for the purpose of ensuring a fairand effectual trial of the petition".
Wide though this power is, it is not as wide asthe power of amendment of pleadings given to civil courts,because the amendment under section 83(3) can only
182 HTTKAM SINGH V. SAKDTJL SINGH [VOL. VI
relate to the particulars or matter referred to in theoriginal petition. These factors further support Mr. AmarSingh Ambalvi's contention that the intention of thelegislature was to apply to the proceedings before thetribunal only those few parts of the Civil Procedure Codewhich are specifically mentioned in sub-section (2) ofsection 90 and section 92. Accordingly I hold that thetribunal had no power to allow respondents 8 to 11 to bemade parties to the petition.
After having disposed of these points I come now tothe most important question whether this court can andshould quash the order of the Election Tribunal by whichrespondents 8 to 11 were permitted to be made parties tothe petition. To start with, Mr. Bhagwati Parshad con-tended that in view of clause (b) of article 329 of theConstitution and section 105 of the Act the High Courthas no jurisdiction to quash or interfere with any ordersof the Election Tribunal. The relevant words of article329 are:
"Notwithstanding anything in this Constitution—(b) no election to either House of Parliament or to theHouse or either House of the Legislature of a State shall becalled in question except by an election petition presentedto such authority and in such manner as may be providedfor by or under any law made by the appropriate Legis-lature."
Now, the object of the present petition is notto call in question any election, rather it is to ensure thatthe election of Sardars Hukam Singh and Ajit Singhshould not be questioned except in strict conformity withthe provision of article 329. Section 105 of the Act laysdown that "Every order of the tribunal made under thisAct shall be final and conclusive". It is true that thewords "every order" are significant, and strictly con-strued they do bring the order of the tribunal which is thesubject-matter of the present petition into the ambit ofthe section, but it must be remembered that the Actcannot override the positive provisions of the Constitu-tion, nor can it take away the powers that the Constitu-tion has given the High Courts under articles 226 and 227.
-Clause (1) of article 227 definitely lays down that
E.L.R.] HTJKAM SINGH V. SARDUL SINGH 183
every High Court shall have superintendence over allcourts and tribunals throughout the territories in rela-tion to which it exercises jurisdiction. It cannot be deniedthat the Election Tribunal stationed in and working inthis State is a tribunal within the meaning of the articleand Mr. Bhagwati Parshad also conceded that the powersof. superintendence include the power to set aside theorders of tribunals in appropriate cases. The only tribu-nals which are not subject to the powers of superinten-dence of the High Court are those constituted by or underthe law relating to the Armed Forces. The scope of article329(b) of the Constitution when read in the light of arti-cle 227 was discussed by a Bench of the Bombay HighCourt in Shankar Nanasaheb v. Returning Officer, Kolabal1)and the following observations were made by the learnedChief Justice:
"We may also point out, though it strictly does notarise, that the jurisdiction of the court has not been whollytaken away with regard to election matters Mr.Purshottam said that on our view of the interpretation ofarticle 329(b) even if the tribunal were to act withoutjurisdiction or were to assume jurisdiction which it didnot possess, we would have no right to interfere. That isnot our interpretation of article 329 (b). All that we laydown is that to the extent that the merits of an electionmatter are concerned our powers have been taken away,but our powers have not been taken away to compel atribunal which is set up to decide those maters actingwith jurisdiction and not in excess of the powers conferredupon it by statute".
Accordingly I hold that we have power of superin-tendence over the Election Tribunal. The question, how-ever, is whether in the exercise of that power we shouldinterfere in this case.
Mr. Amar Singh Ambalvi argued that since the orderof the tribunal was wrong in law we should quash it with-out any hesitation. This argument, in opinion, ignores theexact scope of article 227. It has been held by this court,and the same view has been taken by other High Courtsin India, that while dealing with orders of tribunals orsubordinate courts under article 227 the High Court does
(1) 1 E.L.R 13; A.I.E. 1952 Bom. 277.
184 HUKAM SINGH V. SARDTTL SINGH [VOL. VI
not act either as a court of appeal or a court of revision.It has further been held by us that the object of article227 is not to enable the High Court to correct every errorbut merely to see that the subordinate tribunals are keptwithin the four corners of law and they do not act outsidethe jurisdiction given to them by law. So the mere fact,that the tribunal in this case made an order which in myview is illegal cannot be a ground for interfering with it.Then Mr. Amar Singh Ambalvi argued that the tribunalacted without jurisdiction in proceeding with the petitionwhich was not presented to it according to the provisionsof the Act. In this connection learned "counsel referred usto section 80 which lays down that no election shall becalled in question except by an election petition presentedin accordance with the provisions of Part VI of the Actand contended that as the mandatory provisions of sec-tion 82 as regards the impleading of necessary respon-dents had not been complied with the petition was notproperly presented and the tribunal had no jurisdiction togo into the legality of the election on the basis of it. Mr.Bhagwati Parshad, on the other hand, argued that it wasfor the Election Tribunal to decide whether or not thepetition before it had been properly presented and whetherit had jurisdiction to go on with it and even if the tribu-nal decided these questions wrongly it cannot be said thatit acted without jurisdiction.
This point was recently decided by a Bench of ourHigh Court in Roller Flour Mills, Patiala v. Income-taxOfficer^). The case involved the question whether it waswithin the jurisdiction of the Income-tax Officer to decidecertain objections that were raised before it by an assesseeand whether the High Court could issue a writ to the In-come-tax Officer restraining him from deciding those objec-tions on the ground that he had no jurisdiction in thematter. The judgment of the Bench was delivered by meand after referring to a number of English and Indian casesand quoting the observations made by Lord Esher, M. R. in(1888) 21 Q.B.D. 313,1 held that the tribunals establishedby and working under the Income-tax Law belong to theclass of the tribunals to which the second part of theformula laid down by Lord Esher relates and that all
(1) A.I.R. 1953 Pepsu 88.
E.L.R.] HIXKAM SINGH V. SARBITL SINGH 185
points arising out of and affecting the assessment, whetherthey be points of fact or law, must be raised before, andadjudicated upon, by those tribunals and no writs areissued against those tribunals except when their proceed-ings are vitiated by total want of jurisdiction or the defectof jurisdiction is apparent on record. One of the reasonswhy I came to the above conclusion was that the schemeof the Income-tax Law convinced me that the intentionof the legislature was to give a finality to the decisions ofthe tribunal established by the Income-tax Law and asregards this aspect of the matter the perusal of article 329of the Constitution of India and section 105 of the Rep-resentation of the People Act makes me think that the posi-tion of Election Tribunals is somewhat better than thatof Income-tax Tribunals. It can certainly be arguedthat so far as Income-tax Tribunals are concerned the In-come-tax Law has made ample provisions for appeals andfurther appeals and on questions of law an aggrievedassessee can even demand a reference to the High Courtand the Supreme Court, but whether or not an appeal orany other remedy should be provided from the decisionsof Election Tribunals is a matter of policy which is for thelegislature to determine. All that I am concerned with atthe present stage is whether the legislature intended thatthe decisions of Election Tribunals on petitions made be-fore them should have a finality and it is not possible toanswer this question -except in the affirmative. Thisbeing the case I hold that all objections relating to theproper presentation of an election petition and the powerof the tribunal to allow the petitioner to remove defectsin the petition should be raised before the tribunal itselfand the tribunal has jurisdiction to decide them. Followingthe well-known maxim that "Jurisdiction to decide aquestion included the jurisdiction to decide it rightly orwrongly", I further hold that the order in question madeby .the Election Tribunal in the present case is notvitiated by total want of jurisdiction.
In the course of arguments our attention was drawnby counsel to decisions of various Election Tribunals whichshowed that there is a great diversity of opinion betweenthem as regards the effects of the petitioner's failure to
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186 RAMKRISHNA V. THAKUR DAOOSING ( H . C.) [VOL. VI
implead necessary parties as respondents and the powersof the tribunals to adjudicate upon petitions in whichnecessary parties are not impleaded. Since the law is thatthe decisions of Election Tribunals must be given effect to,it is clear that in some cases at least election petitionswere, or are likely to be, accepted or dismissed on wronggrounds, which means real hardship for the parties affect-ed. This, however, is a matter which cannot influence usin the decision of the present petition, because when wefind that the impugned order of the Election Tribunal isnot without jurisdiction, we have no power to interferewith it in these proceedings.
Petition dismissed.
Certificate under article 132(1), Constitution of India,for appeal to the Supreme Court granted.
[NAGPUR HIGH COURT.]
RAMKRISHNAv.
THAKUR DAOOSING.HIDAYATULLAH and CHOUDHURI, JJ .
May 6, 1953.High Courts—Jurisdiction to issue writ against orders of Election
Tribunal—"Election", meaning of—Scope of article 329(b)—Jurisdictionof High Court over Election Commission—Constitution of India, arts. 226,227, 329(b).
The High Court has no jurisdiction fco interfere with an order of anElection Tribunal, under article 226 or 227 of the Constitution, inasmuchas under article 329(b) no election can be called in question except by anelection petition presented to such authority as may be provided by theappropriate legislature, and the Parliament has vested the Election Tribu-nal with exclusivo jurisdiction in such matters.
The High Court cannot interfere under article 226 or 227 for the fur-ther reason that when an order of the Election Tribunal is adopted by theElection Commission, it becomes the act of the Election Commission andissuing an order against an Election Tribunal which has become functusofflcio would, in effect, be issuing an order against the Election Commis-sion itself and no High Court has jurisdiction to issue an order against theElection Commission as its office is locatsd at New Delhi.
Tiie term "election" in article 3i!9 of the Constitution includes allproceedings commencing with the nomination and ending with the declara-
E.L.R.] RAMKRISHNA V. THAKUR DAOOSING (H. C.) 187
tion of the result and an election must therefore be deemed to continuetill a final decision, by whosoever it be, is reached, regarding the result ofthe poll; that an election petition has been filed and dismissed or alloweddoes not therefore remove the bar of article 329(b).t Ponnuswami v. Beturning Officer, Namalckal, (l B.L.E. 133) applied.
MISCELLANEOUS PETITION NO. 67 OF 1953.
Petition under article 226 of the Constitution for awrit of certiorari against the order of the Election Tribu-nal, Rajnandgaon, in Election Petition No. 293 of 1952,dated 2nd February, 1953, reported at 4 E.L.R. 34.
S. P. Kotwal and M. W. Puranih, for the peti-tioner.
M. R. Bobde and A. 8. Bobde, for respondent No. 1.
JUDGMENT.
CHOUDHURI, J.—This is a petition under article 226 ofthe Constitution by which the petitioner asks for awrit of certiorari against the order of the election tri-bunal to have the order of the tribunal quashed and thusto have himself declared as duly elected.
The petitioner was a candidate for election from theChampa constituency to the Madhya Pradesh LegislativeAssembly. The election was held on 18th January, 1952,and the result of the election was announced by theReturning Officer for Champa constituency (Shri M. P.Dube) on 27th January, 1952. The petitioner was declaredelected from that constituency. The election of the peti-tioner was notified in the Madhya Pradesh Gazette, dated8th February, 1952, in accordance with the Representationof the People Act, 1951, (XLIII of 1951).
Respondent 1 thereafter presented an election peti-tion challenging the election of the petitioner on theground that he held an office of profit within the meaningof article 191 (1) (a) of the Constitution and was, there-fore, disqualified as a candidate and that the election wastherefore void. An Election Tribunal was appointedunder section 86, Representation of the People Act,consisting of three members. x The tribunal by its order,dated 2nd February, 1953, held that the election of thepetitioner was void.
188 BAMKBISHNA V. THAKITB DAOOSING ( H . C.) [VOL. VI
The order of the tribunal was communicated to theElection Commission and was published in a GazetteExtraordinary, dated 21st February, 1953. Thereafter theElection Commission, proceeding under section 150, Re-presentation of the People Act, issued a notification call-ing upon the constituency to elect a person for the pur-pose of filling the vacancy so caused. The election thusordered took place on 3rd May, 1953.
The present petition was filed by the petitioner inMarch, 1953, to question the decision of the Election Tri-bunal and to have it quashed by a writ of certiorari andfor a further declaration that the petitioner was dulyelected at the last election.
The jurisdiction of this court to hear such a petitionwas challenged at the Bar when this petition was heardon 27th April, 1953. Shri Bobde argued, on the authorityof Election Commission v. Venkata RaoQ), that this courthas no jurisdiction to interfere even under its wide powersconferred by article 226, with an election matter. It maybe pointed out that in the petition as originally filed theElection Commission was made a respondent for the pur-pose of, this proceeding. At the hearing, Shri Kotwal, forthe petitioner, announced that he did not ask any reliefagainst'the Election Commission and that the name ofthe Election Commission be deleted. This he did appa-rently because of the above ruling of the Supreme Courtwhere it has been laid down that the jurisdiction of theHigh Court under article 226 of the Constitution is terri-torial in nature and the Election Commission cannot besaid to be situated within that jurisdiction, even thoughit may hold its sittings within that jurisdiction to do cer-tain things. .
Shri Kotwal, in support of his contention that thiscourt has jurisdiction to consider the present petition,cited to us the precedent of an earlier Bench (Mangal-murti and Deo, JJ.) which in Mahadeo v. Jwala Prasad(2),considered the petition on merits even though the ques-tion of jurisdiction was specifically raised before it. ShriKotwal pointed out that the learned Judges dismissedthe petition on merits after going into all the questions
(1) 2 E.L.B. 499. (2) 6 E.L.R. 1.
E.L.R.] RAMKRISHNA V. THAKUR DAOOSING (H. C.) 189
arising thereunder and thus indirectly indicated that thiscourt possessed such a jurisdiction.
We may point out that the question was raised alsobefore Mangalmurti and Mudholkar, JJ . in ten cases inconnection with nomination papers but the learned Judgesdid not consider it necessary to decide it as they thoughtit inexpedient to interfere with elections and upset theprogramme. It was assumed kfor the purpose of those casesthat the High Court possessed that jurisdiction. See Budh-ram v. Returning Officer, BhandaraQ)
Again, in Sujaniram v. Lai Shyamshah^), Sen and Deo,JJ., decided the petition on merits assuming that therewas such jurisdiction. That was a case in which the peti-tioner asked for a writ, order or direction for quashingthe order of the Election Tribunal, Rajnandgaon, and fora writ of prohibition against the Election Commissionfrom holding a fresh election for the Chauki constitu-ency. The question of jurisdiction was raised. The learnedJudges observed:
"We do not consider it necessary to decide the ob-jections raised by Shri Phadke in view of our conclusionthat the application must fail on merits. It is not neces-sary to examine the scope of article 329(b) and the effectof the decisions of the Supreme Court. We will assumefor the purpose of this application that this court haspower under article 226 to question the order of the Elec-tion Tribunal dismissing or allowing an election petition".
After examining the merits of the dispute at consi-derable length, their Lordships observed:
"In exercise of the powers under article 226, this courtdoes not function as a court of appeal on questions of fact.As the finding is not vitiated by any error of law, the peti-tion fails".
We do not consider these precedents binding upon usbecause the learned Judges in their orders clearly statedthat it was not necessary to examine the question of juris-diction. There was no considered opinion on jurisdictionand therefore the orders cannot be said to lay down adefinite rule of law on the subject.
(1) Miscellaneous Petition No. 1779 of 1951, decided on 18th December 1951.(2) 5 E.L.E. 183.
190 EAMKRISHKA V. THAKUK DAOOSING (H. C.) [VOL. VI
With all due respect, we are also not inclined to followthe earlier orders as a matter of mere practice, because allquestions of jurisdiction have to be decided in limine andthis court cannot enter into the merits of a controversyeven to reject a contention of the petitioner without itsown jurisdiction to do so being clear and manifest. In thisconnection the reluctance of their Lordships to expressany opinion on merits when there was no jurisdiction, inLord Strickland v. Giuseppe Graim^) is a precedent well toremember. We accordingly heard arguments in supportand against the preliminary objection and having done so,we are of the opinion that this court has no jurisdictionin the present matter. Since the election was due to takeplace on 3rd May, 1953, we passed an order dismissing thepetition on 1st May, 1953, and stated that the reasonswould be given later and we are now giving the reasons.
No authority for the proposition involved in this casehas been brought to our notice. Reference has, however,been made to several rulings in which the meaning of theword "election" as used in article 329 and Part XV of theConstitution has been explained. These rulings lay downthat the process of election begins with the filing of nomi-nation papers and ends with the declaration of the result.Reference may be made in this connection to N. P. Ponnu-swami v. Returning Officer, NamakkaK?), Shankar v. Re-turning Officer, Kolaba(3) Shankar Rao v. State of MadhyaBharat^), Rudra Pratap v. Bhagwandin(5), In re Dr.John Mathai(6) and Sukar Gope v. State of Bihar C).
In Miscellaneous Petition No. 1779 of 1951 (cit. sup.)Mudholkar J. before whom the Travancore-Cochin casewas cited was of opinion that the word "election" wasused in different senses in Part XV of the Constitution.The learned Judge observed:
"The entire controversy regarding jurisdiction doesnot in my opinion turn upon the meaning to be givento the word 'election' as used in clause (b) of article329. I am clear that the word 'election' wherever usedmust not necessarily be understood either in the ex-tended sense as contended for on behalf of the non-appli-
(1) A.I.R. 1930 P.O. 227, 232. (2) 1 E.L.R. 133.(3) 1 E.L.R. 13. U) 1 E.L.R. 34.(5) 1 E.L.R. 60. (6) 1 E.L.R. 1.
(7) 1 E.L.R. 68.
E.L.R.] RAMKRISHNA V. THAKUR DAOOSING (H. C.) l 9 l
cants or in a narrow sense as contended for on behalf ofthe applicants. In each case the meaning of the word willhave to be ascertained from the context in which it isused. According to the Travancore-Cochin High Courtwhose judgment we have seen the word 'election' has beenused in this particular provision in an extended sense.With due respect to the learned Judges, I entertain seri-ous doubts about that. Fortunately, however, I find itpossible to decide these cases without having to interpretthe word election".
These observations which are obiter need not detainus as they are in conflict with what was observed by theSupreme Court in N. P. Ponnuswami v. Returning Officer,Namaklcal^) and the matter can, if I may point out res-pectfully, no longer be viewed as stated in above quota-tion.
Accepting the meaning now authoritatively given, wehave to see whether, as contended, the election can be saidto be over after the declaration of the result which waspublished in the Gazette of 8th February, 1952, as requiredby section 74, Representation of the People Act, 1951.
The provisions of Chapter XV of the Constitution dealwith elections generally. Article 324 vests the superin-tendence, direction and control of elections in an ElectionCommission. Article 327 gives Parliament the power tomake provision, with respect to elections to Legislatures.Article 328 confers power on the Legislature of a State tomake provision by law with respect to matters relating to,or in connection with, the elections to the House or eitherHouse of Legislature of a State including the preparationof electoral rolls and all other ancillary matters. Article329 bars interference by courts in electoral matters andreads:
"Notwithstanding anything in this Constitution—*P *P Sp
(b) No election to either House of Parliament or tothe House or either House of the Legislature of a Stateshall be called in question except by an election petitionpresented to such authority and in such manner as may beprovided for by or under any law made by the appropriateLegislature".
(1) 1 E.L.R. 133.
192 RAMKRISHNA V. THAKtJR DAOOSfSTG (H. C.) [VOL. Vt
The opening words "Notwithstanding anything inthis Constitution" are sufficiently wide to exclude thepowers of (this court under articles 226 and 227. It ismanifest, therefore, that no election can be called in ques-tion except by an election petition presented as laid downin clause (b) of article 329. Parliament, under the provi-sions of the Constitution, framed the Representation of thePeople Act, 1951, and provided, inter alia, for the disputesarising out of elections. These provisions are to be foundin Part VI of the Act. That Part is divided into five chap-ters. The second chapter deals with the presentation ofelection petitions to Election Commission and the thirdchapter with the trial of election petitions and the necessaryorders thereon. We are not concerned with the otherchapters.
Under the second chapter, section 80 provides thatno election shall be called in question except by an elec-tion petition presented in accordance with the provisionsof Part VI and the following sections provide for the pre-sentation of petitions and the matters which the petitionsmay contain, together with provisions for dismissing thepetitions if the provisions are not strictly complied with.Section 80 reproduces article 329 (b).
The third chapter deals with the trial of election peti-tions; and if the petition is not dismissed, the ElectionCommission appoints an Election Tribunal for the pur-pose" of such trial. The place of trial is always determinedin the first instance by the Election Commission, but thetribunal may in its discretion sit at any other place forany part of the trial. Provision is made in that chapterto invest the tribunal with powers including those of acivil court and the tribunal is required at the conclusionof the trial to make an order. The provisions of section98 of the Act determine the kind of order which the tribu-nal may pass and it is provided there:
"At the conclusion of the trial of an election peti-tion the Tribunal shall make an order—
(a) dismissing the election petition; or(b) declaring the election of the returned candidate
to be void; or(c) declaring the election of the returned candidate
to be void and the petitioner or any other candidate tohave been duly elected; or
E.L.R.] RAMKRISHNA V. THAKUR DAOOSING (H. C.) 193
(d) declaring the election to be wholly void".Section 99 deals with other orders which the tribunal
may pass; section 100 with the grounds for declaring elec-tion to be void; section 101 with the grounds for which acandidate other than the returned candidate may be de-clared to have been elected; and section 102 with theprocedure in case of an equality of votes. Then followfive sections which deal with the action to be taken on theorder and the consequences resulting therefrom. Section103 provides that the tribunal shall communicate its orderto the Election Commission and transmit the record ofthe case to the District Judge of the district within whichthe place of trial appointed by the Election Commissionis situate etc. Section 104 deals with those cases inwhich there is a difference of opinion and it is providedthat the view of the majority shall prevail. The remainingthree sections must be quoted in extenso here:
"105. Orders of the Tribunal to be final and conclusive.—Every order of the Tribunal made under this Act shall befinal and conclusive.
106. Transmission of order to the appropriate authorityetc. and its publication.—"As soon as may be after the re-ceipt of any order made by the Tribunal under section 98or section 99, the Election Commission shall forward copiesof the order to the appropriate authority and, in the casewhere such order relates to an election (other than aprimary election) to a House of Parliament or to an elec-tion to the House or a House of the Legislature of a State,also to the Speaker or Chairman, as the case may be, ofthe House concerned, and shall cause the order to bepublished in the Gazette of India and in the OfficialGazette of the State concerned.
107. Orders to take effect only on publication.—AM orderof the Tribunal under section 98 or section 99 shall nottake^effect until it is published in the Gazette of Indiaunder section 106".
The learned counsel for the respondent claims thatinasmuch as the order has been published it has becomefinal and conclusive and, further, that as a new election hasbeen ordered, the Election Commission must be deemed
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194 RAMKRISHNA V. TSAKTJR DAOOSING ( H . C.) [VOL. VI
to have adopted the order and the action of the court ininterfering at this stage would interfere with an order ofthe Election Commission, which is not possible in view ofof the clear pronouncement of their Lordships of theSupreme Court in Election Commission v. Venkata Rao(cit. sup.)
On the other side it is contended that what the peti-tioner claims is not interference with any order of theElection Commission but the quashing of an order of atribunal which functioned within the territories over whichthis court has jurisdiction and which by that reason wasamenable to its jurisdiction under article 226 of theConstitution.
If the definition of an election, contended for byShri Kotwal, that it includes all proceedings commencingwith the nomination and ending with declaration of theresult, is accepted (and that seems to be the meaning givenby the Supreme Court), then it is obvious that the election*must continue till a final decision, by whoever it be, isreached regarding the result of the poll. To illustrate ourmeaning we have only to refer to clause (c) of section 98 bywhich under certain circumstances the election of the re-turned candidate is declared void and some other person isdeclared to have been duly elected. Shri Kotwal, when hewas faced with this example, had to concede (very reluctant-ly) that perhaps on his contention the proceedings of theElection Tribunal with this consequent result would beincluded in the process of election. Carrying the analogyforward, it is clear that clause (b) cannot on principle orauthority be treated differently. Under that clause thetribunal declares the election of a returned candidate to.be void and the implication of such a decision necessarilyis that the result of the poll or the election is only declar-ed finally by the tribunal and adopted by the ElectionCommission by the notification. If under clause (c) theprocess of election can be said to continue from nomina-tion till action is taken by the tribunal to declare somecandidate elected, then on a parity of reasoning the resultof the election under clause (b) is final only when the re-turned candidate's election is declared void. It may bethat a fresh election has to be held because by the decisionthe election becomes infructuous but it remains an election
E.L.R.] RAMKBISHNA V. THAKTXR DAOOSING ( H . C.) 195
all the same till the declaration of the final result, whetherit be to substitute some other candidate in place of the re-turned candidate or to exclude even the returned candi-date himself without substituting any other and to ordera fresh election.
The intention of the Constitution seems to be thatelection matters should be left to the machinery providedfor the consideration of election petitions in the law to bemade. The intention of the law is clear that no otherauthority should do what the tribunal and the ElectionCommission are required under the law to decide. TheConstitution contemplates that all election disputes shouldbe decided as laid down in article 329 (b). It is impossibleto think that after the decision of the dispute in the onlyway laid down by the Constitution, there can be any othermode of reopening the question. Once the only processunder which an election dispute can be decided has been gone
'through, the result announced must be final; otherwise wewould be setting up a rival procedure which article 329(b)does not warrant. This argument applies whether thedispute is taken to the High Court before the result of theelection is known or after the result is known. That anelection petition has been filed and dismissed or alloweddoes not remove the bar of article 329 (b) as that clausei£self contemplates only one mode of procedure and not two.
Apart from policy, illustrations of which may befound in Lord Strickland v. Giuseppe Grima^), G. E. DeSilva v. Attorney-General, Ceylon^1) and Joseph Theberge v.Philippe Laudryi3), there is considerable difficulty in inter-fering with the order of the tribunal. In the present casea fresh election has already been ordered by the ElectionCommision and is going on. Our interference at this stagewould interfere, not only with the result of the foregoneelection, but would also affect the impending election. Ifwe declare the petitioner to have been duly elected, therewould be no room for a second election and we would beinterfering, therefore, not with one election but two. Theclear provisions of the law on the subject show that theconsideration of such questions is advisedly left to specialand exclusive tribunals and not to the ordinary civil
(1) A.I.R. 1930 P.G. 227, 232. (2) A.I.R. 1949 P.O. 262,(3) (1876-77) 2 A.C. 102.
196 RAMKRISHNA V. THAKITR DAOOSING ( H . C.) [VOL. VI
courts, including this court exercising its extraordinarypowers under articles 226 and 227.
There is yet another argument which is conclusive.The order of the Election Tribunal when adopted by theElection Commission and notified, becomes an order of theElection Commission. The Election Tribunal is nothingmore than an amanuensis of the Election Commission andthe order made by the Election Tribunal, when adoptedby the Election Commission, becomes not only conclusivebut takes its effect for all intents and purposes as the actof the Election Commission. To issue a process against abody which is now functus officio to quash its order would,in the events which have happened, be a process againstthe Election Commission itself. That is not possiblebecause it has now been authoritatively ruled that theElection Commission is not subject to the writ process ofthe High Court within the territorial jurisdiction of whichthe Commission is not situate. It cannot be denied that 'in the present matter the Election Commission is not with-in our territorial jurisdiction and we cannot therefore bya writ compel the Election Commission to choose a courseother than what it has. No court does indirectly whatit cannot do directly. It is manifest that we cannot issueour process to the Election Commission and we should not,even if the power be there (which we hold is not), issue aprocess which would indirectly compel the Election Com-mission to a course we could not have directly ordered. Ifthe Election Commission chooses to ignore our order, therewould be no means of compelling obedience. To act inthis manner would be wrong, not only in principle, batalso against the practice of courts.
The second argument is also not without force and weare clear that there is no jurisdiction to interfere. Weare of opinion that such matters are exclusively withinthe jurisdiction of the election machinery provided bylaw and that this Court is excluded from interfering with it.
For these reasons we hold that we have no jurisdic-tion to interfere at the instance of the petitioner. Thepetition is, therefore, dismissed with costs as alreadyordered. We certify the case as fit for appeal to theSupreme Court under article 132 of the Constitution.
Petition dismissed.
E.L.R.] NIHARENDU DUTT V. SUDHIR CHANDRA 197
[ELECTION TRIBUNAL, WEST BENGAL.]
NIHARENDU DUTT MAZUMDARv.
SUDHIR CHANDRA BHANDARI AND OTHERS.S. C. RAY CHAIXDHTTRI (Chairman), M. N. GAN and
SUDHIR KUMAR BHOSE (Members).May 8, 1953.
Polling—Presiding Officer opening only one booth instead of two as noti-fied by Beturning Officer—-Validity of election—Consent of parties, effect of—Power of Election Commission to cure the irregularity—Election petition—Amendment of petition—Tribunal's power to allow amendments—Nomi-nation paper—Duty of Beturning Officer to scrutinise all nomination papers—Ballot papers—All ballot papers not accounted for—Whether electionvitiated—Bepresentation of the People Act, 1961, ss. 25, 36 (6), 37, 90(2)—B. P. Bules, 1951, rr. 18(2), 19.
The Election Tribunal has no power to allow amendment of an elec-tion petition; allowing amendment of the petition itself is against the tenorand spirit of election law. Section 90(2) of the Representation of the PeopleAct, 1951, applies only to the trial of the petition and not to the petitionitself.
Adding the correct addresses of the respondents does not, however,amount to amendment of the petition and a petitioner can be allowed tosupply them even after the expiry of the period of limitation for filing thepetition.
Saharanpore District (N.M.B.) Case (l Jagat Narain 66) referred to.Under section 36(6) of the Act, the Eeturning Officer must scrutinise
all the nomination papers filed on behalf of a candidate and endorse oneach of them his reasons for accepting or rejecting the same. The practiceof not scrutinising the remaining nomination papers if one is found to bevalid is contrary to law.
The causes relied on for setting aside an election must be specificallystated in the election petition. A new cause not alleged in the petition can-not be set up at a subsequent stage under the general expression "andother causes" which appears in the petition.
The Lahore Case (1 Khanna 117) referred to.The mere fact that some ballot papers issued to the voters were un- •
accounted for is not a ground for setting aside an election. Nor is the find-ing of an empty ballot box of a different type and colour somewhere with-in the constituency a ground for setting aside an election.
Where the Returning Officer, acting under rule 18(2) had fixed twopolling booths for a particular polling station and notified that voters 1 to800 should vote in one of them and 801 to 1600 in the other, but thePresiding Officer opened only one booth and it appeared further that outof 618 female voters, mostly pardanashins, only 60 had cast their votes,and out of the 1,600 voters only 668 voted, and the difference between the
198 NIHARENDU DUTT V. SUDHIE CHANDRA [VOL. VI
votes secured by the returned candidate and the petitioner was only 163:Held (i) that the election was not held according to law and the result
of the election was materially affected by the irregularity and the electionshould be set aside;
(ii) that knowledge or consent of the candidates or their agentscannot create any estoppel against the infringement of statutory require-ments and render the election valid; and
(iii) the Election Commission had no power to cure such irregu-larity by approving of the action of the presiding officer ex post facto.
Held also, that the petitioner who got the next highest number ofvotes could not be declared duly elected as the election was held contraryto law and was wholly void.
Magwe West Case (Hammond 505), Durham Case (2 O'M. & H. 152)and Islington Case (5 O'M. & H. 120) referred to.
ELECTION PETITION NO. 172 OF 1952.
K. P. Khaitan, Ranadeb Ghaudhuri, A. K. Das, N. Roy,Pramotha Kumar Chakraborty and Amal Chandra Roy, in-structed by P. K. Bose, for the petitioner.
8. K. Acharya, Tarun Basu, Bejoy Bhose, Arun ProkashGhatterjee and Ghiu Haitao, for the respondents.
ORDER.
The election to the West Bengal Legislative Assemblyfrom Maheshtala Assembly Constituency in the SadarSub-division of District 24-Parganas, has been called inquestion under section 81 of the Representation of thePeople Act, 1951.
The petitioner and the six respondents contested theelection in the said single seated constituency. The elec-tion was held on 12th January, 1952, and the result of theelection was declared on 25th January, 1952, after thecounting of votes. The respondent No. 1, Sudhir ChandraBhandari, who polled 6,614 valid votes, was declared elec-ted. The petitioner, Sri Niharendu Dutt Mazumdar, polledthe next highest number of votes, viz., 6,451. The respon-dent No. 2, Amiya Mandal, polled 3,334 votes. His nomi-nation paper is said to have been improperly accepted asit purported to have been signed by Kumud ChandraBandopadhyay (Banerjee) as proposer and by Sisir KumarBandopadhyay (Banerjee) as seconder, and was notgenuine. The alleged proposer and seconder swore affidavitsdenying their signatures and the alleged proposer, Kumud
B.L.R.] NIHARENDTI DTTTT V. StTDHlR CHANDRA
Chandra Banerjee, instituted a criminal case in the courtof the Sub-Divisional Magistrate, Alipore, 24-Parganason 9th January, 1952, disclosing the fraud that waspractised in respect of signatures of the said persons asproposer and seconder. The result of the election is saidto have been materially affected by the improper accep-tance of the nomination paper of the respondent No. 2,Amiya Mandal.
The polling was to be held in 67 polling booths indifferent polling stations within the constituency includ-ing two booths at the polling centre known as PanchoorP. P. School. It was announced that 800 voters were tocast votes in each of those two booths of Panchoor centre.One of the booths at that centre was not opened withoutpublishing any notice for amalgamation or abolition ofany of the two booths. As a result of that many of thevoters had to go away either on account of the rush ofvoters in one booth and (or) on account of the failure tolocate the place where to cast their votes, on account ofthe illegal closure of one booth without any notice to thevoters and others concerned. In consequence, out of1,600 votes to be polled at that polling centre of Panchoorless than 50 per cent, votes were polled. During thecounting of votes it was noticed that as many as 289ballot papers were unaccounted for. The matter beingreported to the Election Commission, India, informationwas obtained that as a matter of fact 297 ballot papersremained unaccounted for. This was significant in viewof the difference of only 163 votes between those polledby the petitioner and the respondent No. 1.
It was further noticed at the time of counting thatone of the ballot boxes of respondent No. 1, SudhirChandra Bhandari, was of round long old type post-boxpattern which was unlike all other boxes of the differentcandidates. No such different type of box was noticed bythe polling agents of the petitioner at the time of pollingand the attention of the Returning Officer was drawn to itby a petition at the time of counting.
Furthermore, some days before the day of countingone ballot box was noticed lying in broken conditionwithin the jurisdiction of the Maheshtala Constituencyand the local police took charge of the same. The counting
200 NIHARENDU DtTTT V. STJDHIE, CHANDRA [VOL. VI
was held by the Returning Officer in such a manner andunder such conditions as did not preclude the possibilityof any foul play or causing disappearance of some of theballot papers and it did not also become possible to as-certain which ballot box contained how many ballot papersand as such the number of ballot papers found in theunusual type of box; could not be known. The countingagents of the petitioner were not given opportunity toexamine the seals of the ballot boxes of the candidatesother than the candidates for whom the agents wereappointed.
The returned candidate, Sudhir Chandra Bhandari,did not file the return of election expenses according tolaw inasmuch as it did not disclose expenses actuallyincurred.
In view of all these alleged irregularities and non-compliance with the provisions of law the petitioner hasprayed for a declaration to the effect that the election ofthe returned candidate, Sudhir Chandra Bhandari, is voidand for a further declaration that the petitioner, whoobtained the next largest number of votes has been dulyelected or that the election is wholly void.
The respondent No. 1, Sudhir Chandra Bhandari,contents the case. Copies of the election petition wereserved on the other respondents as required by section90(1) of the Representation of the People Act, 1951. Noneof the other respondents appeared to contest the case.
The objections raised in defence are:—(1) The petition is barred by limitation.(2) The nomination paper of Respondent No. 2, Amiya
Mandal, which was accepted was not proposed andseconded by the persons as alleged in the election petition.
(3) The nomination paper of Amiya Mandal wasproperly accepted and the votes polled by him did notaffect the petitioner and respondent No. 1 in any manner.
(4) The amalgamation of two booths at PanchoorF. P. School was made with notice and consent of thecandidates including the petitioner himself, and in anyevent the amalgamation was regularised by proper proce-dure as observed under the law relating to elections.
(5) The allegation that a large number of voters failed
E.L.R.] NIHARENDU DTTTT V. StTDHIR CHANDRA 201
to cast their votes at Panchoor centre is false and thatnowhere in Bengal on an average 50 per cent, of the totalvotes were polled and in almost every election some ballotpapers remained unaccounted for as some of the votersdid not cast their votes after receiving ballot papers.
(6) The polling agent of the petitioner became satis-fied writh the result of the election after having obtaineda recount, and the objection regarding one ballot box notof the proper type has no substance.
(7) The allegation regarding submission of incorrectreturn of election expenses by the respondent No. 1 isdenied.
It is contended that the result of the election has notat all been affected on account of any irregularity or non-compliance with the provisions of law, as alleged in theelection petition.
The following issues, as amended at the time of trial,arise for decision:—
1. Is the election petition barred by limitation?2. Has the result of the election been materially
affected by the alleged improper acceptance of the nomi-nation paper of the respondent No. 2, Amiya Mandal,within the meaning of section 101 (1) (c) of the Re-presentation of the People Act, 1951?
3. Has the result of the election been materiallyaffected by non-compliance with the provisions of theRepresentation of the People Act, 1951, or of any rules ororders made under the said Act or any other Act or rulesrelating to election within the meaning of section 100(2)(c) of the Representation of the People Act, 1951?
4. What relief, if any, is the petitioner entitled to?After the commencement of the trial the learned coun-
sel for the petitioner, Sri A.K. Das, moved a petition foramendment of the election petition. That petition was re-jected by an order dated 15th April, 1953, with the observa-tion that the Tribunal would discuss the question ofamendment in detail in its final judgment. The amend-ment petition was neither verified nor was any affidavitfiled in support of the same, explaining why the prayer wasmade at so late a stage. After the order of rejection of the
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202 NlHARENDfr DUTT V. SUDHIR CHANDRA [VOL. VI
original petition, a second verified petition for amendmentof the election petition was filed repeating similar prayersgiving certain further particulars. The second applicationwas also rejected as it did not disclose any new ground forrevision of the original decision of the tribunal.
By the amendment petition the petitioner attemptedto introduce additional grounds to challenge the election.They were, (1) that several polling booths were not openedat the notified hour and the polling was not continued forthe full statutory period of 8 hours, and (2) that undueinfluence was practised on purdahnashin Muslim ladyvoters who assembled to cast their votes in a particularbooth. By the second amendment petition names of a fewmore booths were added and it was contended that theamendment was necessary to give further and better parti-culars in respect of the allegations made in paragraph 20of the election petition. In connection with the first pointit was stated in the second amendment petition that fur-ther and better particulars were given in view of the state-ment already made in paragraph 11 of the election peti-tion.
In paragraph 11 of the original election petitionthere are allegations, that many of the voters who were tocast votes at the two booths of the polling centre knownas Panchoor F. P. School "had to go away either on accountof the rush of voters in one booth and/or on account oftheir failure to locate the place where to cast their voteson account of the illegal closure of one booth without anynotice to the voters, etc." The prayer to amend this para-graph of the election petition by introducing the allegedfact that polling booths were not opened at the properhour and the polling was not continued for the statu-tory period at several centres, can by no stretch of imagi-nation be deemed to be such particulars as contemplatedin section 83(3) of the Representation of the People Act,1951, which allows inclusion of further particulars in thelist to be supplied with the election petition. Similarlyparagraph 20 of the Election Petition which merely statedthat "the result of the election has been materially affect-ed for the reasons stated above and for other causes",cannot be deemed to have been further elucidated as re-quired by the law by the introduction of a totally new
E.L.R.] NIHARENDU DUTT V. SUDHIR CHANDRA 203
ease that purdahnashin Muslim lady voters were incapableof recording their votes on account of corrupt practices.These are not further and better particulars which can beintroduced by amendment of the list of full particularsas provided in section 83(3) of the Representation of thePeople Act, 1951. Prayer for addition of such totally newgrounds to make out a new case is hit by the special lawof limitation applicable to election petitions as providedin rule 119 of the Representation of the People (Conductof Elections and Election Petitions) Rules, 1951.
Now, the question is, whether any amendment of theelection petition is allowable under the law. The Re-presentation of the People Act, 1951, nowhere providesthat an election petition can be amended. The only pro-vision for amendment appears in section 83(3), whichallows amendment of the list of full particulars whichshould accompany the election petition. It has been heldin numerous cases that an election petition cannot beamended. Referring to numerous English cases it hasbeen observed in Nanak Chand Pandit's Law of Electionsat page 387 that "The court has no jurisdiction to amenda petition. The only discretion given to the court is toallow the particulars already filed to be amended". InHalsbury's Laws of England, Hailsham Edition, Volume12, article 792, page 403, observation has been made that,"the court will not allow an amendment of particulars atthe trial when such amendment really amounts to an amend-ment of the petition". The learned counsel for the peti-
'tioner, Sri A. K. Das, claims amendment of the electionpetition under Order VI, rule 17, of the Civil ProcedureCode, contending that amendment is allowable at anystage. In Jagat Narain's Law of Elections and ElectionPetitions in India and Burma, at p. 412 it has beenobserved that, "there is no provision for the amendmentof a petition. Order VI, rule 17, of the Code of CivilProcedure has no application to an election petition".
The application of the Code of Civil Procedure is re-stricted under section 90(2) of the Representation of thePeople Act, 1951, to the procedure of the trial of electionpetition. There was similar provision in rule 37 of theold Electoral Rules. In the Saharanjpore District (N.M.R.)
204 NIHARENDU DTJTT V. STTDHIR CHANDRA [VOL. VI
CaseQ) the question was fully discussed and we may pro-fitably refer to the observation made therein: "It is claim-ed that rule 37 (corresponding to section 90(2) of theRepresentation of the People Act, 1951) directs the Com-missioners to enquire into petitions "as nearly as may bein accordance with procedure applicable under the CivilProcedure Code, 1908, to the trial of suits", and that weought to amend this petition and supply the missingparticulars now. The petitioner's counsel profess to relyon Order VI, rule 17, Civil Procedure Code. We hold,however, that rule 37 only makes the Civil Procedure Codeapplicable to the conduct of the enquiry and not the peti-tion. In the case of an ordinary civil suit the trial courtis empowered to accept, reject, or at any time amend theplaint. This is not so with an. election petition, whichunder rule 30 [corresponding to rule 119 of the Represen-tation of the People (Conduct of Elections and ElectionPetitions) Rules, 1951] can be accepted within a limitedperiod of 14 days from the date of publication of the resultof the election. Further, there is no provision anywherein the Act or the rules for the amendment of a petition.Indeed any such amendment appears contrary to the wholetenor and spirit of the rules. The short time limit per-mitted and the insistence in rule 30 on furnishing at onceof the full particulars are evidently intended to ensurethat the returned candidate shall without any delay beinformed of the exact nature of the charges which he willhave to meet. To allow amendments and additions wouldbe to defeat this very salutary provision". We fully acceptthis view of the learned Commissioners, which has beenendorsed in American Jurisprudence, Volume 18, Elections,section 300, page 373, observing that, "where the proceed-ing in an election contest is governed by a special statutewhich does not provide for amendments and in which theproceedings are not assimilated to some practice so provid-ing, amendments of the contestant's pleadings cannot bepermitted to set up a ground of contest not stated in theoriginal pleadings".
The learned counsel for the petitioner have referredto Chartered Bank of India v. Imperial Bank of Indiai?)and to Borough of Evesham Case(3). In Evesham Case
(1) 1 Jagat Narain 66 (67) (2) A.I.R. 1930 Gal. 534.13) 3 O'M. & H. 94.
E.L.E.] NIHARENDTJ DUTT V. SUDHIR CHANDRA 205
additional particulars regarding bribery which was alreadypleaded, was accepted for the purpose of reporting aboutcorruption that prevailed in the election, irrespective ofthe petition and the question of unseating the sittingmember. That case does not at all support the petitioner'scontention. The case reported in Chartered Bank of Indiav. Imperial Bank of Indiai^) deals with amendment of theplaint of a civil suit. Even in that case it was observedthat amendment is refused, almost invariably, where thepurpose of the amendment is to add a plea of fraud, wherefraud has not been pleaded in the first instance.
We record these reasons for rejecting the prayer ofamendment of the election petition.
We now proceed to decide the issues.Issue No. 1—In the election petition the addresses of
the respondents were not given. The election petition wasreceived by the Secretary, Election Commission, India, on21st April, 1952. It was presented within time as requiredunder rule 119 of the Representation of the People (Con-duct of Elections and Election Petitions) Rules, 1951, asthe Gazette Notification regarding the lodging of thereturn of election expenses was published in the CalcuttaGazette Extraordinary, Part I, page 721, dated April 10,1952. Section 90(1) of the Representation of the PeopleAct, 1951, enjoins that the tribunal shall, as soon as maybe, cause a copy of the election petition to be served on eachrespondent. There being no address of any of the respon-dents in the election petition, the tribunal by orders dated5th August, 1952, and 18th August, 1952,-directed the peti-tioner to supply the addresses of the respondents. By averified petition dated 27th August, 1952, the addresseswere supplied and the said petition was made part of theelection petition. The learned counsel for the respondentNo. 1, Sri S. K. Acharya, contends that the election peti-tion became time-barred when it was completed on 27thAugust, 1952, supplying the necessary addresses. Heinvokes the application of Order VII, rule l(c), of theCivil Procedure Code which requires that "The plaintshall contain the name, description and place of residenceof the defendant, so far as can be ascertained". Relyingon Ramprasad Chimanlal v. Hqzarimull Lalchand(2) it
(1) A.I.R. 1930 Gal. 534. (2) A.I.R. 1931 Gal. 458.
206 NIHARENDU DTTTT V. SITDHIB CHANDBA [VOL. VI
is argued that explanation should have been givenin the plaint for not supplying the addresses, in order tosave limitation. The tribunal has already expressed itsview in connection with the question of amendment of theelection petition, upholding the contention of the learnedcounsel that the application of the Civil Procedure Codeto election petitions is restricted by section 90(2) of Re-presentation of the People Act, 1951, to the procedure ap-plicable to the trial of suits only. Section 82 of the Re-presentation of the People Act, 1951, requires that all theduly nominated candidates at the election other than thepetitioner himself, if he was so nominated, should be joinedas respondents. The duly nominated candidates are knownpersons and their identity need not be established givingfurther descriptions. The tribunal required the addressesof the respondents for service of the copy of the electionpetition on each of them and the supply of addresses can-not be deemed to amount to any amendment of the elec-tion petition. In the Representation of the PeopleAct, 1951, there is no corresponding provision as in OrderVII, rule 1 (c), of the Civil Procedure Code, for obviousreasons. It may be noted as pointed out by the learnedcounsel for the petitioner that section 4 of the Civil Pro-cedure Code excludes the application of the rules of thesaid Code, there being special form of procedure prescribedby the Representation of the People Act, 1951. No ques-tion of limitation accordingly arises. This issue is answer-ed in the negative.
Issue No. 2.-r-This is rather a misconceived objectionraised without ascertaining the actual facts. The respon-dent No. 2, Amiya Mandal, was one of the contestants andhe polled quite a large number of votes, viz., 3,334. Theevidence discloses that he presented two nomination papers,Ex. 5 and 5 (a) at the same time on 19th November, 1951,and they were numbered 430 and 429, respectively. Thenomination paper No. 429 [Ex. 5 (a)] was first scrutinisedand accepted by the Returning Officer as valid. The othernomination paper No. 430 (Ex. 5) was not even scruti-nised. In this latter nomination paper the names of KumudChandra Bandopadhyaya as proposer and Sisir KumarBandopadhyaya as seconder, appear. Paragraphs 3 to 7of the election petition deal with this nomination paper,
E.L.R.] NIHARENDU DUTT V. StTDHIR CHANDRA 207
attempting to make out a case that the signatures of thesaid proposer and seconder were forged therein and assuch it was improperly accepted, thereby affecting theresult of the election materially. The respondent No. 1averred in his written statement in unequivocal terms thatAmiya Mandal was validly nominated by another nomi-nation paper in which the proposer and the seconder werenot the alleged persons. The petitioner still pursues theobjection examining Kumud Chandra Banerjee (P.W. 2)and Sisir Kumar Banerjee (P.W. 4) and producing thepapers of a criminal case brought by the said KumudChandra Banerjee alleging that his signature and that ofSisir Kumar Banerjee were forged in that nominationpaper. The complainant (P.W. 2) did not care even to keepany information about the result of his criminal case.That fact is not material for the purpose of this case. TheReturning Officer, Sri S. K. Ghosh, (Court Witness No. 1),proves that he took up nomination papers serially forscrutiny and when one nomination paper [Ex. 5(a)] wasfound valid he did not scrutinise the other nominationpaper (Ex. 5), it being the custom not to scrutinise theother nomination papers when one is found valid. He didnot consider it his duty to scrutinise both the nominationpapers. It can be observed that the procedure followedby him is contrary to the provisions of the law. Section33(7) of the Representation of the People Act, 1951,enables a candidate to present more than one nominationpaper for election in the same constituency. Section 36(6)of the Representation of the People Act, 1951, enjoinsthat "The Returning Officer shall endorse on each nomi-nation paper his decision accepting or rejecting thesame". It has, of course, been rightly contended by SriA. K. Das, counsel for the petitioner, that the ReturningOfficer was bound to scrutinise each nomination paper.This provision of law directing scrutiny of each nomina-tion paper has much significance and the Returning Officerhas no discretion in the matter. If only one of the severalnomination papers of a candidate, which is first scruti-nised, be found valid and accepted, and the other nomina-tion papers are not scrutinised, the question of serioustransgression of the provisions of law may arise affectingthe result of the election materially, in case the accepted
208 NIHAEENDU DUTT V. SUDHIB CHANDRA [VOL. VI
nomination paper be found to have been improperly ac-cepted by the Returning Officer in a subsequent electionproceeding. It should be impressed upon the ReturningOfficers that section 36(6) of the Representation of thePeople Act, 1951, should be strictly followed and eachnomination paper should be scrutinised. In this connec-tion it may be further observed that the endorsement ofacceptance should also be clearly noted on the nominationpaper, instead of merely signing under the certificate ofscrutiny. In the printed portion of the form of nomina-tion paper the grounds for acceptance are only stated.The endorsement of actual acceptance or rejection shouldbe written, recording reasons briefly in case of rejection.The objection in respect of improper acceptance of thenomination paper of Amiya Mandal is, however, untenablein view of the fact that a different nomination paper fromthe one mentioned in the election petition was found validand accepted.
The learned counsel for the petitioner, Sri A. K. Das,attempts to spin out a new case that the very fact thatthe names of Kumud Chandra Banerjee and Sisir KumarBanerjee who were Congress workers, were fraudulentlymentioned as proposer and seconder in one nominationpaper of Amiya Mandal, had some reaction on the elec-torate which materially affected the result of the election.He contends that such a case is covered by the allegationmade in paragraph 20 of the election petition which runsthus: "That the result of the election has been materiallyaffected for the reasons stated above and for othercauses". The use of the expression "for other causes"at the end of the said paragraph can in no circumstancejustify the introduction of a new case not specificallymade in the election petition, as contended. The law doesnot allow the petitioner to leave everything blank and toattempt at the time of trial to fish out some possiblematerials from which the blanks may be filled up. It hasbeen held that this amounts to an abuse of procedure:vide The Lahore Case(1). Such a contention not only doesnot stand to reason, but is contrary to the commonsenseview of the rules requiring averment of material facts inthe pleadings. However, there has not also been any
(1) 1 Khanna 117.
E.L.R.] NIHARENDTT DUTT V. STTDHIR CHANDRA 209
decision that there was fraudulent insertion of the namesof Kumud Banerjee and Sisir Banerjee in the unscruti-nised nomination paper of Amiya Mandal by forgeries.Kumud Banerjee (P. W. 2) and Sisir Banerjee (P. W. 4),of course, deny their signatures in the nominationpaper in question, before this tribunal. That mattercannot be investigated in this election case. P. W. 25,Lakshmi Narain Ghosh, and P.W. 26, Jaharlal Ghosh, areexamined to give evidence that when it became widelyknown that Congress workers, Kumud Banerjee and SisirBanerjee, were supporting the candidature of AmiyaMandal becoming proposer and seconder in his nominationpaper, the Congress cause became weak and a large num-ber of supporters of the Congress changed their views andintended to vote for Amiya Mandal. The evidence iscleverly introduced to argue that the result of the electionhas been materially affected on account of such falsepropaganda. The learned counsel has laboured too muchto show in a far-fetched manner that the result of theelection has been materially affected on this account.Such a case is not covered by the issue framed, nor doesit come under any head of corrupt practice as defined insections 123 and 124 of the Representation of the PeopleAct, 1951.
The tribunal accordingly decides this issue againstthe petitioner.
Issue No. 3.—This issue is very comprehensive. Thelearned counsel for the petitioner, Sri A. K. Das, arguesthat all the following points pressed by him are coveredby this issue. His contentions are :—
(a) The nomination paper of the respondent No. 2,Amiya Mandal, purported to have been signed by KumudChandra Banerjee and Sisir Kumar Banerjee as proposerand seconder, has materially affected the result of theelection and there was non-compliance with the manda-tory provision of law, the said nomination paper beingnot scrutinised by the Returning Officer.
(b) Amalgamation of two booths or closure of onebooth at Panchoor F. P. School Polling Centre No. 23,was a vital transgression of the law relating to the conduct
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210 NIHARENDU DTJTT V. StTDHIR CHANDRA [VOL. VI
of elections whereby the result of the election has beenvery materially affected.
(c) There being 297 unaccounted for ballot papersand the difference of votes between the petitioner and thereturned candidate being 163, the result of the electionhas been materially affected.
(d) A different type of ballot box of old post-boxpattern was found in the lot of the ballot boxes assignedto Sudhir Chandra Bhandari for the first time during thecounting of the votes and the ballot papers contained inthat box being taken into account, the result of the elec-tion has been materially affected.
(e) One ballot box was found lying in a broken condi-tion within the jurisdiction of the Maheshtala consti-tuency, which fact is suggestive of some sort of malpracticewhich affected the result of the election.
(f) There was non-compliance with the provisions oflaw relating to the counting of votes and the irregulari-ties complained of did not preclude the possibility offoul play and disappearance of ballot papers affectingthe result of the election.
The second point is most important. It has beenlucidly argued by the learned senior counsel for the peti-tioner, Sri K. P. Khaitan. The question will be takenup after disposing of the other points.
(a) We have already discussed the new case ingeni-ously set up, leading some evidence to establish how theresult of the election was apprehended to be affected bythe nomination paper of Amiya Mandal, which was notscrutinised, in connection with the issue No. 2. There isno substance in this contention as already decided. Ofcourse, there was non-compliance with the provision undersection 36(6) of the Representation of the People Act,1951, as each nomination paper was not scrutinised bythe Returning Officer. That has not affected the result ofthe election in this case, as Amiya Mandal was validlynominated by another nomination paper which was ac-cepted. This point need not be further discussed.
(c) The difference of votes between the petitioner andthe successful candidate was 163. As can be gatheredfrom the letter Ex. 12, addressed by the Secretary, Elec-
E.L.R.] NIHABENDTJ DUTT V. STTDHIR CHANDRA 211
tion Commission, to the counting agent for the petitioner,P.W. 23, Provash Chandra Paul, that 297 ballot papersremained unaccounted for, i.e., so many ballot papers issuedfrom the different booths within the entire constituency,could not be found in the ballot boxes. There were asmany as 40 polling centres with 66 polling booths. Thetotal number of ballot papers issued was more than 26,000,as found on calculation from Ex. Q wherein an accounthow the ballot papers had been dealt with, has been givenin abstract form. There are, of course, certain palpablemistakes in this document. The Secretary, ElectionCommission, explained in Ex. 12 the reason why a fewballot papers may remain unaccounted for in each booth,either for not depositing the ballot paper in the ballot boxby certain ignorant or mischievous voters or due to mis-take in calculation by the presiding officers. These reasonswhich formed part of the argument of the learned defencecounsel, Sri S. K. Acharya, are quite logical. The un-accounted for ballot papers were a little over one per cent,of the total number of ballot papers issued. By no stretchof imagination it can be suggested that those unaccountedfor ballot papers, even if found, could advance the case ofthe petitioner in any manner, or even of any other candi-date. The result of the election has not been affected atall for the loss of the unaccounted for ballot papers. Thisobjection is groundless.
(d) The ballot papers found in the old type of ballotbox were counted and there was absolutely no ground forrejecting them. According to the official report those voteswere cast in favour of the candidate Tejendra KumarBasu who secured very small number of votes. The resultof the election has not been affected in any manner by thecounting of ballot papers found in the old type box.
(e) The result of the election in question has not inany manner been affected by the fact of finding an emptyballot box of a different type and of a different colour,somewhere within the constituency.
* * * *(b) We will now diecuss the second contention which
is of vital importance. It arises on account of amalgama-tion of two booths or closure of one booth at polling sta-tion No. 23, Panchoor P. P. School. The whole law relatingto the manner prescribed in the Representation of the
212 NIHABENDU DUTT V. SUDHIB CHANDRA [VOL. VI
People Act, 1951, and the rules and orders made there-under, for the conduct of elections, with reference to thestatutory right given to every elector and the authorityvested in the Election Commission by the Constitution,has been fully placed before the tribunal by the learnedcounsel, Sri K. P. Khaitan, for the petitioner.
The learned defence counsel, Sri S. K. Acharya, hasrightly contended that the whole question depends upontwo material facts, viz., (1) whether the amalgamation oftwo booths at the same polling station was contrary to lawand the irregularity on account of such amalgamation wasvalidly regularised by the Election Commission; and (2)whether the result of the election has been materiallyaffected on account of such amalgamation.
The fact is admitted that the Returning Officer exer-cising his power under rule 18(2) of the Representation ofthe People (Conduct of Elections and Election Petitions)Rules, 1951, fixed two booths at Panchoor F. P. Schoolpolling station No. 23 and set them apart for the record-ing of votes of electors specifically allotted to each booth.As required under section 25 of the Representation of thePeople Act, 1951, previous approval of the Election Com-mission was obtained and a list showing the polling sta-tions with the polling booths, the polling areas for whichthey have been provided and the specific numbers of theelectors allotted to each booth, was published—vide Ex. 3.The Returning Officer, Sri S. K. Ghose, (C.W. 1), givesevidence that he made arrangements for two Assemblybooths and two Parliamentary booths at Panchoor F. P.School, accepting the report of the circle officer. He did notpersonally inspect the polling centre. The presiding officerof the polling station No. 23 was one Sri B. B. Dutta, anofficer of the B. N. Railway, as we get from the evidence ofthe Assistant Returning Officer, Sri F. M. Sanyal (P.W.27) and the register of presiding officers, polling officers,(Ex. R). The register further shows that 8 polling officerswere appointed for the station. The presiding officer, SriB. B. Dutta, was summoned by respondent No. 1 as wit-ness, but his evidence has not'bec»me available as he hasnot been brought during the trial for examination. TheReturning Officer and the Assista-nt Returning Officer cameto know about the fact that only one booth was opened at
E.L.R.] NIHARENDU DUTT V. SUDHIR CHANDRA 213
Panchoor P. P. School, after the polling was over when thepresiding officer returned one set of empty ballot boxesboth for the Assembly Constituency and the ParliamentaryConstituency along with .the other set of used ballot boxes.
We cannot but too strongly condemn such act of thepresiding officer who signally failed to perform his dutiesaccording to law and exhibited lamentable lack of hissense of responsibility. It is very unfortunate that hecould not realise that the discharge of his duties in anarbitrary manner without any previous sanction, couldavoid the whole election throwing away for nothing theheavy expenditure incurred by the State and putting thecandidates to unnecessary huge expenses and harassment.Electors of the whole constituency also suffer on account ofsuch irresponsible act of the officer-in-charge of the elec-tion, if the election be declared void.
The Returning Officer reported about the serious ir-regularities by his letter (Court Ex. 1) dated 18th Janu-ary, 1952, to the Chief Electoral Officer, West Bengal. Thematter was brought to the notice of the Election Commis-sion by letter No. 468-A.R., dated 19th January, 1952. On22nd January, 1952, i.e., before the counting of votes theElection Commission by telegram (vide Ex. A) approvedof the use of one Assembly booth instead of two allottedin polling station No. 23 of Maheshtala Assembly Con-stituency. The jurisdiction of the Election Commissionto cure any such irregularity by approval given ex postfacto is seriously questioned by the learned counsel andthe result of such approval is discussed. In December,1951, evidently before the election, the Chief ElectoralOfficer, West Bengal, made a reference to the Election Com-mission regarding provision of polling booths in certainconstituencies in Ghatal and Contai Sub-divisions. TheElection Commission then issued instructions, dated the23rd December, 1951, to the effect that, "in all other caseswhere conversion of a double-boothed polling station (al-ready approved by the Commission) into two single-booth-ed polling stations at the same place was necessary, theCommission's approval should be presumed but thechanged particulars should be sent to the Commission forinformation and record": (vide Ex. S). Sri S. K. Acharya,learned counsel for respondent No. 1, contends referring to
214 NIHARENDTT DUTT V. SUDHIR CHANDRA [VOL. VI
these two documents, Exs. A and S, that the infringe-ment of the provisions of the law by the presiding officer,if any, was validly regularised by the Election Commis-sion. Mr. Khaitan, on the other hand, contends that thisomnibus previous order contained in Ex. S had no rele-vancy as the Returning Officer did not make any changein the arrangement of the booths at Panchoor F. P. Schoolin view of such direction of the Election Commission, henceno question of presuming Commission's approval did ariseand as such Ex. S cannot support the defence contention.The Returning Officer, instead of approving the action ofthe presiding officer, complained that the latter commit-ted serious irregularity.
Let us now examine the position of the law and thefact regarding use of one booth instead of two. Argu-ments have been advanced by the learned counsel, Mr.Khaitan, on this subject, discussing the question thread-bare.
Under article 170(1) of the Constitution, the Legis-lative Assembly of each State shall be composed ofmembers chosen by direct election. Article 326 providesfor adult franchise. Under article 327 the Parliament hasbeen given powers to pass election laws. Article 324(1)vests in the Election Commission "the superintendence,direction and control of the preparation of the electoralrolls for, and the conduct of, all elections to Parliamentand to the Legislature of every State". Electoral roll hasbeen prepared according to the provisions in the Re-presentation of the People (Preparation of Electoral Rolls)Rules, 1950. Section 24 of the Representation of thePeople Act, 1951, provides that "It shall be the generalduty of the Returning Officer at any election to do allsuch acts and things as may be necessary for effectuallyconducting the election in the manner provided by thisAct and rules or orders made thereunder". It has beenrightly contended that the Returning Officer has no powerto act departing from the manner provided by the law.Under section 25, with the previous approval of the Elec-tion Commission he is to provide a sufficient number ofpolling stations for each constituency and to publish a listshowing the polling stations so provided and the pollingareas for which they have respectively been provided, in
E.L.E.] NIHARENDtT DtTTT V. STJDHIH CHANDRA 215
such a manner as the Election Commission may direct.In the present case such a list, Ex. 3, was published byhim. The duty of the presiding officer under section 27is to keep order at the polling station and to see that thepoll is fairly taken. The learned defence counsel, Sri S. K.Acharya, attempts to defend the action of the presidingofficer referring to this section. In order to see that thepoll is fairly taken the presiding officer is to guard againstany malpractice, but he has not been given any power tomake any change of arrangement of recording votes of theelectors. Rule 18(2) of the Representation of the People(Conduct of Elections and Election Petitions) Rules, 1951,gives the Returning Officer the right to fix at each pollingstation one or such larger number of polling booths as hemay consider necessary but each such polling booth shallbe set apart for the recording of votes of electors specific-ally allotted to such booth. It was notified that atPanchoor F. P. School polling station No. 23 electorsNos. 1 to 800 should cast their votes at booth No. 1 andelectors Nos. 801 to 1,600 at booth No. 2—vide Ex. 3.Separate ballot boxes for each booth were given to thepresiding officer. It is contended by Mr. Khaitan that theelectors allotted to one booth could not be asked to casttheir votes in a different booth and the ballot boxes whichwere not used at all on account of closure of one boothare to be considered as ballot boxes unlawfully taken outwithin the meaning of section 58 of the Representationof the People Act, 1951, and thus occasion arose for hold-ing fresh poll. We cannot, however, agree with this viewof the learned counsel going so far as to hold that therewas a case of fresh poll for not using the ballot boxesintended for one booth. Section 59 of the Representationof the People Act, 1951, provides for the manner of votingat election. It is imperative that the votes shall be givenby ballot in such a manner as may be prescribed. "Pres-cribed" means prescribed by the rules made under theAct—vide section 2(g). Under section 62 of the Re-presentation of the People Act, 1951, every elector isentitled to vote for the constituency in the electoral rollof which his name has been entered. It is argued that 800voters of one booth were according to law deprived oftheir right of franchise and the ballot papers left by some
216 NIHARENDTJ DTJTT V. SUDHIR CHANDRA [VOL. VI
of them in a different booth should be cancelled as suchballot papers are not allotted to that booth. This niceargument has some force as the arrangement of boothswas not changed at all and the presiding officer had noright under the law to make any new arrangement accord-ing to his pleasure. Under rule 12 polling officers wereappointed for each booth. Rule 17 lays down who can beadmitted in each booth. It is contended that the officersand the electors who were allotted to one booth could notbe admitted in the other booth. Discussing rule 19 it isobserved that the Returning Officer provided the neces-sary requirements under sub-rule (1), but the presidingofficer acted without jurisdiction by not using separatebooths and the separate ballot boxes so provided. Refer-ring to the evidence, the learned counsel invites attentionto the material fact that the provisions of sub-rule (3)of rule 19 were not followed, as notices were not display-ed outside the polling station and inside the polling boothas required and contends that this infringement was vital.The notices should be displayed to guide the electors. Itis further contended that when there were arrangementsfor two separate booths, the procedure laid down in rule25 as to the manner of recording of votes was not followed,as the voters of one booth were not entitled to proceed tothe polling compartment of another booth. Under rule 33the presiding officer was to submit ballot paper account foreach polling booth separately in Form No. 10. This rulewas also violated as only one booth was used and some ofthe voters of each of the two booths were allowed to droptheir ballot papers in the ballot box of one booth. Theaccount of ballot papers in Form No. 14 was not preparedfor each booth as required under rule 46, sub-rule (viii).The learned counsel questions under rule 47(4) the valid-ity of the ballot papers accepted by the Returning Officer,contending that the decision of the Returning Officer isnot final and the Election Commission cannot cure suchvital irregularity by an ex post facto order, as the ballotpapers intended for one booth cannot be deemed to bevalid for another booth.
Referring to all these transgressions it is submittedwith good reasons that the ex post facto approval of theElection Commission has not cured the vital infringements
fc.L.R.] NI^ARENDU DUTT V. STTDtflR CHANDRA 211
and as such there has been no election according to law atPanchoor F. P. School centre. It is further argued thatirrespective of the fact whether the result of the electionhas been materially affected or not, the election has be-come ipso facto void on account of not holding the samein the manner prescribed by the law. It is abundantlyclear that an indiscreet action of the presiding officerupset the whole procedure of election, which should becomplied with, if not meticulously at least substantially.Mr. Khaitan observes that the provisions of the rules are bytheir very nature mandatory, but whether they be man-datory or directory, there being no compliance, the wholeelection must be deemed to be void. "Statutes are to beconstrued as mandatory and imperative when they pres-cribe acts to be done by private parties": (Craies on StatuteLaw, 5th Edition, page 60). The Returning Officermade no change and no fresh notification was issued.The voters were bound to act according to the programmepreviously notified.
Considering the cumulative effect of the transgres-sions, the tribunal holds that there was no electionaccording to law at Panchoor F. P. School Centre No. 23.
On the second question whether the result of the elec-tion has been materially affected or not, it has beenargued that the very fact that the election was not heldin the manner prescribed and thereby at least one set of800 voters being not given proper and legal facilities tocast their votes, the result of the election must be deemedto have been materially affected. In this constituencythere are 1,600 voters as the electoral roll, Ex. 4, as well asthe notification, Ex. 3, show. The evidence of the Return-ing Officer is that ordinarily 600 to 700 voters are allottedto each booth to cast votes within the statutory period of8 hours, but some discretion remains with the ReturningOfficer to fix the number according to the conditions of thecentre and other local circumstances. He decided thatthere should be two booths at Panchoor F. P. School Cen-tre No. 23 and 800 voters should be allotted to eachbooth. The arrangement must have been made in theSchool for two Assembly booths and also two Parliamen-tary booths. Photographs of the front view of the school
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218 NIHARENDU DUTt V. SUDHIR CHANDRA [VOL. VI
room have been produced by the parties. There is apretty big hall as the photographs and the evidence dis-close. There was some difficulty, there being only one doorfor entrance and exit. The respondent's witness No. 3,Majibar Rahman, the polling agent of the respondentNo. 1, Sudhir Chandra Bhandari, has been examined to saythat as there was one door, the presiding officer in consul-tation with the petitioner, Sri Niharendu Dutt Mazumdar,and the other candidates and agents present, decided towork with one booth instead of two for the sake of conven-ience. Of course, Sri Niharendu Dutt Mazumdar hasnot examined himself to deny the fact, but his case, asstated, in paragraph 9 of the election petition is, that forthe first time on the date of counting, it was discoveredwhen instead of 67 ballot boxes for each candidate 66 werefound, that there was amalgamation of two booths. It isindeed difficult to accept that he had no knowledge of theamalgamation of the booths previously as his agents whoworked in the booth and supervised the polling, hadoccasion to know that two booths were combined. How-ever, no knowledge or consent of the candidates or oftheir agents can cure the irregularity, nor create anyestoppel against the statutory requirements. Referencein this connection may be made to the judgment of SriAshutosh Mookerjee, J., in Shy am Chand Basak v. Chairmanof Dacca Municipality^). The electoral roll shows thatthere were as many as 618 female voters, i.e., about 38*6per cent. The evidence establishes beyond doubt that thefemale voters were mostly purdahnashin Muslims. Rule18(2), proviso (b), gives the Returning Officer the autho-rity to direct that men and women shall, for the purposeof recording their votes, be admitted into the pollingstation or into any polling booth of any such station alter-nately in separate batches. No separate booth for womenelectors was arranged nor any direction was given to giveproper facility to women electors to cast their votes in themanner stated in proviso (b). It appears that only 60female voters could cast their votes. Evidence has beenadduced that many voters had to go away without votingowing to inadequate polling arrangements. Evidently,many of the female voters were deprived of their right of.
(1) 24 G.W.N. 189 (193).
E.L.R.] NIHARENDTT DUTT V. SUDHIR CHANDRA 219
franchise. This has been held to be a good ground fordeclaring an election void in Magwe West CaseQ).
There has been infringement of the provisions of thelaw on account of closure of one booth by the presidingofficer without any authority whatsoever and against thedefinite notification directing two sets of voters to casttheir votes in different booths. It was the essential dutyof the presiding officer to maintain order and to see thatthe poll was taken fairly under the notified arrangementregarding booths. The school house has one door, accord-ingly one booth was closed for the sake of convenience, ascontended in defence referring to the evidence of R.W. 3,Majibar Rahman. The law does not authorise the presid-ing officer to make any such vital change affecting theelectors, even with the consent of the candidates andtheir agents. There should have been different passagesfor entrance and exit. The photograph of the door (videEx. 2) shows that it is sufficiently wide and differentpassages for entrance and exit could be improvised bydividing the space in equal halves fixing a barrier withrope or split bamboo and arrangement might be madeto guide the ©lectors to their respective booths. By usingone booth instead of two, 670 ballot papers could beissued working for the statutory period of 8 hours asnoted in the presiding officer's report, Ex. ll(b). On theaverage about 84 voters could be attended per hour. Itwas hardly possible to admit more voters per hour in onebooth. There were 1,600 voters allotted to the station.Making some allowance for absentees, it was physically im-possible to allow so many voters to cast their votes in onebooth, accordingly the Returning Officer made arrangementfor two booths. By upsetting the arrangement the presid-ing officer deprived a large number of voters of their rightof franchise. If two booths had been worked by the twosets of polling officers provided, many more voters couldbe admitted within the statutory period, if not double thenumber. Through the same passage for entrance the voterscould be allowed to go to their respective booths, admit-ting one for each at a time and after casting their votesthey could go out by the exit passage. The instructionsissued to the presiding officers for administrative con-
(1) Hammond 505 (510),
220 NIHARENDU DUTT V. SUDHIR CHANDRA [VOL. VI
venience and methodical way of conducting the election,contained in the printed book, Ex. 13, if followed, manyof the difficulties could be solved and overcrowding, noise,confusion and mismanagement could be avoided. Separateenclosures should have been arranged for the voters of thedifferent booths, both for males and females, and the menand women voters might be admitted by turns as laid downin proviso (b) of sub-rule (2) of rule 18.
Evidence has been adduced on the side of the peti-tioner that there were over-crowding, confusion and rowat the polling station and many voters went away with-out casting their votes on account of the closure of onebooth and mismanagement.
[The Tribunal referred to the evidence and continued:]The evidence adduced on the. petitioner's side amply
justifies the allegation that many voters could not casttheir votes at Panchoor F.P. School Centre.
The very nature of the non-compliance with the pro-visions of the law raises a presumption that the result ofthe election has been materially affected. The evidenceadduced strengthens such presumption. The onus liesheavily on the respondent No. 1 to rebut the presump-tion and to establish satisfactorily that the result of theelection has not been materially affected. In Shyam GhandBasak v. Chairman of Dacca Municipality^) in connectionwith a municipal election Sri Ashutosh Mookerjee, J.,observed: "As soon as the irregularity was established, theburden should have been thrown upon the defendantsto establish that the result of the election has not, in fact,been affected".
On behalf of the respondent No. 1 attempt has beenmade to discharge the onus by examining 4 witnesses. [TheTribunal referred to the evidence of these witnesses andcontinued:] The evidence of rebuttal in the circumstancesof the case appears too shaky and unworthy of credit.
The election was fought on party lines. In this con-nection the party affiliations of the candidates, their res-pective qualifications, the total number of votes polled byeach of them and the votes secured by each at PanchoorF. P. School Centre, may throw a flood of light to deter-
(1) 24 C.W.N. 189 '194).
E.L.B.] NIHABENDU DUTT V. SUDHIB CHANDBA 221
mine the possibility of affecting the result of the electionmaterially.
The petitioner, Sri Niharendu Dutt Mazumdar, was asitting Congress Judicial Minister to the State during theelection. He stood with the Congress ticket. He is a Barris-ter. His election manifesto, Ex. 14, discloses his numerouspolitical activities in India and abroad and his associationwith Netaji Subhas Chandra Bose. He was a member ofthe A.I.C.C. He led the labour movement and was twiceelected member of the Legislative Assembly from Barrack-pore Labour constituency. He suffered imprisonment forhis political work on several occasions, for a total periodof 5 years. Certain Muslims of the Maheshtala consti-tuency convened a meeting to support his candidature asappears from the notice, Ex. 16. R.W. 2, Seikh MansurAH, whose name appears in it, wants now to dissociatehimself from that meeting, which according to him wascalled only to decide whether the Muslims would supportSri Niharendu Dutt Mazumdar or Janab Munsef Ali Molla.The returned candidate, Sri Sudhir Chandra Bhandari,(respondent No. 1) formerly belonged to the Congress. Hejoined the communist party and contested the electionwith communist ticket. He is a business-man owning afurniture shop at Maheshtala. His election manifesto, Ex.15, criticised the Congress Government bitterly and de-manded that such government should be put to trial forits misdeeds by returning the communist candidate tothe Legislative Assembly. Next contestant, Sri AmiyaMandal, respondent No. 2, was an independent candidate.He is a pleader, but not a local man of Maheshtala area.Respondent No. 3, Tejendra Kumar Basu, was K.M.P.P.candidate. He is an employee of Bata Shoe Company.Formerly he was a Congress member. Respondent No. 4,Sri Sudhir Mukhoti, is a member of Democratic VanguardParty, which is not a recognised party in election. Practi-cally he became an independent candidate. He made noelection campaign in Maheshtala, as P.W. 25, LakshmiNarain Ghose, states. He is the president of Bata Union.Sri Nagendra Nath Paul, respondent No. 5, is a pleader ofAlipore Judge's Court and is a local man. He stood as anindependent candidate. Lastly, the respondent No. 6,Janab Munsef Ali, is a local man and a pleader at Alipore,
222 NIHARENDU DTTTT V. SUDHIR CHANDRA [VOL. VI
He fought the election as an independent candidate. Hehad some influence in Maheshtala area.
Now, the total number of votes polled by these candi-dates was as follows:—Petitioner Sri Niharendu Dutt Mazumdar 6,451Respondent No. 1 Sri Sudhir Chandra Bhandari.... 6,614Respondent No. 2 Sri Amiya Mandal .... 3,334Respondent No. 3 Sri Tejendra Kumar Basu .... 830Respondent No. 4 Sri Sudhir Mukhoti .... 1,775Respondent No. 5 Sri Nagendra Nath Paul .... 1,097Respondent No. 6 Janab Munsef AH Molla .... 6,078
The number of votes secured by these candidates atPanchoor F. P. School Centre is more relevant for the pur-pose of this case and they are as given below:—
Sri Niharendu Dutt Mazumdar .... 383Sri Sudhir Chandra Bhandari .... 57Sri Amiya Mandal .... 2Sri Tejendra Kumar Basu .... 5Sri Sudhir Mukhoti .... NilJanab Munsef Ali Molla .... 212
At this centre practically there was contest betweenSri Niharendu Dutt Mazumdar and Janab Munsef AliMolla. The difference between their votes is 171, Sri DuttMazumdar leading. Out of 1,600 votes only 668 votes werepolled, i.e., about 41"75 per cent. It has been satisfac-torily established that on account of gross infringement ofthe rules and consequent confusion, over-crowding, mis-management and absence of any special arrangement forwomen voters, large number of electors could not exercisetheir right of franchise. This station being one of thestrongholds of the Congress, the petitioner expected largernumber of votes. The difference between his votes andthose of the returned candidate, Sudhir Chandra Bhandari,is only 163. Sudhir Chandra Bhandari polled only 57 votesat that station while the petitioner got 383 votes. If thevoters got proper opportunity to cast their votes the resultmight reasonably have been different. It is, of course, nopart of the duty of the Judge to enter into a kind of scru-tiny to see whether possibly, or even probably, or as amatter of conclusion from the evidence, the result of
election would have been different; vide observation
E.L.B.] NIHARENDTJ DTTTtf V. STTDHIR CHANDRA 223
of Baron Bramwell in the Durham CaseQ). In decid-ing whether the result of the election has been materiallyaffected or not, every case is to be judged according to itsspecial circumstances. In Islington Case(2), it was held thatif the court sees that the effect of the transgression of lawwas such that the election was not really conducted in themanner prescribed under the existing election laws, or itis open to reasonable doubt whether the transgressionsmay not have affected the result of the election, and it isuncertain whether the candidate who has been returnedhas duly been elected by the majority of the persons whoare entitled to vote in accordance with the law in forcerelating to elections, the court is then bound to declare theelection void. The evidence adduced before this tribunalin this case amply justifies the inference that the non-com-pliance with the provisions of the law has materiallyaffected the result of the election. We, therefore, holdthat the non-compliance with the provisions of law in con-ducting the election at Panchoor F. P. School Centre wasof such a nature that there was practically no election inthe manner prescribed by the law and the result of theelection has been materially affected on that account. Thequestion raised in point (b) is accordingly decided in favourof the petitioner.
Issue No. 4.—The tribunal has arrived at the decisionthat the election at Panchoor F. P. School, Polling StationNo. 23, within Maheshtala constituency was not heldaccording to law and thereby the result of the election hasbeen materially affected. The election of the returnedcandidate, Sri Sudhir Chandra Bhandari (respondentNo. 1) is accordingly liable to be declared void. Theprayer for declaring the petitioner, Sri Niharendu DuttMazumdar, who secured the next highest number of votes,as duly elected, is untenable, the election being void onaccount of the non-compliance with the vital provisions ofthe law. The whole election must accordingly be declaredvoid.
The objection in the election petition regarding thelodging of incomplete and inaccurate return of electionexpenses by the respondent No. 1, Sudhir Chandra Bhan-dari, has not been pressed. The case has been prolonged
(1) 2 O'M. & H. 152 (157). (2) 5 O'M. & H. 120 (125).
224 RAM SINGH V. HAZARI LAL |VoL. Vl
by pressing several unsubstantial objections on the peti-tioner's side. The election is being set aside on accountof transgressions of the provisions of the law by the pre-siding officer at Panchoor F. P. School Centre No. 23. Thereturned candidate, Sri Sudhir Chandra Bhandari (respon-dent No. 1), is in no way responsible and as such he cannotbe held answerable for the costs of the petitioner. No orderwill accordingly be made for costs.
The Election Petition No. 172 of 1952 is allowed andthe election of the returned candidate, Sri Sudhir ChandraBhandari, respondent No. 1, to the State LegislativeAssembly of West Bengal from Maheshtala constituencyis declared void.
Each party will bear his own costs.
Election declared void.
[ELECTION TRIBUNAL, JAIPUR.]
RAM SINGH
HAZARI LAL AND OTHERS.
MR. JUSTICE K.K. SHARMA (Chairman), A.N. KAUL andP.L. SHOME (Members).
May 9, 1953.Nomination of candidates—Electoral roll number—Boll divided into
parts—Omission to- state part of roll—Whether invalidates nomination,where identity is not in doubt—Age of candidate—Wrong entry in roll—-Correction after nomination and before scrutiny—Validity—Representationof the People Act, 1951, ss. 33, 36(4)—Form of nomination—Foot-note (6)—Representation of the People Act, 1950, s. 25(b).
The provision contained in foot-note (6) of the Form of nominationpaper given in Schedule II of the Eepresentation of the People (Conduct ofElections and Election Petitions}^ Rules, 1951, that where the electoralroll is sub-divided into parts and separate serial numbers are assigned tothe electors entered in each part, a description of the part in which thename of the person concerned is entered must also be given in items Nos.8, 10 and 14 of the Form, is not a mandatory but a directory provisionand if the identity of the candidate in question is not in doubt, the mereomission to state the part of the electoral roll in which the candidate'sname is entered would not invalidate the nomination paper. Even ifthere is any doubt about the identity, if it can be cleared by the Eeturning
E.L.R.] RAM SINGH V. HAZARI LAL 225
Officer by holding a summary inquiry under section 36, he should do so.E. Few v. Gibbon (Sen and Poddar 66) and Tikaram Sharma v. Lalit
Bahadur Kharga (l B.L.E. 252) followed.P. N. Balasubramanian v. C. R. Narasimhan and Others (1 B.L.E.
461), Rameshwar Prasad Singh v. Krishna Gopal Das and Others (4 B.L.E.112), Mathra Das and Others v. Dara Singh and Others (4 E.L.B. 441),Saharanpore Dist. Non-Mohammadan Rural: Pandit Brij Nandan Laiv. Pandit Moti Lai Bhargava (4 Jagat Narain 96), Rai Bahadur Panna Laiv. Lola Mohan Lai (2 Jagat Narain 143), Badri Prasad v. Sheodas Daga(2 Jagat Narain 146), Malhar Rao v. Vishnupant (Sen and Poddar 326),Surat Singh v. Jang Bahadur Singh and Others (4 E.L.B,. 306), TikaramSharma v. Lalit Bahadur Kharga and Others (1 E.L.E. 252), LakshmiChand v. Ladhu Ram Ghodhri and .Others (4 E.L.E. 200) and Pt. HarishChandra v. Raja Man Singh and Others (5 E.L.E. 129) referred to.
There were nine electoral rolls for a constituency in each of whichthe serial No. 174 occurred. In a nomination paper the serial No. 174was mentioned without mentioning the part of the roll, but along withserial No. 174 the number of the embossed leaf in which the candidate'sserial No. 174 occurred was given and it was easier to identify the candi-date from this description than from the part of the roll, but the Eeturn-ing Officer rejected the nomination on the ground that the part of the rollwas not mentioned, though he had no doubt about the identity of thecandidate: Held, that the nomination paper was improperly rejected.
Section 25(b) of the Eepresentation of the People Act, 1950, does notfix any time limit for correction of an incorrect entry as to age in the elec-
' tqral roll; the Electoral Eegistration Officer may therefore correct an entryat any time before the scrutiny of the nomination papers.
Even though on the date of the nomination the age of the candidateas entered in the electoral roll was below 25 years, the nomination cannotbe rejected if he was really not below 25 years of age on that date and thewrong entry in the electoral roll is corrected by the Electoral EegistrationOfficer before the date of scrutiny.
When it is not difficult to ascertain the identity of a candidate fromthe particulars given against item No. 8 in the form of nomination, thenomination cannot be rejected simply because of a discrepancy betweenthe page number given at serial No. 8 and the page given in the certifiedcopy produced by the candidate.
In the case of an improper rejection of a nomination paper there is astrong presumption that the result of the election has been materiallyaffected.
ELECTION PETITION NO. 1 of 1952.
ORDER.
This is a petition by Shri Ram Singh, a candidate forelection to the Rajasthan Legislative Assembly from the
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226 RAM SINGH V. HAZAfcl LAL [VOL. VI
Kotputli constitutency during the last general elections,whose nomination paper was rejected by the ReturningOfficer, Kotputli constituency. The ground on which thenomination paper was rejected was that at serial No. 8 ofthe nomination paper the page number of the entry wasgiven as 345, while in the certified copy produced by thecandidate the page number was given as 344, which did nottally with that given against the serial number. TheReturning Officer thought that it made the entry doubt-ful, and consequently the nomination paper was rejected.Shri Shambhu Dayal, the Returning Officer, Shri HazariLai, the successful candidate, Pt. Hardayal, Shri Hanu-man Saran, Shri Ram Pratap Yadav, and Raja Sahib Sar-dar Singhji of Khetri have been made respondents. Pt.Hardayal, Shri Hanuman Saran, Shri Ram Pratap Yadav,and Raja Sahib Sardar Singhji of Khetri, respondents Nos.3, 4, 5, and 6 respectively, whose nomination papers wereaccepted, withdrew their candidature within the prescrib-ed time with the result that Shri Hazari Lai, respondentNo. 2, was left alone in the field, and was returned unop-posed. Shri Hazari Lai is, therefore, the principal res-pondent in this case.
The petitioner's case is that he was a voter in th*eJaipur City "C" constituency, and his name was dulyrecorded in the electoral roll. He filled up item No. 8 ofthe nomination paper according to the description in theelectoral roll, and the discrepancy in the paging of theofficial and attested copy of the electoral roll was not, inany way, due to the petitioner's fault, but was due toeither the copying agency or the Government Press. Hefurther says that the same was, at the most, a technicalmistake which, in view of section 36 (4) of the Representa-tion of the People Act, 1951, (hereinafter to be referred toas the Act) could not have been a reasonable and substan-tial ground for rejecting the petitioner's nominationpaper. According to him, his nomination paper was im-properly rejected, and this improper rejection of the nomi-nation paper materially affected the result of the election.He has prayed for a declaration that the election of theKotputli constituency of the Rajasthan Legislative As-sembly be declared as null and void and any further relief,to which the petitioner might be entitled, be awarded inhis favour.
E.L.R.] RAM SINGH V. HAZARI LAL 227
All the respondents were served with summonses,but only respondent No. .2, who-will hereinafter be refer-red to as the contesting respondent, filed his written state-ment. It has been pleaded by the contesting respondentthat the nomination paper of the petitioner was properlyrejected as the defect was a very vital one and of a sub-stantial character, and did not at all fall within the pur-view of section 36(4) of the Act. He says that in any casethe result of the election has not at all been affected bythe rejection of the nomination paper of the petitioner.In his additional pleas, he has taken various objections,which would be apparent from the issues framed in thecase. They are as follows:—
1. Whether the petitioner's nomination paper was im-properly rejected on the ground that the page number ofthe entry given at serial No. 8 differed from the numberof the page given in the certified copy produced by thepetitioner?
2. Whether the result of the election has been mate-rially affected by the rejection of the petitioner's nomi-nation paper?
3. Whether the omission to give the description ofthe ward in which the name of the petitioner was enteredin the electoral roll invalidated his nomination paper?
4. Whether the petitioner was not a registered voterin the electoral roll of the Jaipur City "C" Constituency?If so, what is its effect on the election petition?
5. Whether the petitioner was under 25 years of ageat the time of the filing of his nomination paper, and as.such not qualified to stand as a candidate for the election?If so," what is its effect on the election petition?
6. Whether the entry at No. 174, Station Road, Jai-pur City "C" constituency, Shahar Garbi Ward, did notpertain to the petitioner? If so, what is its effect on theelection petition?
7. Whether the correction of the age of the electorNo. 174, Station Road, Jaipur City "C" constituency,Shahar Garbi Ward, on the electoral roll by the ElectoralRegistration Officer, Jaipur, after the filing of the peti-tioner's nomination paper was invalid? If so, what is itseffect upon the election petition?
228 RAM SINGH V. HAZARI DAL [VOL. VI
8. Whether no permission was obtained by the peti-tioner for adopting the symbol of his first preference inthe nomination paper? If so, what is its effect upon theelection petition?
9. Whether the petitioner withdrew his deposit be-fore the filing of the election petition and if so, what isits effect upon the petition?
10. Whether the signatures of the seconder Rahamawere obtained on the nomination paper of the petitionerby telling him that the nomination paper was on behalfof a Congress candidate? If so, what is its effect upon theelection petition?
We will take up issues Nos. 1 and 2 in the end, andshall deal first with the remaining issues.
Issue No. 3.—The argument of the learned counsel forthe contesting respondent on, this issue was that the peti-tioner did not give the description of the ward in whichhis name was entered in the electoral roll, and, there-fore, apart from the ground on which his nomination .paper was rejected by the Returning Officer the nomina-tion paper was invalid on this ground alone. The entrymade against item No. 8 by the petitioner in the nomina-tion paper was as follows:—
"S. No. 174, Jaipur City 'C Station Road, pageNo. 345".
It was argued that Jaipur City "C" constituency wasdivided into the following four wards:—1. Chowkri Modi-khana, 2. Chowkri Vishweshwarji, 3. Chowkri Top KhanaDesh, and 4. Chowkri Hawaii Shahar Garbi.
The petitioner did not give the name of any of thesefour wards in item No. 8 of the nomination paper. Allthat he mentioned was "Serial No. 174, Jaipur City "C"constituency, Station Road, page No. 345". Serial No. 174occurred in all the four wards of the constituency. Fur-ther even each of the four wards itself had more than oneelectoral roll, and there were as many as three electoralrolls for each of the wards. Thus there were in all 12electoral rolls for Jaipur City "C" constituency and inall of them Serial No. 174 occurred. Without the name ofthe ward in the nomination paper it was very difficult, ifnot impossible, to find out in which of the electoral rolls
E.L.R.] RAM SINGH V. HAZARI LAL 229
the serial number given by the petitioner was to be found.It was further argued that the petitioner instead of givingthe name of the ward or the correct page, which was givenin print in the electoral roll, chose to give the embossednumber of the leaf, which too was not the same in all theelectoral rolls. By adopting such a dubious method thepetitioner rendered it very difficult for the ReturningOfficer to check the entry in order to satisfy himself aboutthe identity of the petitioner. It was, therefore, arguedthat there was no compliance with the rules about the fil-ing of the nomination papers. Reference was made tofoot-note (6) of the form of nomination paper in ScheduleII of the Representation of the People (Conduct of Elec-tion's and Election Petitions) Rules, 1951 (hereinafter tobe referred to as the Rules). The following decisions ofthe Election Tribunals formed under the Act, as well asof the Election Commissioners under the old Governmentof India Acts were also referred to:—
1. P. N. Balasubmmanian v. C. R. Narasimhan andOthers?) (Election Petition No. 56 of 1952).
2. Rameshwar Prasad Singh v. Krishna Gopal Dasand Others?) (Election Petition No. 191 of 1952).
3. Mathra Das and Others v. 8. Dara Singh andOthers?) (Election Petition No. 70 of 1952).
4. Pandit Brij Nandan Lai v. Pandit Moti LaiBhargava?).
5. Rai Bahadur Panna Lai v. LalaMohan Lai?).6. Badri Prasad v. Sheodas Daga?).7. Malhar Rao v. Vishnupant?).
On behalf of the petitioner it was argued that thename of the ward would not have been of any assistancein the present case because in each ward there were threeelectoral rolls and all of them had Serial No. 174. Therewere thus three electoral rolls for Jaipur City HawaiiShahar Garbi, in each of which Serial No. 174 occurred.These three electoral rolls had no distinguishing title,heading or any other description, as, for example, 1, 2, 3;A, B, C; main and supplementary, or so on, so that one
(1) 1 E.L.E. 461. (2) 4 E.L.R. 112.(3) 4 E.L.R. 441. (4) 4 Jagat Narain 96.(5) 2 Jagat Narain 143. (6) 2 Jagat Narain 146,
(7) Sen and Poddar 326,
230 RAM SINGH V. HAZARI LAL [VOL. VI
electoral roll of the same ward might be easily distinguish-ed from the other. The petitioner, therefore, chose to givethe number of the embossed page, which alone coulddistinguish the same serial No. of one electoral roll fromthat of the other. It was further argued that the directiongiven by the foot-note (6) of the form of nomination paperwas not mandatory, and it has been given only with aview that the candidate might be identified. If the candi-date could not be identified by giving the particularpart of the constituency it was no use giving the name ofthe part. The petitioner, therefore, substantially compliedwith section 33 of the Act .read with rule 4 of the Rulesby giving embossed leaf number in item No. 8. • In orderto support the argument that the omission to give the nameof the part in the nomination paper, item No. 8, was nota substantial defect so as to warrant the rejection of thenomination paper, reliance was placed upon the followingdecisions :—-
1. Surat Singh v. Jang Bahadur Singh and Others?)(Election Petition No. 9 of 1952).
2. Tikaram Sharma v. Lalit Bahadur Kharga andOthers?) (Election Petition No. 27 of 1952).
We have considered the arguments of the learnedcounsel for both the parties on this issue, and have alsogone through the decisions relied on by each party. Theargument of the learned counsel for the contesting respon-dent is that according to foot-note (6) to the form of thenomination paper given in Schedule II of the rules, wherethe electoral roll is sub-divided into parts and separateserial numbers are assigned to the electors entered in eachpart, a description of the part in which the name of theperson concerned is entered must also be given in itemsNos. 8, 10, and 14. The contention is that, as Jaipur City"C" constituency was sub-divided into four parts, out ofwhich Hawaii Shahar Garbi was one, and separate serialnumbers were assigned to the electors entered in eachpart, it was incumbent upon the petitioner to give thename of that part of the electoral roll in which his nameappeared. As the petitioner says that his name appearedat No. 174 in the electoral roll of Hawaii Shahar Garbi, thepetitioner failed to comply with the mandatory provision,
(1) 4 E.L.E. 306. (2) 1 E.L.E. 252.
JB.L.R.] RAM SlKGH V. HAZARt LAL 231
according to which he ought to have stated againstitem No. 8 in the nomination paper that his serial No. 174was in Jaipur City "C" constituency Hawaii ShaharGarbi. By omitting to give the description of the part,the petitioner made the task of the Returning Officer verydifficult in tracing out the serial number given by thepetitioner as it occurred in all the 12 parts of the electoralroll relating to Jaipur City "C" constituency. We findthat it is true that Jaipur City "C" constituency wasdivided into, at least three parts, one of which was HawaiiShahar Garbi. It is also true that three electoral rollswere prepared for each of these parts. Thus there were9 electoral rolls for Jaipur City "C" constituency. It isalso a fact that in each of these 9 electoral rolls, serialnumber No. 174 appears. If, therefore, the petitioner hadnot given any further particulars, excepting "Jaipur City'C constituency", it would have been very difficult forthe Returning Officer to find out the appropriate serialnumber, as serial No. 174 appeared in all the 9 electoralrolls of Jaipur City "C" constituency. We shall however,examine the question whether the petitioner has givenany further particulars in item No. 8 in his nominationpaper, and if so, whether it made the task of the Return-ing Officer easier in finding out the appropriate serialnumber, after we have considered whether the provisionsof foot-note (6) in the nomination paper in Schedule IIare mandatory or only directory.
We have examined the language of foot-note (6) andhave also considered carefully the decisions cited onbehalf of each party. In foot-note (6), instead of theword "shall", which is generally used in legislation whena provision is made mandatory, the word "must" is used.The reason behind the use of this word seems to be thatit was considered not to be a mandate but only a direc-tion, although an important direction.
Coming to the decisions cited by each party, we donot find that in any of them it was held that the directionwas mandatory. In some, it was held that the provisionof note (6) was only directory and, if substantial compli-ance was made by a candidate, merely because the nameof the part or the sub-division was omitted the nominationpaper could not be rejected. In some, no decision was
232 RAM SINGH V. HAZARI LAL [VOL. VI
given as to the mandatory or directory nature of the note,and the tribunal or the Election Commissioner, as the casewas, held that substantial compliance was not made. ,Inthe case of Rameshwar Prasad Singh v. Krishna Gopal Dasand Other si^), cited on behalf of the contesting respondent,it was held, under the circumstances of the case, that theomission of the name of the village in column No. 8 wasa defect of substantial character and not a technicaldefect. No opinion was given as to whether the provi-sion was directory or mandatory. But from the fact thatthe nomination paper was held to be properly rejected, asthe defect was considered to be of a substantial character,it may be presumed that the Election Tribunal thoughtthat the provision was only directory. In the case ofMathra Das and Others v. S. Dara Singh and Others^),also cited on behalf of the contesting respondent, thename of the village was not given in item No. 8. Therewere a number of villages in Halqa Patwar Amloh. Aseparate electoral roll was prepared for each of thesevillages. It was held that note 6 in the form of the nomi-nation paper providing that "a description of the part inwhich the name of the person concerned is entered mustbe given" is only directory, and that if it were intendedto be mandatory the words "shall be given" would havebeen used. In the case of Pandit Brij Nandan Lai v. PanditMoti Lai Bhargava(3), no view was expressed whether theprovision in Schedule 3 of the United Provinces ElectoralRules, which required the name of the sub-division to beentered in the nomination paper, was mandatory or direc-tory. The only thing that was said was that it may beeither mandatory or directory. The defect was consideredto be substantial and, therefore, the nomination paperwas held to be properly rejected. In the case of RaiBahadur Panna Lai v. Lala Mohan Lal(4), relied on by thelearned counsel for the contesting respondent, no viewwas expressed whether a similar provision in the Punjabelectoral rules was mandatory or directory. The decisionturned on the view that there was not a substantial com-pliance. In the case of Badri Prasad v. Sheodas Daga(5),also relied on by the learned counsel for the contesting
(1) 4 E.L.R. 112. (2) 4 E.L.R. 441. (3) 4 Jagat Narain 96.(4) 2 Jagat Narain 143. (5) 2 Jagat Narain 146.
B.L.B.] BAM SINGH V. HA2ABI LAL 233
respondent, it was not held definitely whether the provi-sion was mandatory or directory. The omission was con-sidered to be a highly material one in the case, and thedecision turned upon that ground. In the case of TikaramSharma v. Lalit Bahadur Kharga and Others^), relied on bythe learned counsel for the petitioner, the provision wasnot held to be mandatory, and in the circumstances of thecase it was held that there was substantial compliance,and that the nomination paper was consequently impro-perly rejected. In the case of Surat Singh v. JangBahadur Singh and Others (2) also relied upon by the learnedcounsel for the petitioner, the provision was not held tobe mandatory, and it was held that the omission was onlytrivial, and the nomination paper was improperly rejected.In the case of Malhar Rao v. Vishnupant^) relied upon bythe learned counsel for the contesting respondent, it washeld that the omission to enter the name of the sub-divi-sion in the nomination paper was a failure to comply withthe material provisions of rule 16.
The consensus of opinion, therefore, is that the pro-visions of the note are only directory and not mandatory.From the language of the note also, the same seems to bethe intention of the framers of the note.
Now, coming to the facts of the cases relied on by thelearned counsel of each party, we find that the facts ofeach of those cases are more or less distinguishable fromthe facts of the present case. In the case of Pandit BrijNandan Lai v. Pandit Motilal Bhargava^) the electoral rollwas divided into 19 sub-divisions, and separate serialnumbers were assigned to electors and entered in eachsub-division. It does not appear whether any other parti-culars were given along with the serial number, and in thecircumstances of the case, it cannot be said that the ap-propriate serial number could.be easily found out by theReturning Officer. In the case of Rai Bahadur Panna Laiv. Lola Mohan Lal(s), the only entry made in the nomina-tion paper was "549 (Ward No. 5)". There were 13 sub-divisions in the constituency, and several of them hadward No. 5. It was argued that the omission to give the
(1) 1 E.L.B. 252. (2) 4 E.L.B. 306. (3) Sen & Poddar 326.(i) i Jagat Narain 96. (5) 2 Jagat Narain 143.
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234 RAM SINGH V. HAZA&I LAL [VOL. VI
name of the sub-division was not material in the circum-stances of the case, as the serial number 549, which wasgiven by the candidate in question, was to be found onlyin the Municipality of Ambala, which too had ward No. 5.It was held that it was not the duty of the ReturningOfficer to search every sub-division of the electoral roll tofind out if this was a correct entry, and that there wasnot a substantial compliance with the directions. In thecase of Badri Prasad v. Sheodas DagaQ), the constituencyin question was Chhatisgarh Urban constituency, whichwas situated in the Raipur, Bilaspur and Drug districts.In the electoral roll of each of these districts, it appearsthat serial number 119 given by the candidate occurred.Under the circumstances it was held that there was no sub-stantial compliance with the provision. In the case ofP. N. Balasubramanian v. G. B. Narasimha?i and Others^)the name of the candidate was not entered in the electoralroll until the date of the nomination paper, but was enteredlast of all on an application before the date of scrutiny.No serial number was, therefore, at all given in the nomi-nation paper. It was held that the fact that the namewas entered after the date of the nomination paper wouldnot validate the nomination paper. This decision has noapplication to the point before us. In Bameshwar PrasadSingh v. Krishna Gopal Das and Other s(3) there were 400to 500 villages in the constituency, and for each of themthere was an electoral roll, and serial No. 10, which wasgiven by the candidate in question in his nominationpaper occurred in each of the villages. Under those cir-cumstances it was held that the omission was substantial.In the case of Maihra Das and Others v. 8. Dara Singh andOthers^), Halqa Patwar Amloh consisted of four villages,that is Amloh, Mangarh, Khanvan and Aladatpur. A sepa-rate electoral roll was prepared for each of these villages.The candidate gave against his serial number the nameof the Halqa and not of the village. It was consideredthat the omission to give the name of the village was notfatal, and that the candidate in question had substan-tially complied with the directory provision of note (6).Almost all the decisions cited on behalf of the contesting
(1) 2 Jagat Narain U6. (2) 1 E.L.B. 461.(Z) 4 E.L.R. 112. (4) 4 E.L.B. 441.
E.L.B.] RAM SINGH V. HAZARI LAL 235
respondent under the old Government of India Acts wereconsidered in the case. An important decision under theold Government of India Act, 1935, in the case of E. Fewv. C. E. Gibbon^1) was noticed, and the view held thereinwas accepted. In the case of Tikaram Sharma v. LalitBahadur Kharga and Others^), cited by the learned counselfor the petitioner, the constituency in question wasKalimpong constituency in the State of West Bengal, andthe electoral roll was sub-divided according to villages andmunicipal wards. There were numerous sub-divisions, buteach sub-division was named after the village or themunicipal ward. On the cover page of the volume con-taining the electoral rolls of the entire Kalimpong constitu-ency, there appeared the following entry:—
"Part A—Original roll.Part B—Supplementary roll.Part E—Further addenda and corrigenda".
The candidate gave along with his serial No. 555 inentry 8, the following particulars only:—
"Kalimpong Municipality (Ward No. VI)". He didnot specify whether the number was to be found in PartA—Original roll, or Part B—Supplementary roll. Part Ahad 572 electors, and Part B only 131. It was held thatunder the circumstances it would not have been difficultto trace out the appropriate serial number, and the nomi-nation paper was consequently improperly rejected. Inthe case of Surat Singh v. Jang Bahadur Singh andOther s(B), the Kingsway Camp constituency was dividedinto two parts called the "Civil Lines Police Station" andthe "Subzimandi Police Station". Neither of these twosub-divisions was given along with the serial number initem No. 10 relating to the proposer. It was held thatthe object of the note was that there should be no difficultyabout the identity of the candidate, his proposer or secon-der, and because the identity of the proposer was not indoubt, the omission was only trivial, and did not invalid-ate the nomination paper.
On a survey of all these authorities, we find that ifthe identity of the candidate in question is not in doubt,the fact that the name or sub-division was not given along
(1) Sen & Poddar 66. (2) 1 E.L.R. 252. (3) i E.L.R. 306,
236 BAM SINGH V. HAZARI LAL [VOL. VI
with the serial number would not invalidate the nomina-tion paper. Even if there is any doubt about the identity,it can be cleared by the Returning Officer holding a sum-mary enquiry under section 36 of the Act. We are verymuch in agreement with the observations of the ElectionCommissioners in the case of E. Few v. C. E. Gibbon^)which we quote in extenso. They find place at page 72:—
"I t will be readily seen tha t in none of these casescited before us has it been held tha t the rule requiring theserial number plus the name of the sub-division is manda-tory. The decisions have all hinged on the finding of factwhether or not there has been a substantial compliancewith the rule. The object of the information given in theform, as has been pointed out over and over again, is toenable the Returning Officer and others interested to testthe identity and eligibility of a candidate. The name ofthe sub-division does not throw any light on these impor-tant points. I t merely aids the Returning Officer in themechanical operation of locating a name in the electoralroll. If in spite of the total omission to describe the sub-division or inadequate description, a name in a certain rollcan be easily located, it must be held in that case tha tthere has been a substantial compliance with the rule andthe nomination would be good. If on the other hand theinformation is so meagre as to entail a laborious searchin the roll, it must be found tha t there has not been asubstantial compliance and the nomination would be bad.We are unable to regard the Returning Officer as anauthority not prepared to take any pains at all and bentupon rejecting the nomination of qualified candidates forimmaterial omissions and errors in the filling up of formsthus depriving entire electorates of their substantial rightto elect persons of their choice. We would like to empha-sise that the Returning Officer has been given a power tomake a summary enquiry for the purpose of decidingobjections which may be made to any nomination. Thisprovision suggests that when carrying out the scrutiny ofnominations the Returning Officer is performing a judicialfunction. I t follows that he should conform to judicialstandards, and should not mechanically reject nominationson account of unsubstantial irregularities. He should not
(1) Sen & Poddar 66.
B.L.E.] RAM SINGH V. HAZARI LAL 237
regard the provision authorising him to hold a summaryenquiry a dead letter. If an obscurity can be cleared upthere and then by a summary enquiry he should not shirkfrom holding the enquiry".
These observations of the Election Commissioners metwith approval in the recent case of Tilcaram Sharma v.Lalit Bahadur Kharga(l) decided by the Election Tribunalof West Bengal, referred to earlier in this judgment. Weare, therefore, of the view that if the identity of the candi-date is not in doubt, mere omission to state the part of theelectoral roll, in which the candidate's name is entered,could not make the nomination paper invalid.
Coming to the facts of the present case, there is nodoubt that there were at least nine electoral rolls in JaipurCity "C" constituency, in each of which serial No. 174occurred, and if, therefore, the" petitioner had given onlyserial No. 174, it would certainly have been a task for theReturning Officer to find out the appropriate serial num-ber. However, along with the serial number the peti-tioner mentioned "Station Road", and gave the numberof the embossed leaf as 345. In the present case, eventhe sub-division Hawaii Shahar Garbi had three electoralrolls, and in each of them serial No. 174 occurred. Theseelectoral rolls had no particular nomenclature given tothem, as, for example, 1, 2, 3; A, B, C; or main, supple-mentary, etc. If, therefore, the petitioner had mentionedHawaii Shahar Garbi along with the serial number, eventhen it could not be known in which of the three electo-ral rolls pertaining to Hawaii Shahar Garbi the serialnumber given by the petitioner was to be found. The Re-turning Officer would have had to refer to at least threeelectoral rolls. It was argued that pages were numberedin print, and the petitioner could have mentioned thoseprinted pages. This too would not have improved matters,because page No. 4 in print occurred in all the electoralrolls pertaining to Jaipur City "C" constituency whichhave been produced in this case. In the three electoralrolls pertaining to Hawaii Shahar Garbi serial No. 174found place on the printed page 4. In the biggest electoralroll of Chowkri Modi Khana too serial No. 174 found placeat page 4. In the other two electoral rolls also pertaining
(1) 1 B.L.R. 252.
238 BAM SINGH V. HAZARI LAL [VOL. VI
to Chowkri Modi Khana, which by their size can be saidto be supplementary electoral rolls, serial No. 174 foundplace at printed page 4. In all the three electoral rolls ofChowkri Visheshwarji, serial No. 174 found place at printedpage 4. We have not got the electoral roll of ChowkriTopkhana Desh before us, and so we cannot say on whatprinted page of the electoral roll of the said Chowkri serialNo. 174 occurred. It is, however, clear that at least in the9 electoral rolls including the three of Hawaii ShaharGarbi, serial No. 174 occurred at the printed page 4. Itwas, therefore, no use giving the printed page number, andit would not have in the least helped the Returning Officerin finding out the serial number given in the nominationpaper very easily. The particulars, which were given bythe petitioner cannot be said to be in any way less helpfulfor finding out the appropriate serial number than if hehad given the name of the particular part of the JaipurCity "C" constituency in which, according to him, hisserial number occurred. Station Road is, beyond doubt,in Hawaii Shahar Garbi, as would appear from the elec-toral rolls, and the mention of the Station Road alongwith the serial number should have indicated to the Return-ing Officer that the serial number given in the nomina-tion paper was to be found in any of the three electoralrolls pertaining to Hawaii Shahar Garbi. The same wouldhave been the case if the petitioner had mentioned HawaiiShahar Garbi along with the serial number. What was,therefore, the particular which would have obviated thenecessity of referring to more than one electoral roll to theReturning Officer? Two sets of electoral rolls have beenproduced before us, one by the petitioner, which are ninein number, and three of which pertain to Chowkri ModiKhana, 3 to Chowkri Visheshwarji, and 3 to Hawaii ShaharGarbi, and the other by Daulat Ram, Clerk of the CityMagistrate's Office, Jaipur, who was the Electoral Regis-tration Officer at the time of the last general elections.This also consists of three electoral rolls of Hawaii ShaharGarbi, the first and the biggest of which begins from serialNo. 501. From a perusal of the electoral rolls of boththese two sets, it is clear that it is only the embossed pageleaf which is not repeated. The three electoral rolls ofHawaii Shahar Garbi bear the continuous embossed leaf
E.L.R.] HAM SINGH V. HAZAfel LAL 239
numbers. Of the three electoral rolls of Hawaii ShaharGarbi one which is the biggest, contains the names of12,599 electors. This appears to be the original list. Thenthere are two other rolls which are much smaller in size,one containing the names of 891 electors and the other con-taining the names 285 electors. The pages in print on thefirst are from 1 to 252. The pages in print on the other twoare from 1 to 18 and 1 to 6 respectively. The embossed leafnumbers on the page of the first, i.e., the biggest, electoralroll of Hawaii Shahar Garbi produced by the petitioner arefrom 209 to 334. The embossed leaf numbers on the othertwo are from 335 to 343 and 344 to 346 respectively.This is with reference to the electoral roll, Ex. P. 4, filedby the petitioner. In the electoral roll filed by the witnessDaulat Ram also the first, that is the biggest, electoralroll contains the names of 12,599 electors and its last pagein print is 252 as in the case of the electoral roll filed bythe petitioner. This electoral roll does not contain thefirst 10 pages in print, and the first printed page is 11 ofwhich the embossed leaf number is 213. The last emboss-ed leaf number on this electoral roll is 333. The othertwo electoral rolls, which from their size may be taken tobe supplementary are like the two such electoral rolls filedby the petitioner. The only difference is that the embos-sed leaf number on the printed first page of the bigger ofthese two electoral rolls is 334 and the last is 342. In thesmaller of these two, the embossed leaf number is 343 on itsfirst printed page, and on the third printed page it is 345.Thus, on a perusal of the electoral rolls of both these twosets, it is clear that embossed leaf numbers are continuousfrom the first to the last, and the embossed leaf number inany of these three electoral rolls is not repeated, in anyother. Thus by giving the embossed leaf number theReturning Officer's task was very much facilitated, as itobviated the necessity of referring to more than one elec-toral roll. We may say that in the electoral rolls ofChowkris Modi Khana and Visheshwarji, which are alsobefore us, the embossed leaf numbers are different fromthe embossed leaf numbers given in the electoral rolls ofHawaii Shahar Garbi. Thus the Returning Officer had tofind out only the embossed leaf number, and there he could
have found "the appropriate serial number without any
240 RAM SINGH V. HAZABI LAL [VOL. VI
necessity of looking into any other electoral roll. Thepetitioner was justified in thinking that if he gave theembossed leaf number, he would make the task of the Re-turning Officer very easy in tracing out the appropriateserial number. This is what the petitioner has said in hisstatement, and to our mind his explanation is perfectlycorrect. It is unfortunate that the electoral roll fromwhich the certified copy Ex. R. 1/1 (a) was obtained bythe petitioner for presentation before the Returning Officercontains serial No. 174 at embossed leaf No. 344; but thatwas no fault of the petitioner. This may be due either torepetition of one of the leaf numbers in that electoral rollor the omission of one of the leaf numbers in the electoralroll produced by the petitioner. The difference was,however, not very great. It was the difference of only one.It appears from Ex. R. l/l that the printed page numberin the electoral roll from which the copy was given was 4,as No. 4 is given in the bracket after the embossed leafNo. 344. The same page No. 4 is on the page of the elec-toral roll produced by the petitioner, on which serialNo. 174 is printed. The Returning Officer, Mr. ShambhuDayal, who was examined in this case, has deposed thathe looked at the entries in respect of Mr. Ram Singh inthe electoral roll of Jaipur City "C" constituency main-tained in his office. From a comparison of the two sets ofelectoral rolls, which have been filed before us, we findthat serial No. 174, which the petitioner states to be his,is to be found in the same setting in the same part of theelectoral rolls of both the sets, inasmuch as the namesabove and the names below with their particulars areexactly the same. The printed page is also No. 4. Theonly difference is that in the one the embossed leaf isNo. 344 and in the other it is 345. But neither on page 344of the electoral roll produced by the petitioner, nor onpage 345 of the electoral roll produced by Shri Daulat Ram,serial No. 174 is to be found. If, therefore, the ReturningOfficer had taken the least trouble, and had applied hismind in the least, it would not have been difficult to findout that serial No. 174 on page No. 345 of the electoralroll produced by the petitioner was the same as the serialNo. 174 of the electoral roll filed from the ElectoralRegistration Office through Daulat Ram. There could not
E.L.R.] RAM SINGH V. HAZARI LAL 241
have, therefore, been any doubt about the identity of thepetitioner on a comparison of the two electoral rolls, and theReturning Officer had power to make a summary enquiryunder section 36 (2) of the Act in order to be able to givehis decision about the validity or invalidity of a nomi-nation paper. If the Returning Officer, therefore, thoughtthat he could not give a correct decision without holdingfurther enquiry, he could have made such an enquiry, andthe petitioner could have satisfied him by means of com-parison of the two electoral rolls, his application for correc-tion of age, Ex. P./7, and the order of the Electoral Regis-tration Officer correcting his age, about his identity withserial No. 174 given in the nomination paper. But it appearsthat the Returning Officer had no doubt about the identityof the petitioner, and, therefore, he did not consider itnecessary to hold any further enquiry into the matter. Inhis order on the nomination paper he does not say that hewas doubtful about the identity of the petitioner. We donot, therefore, think that there was any doubt about theidentity of the petitioner in the mind of the ReturningOfficer when he rejected his nomination paper.
It was argued by the learned counsel for the contest-ing respondent that the age given by the petitioner in hisapplication for insertion of his name in the electoral rollas well as his address given therein were different fromthe entry in the electoral roll against serial No. 174. Theage had, however, been corrected before the date ofscrutiny, as appears from the order of the ElectoralRegistration Officer, dated 26th November, 1951. On thepoint of discrepancy in age between that given in theelectoral roll and that given in the application for additionof the petitioner's name, no doubt about the identity ofthe petitioner on the date of scrutiny could arise. Learnedcounsel for the contesting respondent argued that thename of the road against which serial No. 174 was enteredin the electoral roll was different from the one given inthe application of the petitioner for addition of his name.It was argued that this showed that the petitioner wasnot a voter whose name was entered at serial No. 174, andhis identity could, therefore, be in doubt. It is true thatthe name of the road given in the application of the
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242 RAM SINGS V. HAZARI LAL [VOL. VI
petitioner for addition of his name in the electoral roll isAjmer Road. Ajmer Road has not been printed in theelectoral roll against serial No. 174 given in the nomi-nation paper. But this may be a mistake of print. Aboutthe serial No. 174 given by the petitioner the word StationRoad has been printed as against serial No. 166. There-after neither the word "Station Road" is printed up toserial No. 174, nor ditto marks are given. It cannot, there-fore, be clearly said that Station Road is to be necessarilyread along with serial No. 174. It is'in the evidence of thepetitioner that no voter of the name of Ram Singh, son ofTara Singh, was residing at Station Road. This evidencehas not been rebutted, although it could be easily done ifany other Ram Singh, son of Tara Singh, was resident ofJaipur City "C" constituency, Hawaii Shahar Garbi.Ajmer Road too is situated in Hawaii Shahar Garbi, JaipurCity "C" constituency. So it cannot be said that the peti-tioner was not a resident of Hawaii Shahar Garbi. Hemade an application for inclusion of his name, and thatapplication was accepted. It will be presumed that officialacts are regularly performed and that his name was dulypublished in the electoral roll after the order of the revis-ing authority. It also appears from the biggest electoralroll of Jaipur City "C" constituency, Hawaii ShaharGarbi, which appears to be the main electoral roll byvirtue of its size, that at No. 174 the name of Ram Singh,son of Tara Singh, is not entered, but it is the name ofBadri, son of Harnath. Serial No. 174, which is relied onby the petitioner finds place in the smallest electoral rollcontaining only about 200 names, wh^ch clearly showsthat this list was prepared after certain other names wereordered to be entered in the electoral rolls, which didnot find place in the original electoral rolls. The petitioneralso summoned the paper showing that the order regard-ing the inclusion of his name in the electoral roll was eom-municated to the press, but unfortunately it was not pro-duced by the press. However, the presumption that theofficial act of giving effect to the order of the revisingauthority was duly performed, far from being rebutted, hasbeen strengthened by the material on the record, referredto above. It cannot, therefore, be said that there is anydoubt about the identity of the petitioner. In our opinion
E.L.R.] BAM SINGH V. HAZARI LAL 243
the petitioner substantially complied with the provisionsof rule 4 read with rule 2 (d) of the rules. The issue is de-cided in favour of the petitioner, and against the contest-ing respondent.
Issues Nos. 4 and 6.—It has already been discussed inrelation to issue No. 3 that serial No. 174 in the electoralroll of Jaipur City "C" constituency, Hawaii ShaharGarbi, which contains the names of 285 electors, relates to'the petitioner. That part of the electoral roll has beenmarked as Ex. P/4. It cannot, therefore, be said thatthe petitioner was not a registered voter in the electoralroll of Jaipur City "C" constituency. The decision onissue No. 6 is also covered by the decision given in con-nection with issue No. 3, wherein it has been held thatserial No. 174 in Ex. P/4 relates to the petitioner. Boththese issues are, therefore, decided in favour of the peti-tioner and against the contesting respondent.
Issue No. 5.—The petitioner has examined himselfand has also filed an application for admission to Maha-raja's College, Jaipur, dated 13th July, 1944, from whichit appears that his date of birth was 8th October, 1922.Similarly from his application, dated 16th July, 1945, foradmission to Third Year Arts, Maharaja's College, Jaipur,it appears that the same is his date of birth. These ap-plications are Exs. R. 1/4 and R. 1/5. The age entry wascorrected by the Electoral Registration Officer also. Thepetitioner has also stated on oath that he was more than25 when he filed the nomination paper. There is absolutelyno rebutting evidence on the record excepting the errone-ous entry in the electoral roll, which was afterwards cor-rected. There can, therefore, be no doubt that the peti-tioner was more than 25 years of age at the time of filinghis nomination paper. It was, however, argued that thecorrection ought not to have been made after the 25th ofNovember, 1951, up to which time had been given by theChief Electoral Officer, Government of Rajasthan, Jaipur,by the communication Ex. R. 1/6 (a). It does not appearunder what provision of law this time was limited. Undersection 25 (b) of the Representation of the People Act,1950, the Electoral Registration Officer for a constituencyhas been given the power to amend or cause the roll to beamended on application made to him for the correction of
244 EAM SINGH V. HAZARI LAL [VOL. VI
an existing entry in the electrol roll of the constituencyfor the time being in force. It has not been laid down inthe said section that such applications can be made onlyup to a certain time. Of course, the correction should bemade before the scrutiny. Even if it is taken that the ChiefElectoral Officer, Government of Rajasthan, had suchpowers, 25th November, 1951, was a Sunday, and the ap-plication made on the next opening day, that is, 26thNovember, 1951, cannot be said to be made beyond time,under the circumstances of the case.
This issue is also decided in favour of the petitionerand against the contesting respondent.
Issue No. 7.—It was contended on behalf of the contest-ing respondent that the correction of the age of the electorNo. 174 after the filing of the petitioner's nomination paperwas invalid. We have been shown no law according towhich it is invalid. The age given in the electoral roll wasfound to be incorrect when the petitioner filed his nomi-nation paper, and so he made an application before theElectoral Registration Officer to correct the mistake. Thiswas done before the date of scrutiny. As has been said inconnection with issue No. 5, no special time limit is givenin law for making such corrections. We are unable to holdthat the correction of the age made by the ElectoralRegisration Officer after the filing of the petitioner'snomination paper was invalid.
The issue is decided in favour of the petitioner andagainst the contesting respondent.
Issue No. 8.—It was argued on behalf of the contest-ing respondent that independent candidates could notadopt a symbol of their first preference which was thesymbol of any political party recognised by the ElectionCommission. The petitioner's evidence is that he was aKisan Sabha candidate, and it is fully proved that thesymbol of a cultivator winnowing grain was the symbolgiven to Kisan Sabha, Rajasthan. He, therefore, did notrequire any permission for the adoption of this symbol ashis first preference. It was further argued on behalf of thecontesting respondent that the list of the Kisan Sabhacandidates to the Rajasthan Legislative Assembly suppliedby the Kisan Sabha, Rajasthan, does not mention the name
E.L.R.] RAM SINGH V. HAZARI LAL 245
of the petitioner among the Kisan Sabha candidates. Thatlist was, however, supplied by the Rajasthan Kisan Sabhato the election authorities on the 29th November, 1951,after the nomination paper of the petitioner had been re-jected. It is Ex. R.l/6 (b). Obviously, therefore, thatlist could not contain the name of the petitioner as one ofthe candidates adopted by Rajasthan Kisan Sabha whenhe was off the field by virtue of the rejection of his nomi-nation paper on the 28th of November, 1951. The omis-sion of the petitioner's name, therefore, in that list is of noconsequence against the evidence produced by the peti-tioner showing that he was adopted by the RajasthanKisan Sabha as one of its candidates. It was not neces-sary, under these circumstances, for him to obtain permis-sion for adopting the symbol of the Rajasthan KisanSabha as the symbol of his first preference.
This issue is decided in favour of the petitioner andagainst the contesting respondent.
Issue No. 9.—This issue has not been pressed on be-half of the contesting respondent. "We do not think thewithdrawal of the deposit before the filing of the electionpetition could affect it. This issue is also decided in favourof the petitioner and against the contesting respondent.
Issue No. 10.—[This issue was decided in favour of thepetitioner and against the contesting respondent.]
Issue No. 1.—It has already been held in connectionwith issue No. 3 that the embossed leaf number which thepetitioner gave in item No. 8 of the nomination paper wasfrom one of the electoral rolls of Jaipur City "C" consti-tuency, Hawaii Shahar Garbi. This electoral roll has beenfiled by the petitioner as Ex. P./4. Of course, the numberof the embossed leaf on the electoral roll from which copywas given to the petitioner for production in court hadserial No. 174 against which the name of Ram Singh, sonof Tara Singh, was entered at embossed leaf No. 345. Theelectoral roll on which the aforesaid serial No. is printedat page 344 has also been produced before us from theElectoral Registration Office (City Magistrate's office)through Daulat Ram. It would appear from a perusalof that electoral roll that there is no serial No. 174 on theembossed leaf No. 345. It was, therefore, very easy for
246 RAM SINGH V. HAZARI LAL [VOL. VI
the Returning Officer to find out that the serial number 174given by the petitioner in his nomination paper was thesame which was to be found at page 344 of the electoralroll from which the copy was given to him. This copyis also on the record of this case and is Ex. R.I/l(a). Hadhe called upon the petitioner to satisfy him that he hadgiven the serial number from the electoral roll of JaipurCity "C" constituency, Hawaii Shahar Garbi, he wouldhave at once satisfied him from the electoral roll whichhe had in his possession. To our mind, the ReturningOfficer was too technical. Had he shown a little patience,the discrepancy on which he rejected the nomination paperwould have been very easily explained. Section 36 (4) ofthe Act lays down that the Returning Officer shall not re-ject any nomination paper on the ground of any technicaldefect which is not of a substantial character. The nomi-nation paper was, therefore, improperly rejected on theground that the page number of the entry given at serialNo. 8 differed from the number of the page given in thecertified copy produced by the petitioner.
The issue is decided in favour of the petitioner andagainst the contesting respondent.
Issue No. 2.—There is a long string of decisions thatin case the nomination paper of a candidate is improperlyrejected, there will be a strong presumption in favour ofthe result of the election having been materially affected.The same view has been expressed by us in the two casesdecided recently, viz., Lakshmi Ghand v. Ladhu RamGhodhri and Others^) and Pandit Harish Chandra v. RajaMan Singh and Others^).
Of course, in the case of Pandit Harish Chandra v. RajaMan Singh, and Others^), there was very strong evidenceto rebut the presumption, and, therefore, it was held thatthe improper rejection did not materially affect the resultof the election. In the present case, there is not an iotaof evidence to rebut the presumption. After the nomi-nation paper of the petitioner was rejected, all the othercandidates whose nomination papers were accepted, ex-cepting the contesting respondent, withdrew their nomi-nations, and the field was left open for the contesting
(1) 4 E.L.R. 200, (?) 5 E.L.B. 129.
E.L.R.] DIN SINGH V. KAML DEO 247
respondent to be elected without contest. There is nocircumstance before us from which we might infer as towhat would have been the result, if there had been acontest. Under the circumstances, we do not find thatthe initial presumption in favour of the petitioner hasbeen rebutted. Our view is that,, in the circumstances ofthe case, the result of the election was materially affectedby the improper rejection of the petitioner's nominationpaper.
The election petition succeeds, and the election fromthe Kotputli constituency to the Rajasthan LegislativeAssembly is declared void with the consequence that theelection of the contesting respondent Shri Hazari Laibecomes void, However, the petitioner had not fullycomplied with the direction given in note 6 of the nomi-
nation paper prescribed in Schedule II of the rules, andalthough being a technical omission it was not sufficientfor the rejection of his nomination paper in the circum-stances of the case, yet the contesting respondent couldwell think that the letter of the note being in his favour,he could raise a valid defence on the points. We think,therefore, that under the circumstances it would be justand proper that the parties do bear their own. costs.
Election declared void.
[ELECTION TRIBUNAL, JAIPUR.]
DIN SINGH AND OTHERSv.
KAPIL DEO AND OTHERS.ME. JUSTICE K. K. SHARMA (Chairman), A. N. KAUL
and P. L. SHOME (Members).May 9, 1953.
Nomination of candidates—Appointment of election agent—Omission tofile Form V, effect of—Candidate appointing himself as agent—Decla-ration in nomination paper, whether sufficient—'Construction of declaration—'Name of another agent inserted without striking off "myself" and "as my"—-Whether two agents appointed—Validity of nomination—Appointment ofmore than one agent—Whether all nomination papers void—'Oral evidence
248 DIN SIN&H V. KAPIL DEO [VOL. VI
as to factum of appointment of agent—Admissibility—Representation of thePeople Act, 1951, ss. 33(3), 40, Sch. II, Form V—Evidence Act, 1872, s. 91.
The respondent filed three nomination papers. In the first, which wasin Hindi, in the form of declaration of appointment of agent he insertedthe name of "G. S." but did not strike off the words "sivayam ko" and"apna" though he struck off the word "mera". In the second form, whichwas in English, the name of "G. S." was inserted and the words "myself"and "as my" were both struck off. In the third, which was in Hindi, thename of "G.S." was inserted and words "swayam ko" and "mera" were bothstruck off. The first was rejected on the ground that the candidate hadappointed both "G.S." and himself as agents, and the remaining two, onthe ground that Form V was not filed along with the nomination papers:
Held (by the Full Tribunal) that there is no provision which makesthe filing of Form V with nomination papers compulsory and the rejectionof the second and third nomination papers on the ground that Form Vwas not filed along with them was improper.
Held per K.K. SHAEMA and A.N. KAUL (P.L. SHOMB, dissenting)—(i) that, on the face of the first nomination paper, read with the state-ments of the candidate, he had appointed "G.S." and himself as agents, andtherefore, this nomination paper was invalid; and as the candidate hadappointed more than one agent, all the nomination papers, including the2nd and 3rd, could be rejected on this ground. P. L. SHOME.—In the decla-ration in the first nomination paper the appointment of either the one, orthe other, or both, was not clear and so there was no valid appointment ofany agent in that paper and the question of the validity of the 2nd and3rd on the ground that more than one agent was appointed did not arisefor decision.
Held further (by the Full Tribunal) that oral evidence as to the factumof appointment of an election agent is not excluded by section 91 of theEvidence Act, though the appointment itself has to be in writing.
Held also Per K.K. SHAEMA and A.N. KAUL (P.L. SHOME, dissenting)—(i) Under section 40 of the Eepresentation of the People Act, 1951,
where a candidate appoints himself as his agent it is not necessary thatthere should be a separate appointment in writing in addition to a decla-ration in the nomination paper itself to that effect.
Haji Nasimuddin and Another v. Dandiram Dutta and Others (1 E.L.E.412) followed.
(ii) The appointment of an election agent can be made by a candi-date under section 40 only after his nomination paper has actually beensubscribed by the proposer and seconder and the nomination has been as-sented to by the candidate, and before delivering to the Eeturning Officer.Section 33(3) does not require any writing anterior to the declaration ofappointment of agent to evidence such appointment.
Per K. K. SHAEMA and A. N- KAUL.—Where more than one electionagent is appointed by a candidate all his nomination papers must be- rejec-ted as all the nomination papers must be considered collectively. The viewthat each nomination paper must be taken as a separate entity and one ofthem can be accepted and the others rejected, is not sound.
E.L.K.j DIN SINGH V. KAPIL DEO 249
Benares and Mirzapur District, (Sen & Poddar 154), RazzarMuhammadan Rural Constituency Case (Sen & Poddar 716), Ookal DasHirji v. Zaveri Vallabhdas (2 B.L.E. 234), Motisinghji v. IshwarbhaiKhodabhai (l E.L.E. 330) not followed.
ELECTION PETITION No. 4 of 1952.
B.P. Agrawal, for the petitioners.D.M. Bhandari, for the 1st respondent.
OEDER.
SHOME.—In this election petition, Din Singh and 5others, who are all electors of the Nim-ka-Thana "C" con-stituency of the Rajasthan Legislative Assembly, pray forhaving the election to the said Assembly from the saidconstituency at the last general election declared whollyvoid, on the ground that the nomination papers of res-pondent No. 3, Rao Udai Singh, were improperly rejectedand that the result of the election has been materiallyaffected thereby. There are two other respondents in thepetition, of whom respondent No. 1, Kapil Deo, is the re-turned candidate and respondent No. 2, Narain Singh, thedefeated candidate.
Respondent No. 3, Rao Udai Singh, filed on the 26thNovember, 1951, the last date fixed for filing nominations,three nomination papers, which were numbered as serialNos. 3, 4 and 5. The first nomination paper No. 3 wasrejected by the Returning Officer on the ground that in thedeclaration of appointment of the election agent, includedin the form of the nomination paper, the said candidate"has appointed Swami Gulzari Sharma, s/o Ram RaiSharma, as his election agent, but the word "swayam ko"has not been struck off, while the word "mem" in the al-ternative line "mera"/"apna" has been struck off, whichis ambiguous and signifies that the candidate has appoint-ed himself as well as Swami Gulzari Sharma as his elec-tion agent, while under the law he can only appoint one,either himself or another man, his agent".
The nomination papers Nos. 4 and 5 were rejected onthe ground that Form 5-A, i.e., the form of appointmentof election agent, was not filed along with any of thesenomination papers. It may be stated that in these twonomination papers, only Swami Gulzari Sharma was
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250 BIN SINGH V. KAPIL DEO [VOL. VI
declared to have been appointed the election agent andthere were no other irregularities, omissions or illegalitiesalleged in respect thereto.
The election petition challenges only the second of theabove two grounds of rejection, and states that Form 5-A,appointing Swami Gulzari Sharma as election agent, wasduly delivered to the Returning Officer and that under thelaw Form 5-A was not required to be submitted withevery nomination paper.
Respondent No. 1, KapilDeo, (hereinafter referred toas the contesting respondent filed a written statement con-testing the petition and his pleas are that the respondentNo. 3 not having filed Form 5-A along with the nominationpapers, committed a breach of the mandatory provisionsof law, and as such the nomination papers, serial Nos. 4and 5, were rightly rejected, that the said respondent hav-ing appointed two election agents by the nominationpaper serial No. 3, the same was rightly rejected, and heraised the further pleas that the nomination papers Nos.4 and 5 ought to have been rejected on the following addi-tional grounds, viz.—
(a) Respondent No. 3 had appointed two electionagents, and this illegality vitiates these two nominationpapers as well,
(b) Form 5-A was not in existence even up to thetime of the submission of the last nomination paper serialNo. 5,
(c) Respondent No. 3 is a jagirdar and renders ser-vice to the State in lieu of the grant of jagir and is as suchthe holder of an office of profit under the Government ofRajasthan and so ineligible to be a member of the Raja-sthan Legislative Assembly,
(d) Respondent No. 3 did not submit his return ofelection expenses and has been declared as disqualified tostand as a candidate in any Assembly elections for fiveyears, and that in any case,
(e) The rejection of his nomination paper has notmaterially affected the result of the election.
The respondent No. 2, Narain Singh, has filed a writtenstatement practically supporting the election petition andraising an additional plea that Rao XJdai Singh havingappointed Swami Gulzari Sharma as an election agent on
E.L.E.] DIN SINGH V. KAPIL DEO 251
the 22nd November, 1951, under section 40 of the Repre-sentation of the People Act, 1951, (hereinafter referred toas the Act), and that that appointment not having beenrevoked or cancelled, no other election agent could beappointed. He further pleaded that the nomination paperof the contesting respondent No. 1 was wrongly acceptedbecause no appointment of election agent under section40 of the Act was made by him in writing before the deli-very of his nomination paper.
Respondent No. 3, Rao Udai Singh, has also filed awritten statement in which he has admitted all the state-ments made in the material paragraphs Nos. 1 to 6 of theelection petition and prayed that it might be declared thatthe rejection of his nomination papers Nos. 2 and 3 wasimproper and illegal, but as additional statements it isadded in the said written statement that in the first nomi-nation paper he had appointed himself and Shri GulzariLai Swami as his election agents, because he was given tounderstand that a candidate could appoint himself andone other person as his election agent and further that therequired Form 5-A was given to the Returning Officer atabout 2-30 P.M. on 26th November, 1951, because up tothat time he did not know that the appointment of theelection agent was to be made in the Form 5-A, and thatthe said Form 5-A was filled by him at about 2 P.M. on26th November, 1951, at Sikar.
This written statement, which is in the Englishlanguage is signed by Rao Udai Singh in Hindi and it isalso signed by Shri Ram Chandra Shastri, his advocate,and another lawyer.
Thereafter the petitioners filed an application "byway of clarification", in which they stated inter alia thatthe respondent No. 3 had filed his written statement incollusion with respondent No. 1 and that it was entirelywrong to say that he had appointed two election agentsin nomination form serial No. 3 and that he did notappoint Swami Gulzari Sharma his election agent up to 2P.M. on 26th November, 1951, whereas the fact was thatSwami Gulzari Sharma was appointed election agent inwriting in Form 5-A before delivery of nomination papersand that it was by a clerical error only that the word"swayam ko" remained to be struck off in the Form No. 3.
252 DIN SINGH V. KAPIL DEO [VOL. VI
On the said pleadings, the following issues wereframed:—
1. Whether any of the nomination papers, serialNos. 4 and 5, filed by the respondent No. 3 was improper-ly rejected on the ground that it was not accompanied bythe appointment of election agent in Form 5-A?
2. If the answer to issue No. 1 is in the affirmative,was the result of election materially affected by that re-jection?
[Issues Nos. 3, 5, 6 and 7 were not pressed. Henceomitted.]
4. Whether the respondent No. 3 appointed twoelection agents instead of one, and if so, whether thenomination papers serial Nos. 4 and 5 were liable to rejec-tion also on this ground?
Out of the above issues, issues Nos. 3, 5, 6 and 7 werenot pressed at the hearing and no evidence was producedon issues Nos. 3 and 5. So these issues are answered in thenegative.
Issue No. 1.—Nomination papers, serial Nos. 4 and 5,were rejected on the ground that they were not accom-panied by the form of appointment of election agent, i.e.,Form 5-A.
Under section 33(3) of the Act, it is laid down thatevery nomination paper delivered under sub-section (1)shall be accompanied by a declaration in writing subscrib-ed by the candidate that the candidate has appointed ashis election agent for the election, either himself or anotherperson who is not disqualified under the Act for the ap-pointment and who shall be named in the declaration.
This declaration referred to in the section formedpart of the prescribed form of nomination paper and is asfollows:—
"Appointment of Election Agent. -I hereby declare that I have appointed
son of .to be my electionmyself as my
agent.Signature of candidate".
B.L.R.] DIN SINGH V. KAPIL DEO 253
In both the nomination papers serial Nos. 4 and 5,one of which is in Hindi and the other in English, thisdeclaration has been made and it has been stated by thecandidate that he has appointed Swami Gulzari Sharma,son of Ram Rai Sharma, as his election agent. There isno ambiguity or irregularity therein. So the required decla-ration is there and the requirements of the provisions ofthe section have been fully complied with. There is noother provision in the Act which has made it necessarythat the appointment of election agent in Form 5-A, shouldform an annexure of the nomination paper. So the Re-turning Officer was clearly wrong in rejecting the nomina-tion papers on this ground. It appears from a reading ofhis two orders rejecting the three nomination papers thathe has read the word "declaration" in section 33(3) as"appointment" and has not been able to follow the dis-tinction between a declaration of a certain thing havingbeen done and the doing of the thing itself. No provisionof law has been shown to us making it compulsory for acandidate to file Form 5-A along with his nominationpaper.
As a matter of fact the contesting respondent whoraised these objections before the Returning Officer hasnow before the tribunal given up that case and fallen backupon a new case—that there was no Form 5-A in existencebefore the filing of the nomination paper, and, therefore,the declaration in the nomination paper to the effect thatSwami Gulzari Sharma had been appointed election agentis wrong and as such the nomination paper is illegal.
[The learned Member referred to the evidence andcontinued:]
There is no doubt, therefore, that the appointment ofSwami Gulzari Sharma as election agent was made beforethe filing of the nomination papers and that the Form 5-Awas executed on the 22nd November, 1951. There is noevidence to the contrary and the story of Form 5-A beingnot in existence at the time of the filing of the nominationpapers or of the same having been executed at 2 P.M. onthe 26th November, 1951, and having been filed before theReturning Officer at 2-30 P.M. on that date is palpablyfalse. The respondent No. 3 also in his evidence on com-mission gives the go-by to the story narrated in his
254 DIN SINGH V. KAPIL DEO [VOL. VI
written statement and says that he did not rememberwhen he had presented the Form 5-A before the ReturningOfficer or when he executed it. The appointment of SwamiGulzari Sharma as election agent and the proper executionof Form 5-A being thus proved, the declarations of ap-pointment of election agent in the later two nominationpapers, serial Nos. 4 and 5 were quite correct. Therebeing nothing in law to make the filing of Form 5-A asannexure to the nomination paper compulsory, the deci-sion of the Returning Officer rejecting these two nomina-tion papers for non-filing of Form 5-A therewith is wrongand cannot be sustained. The issue is, therefore, foundin favour of the petitioners.
Issue No. 4.—The next point for consideration iswhether the respondent No. 3 appointed two electionagents instead of one and if so, whether the nominationpapers, serial Nos. 4 and 5 are liable to rejection oh thisground. This issue has been raised at the instance of thecontesting respondent and involves two points, viz.—
(1) A question of fact as to whether two electionagents were appointed instead of one, and
(2) if so what is the legal effect thereof on thevalidity of the nomination papers.
On the question of fact, the contention that two elec-tion agents, viz., the candidate himself and Swami GulzariSharma were appointed is based on
(a) statements of the respondent No. 3 in his writtenstatement, as narrated above,
(b) statements of the said respondent in his evidenceon commission, as a witness for the contesting respondent,
(c) statement of Ram Chandra Shastri, respondentNo. l's witness No. 2, and
(d) the statement in the declaration of appointmentof election agent in the first nomination paper, serialNo. 3.
Before going into the consideration of these state-ments, a point regarding the admissibility thereof needsto be noticed. Mr. B. P. Agrawal for the petitioner hascontended that under section 40 of the Act, a definite pro-vision has been made for the appointment of the electionagent. It lays down, that every person nominated fts a,
E.L.E.] DIN SINGH V. KAPIL DEO 255
candidate at an election shall, before the delivery of hisnomination paper under sub-section (1) of section 33appoint in writing either himself or some one other per-son to be his election agent. He, therefore, urges that evenif a candidate appoints himself as his election agent, thatappointment must under the law be in writing, of whichthere is none in this case, and he further argues that underthe provisions of section 91 of the Indian Evidence Act,any oral evidence regarding the appointment of an elec-tion agent would be inadmissible. His case is that theonly writing evidencing the appointment of an electionagent on behalf of the respondent No. 3 is the Form 5-Afiled in the case and marked Ex. R 1/3, and no oral evi-dence to prove that the said candidate appointed himselfas an election agent would be admissible. Mr. D. M.Bhandari for the contesting respondent, on the other hand,argues that section 91 of the Indian Evidence Act laysdown that when the terms of a contract have been re-duced to the form of a document and in all cases in whichany matter is required by law to be reduced to the formof a document, no evidence shall be given in proof of theterms of such contract except the document itself orsecondary evidence of its contents, in cases in whichsecondary evidence is admissible....What the provisions ofthe section interdict is the proof of the terms of the con-tract, but not the existence of the contract itself. Whatis sought to be proved here by the contesting respondentis that there was an agency created in favour of the candi-date himself; the terms of such agency, if any, are notsought to be proved. I agree with Mr. Bhandari's conten-tion. The section does not bar the proof of the transac-tion itself, but only the terms thereof. I, therefore, donot think that section 91 of the Evidence Act in any wayprecludes the production of extraneous evidence to provethat another election agent was appointed. Referencemay be made in this connection to the case of Mt. Makhdu-man v. Syed Altaf HussainQ), in which it was held thatsection 91 refers only to the method of proof of the termsof a contract, grant or disposition of property, but it doesnot exclude other proof of the transaction itself. Ref-erence may also be made to the case of Chhotalal Aditram
(1) A.I.R. 1922 Pat. 222.
256 DIH SINGH V. KAPIL DEO [VOL. VI
Trivedi v. Bai MahakoreQ) in which it was held that thefact of a partition may be proved by oral evidence al-though the deed embodying the terms of the partition can-not be proved for want of registration. So also it washeld in the case of Ameer Ali v. Yakub All Khan(2) that atenancy could be proved without proving the lease, ifthere be any. The Madras High Court, in the case ofPakuri Viraraghavaluv. Poluri Yettamandu(3) also held thatwhen the existence of a sale is in question and not itsterms, oral evidence as to the existence or otherwise of thesale would not be inadmissible under section 91. TheirLordships of the Privy Council also held in the case ofNawab Major Sir Mohammad Akbar Khan v. Attar Singhi^)that evidence as to an actual transaction apart from theparticulars thereof was not inadmissible under section 91or 92 of the Evidence Act. Evidence of the actual fact ofthe existence or otherwise of an agency in favour of therespondent No. 3 himself would not, therefore, be barredunder section 91.
Let us now consider the nature and value of the evi-dence on the basis of which it is sought to be proved onbehalf of the contesting respondent that the respondentNo. 3 appointed himself also as his election agent. Inparagraph (1) of the additional statement of his writtenstatement, the said respondent states that in the firstnomination paper, he had appointed himself and ShriGulzarilal Swami as his election agents, because he wasgiven to understand that a candidate could appoint him-self and one other person as his election agents. He hasrepeated the same story in his deposition on commission,but he has not given out by whom he was given so tounderstand, nor have any of the persons, if any, whomight have advised him as such been examined.
[The learned Member referred to the oral evidence andcontinued:]
Even as far as they go, what do these statementsprove? Respondent No. 3 stated that he appointedhimself and Gulzari Lai as his election agents. GulzariLai's appointment is evidenced by Form 5-A. There isno writing and it is nobody's case there was any, as to the
(1) I.L.E. 41 Bom. 466. (2) I.L.E. 41 Cal. 347.(3) 95 Ina. Cas. 584. (4) 40 C.W.N. 997.
E.L.E.] DIN SINGH V. KAPIL DEO 257
appointment by the respondent No. 3 as his own electionagent, except the declaration in the nomination paperserial No. 3. He says that he appointed himself in thefirst nomination paper. It has been argued that no ques-tions were put to the respondent No. 3 by the petitionerson this point and, therefore, the petitioners must be takento have admitted the point. I do not see why the peti-tioners should by putting questions in cross-examinationoffer the said respondent an opportunity to further ex-plain or elucidate the point, which he had not done in hisexamination-in-chief. If he says that he appointed himselfby the first nomination paper, let us take the statementfor what it is worth. The law makes definite provisionsregarding appointment of election agents. Under section40 of the Act, as has already been pointed out, the ap-pointment of an election agent, even if the candidatehimself be his election agent, has got to be in writing andthat writing must be made before the filing of the nomi-nation paper.
Section 40 lays down a definite and clear method asto how an election agent, be he the candidate himself orany other person, is to be appointed, and that methodmust be followed, if a valid appointment is to be made.The Privy Council held in the case of Nazir Ahmedv. King-Emperor (x) that "where power is given to do acertain thing in a certain way, the thing must be done inthat way or not at all. Other methods of performanceare >necessarily forbidden". If the declaration in thenomination paper be the only writing, then the questionwould arise has there been an appointment at all ? Section33(3) of the Act provides for a declaration of the appoint-ment of election agent and not for the appointment itself.The terms of the declaration are—"I hereby declare thatI have appointed or myself etc." It is a declarationof an appointment previously made and not the appoint-ment itself. Moreover, this declaration itself is ambiguous.It is not possible to ascertain therefrom in whose favourthe declaration is made—"Gulzari Lai" or "myself". Theambiguity, if any, is more in favour of "Gulzari Lai" thanin favour of "myself". So the declaration in the nomi-
(1) A.I.R. 1936 P.O. 253.EL—33
25S DIN SINGH V. KAPlL DEO [VOL. VI
nation paper was not and cannot be regarded as anappointment of the election agent. I do not think weshould take this doubtful and ambiguous statement beyondwhat it implies and stretch the law and facts to build upa case and thereby impose a disqualification on a candi-date. The appointment, if any, must be made by awriting before the declaration. It has not been asserted,far less proved, that there was any such writing by whichrespondent No. 3 appointed himself as his election agent.The evidence of the respondent No. 3 and his advocate,Ram Chandra Shastri, taken at their face value, apartfrom their reliability, goes at best to prove an intentionon the part of respondent No. 3 to appoint himself as hiselection agent, for the reasons stated by them. There isno reliable evidence at all that the said intention hadbeen given effect to either in fact or in law, and wehave nothing before us to enable us to hold that the saidrespondent No. 3, though he declared as such in thenomination paper, serial No. 3, had in fact appointedhimself as his election agent.
Much has been sought to be made out of the fact thatthe rejection of the first nomination paper, i.e., serial No.3 has not been challenged before the tribunal by the peti-tioners and a point has been sought to be made thatthereby the petitioners have admitted that the respondentNo. 3 had appointed two election agents, i.e., himself andGulzari Sharma. It has been stated above that the saidnomination paper by itself has not and could not provethe appointment of the candidate himself as his electionagent. If no question had been raised as to the factumof appointment, the declaration would have been sufficientfor the purpose of the validity of the nomination paper.But the issue has raised a point as to "whether the respon-dent No. 3 appointed two election agents instead of one".The very frame of the issue shows that the factum ofappointment of two agents was not admitted, but disputed.The issue was raised by the contesting defendant and itwas for him to prove all the implications of the issue. Forthis he relied on the materials mentioned before. The factthat the rejection of the nomination paper, serial No. 3,has not been challenged does not show that the petitionersadmit that two election agents were appointed. The
E.L.B.] DIN" SINGH V. KAPIL DEO 259
Returning Officer said that the entry was ambiguous andit seemed that the candidate appointed himself also as hiselection agent. He was sure about the appointment of 'Gulzari Lai Sharma, but as regards the other appointment,the position, even according to the Returning Officer, wasambiguous. The ambiguity was patent and there was nouse pressing the matter and the petitioners have been welladvised in not mixing up a bad or indifferent case with agood one. There is nothing in Khem Chand's evidence toshow that he admitted that by the first nomination paper,the respondent No. 3 appointed two election agents. Allthat he said was that the petitioners felt after consulta-tion with lawyers that in the view that had beentaken by the Returning Officer, there was no use movingagainst the rejection of that nomination paper but thatthey should confine their objection to the other two nomi-nation papers.
A reference has been made to a case decided by theAssam Election Tribunal, Haji Nasimuddin and Anotherv. Dandiram Dutta and Others^-), in which it has beenheld that when a candidate appoints himself as hiselection agent, the statement in the declaration wassufficient and no separate writing was necessary. Inthis case the learned members of the tribunal havegiven no reasons for their decision and they have not con-sidered the question from all the points of view that havebeen raised before us.
Even if the statement in the declaration be assumedto be sufficient for a legal and valid appointment of anelection agent, what does the present declaration imply?It says that he had appointed two persons in the alterna-tive, Swami Gulzari Lai Sharma, son of Ram Rai Sharma/myself. It does not say that he had appointed "SwamiGulzarilal Sharma and myself". The import of the decla-ration is Swami Gulzari Lai Sharma or myself. Which oneof the two is then to be taken as having been appointed?As far as the language of the declaration purports, it mustbe either Gulzari Lai or myself and cannot be both GulzariLai and myself. I cannot read the statement in the declara-tion as an appointment of two election agents. The formis in the alternative and how can it be taken that the two
(1) 1 E.L.B. 412.
260 DIN SINGH V. KAPIL DEO [VOL. VI
alternatives are to be read not as alternatives but as in-clusives? If he had meant to appoint both Gulzari Lai andhimself as election agents, then the word "and" ought tohave been added after the words "Gulzari Lai Sharma, sonof Ram Rai Sharma". In my view, the declaration takenby itself proved that by this nomination paper no appoint-ment of any election agent had been made, because in theform in which it stands the appointment of either of thetwo or of both is not clear and unambiguous and so legallyno valid appointment of either has been made thereby.If an appointment of election agent had been made undersection 40 of the Act, though in an irregular way, a ques-tion might have arisen as to whether the appointment wasvitiated by a defect of a mere technical character, whichmight be overlooked under section 36(4) of the Act, but asno such appointment under section 40 has been made, thequestion of the application of the provisions of section36(4) does not arise.
The question of the legal effect on the validity of thenomination of a candidate of the fact of appoint-ment by him of two election agents does not, therefore,arise in the case, and I have no hesitation in answeringissue No. 4 in the negative.
Before going into the next issue, it remains to noticeanother point raised by Mr. D. M. Bhandari, advocate forthe contesting respondent. He contended that the appoint-ment of Swami Gulzari Lai as election agent was not validbecause Form 5-A appointing him as election agent wasexecuted before nomination. This point was not taken inthe written statement nor raised in the issues; moreover,it is not consistent with his previous case that Form 5-Awas not in existence when the last nomination paper wasfiled; but as it raises a question of legality, I think it pro-per to go into it. Mr. Bhandari's contention is that sec-tion 40 of the Act lays down that every person nominatedas a candidate at an election shall before the delivery ofhis nomination paper appoint in writing either himself orsome one other person as his election agent. His point isthat an appointment of election agent cannot be made be-fore a candidate is nominated. Therefore, the appoint-ment of Gulzari Lai having been made on the 22ndNovember, before the nomination of respondent No, 3 as
E.L.R.] DIN SINGH V. KAPIL DEO 261
a candidate which took place on the 26th November, wasnot legal and effective, and as such there was no electionagent for respondent No. 3 and all his nomination papersmust be rejected. The contention of the learned advocateis based upon the word "nominated" in section 40. Theword has been used to describe a candidate and it has noreference to the time at which a candidate is to appointhis election agent. There are various categories of candi-dates described in the Act, viz., nominated candidates,duly nominated candidates, validly nominated candidatesand under section 79, clause (b), a candidate, for the pur-pose of Parts VI, VII, and VIII of the Act, would includealso persons who with the election in prospect havebegun to hold themselves out as prospective, candidates.Such prospective candidates ultimately may or may notbe nominated and if not so nominated, there would be nonecessity for them to appoint election agents. It is forthe purpose of indicating what category of candidatesneed appoint election agents that the word "nominated"has been used. There is nothing in the section to showthat the appointment of an election agent is to be madeafter nomination or that any such appointment made be-fore nomination would not be legal. An election agent isappointed for the election and his duties inter alia are tokeep regular books of account and to enter therein parti-culars of expenditure in connection with the election. Suchexpenditure does not begin only with or after the nomina-tion, but from long before that. Manifestoes, posters,letters, statements etc. are printed and issued, meetingsorganised and addressed, travelling expenses incurred, andhundred other things in connection with the election aredone before the date of the submission of the nominationpaper. These expenses have got to be shown in the returnof election expenses and accounts thereof kept. Referencemay be made in this connection to section 44 of the Actand to Chapter VII (Election Expenses), Rules 111 and112 of the Representation of the People (Conduct of Elec-tions and Election Petitions) Rules, 1951, and also to theForm of the return of election expenses. The function ofthe election agent begins from long before the nominationof a candidate and it would be absurd to hold that an elec-tion agent can only be appointed after the actual
262 DIN SINGH V. KAPIL DEO [VOL. VI
nomination of a candidate. The point, therefore, fails andis negatived.
Issue No. 2.—It having thus been held that the nomi-nation papers of the respondent No. 3 had been impro-perly rejected, the question arises as to whether suchimproper rejection has materially affected the result ofthe election.
It has been held by this tribunal, as well as by othertribunals, that an improper rejection of a nomination paperraises a presumption that the result of the election hasbeen materially affected thereby. But that presumptionis rebuttable. Let us now see what evidence of rebuttalthere is in this case. We have it from the evidence of thecontesting respondent No. 1 that there are about 42,000voters in this constituency, out of whom about 5,000 arewomen voters who are not effective voters, as their namesdo not appear in the electoral roll, but they are describedonly as wives, widows, or daughters of their respectivehusbands or fathers. The effective voters, therefore, areabout 37,000. Out of these about 19,000 votes were polledand the respondent No. 1 won by a majority of about3,000 votes. There is nothing to show what the reactionwould have been on the voters, who came to the poll orhow the rest of about 18,000 voters, who did not come tovote, would have reacted, if respondent No. 3, Rao UdaiSingh, had been a contesting candidate. No evidence,other than his own bare statement, has been adduced bythe contesting respondent to rebut the presumption men-tioned above. On the other hand, there is some evidenceon the side of the petitioners to show that voters comingto the poll inquired about Rao Udai Singh's ballot boxand some, on knowing that there was no ballot box forRao Udai Singh went away without voting, while othersvoted for whomsoever they liked. A portion of the electo-rate has thus been deprived of their right to vote for thecandidate of their choice. There is also evidence to theeffect that Rao Udai Singh is a very influential man inthe locality and he is very popular. This evidence has notbeen contradicted or challenged. There is thus nothing tosuggest that the result of the election has not been mate-rially affected by the improper rejection of the nominationpaper of Rao Udai Singh, respondent No. 3. This issue is
E.L.R.] DIN SINGH V. KAPIL DEO 263
replied in the affirmative.The result, therefore, is that in my opinion the elec-
tion petition succeeds and should be allowed. The electionto the Rajasthan Legislative Assembly from the Nim-ka-Thana C constituency should be declared to be void, andthe election of respondent No. 1, Kapil Deo, beset aside.
A. N. KATJL.—I have had the benefit of going throughthe judgment of my learned brother, Shri Shome and,being unable to agree with some of his conclusions, I amconstrained to record a separate judgment. The facts ofthe case have been already narrated in my learnedbrother's judgment but it would be useful to repeat andemphasise certain salient facts of the case.
Rao Udai Singh, respondent No. 3, filed 3 nominationpapers on the 26th November, 1951, which were markedas serial numbers 3, 4 and 5. The scrutiny of nominationpapers took place on the 29th November. In serial No. 3which is a Hindi form and hence filled in Hindi, the declar-ation as to appointment of election agent, which formspart of the nomination form, had been filled up by enter-ing the name and other particulars of Swami Gulzarilalas agent in the blank space provided above the first part-ing line and by leaving intact the word "swayam ho"provided below the line apparently as an alternative. Of the
—— — following the above entries in the declaration andapna
provided above and below another parting line, obviouslyas alternatives, the word "mera" above the line had beenstruck off. In his order rejecting the nomination paper,serial No. 3, the Returning Officer observed that the candi-date had appointed Swami Gulzari Sharma as his agentbut had not struck off the words "swayam ho" while theword "mera" in the alternative line had been struck off,which was an ambiguity, and proceeded to observe that itsignified that the candidate had appointed himself as wellas Swami Gulzari Sharma as his election agent. Since,according to the Returning Officer, only one election agentcould be appointed under the law, the nomination paperwas rejected.
In serial No. 4 which was an English form and hencefilled in English, only Swami Gulzari Sharma was shown
264 DIN SINGH V. KAPIL DEO [VO,L- V I
as election agent while the alternative word "myself"below the line was struck off as also the words "as my"below the second line which follow in the declaration. Thisnomination paper was rejected by the Returning Officeron the ground that no appointment form of the electionagent (Gulzari Sharma) in Form 5-A had been appended toit, such form having been filed only with serial No. 3,which had been already rejected. Obviously, according tothe Returning Officer, Form 5-A was required by the lawto be filed with every nomination paper. Serial No. 5 wasagain a Hindi form, filled in Hindi, in which the declar-ation was filled up by entering the name of Gulzari Sharmain the blank space above the first line and striking off theword "swayam Ico" below the line and, further, by strik-ing off the word "mem" above the second line whilekeeping intact the alternative word "apna" below thatline. This nomination paper was also rejected on groundssimilar to those of the rejection of serial No. 4.
As to the time of presentation of the three nomina-tion forms of Rao Udai Singh there are conflicting versions.According to the statement of Shri B. P. Agrawal, coun-sel for petitioner, recorded under Order X, rule 1, all thethree nomination forms were delivered at one and thesame time and the apparent difference of time noted bythe Returning Officer on the three nomination forms isdue to the fact that he made the endorsement regardingtime of presentation after examining each nominationform as required by section 33, sub-section (5), of theRepresentation of the People Act, 1951, which will bereferred to hereinafter as the Act.
According to the written statement of Rao UdaiSingh, respondent No. 3, which is in English but signed inHindi, the three nomination papers were filed at about12 o'clock at intervals of 5 minutes each. In his state-ment recorded on commission, Rao Udai Singh stated thatso far as he could remember the three nomination paperswere presented simultaneously. The evidence of theReturning Officer, Shri Vishnu Dutt Sharma, is to theeffect that serial Nos. 3, 4, and 5 were presented respec-tively at 12-30 P.M., 12-38 P.M. and 12-40BP.M. which is therespective time endorsed by the witness on the differentnomination forms. His evidence is further to the effect
E.L.R.] ' DIN SINGH V. KAPIL DEO 265
that Form 5-A, Ex. R.-1/3, regarding the appointment ofGulzari Sharma as election agent, accompanied the nomi-nation form, serial No. 3. This also appears from theReturning Officer's order of rejection of nomination paper,serial No. 4. But Ex. R-l/3, by itself, does not bear anyendorsement as to the time of its presentation, obviouslybecause no such endorsement was required under the law.According to Shri B. P. Agrawal's statement underOrder X, rule 1, Form 5-A was delivered to the ReturningOfficer on the 26th November, a little before the delivery ofany of the three nomination forms. In the written state-ment of the contesting respondent it was contended thatthe Form 5-A did not accompany any of the nominationforms and was not in existence even up to the time ofdelivery of the last nomination paper, serial No. 5. In hisstatement, under Order X, rule 1, Shri D. M. Bhandari,counsel for the contesting respondent, further assertedthat Form 5-A had not even been filled up and signed byRao Udai Singh till the delivery of his last nominationpaper and was actually delivered to the Returning Officerat about 2 P.M., i.e., after the delivery of all the nominationpapers. According to the written statement of Rao UdaiSingh, respondent No. 3, the Form 5-A was filled up by himat Sikar on the 26th November, 1951, at about 2 P.M. andwas delivered to the Returning Officer at about 2-30 P.M.on the same date. In his statement recorded on commis-sion Rao Udai Singh stated, however, that, although hehad appointed himself and Gulzari Sharma as his electionagents he did not remember as to when he had signed theform of appointment of Gulzari Sharma as agent. In cross-examination he stated that he always gave the correctdate of signing a paper and could not conceive of signingon one date and giving another. It may be stated herethat the Form 5-A, Ex. R-l/3, on which turns largely thedecision of some of the important points in this petition,bears the 22nd November, 1951, as the date of its execu-tion. According to the evidence of one of the petitioners,namely, Khemchandra, P.W. 3, the Form 5-A was filled upin his presence, by Rao Udai Singh at village Patan, hisresidential village, on the 22nd November. In his argu-ments on behalf of the contesting respondent, Shri Bhan-
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dari has taken his stand on the 22nd November as thedate of execution of Form 5-A.
In the petition itself there is no direct reference tothe rejection of any particular nomination paper andthere are only general statements that the rejection of"the nomination" of the respondent No. 3 on the groundthat each of the three nomination papers was not accom-panied by the Form 5-A, was improper and illegal; thatthe form had been duly delivered to the Returning Offi-cer and that the law did not require the submission ofForm 5-A with each nomination form. In a replicationfiled by the petitioners "by way of clarification" it wasalleged, however, that respondent No. 3 had filed thewritten statement in collusion with respondent 1, and itwas asserted that it was entirely wrong to say that res-pondent No. 3 had appointed two election agents in serialNo. 3 or that he had not appointed Swami GulzariSharma as his election agent up to 2 P.M. on 26th Novem-ber, 1951. It was further stated that it was a mere clericalerror that the word "swayam ko" remained to be struckoff in serial No. 3. In Mr. B. P. Agrawal's statementunder Order X, r. 1, the emphasis was on the plea thatForm 5-A was dated the 22nd November, 1951, and wasdelivered to the Returning Officer on the 26th November,a little before the presentation of the nomination papers.The obvious inference from the nature of these pleas isthat the rejection of nomination paper serial No. 3 wasnot intended to be challenged by the petitioners, the non-accompaniment of Form 5-A having affected only serialNos. 4 and 5 and not serial No. 3. This is also clear fromthe evidence of Khemchandra, petitioner, in rebuttal inwhich hS has admitted that it was decided in consultationwith lawyers only to object, in the petition, to the rejec-tion of nomination papers serial Nos. 4 and 5 and notto that of serial No. 3. It was only in the replication thata reference was made for the first time to serial No. 3, buteven there it was not stated directly that this particularnomination paper had been improperly rejected.
Written statement of Rao Udai Singh, respondent No. 3,contains categorical admissions of all the allegations madein the petition, as also a prayer that the rejection of hisnomination papers serial numbers 3 and 4 be declared
E.L.R.] DIN SINGH V.KAPIL DEO 267
improper and illegal. There is, however, in addition, astatement that he had appointed himself and GulzariSharma as election agents under the impression that hewas empowered to do so and the further statement,already referred to, that he filled up Form 5-A about 2 P.M.at Sikar, on'the 26th November, and handed °it over onthe same date to the Returning Officer at 2-30 P.M.
Respondent No. 2, Narain Singh, while supportingthe petition in his written statement, has raised two newpoints, namely: (1) that Rao Udai Singh having appointedSwami Gulzari Sharma as his election agent on 22ndNovember, 1951, and the appointment not having beenrevoked or cancelled, no other agent could be appointedby him; and (2) that the nomination paper of the contest-ing respondent was improperly accepted in the absence ofan appointment of an election agent in writing beforedelivery of his nomination paper as required under section40 of the Act.
The above is the back ground of material facts againstwhich the main points for decision in the case have to beconsidered. I shall now proceed to deal with the issuesthat remain for decision.
Issue No. 1.—The only point for decision under thisissue is whether the election law, as it* stands, requiresthat every nomination form should be accompanied bythe appointment of an election agent in Form 5-A. On thispoint there can be no two opinions. There is no provi-sion either in the Act or in the election rules framedthereunder, requiring the filing of Form 5-A with everynomination paper or, for the matter of that, the filing ofsuch a form with any of the nomination papers. Whatrule 11-A, read with section 40 of the Act, requires is onlythat a person nominated as a candidate should appoint hiselection agent in Form 5-A when he appoints some personother than himself as his agent. The objection that RaoUdai Singh's nomination forms serial Nos. 4 and 5 werenot accompanied by Form 5-A and the Returning Officer'srejection of these nomination papers on that basis wastherefore entirely misconceived.
It was, of course, conceivable to reject the nominationpapers on the ground that no appointment of S, wami
268 DIN SINGH V. KAPIL DEO [VOL. VI
Gulzari Sharma had been made in Form 5-A, before deli-very of the nomination papers, in case the allegation inthe contesting respondent's written statement to the effectthat no appointment of any election agent in Form 5-A bythe respondent No. 3 was in existence even until the time ofdelivery oft the last nomination paper serial No. 5, hadbeen proved to be correct. But even the learned counselfor the contesting respondent has taken up an entirelydifferent stand in his arguments, namely, that the appoint-ment of Swami Gulzari Sharma in Form 5-A was made andexecuted by Rao Udai Singh on the 22nd November, 1951,even before the latter had been nominated as a candidateand was therefore invalid. In the circumstances the origi-nal stand as to the non-existence of Form 5-A at the timeof delivery of nomination papers should be deemed to havebeen given up.
The answer to issue No. 1, therefore, has to be in theaffirmative.
Issue No. 4.—The points that have been raised in con-nection with this issue and which are for consideration arethe following:—
(i) Whether two election agents had, in fact, beenappointed by respondent No. 3, Rao,Udai Singh.
(ii) Whether the appointment by respondent No. 3,of himself as election agent was made only through thedeclaration contained in nomination paper serial No. 3and was invalid in the absence of a separate writing andalso because it was made after the first appointment ofSwami Gulzari Sharma.
(iii) Whether the appointment of two election agents,even if made through nomination form serial No. 3, has noeffect on the nomination forms serial Nos. 4 and 5.
(iv) Whether the appointment of Swami GulzariSharma through Form 5-A, Ex. R-l/3, was invalid, theform having been executed on 22nd November, 1951, beforethe actual nomination of respondent No. 3 as a candidate.
The best evidence on the first point, obviously, can beeither the writing, if any, evidencing the appointments oftwo election agents by respondent No. 3 or the testimonyof respondent No. 3 himself, unless there be sufficientgrounds for discarding any of these, In so far as the
E.L.R.] ' DIN SINGH V. KAPIL DEO 269
appointment of Swami Gulzari Sharma is concerned it isevidenced by the Form 5-A, Ex. R-l/3, which bears thedate 22nd November, 1951, as its date of execution as alsothe admitted signatures of Rao Udai Singh and the accept-ance of Swami Gulzari Sharma as required by law. Assum-ing, therefore, that the appointment of an election agenton the 22nd November, 1951, was valid, there is nothingwrong with this appointment. It is the petitioner's casethat the appointment was made on the 22nd November asstated in the evidence of Khemchandra, petitioner, and itis also now the stand of the learned counsel for the con-testing respondent during his arguments that the appoint-ment was made on the 22nd November. There is, there-fore, no dispute left as to the appointment of Swami Gul-zari Sharma as election agent having been made on the22nd November.
As to the appointment of himself as election agent byrespondent No. 3, the nomination form serial No. 3 canonly be read as if respondent No. 3 had declared himselfas well as Swami Gulzari Sharma as his election agents. Thewords "swayam ko" below the line intended for the nameof the election agent were left intact in the declaration inserial No. 3, while Swami Gulzarilal was also shown asagent above the line; In the following line, in the declara-tion the word "dpna" below the line, which could applyequally to both Swami Gulzari Sharma and to himself,according to the ordinary rules of grammatical construc-tion, was left intact while the word "mem" above theline, was struck off. To my mind there was no ambiguityabout the declaration and the Returning Officer was notright when he observed that the writing was ambiguousand yet held that it signified the appoinment of two elec-tion agents. There seems to be no reason why the decla-ration as it stands, should not be taken at its face value.In this connection the belated explanation of the peti-tioners in the replication that it was by a mere clerical errorthat the words "swayam ko" in the declaration in serialNo. 3 had remained without being struck off, is devoid ofall force. I shall consider separately the question whetherthe appointment of himself as election agent through thisdeclaration alone can be deemed as valid. Next in impor-tance is the evidence of respondent No. 3 himself, as to
270 DIN SINGH V. KAPIL DEO " [VOL. VI
whether he had appointed two election agents or only one.In his evidence recorded on commission the respondentclearly stated that he had appointed two election agentsand not a single question was put to him in cross-exami-nation on behalf of the petitioners on this point. Thisevidence is, however, assailed on the ground that the res-pondent appears to have colluded with respondent No. 1and his evidence is, therefore, not reliable. This argumentin my opinion, has no force in the face of the categoricaladmission by respondent No. 3, in his written statement,of all the main allegations made in the petition by thepetitioners, from paragraphs 1 to 6, and of the prayer actu-ally made at the conclusion of the respondent's writtenstatement that the rejection of nomination forms serialNos. 4 and 5 by the Returning Officer be declared as im-proper. Except in respect of an additional averment madeby respondent No. 3 in his written statement, in regardto the time of presentation and execution of Form 5-A andas to the explanation for the appointment of two electionagents, his]written statement entirely supports the petition.An explanation for these two averments is possible on abasis quite different from that of collusion and, consider-ing the nature of respondent No. 3's written statementas a whole, I find it impossible to agree that, in so far ashe himself was concerned, he made the written statementin collusion with the contesting respondent. As for hisevidence on commission, it has a ring of truth about it andit is very much like the testimony of an unsophisticatedperson, who did not much understand the complicationsof the procedure of an election. His explanation, in hisevidence that he had appointed two election agents becausehe thought his agent and he himself "would both control"is significant in this connection, as showing that he had noproper comprehension of the functions of an election agent.The respondent has signed his written statement in Hindialthough it is written in the English language and, evi-dently, he cannot even sign in English, much less under-stand the language. In his evidence he has not affirmedthe statement contained in his written statement, aboutthe time of presentation of Form 5-A to the ReturningOfficer or as to the time when he executed it and hasadded that he was not the man to execute a document on
B.L.R.] DIN SINGH V. KAPIL DEO 271
one date and give a different date in the document, whichevidently means that the date of execution of Form 5-A,Ex. R-l/3, as given in it may be presumed to be correct.These statements could not have been made by respon-dent No. 3 in his evidence if he had been in collusion withthe contesting respondent. Had he been in coHusion withthe contesting respondent, he would have certainlyaffirmed in his evidence the statement contained in thewritten statement about the time of execution or present-ation of the Form 5-A. [The learned Member consideredthe oral evidence on the point and continued:]
I, therefore, agree that the evidence of Ram ChandraShastri has to be looked at with suspicion but the otherevidence already discussed by me leads to the irresistibleconclusion that respondent No. 3 had, in fact, appointedSwami Gulzari Sharma and himself as his election agents,through Form 5-A read with the nomination paper serialNo. 3.
As to the argument' of the petitioner's learned counselthat oral evidence of appointment of himself as electionagent by respondent No. 3 is excluded under the provi-sions of section 91, Evidence Act, since the appointment isrequired by section 40 of the Act to be in writing, I entire-ly agree with my learned brother Shri Shome, that sec-tion 91 of the Evidence Act cannot have the effect of ex-cluding oral evidence as to the factum of appointment ofthe election agent. I need not repeat the reasoning of mylearned brother on this point.
There is thus no escape from the finding that respon-dent No. 3 had appointed two election agents, namely,Gulzari Sharma and himself.
The next point for consideration is whether there wasno writing evidencing the appointment of his ownself aselection agent by respondent No. 3, as required by law, andwhether such an appointment, even if made in writing,was invalid, since it could not have been made withoutrevoking the prior appointment of Gulzari Sharma. Thefirst part of this point arises from an argument advancedby Mr. B. P. Agrawal, counsel for petitioners, that undersection 40, sub-section (1), of the Act, a candidate canappoint an election agent only through a separate writing
272 DIN SINGH V. KAPIL DEO [VOL. VI
executed before the delivery of his nomination paper evenif he appoints his ownself as such an agent. Sub-section (1)of section 40 runs as follows:—
"Every person nominated shall before the deli-very of his nomination paper appoint in writing eitherhimself or some one other person to be his election agent".
It is argued that the writing evidencing the appoint-ment of himself as election agent by a candidate has notonly to be executed before the delivery of his nominationpaper but that it should be a writing distinct from thedeclaration in the nomination form. Now, so far as theappointment of another person as election agent is con-cerned there has to be an acceptance in writing by theelection agent so appointed, as laid down in section 40,sub-section (2), and a Form 5-A has been prescribed underrule 11-A of the Election Rules framed under the Act,for the writing evidencing such an appointment. In regardto the appointment of himself as election agent, however,no particular form of writing has been provided and itwas argued by Mr. D. M. Bhandari, counsel for the con-testing respondent, that the writing contained in thedeclaration, included in the nomination paper itself,fulfils the requirements of section 40(1) in so far as theappointment of himself as election agent by Rao UdaiSingh in serial No. 3 is concerned. According to all ac-counts and in the very nature of things, the nominationform including the declaration was filled up before itsdelivery to the Returning Officer. The writing containedin the declaration in serial No. 3 was therefore executedbefore the delivery of the nomination paper within themeaning of section 40(1). I, therefore, see no reason whythe declaration to be filed with the nomination form shouldnot by itself constitute the writing required by the Act inregard to the appointment of himself as an election agent.
It will be seen that in so far as the nomination of acandidate is concerned, section 33(1) only requires anomination paper to be completed in the prescribed formand subscribed by the proposer and. seconder and by thecandidate himself as assenting to the nomination. Thenomination paper by itself need not, therefore, includeunder the law, a declaration as to the appointment of the
E.L.R.] DIN SINGH V. KAPIL DEO 273
election agent. Under section 33, sub-section (3), however, adeclaration in writing subscribed by the candidate that hehas appointed either himself or another person, as the elec-tion agent, has only to accompany the nomination form.The declaration, as contemplated by the law was therefore,something distinct and separate from the nominationand it is only under rule 4 of the Election Rules that aform of nomination paper has been prescribed in ScheduleII which includes the declaration required by section 33(3)as part and parcel of the form. This declaration whichbears the significant heading "Appointment of ElectionAgent" and which has to be filled up before delivery ofthe nomination paper may well be treated as a separatewriting fulfilling the requirements equally of section 33,sub-section (3), and of section 40, sub-section (1), wherethe candidate appoints his own self as his election agent.Strictly speaking it is a separate writing, as prescribed bythe law, only accompanying the nomination form and notnecessarily forming part of it. The argument as to thenecessity of a separate writing evidencing the appoint-ment of one's own self as election agent and as somethingdistinct from the nomination paper, therefore, loses allforce, considering the fact that the declaration itself ascontemplated by the law appears to answer these require-ments. It has been suggested that since the declaration,as required by section 33, has to say that the candidate"has appointed" himself or some other person as the elec-tion agent, it necessarily implies the prior appointment ofthe election agent and that a declaration that somebodyhas been appointed as agent is not the same thing as actu-ally appointing the agent by the writing contained in thedeclaration. But the declaration, as prescribed in theform of nomination paper in Schedule II, says "I herebydeclare that I have appointed" so and so as my agent.To my mind, the declaration is wide enough to includethe prior appointment of an agent as also an appointmentthereby, that is to say, it may be read as meaning "Ihereby declare tKat I have (already) appointed so and so"and may also be read as meaning "I declare that I havehereby appointed so and so" as agent. In support of thisview I may refer to the decision of the Assam Gauhati
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Tribunal in Haji Nasimuddin v. Dandiram Dutta^). I mayalso refer to the case of Oukul Prasad v. Mr. K. M.Dharamadhihari^). In that case the petitioner had"declared that he shall act as his own electionagent" and the respondent sought to make out thatthis was no valid appointment within the meaning ofold rule 11(5), his contention being that sub-rule (5) ofrule 11 required the declaration to be made in a particularform and that the provision being mandatory, thatform must be strictly adhered to : and further that thepetitioner ought to have "appointed himself as his ownelection agent", and not merely declared that he wouldact as such. The Commissioners, while accepting thecontention that the rule in question was mandatory andrequired strict adherence, observed as follows :—
"For the purposes of such strict adherence it was notnecessary that the actual words obtaining in the sub-ruleshould be copied down word for word When a candi-date declares that he shall act as his own agent for thepurposes of the election, such a declaration must be heldto amount to an express appointment We see nosubstantial difference between an expression that he ap-points himself as the agent and the expression that hedeclares that he shall act as his agent. The differencesought to be made out appears to be merely imaginary."
Similarly the difference sought to be made out in thepresent case between the declaration and the so-calledform of appointment can be said to be imaginary. In anycase section 33(3) of the Act only requires a declarationin writing that an agent has been appointed and not anywriting anterior to the declaration as evidence of suchappointment and that is quite enough for the scrutinyof a nomination paper.
Apart, however, from the question whether a separatewriting evidencing the appointment of respondent No. 3, ofhis own self as election agent was necessary under the lawthere is an important aspect of the case which is entirelyin favour of the contesting respondent. The objectionregarding the non-existence of a separate writing evidenc-ing the appointment by respondent No. 3 of his own self as
(1) 1 E.L.E. 412. (2) 4 Jagat Narain 32.
E.L. R.] DIN SINGH V. KAPIL DEO 275
election agent, prior to the deliyery of the nominationpaper, was never raised by any of the parties either at thetime of scrutiny or in the present petition or even in thereplication or the statement of the petitioners' counselunder Order X, r. 1. The point was raised for the first timeduring arguments on behalf of the petitioners and not asingle question on the point was addressed to the respon-dent No. 3 in his cross-examination on behalf of the peti-tioners during his evidence on commission. The contest-ing respondent was not expected to .prove any such writing,in the circumstances. The petitioners having raised thequestion that the nomination of the respondent No. 3 wasimproperly refused, it was for them to bring out every factwhich could support their stand and the mere omission onthe part of the contesting respondent to secure the pro-duction of any such writing from respondent No. 3, or tobring out a reference to the writing in respondent No. 3'sevidence, cannot raise a presumption against the contestingrespondent or in favour of the petitioners, considering therather unusual nature of the objection and the peculiarcircumstances of the case. On the contrary, the omissionon the part of the petitioners to raise the point specificallyin the petition or replication or even in the counsel's state-ment and to put any question to respondent No. 3 on thepoint raises a presumption against the petitioners. Res-pondent No. 3 was advised by so many lawyers, accordingto the evidence on record, and it is quite possible thatthey might have advised him to execute a separate writingappointing himself as election agent prior to the deliveryof nomination papers and that such a writing may be inexistence. In somewhat similar circumstances the Kapur-.thala Tribunal in its judgment in Socket Singh v. SardarThaicar SinghQ) presumed, from the omission of the peti-tioners to put any question to the respondent during hisevidence regarding the appointment by him of an electionagent, that he had, in fact, appointed an election agent inForm 5-A although no such Form 5-A was appended to anyof the nomination papers of that respondent and therewere merely declarations in each nomination paper, regard-ing the appointment of one S. Kirpal Singh as electionagent. In the present case there is all the more reason
(1) 3 E.L.R. 102.
276 DIN SINGH V. KAPIL DEO [VOL. VI
for presuming the appointment of himself by respondentNo. 3 as his election agent, since no particular form of suchappointment is specifically provided under the Act or theElection Rules.
My conclusion, therefore, on this point is that noseparate writing, apart from the declaration was necessary,regarding the appointment of his own self as election agentby respondent No. 3 and that even if such a writing wasat all necessary, its existence may be presumed in the cir-cumstances of the case.
The second part of the point under considerationarises from the objection on behalf of respondent No. 2,Narain Singh, that respondent No. 3 having appointedGulzari Sharma as his election agent and the appointmentnot having been revoked or cancelled, no other agent couldbe appointed by him. The objection is based partly onthe well-recognised principle that under the Act, it is per-missible for a candidate to appoint only one election agentand partly on the rather extraordinary theory that oncea candidate has appointed an election agent, his power isexhausted and he cannot appoint a fresh agent withoutrevoking the previous appointment. The latter theoryseems to have been first propounded in the judgment ofthe tribunal in the election case of the Benares and Mirza-pur Districts Muhammadan Rural Constituency, 1937, U.P.i^)wherein it was observed with reference to paragraph 1, partII, of the Corrupt Practices Order that the power to appointan agent was exhausted as soon as some one person wasappointed and any subsequent appointment made by thecandidate must be deemed to be in excess of the powergiven by the law and consequently invalid. This theoryof exhaustion of power of appointment propounded in theBenares and Mirzapur casei^) was relied on and upheld bythe Bombay Tribunal in Motisinghji v. Ishwarbhai Khoda-bhai(2) and was dissented from by the Ajmer Tribunal inMengh Raj v. Bhimandas(3). With all respect, I need onlysay that the theory of exhaustion of authority does notseem to be based on any general principles of law. Therewas only a vague reference to general principles of law inthe Benares and Mirzapur casei^) but these principles werenot defined. The theory of exhaustion of authority to
(l! Sen & Poddar 154. (2) 1 E.L.E. 330. (3) 2 E.L.R. 301.
E.L.R.] DIN SINGH V. KAPIL DEO 277
appoint an agent militates against the general principle ofthe law of agency, that a principal may revoke the ap-pointment of an agent at his sweet will and that a subse-quent appointment of an agent impliedly terminates theprevious appointment of another agent.
To hold that a candidate cannot make a subsequentappointment of another election agent after having madea prior appointment of a different person would lead tothe extraordinary result that no nomination paper couldbe rejected on the ground of appointment of more thanone election agent by the candidate, although under thelaw only one election agent can be appointed. I may sayhere that this limitation of power to appoint only oneelection agent is clear enough from the language of section33, sub-section (3), itself and from foot-note No. 6 to theprescribed form of nomination paper and declaration pres-cribed under the Act in Schedule II and the principle isreaffirmed in section 40. In my opinion, therefore, thisobjection of respondent No. 2, which was also taken upby the petitioners' learned counsel during arguments, hasno force and the appointment of his own self as electionagent by respondent No. 3, in nomination form serialNo. 3, cannot be held to be invalid on that ground.
The next point for consideration is whether the ap-pointment of two election agents by respondent No. 3, asshown by his nomination paper serial No. 3 has any effecton his remaining nomination papers serial Nos. 4 and 5 orin other words, whether the validity of these two nomina-tion papers could be considered quite independently ofserial No. 3. On behalf of the petitioners it was urgedthat every nomination paper was to be considered as aseparate entity and that in so far as serial Nos. 4 and 5were concerned there being nothing wrong with them andthere being the appointment of only one agent SwamiGulzari Sharma in both of them, they could not have beenrejected. Reliance was placed on the decision of theSaurashtra Tribunal in the case of Oohaldas Hirjee v.Zaveri Vallabhdas^1) and of the Bombay Tribunal in thecase of Motisinghji v. Ishwarbhai Khodabhai(2).
In the Bombay case the petitioner had presented twonomination papers on 23rd» November, 1951, in both of
(1) 2 E.L.R. 234, \2) 1 E.L.R. 330.
278 DIN SINGH V. KAPIL DEO [VOL. VI
which he had made a declaration appointing one Amar-sang Himatsang as the election agent and two morenomination papers on the following day, in the first ofwhich he had appointed one Pandya Natvarlal as his elec-tion agent, while in the second he had declared that he hadappointed himself as his election agent. All the nomina-tion papers were rejected by the Returning Officer on theground that the petitioner had appointed more than oneelection agent which was not permissible under section 40read with section 33(3). The tribunal held that there wasno authority for the proposition that all the nominationpapers of a nominated candidate should be scrutinisedtogether or collectively. The Manipuri and Etah DistrictsMuhammadan Rural Constituency, 1946{^) wherein it washeld that "simultaneous presentation of multiple nomi-nation papers each containing declaration of appoint-ment of different election agents by a candidate invali-dates all the nomination papers" was distinguished by thetribunals on the ground that in the case before them therewas no simultaneous presentation of nomination papers.The tribunal accepted as correct the view taken in thecase of the Benares and Mirzapur Districts MuhammadanRural Constituency^) wherein it was held that "the appoint-ment of two different election agents by a candidate ontwo separate nomination papers does not invalidate hisnomination". The tribunal then proceeded to hold, on theauthority of the Razzar Muhammadan Rural Constituency,1937(3) that appointment of two different election agentsin two sets of nomination papers is not illegal, nor doesthe invalidity of one affect the other, and to observethat every nomination paper is a separate unit and is to bescrutinised separately. Finally, the tribunal upheld theprinciple of exhaustion of authority to appoint an elec-tion agent, laid down in the' Benares and Mirzapur Case(?)which I have already discussed above.
Having fully considered the case law on the point, Ihave no doubt that the ruling in the Benares and Mirza-pur case(2) on which the judgment of the Bombay Tribu-nal is mainly based is not applicable to the facts of thepresent case. A perusal of the judgment in the Benares andMirzapur case(f) shows that it was based on sub-rule (6)
(1) Sen & Poddar 530. (2) Sen & Poddar 154. (3) Sen & Poddar 716.
E.L.E.] DIET SINGH V. KAPIL DEO 279
(a) of rule 4, U. P. Legislative Assembly Electoral Rules,which provided for a declaration "that the candidate hasappointed or does thereby appoint as his election agent
". In such a case the time of submission of thenomination paper containing the declaration could betaken as the time of appointment of an agent. It was onthat point that the decision of the Benares and MirzapurCasef^) was mainly based. In the case of simultaneouspresentation of nomination papers, however, it could notbe determined which was delivered first and therefore allthe nomination papers had to be rejected where there wasappointment of different agents as in the Manipuri andEtah Gase(2).
The change of law in the present Act in regard to theform of declaration appears to have been missed in theBombay case. In the Saurashtra case the decision in theBenares and Mirzapur CaseQ) appears to have been accept-ed as good law, without a full consideration of the meritsof that case and it also seems that the tribunal dependedon Sen andPoddar's summary of the Benares Case^) judg-ment and not on the full report contained in Doabia'sIndian Election Cases. But even the Saurashtra Tribunalhas held that each nomination paper is not to be treatedas a separate entity and that all the nomination paperscan be looked into in relation to each other to a certain ex-tent. Even the decision in the Razzar Muhammadan RuralConstituency Case(3) was disapproved.
In the Ajmer case, already referred to, one nomina-tion paper was filed by a candidate on one day appointingone Jugal Kishore as agent and two more nominationpapers, on the following day, in both of which he hadappointed himself as agent. In its finding on issue No. 1,the tribunal held that the nomination papers could notbe treated as separate entities. The tribunal also dis-approved the principle of exhaustion of power of appoint-ment of an election agent laid down in the Benares andMirzapur Case^1). On a consideration of the case lawand for reasons already explained by me I respectfullyagree with the view taken by the Ajmer Tribunal thateach nomination paper cannot be taken as a separateentity and that all the nomination papers filed by a
(1) Sen & Poddar 154. (2) Sen & Poddar 530. (3) Sen & Poddar 716.
280 DIN SINGH V. KAPIL DEO [VOL. VI
candidate have to be looked into to a certain extent andfor certain purposes during the scrutiny. That all thenomination papers filed by a candidate have to be consi-dered collectively to a certain extent also appears from thelanguage of section 36, sub-section (1) and sub-section(7)(b)
I may also refer to the ruling in Mohamed Hossain v.Mohammed Raffiqe^1) which was based on election rulessimilar to those under the present election law and inwhich all nomination papers filed by a candidate were con-sidered together and it was held that the nomination wasliable to be rejected on account of the appointment ofmore than one election agent, appearing from the nomi-nation papers considered collectively. A similar view wastaken in the Ballia Case(2).
I am, therefore, unable to agree that the declarationas to the appointment of two election agents in nomina-tion form serial No. 3 of respondent No. 3 has no effect onthe validity of the respondent's remaining two nominationpapers, although it is true that, taken by themselves, thesetwo nomination papers serial Nos. 4 and 5 seem to be quitein order. I do not also agree, as already stated by me,that the appointment by respondent No. 3 of his own selfas his election agent through serial No. 3 could be deemedto be invalid and infructuous or that the respondentshould be deemed, on technical grounds, to have appointedonly one agent, Swami Gulzari Sharma, in all the nomi-nation papers although in fact he had appointed twoagents. The result is that respondent No. 3's nominationpapers serial Nos. 4 and 5 could have been rejected on aconsideration of all his three nomination papers on theground that he had in fact appointed two election agents.
The last point for consideration under issue No. 4 isthe one raised for the first time on behalf of the contest-ing respondent during arguments. It was urged by Mr.D. M. Bhandari that the petitioners' case being that Form5-A, Ex. R-l/3, regarding appointment of Swami GulzariSharma as election agent by respondent No. 3 having beenexecuted on the 22nd November, 1951, and the nominationforms serial Nos. 3, 4, and 5 having all been admittedlysubscribed on the 26th November, the appointment of even
(1) A.I.R. 1941 Calcutta 130. (2) Hammond 27.
E.L.E.] DIN SINGH V. KAPIL DEO 281
Gulzari Sharma as agent was invalid under section 40 ofthe Act. The argument is that under section 40 only "aperson nominated as a candidate" can appoint an electionagent in writing and since respondent No. 3 had not beennominated as a candidate till the 26th November, theappointment by him of his election agent on the 22ndNovember in Form 5-A was void. There are conflictingdecisions on the question whether section 40 can be in-voked in connection with the scrutiny of nominationpapers and, while I am of the opinion that for the purposesof scrutiny the declaration referred to under section 33(3)alone is quite enough, yet Form No. 5-A having been actual-ly filed with the nomination paper serial No. 3, the objec-tion raised by Mr. Bhandari has undoubted force. Themere fact that the objection was not raised previously andthere was no issue on the point, cannot in my opinionprevent the tribunal from considering the effect of a legalflaw in the appointment of the election agent which hasbeen brought to the tribunal's notice. I am unable toagree with my learned brother Shri Shome that the words"nominated as a candidate" in section 40 have no referenceto the time at which a candidate is to appoint an electionagent. The definition of a candidate in section 79(b) tomy mind, does not weaken the force of the objection. Ac-cording to the definition itself, the word "candidate" in-cludes a person who has been duly nominated as a candi-date at any election and such a person shall be deemed tohave been a candidate as from the time when, with theelection in prospect, he began to hold himself out as aprospective candidate. If the intention had been, in sec-tion 40, merely to indicate the person who may ultimatelybe nominated as a candidate, then the mere use of theword "a candidate" without the qualifying words "nomi-nated as a candidate" would have been* sufficient to indi-cate a person who may be nominated or who may beginto hold himself out as a candidate with the election inprospect. To my mind, therefore, no valid appointmentof an election agent can be made under section 40, by acandidate before his nomination paper has been actuallysubscribed by the proposer and seconder and the nomina-tion has been duly assented to by the candidate himself.
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I have gone through section 44 and Chapter VIII, Part V,of the Act and rules 111 and 112 of the Election Rules,1951, and have also perused the prescribed form of returnof election expenses but I find nothing therein to indicatethat the functions of the election agent shall be deemed tobegin from before the nomination of a candidate. In myopinion the formal functions of an election agent can bedeemed toibegin only after he has been duly appointed bya nominated candidate. The argument that any suchinterpretation of section 40 as could have the effect of im-posing a limitation of time on the power of appointmentof an election agent, would render the election work of thecandidate before his,nomination impossible, is not convinc-ing to my mind. This tribunal cannot be deterred fromplacing a natural interpretation on the language of section40 by any considerations of its effect generally on theelection work of a candidate through his agent before thecandidate's nomination. In this connection I may referto the old election law in U.P. The time and manner ofthe appointment of an election agent in U.P. was govern-ed by rule 4, sub-rule 6(a) (U.P. Rules 1936) which leftno doubt that the appointment could only be made on thedate fixed for the nomination of candidates, by means ofa nomination paper containing the necessary declaration.It was on this rule that the decision of the Benares andMirzapur Case was based: vide page 199 bottom, Vol. IIof Doabia's Indian Election Cases. And yet it cannot besaid that, in framing the U.P. Rules in question, the legis-lature concerned had not foreseen the difficulties of elec-tion work arising from the limitation of time as to ap-pointment of election agent. The present election law ismore liberal in this respect, since section 40 permits theappointment of an election agent at any time before deli-very of nomination paper but after the nomination. Ona strict interpretation of section 40, therefore, the appoint-ment of Gulzari Sharma as agent on 22nd November wasinvalid and the nomination forms, serial Nos. 4 and 5, alsodeserved to be rejected on that ground. Judged from anyangle, therefore, the nomination of respondent No. 3 wasliable to be refused. The answer to the issue is, thereforein the affirmative.
In view of my above findings, no finding is necessary
E.L.R.] DIN SINGH V. KAPIL DEO 283
on issue No. 2. The remaining issues are not pressed. Iwould then reject the petition and since there is consider-able evidence that the petition is inspired by malice, thecontesting respondent shall get his costs including Rs. 100as counsel's fee.
K. K. SHAEMA (Chairman).—I have seen the judg-ments of both my learned brothers, Shri P. L. Shome andShri A. N. Kaul. I need not go elaborately into facts, asthey have been given by both my learned brothers in theirjudgments. I may, however, state briefly that this elec-tion petition arose out of the rejection of the nominationpapers of Rao Udai Singh, respondent No. 3. He filed threenomination papers, serial Nos. 3, 4 and 5, Exs. D.l/B,R. ]/4 and R.l/5 respectively, for the Rajasthan Legis-lative Assembly from the Nim-ka-Thana "C" constituency.These nomination papers were filed on the 26th of Novem-ber, 1951, but at the scrutiny all the three nominationpapers were rejected on the 29th November, 1951. Ex.D.l/B was rejected on the ground that the word "swayamho" was not struck off from the declaration of appoint-ment of agent in the nomination paper, while the word"mera/apna" had been struck off, which was ambiguousand signified that the candidate had appointed himself aswell as Swami Gulzari Sharma as his election agent, whileunder the law he could appoint only one, either himselfor another man as his agent, and the other two nomina-tion papers were rejected on the ground that Form 5-A forthe appointment of election agent was not filed along withthe nomination papers. The petitioners, Din Singh, son ofLakh Singh and five others, who were voters in the Nim-ka-Thana "C" constituency to the Rajasthan LegislativeAssembly filed this petition for having the election declaredvoid on the ground that the nomination papers wereimproperly rejected, and their rejection materially affectedthe result of the election.
The real contesting respondent in the case is ShriKapil Deo, respondent No. 1. He asserted that the nomi-nation papers were validly rejected, and has also takena plea, among others, that Rao Udai Singh had appointedtwo election agents, that is Shri Gulzari Sharma and hisown self, which invalidated all his nomination papers.
284 DIN SINGH V. KAPIL DEO [VOL. VI
Of the seven issues, which were framed, issues Nos.3, 5, 6 and 7 were not pressed by the learned counsel forthe contesting respondent, and they have been decidedagainst him by my learned brothers. Issues Nos. 1, 2 and4, which were pressed, are as follows:—
" 1 . Whether any of the nomination papers, serialNos. 4 and 5, filed by the respondent No. 3 was improper-ly rejected on the ground that it was not accompanied bythe appointment of election agent in Form 5-A?
2. If the answer to issue No. 1 is in the affirmative,was the result of election materially affected kby that re-jection?
4. Whether the respondent No. 3 appointed twoelection agents instead of one, and if so, whether thenomination papers serial Nos. 4 and 5 were liable to rejec-tion also on this ground?"
So far as issue No. 1 is concerned both my learnedbrothers are agreed that it should be decided in favour ofthe petitioner. I entirely agree with them, because it hasnot been shown to us that it was necessary for a candidateto attach Form 5-A along with every nomination paperin case there are more than one, or in fact with any nomi-nation paper at all.
I now take issue No. 4, on which my learned brothershave disagreed.
Issue No. 4.—It was argued by Mr. D. M. Bhandarion behalf of Shri Kapil Deo (hereinafter called as thecontesting respondent) that Rao ydai Singh appointedtwo election agents, that is, his own self and Shri GulzariSharma. Section 40 as well as section 33 of the Represen-tation of the People Act, 1951 (hereinafter to be called asthe Act) provide that a candidate shall either appointhis own self as an election agent or some one other person.The law, therefore, requires that only one person can beappointed as election agent and not more than one, andin case more than one are appointed, it cannot be saidthat the provisions of section 33(3), which are mandatory,have been fulfilled. On behalf of the petitioners it wasargued by Mr. B. P. Agrawal that first of all, there was noevidence that two election agents were appointed, andeven in case they were in fact appointed, the appointment
E.L.R.] DIN SINGH V. KAPIL DEO 285
of Rao Udai Singh himself as his agent was invalid, as nowriting about the appointment as required by section 40of the Act has been proved in this case. It was furtherargued that even if two agents were appointed, Exs.R. 1/4 and R. 1/5 could not be rejected as the declarationin them was only with respect to the appointment of oneelection agent, that is, Gulzari Sharma.
Shri P. L. Shome has agreed with the contention ofthe petitioners, and has held that neither it is proved asa fact that two election agents were appointed by RaoUdai Singh, nor, even if it be proved as a fact that twoelection agents were appointed, the appointment of RaoUdai Singh can be said to be legally valid, as no writingwas made by him about his own appointment as requiredby section 40. On this finding he has not gone into thesecond contention of the contesting respondent that if twoelection agents are appointed, even those nominationpapers in which declaration has been made about a singleagent are invalid.
Shri A. N. Kaul has agreed with the contesting res-pondent, and he has held that the appointment of twoelection agents by Rao Udai Singh was fully proved, andthat there were writings as required by section 40 of theAct regarding the appointment of both the agents. Inthe case of Rao Udai Singh himself he has held that noseparate writing was necessary, and the declaration itselfin the nomination paper amounted to appointment.
I have very anxiously considered over the matter, asboth my learned brothers have given very able and ela-borate judgments. To my mind, however, it appears thatthe view expressed by Shri A. N. Kaul is correct. So faras the question of fact is concerned whether Rao UdaiSingh appointed two1 election agents, there is the declara-tion in the nomination form Ex. D. 1/B, which shows thathe appointed himself as well as Shri Gulzari Sharma aselection agents. It was not necessary for him to writehis own name in the declaration form as the word"swayam ko" was clear, and he did not strike it off. Mybrother Shri P. L. Shome is of opinion that probably itwas only accidental that the word "swayam ko" was notstruck off. With all respect to my learned brother, first
286 DIK SINGH V. KAPIL DEO [VOL. VI
of all there is no warrant for making such a supposition,but even if there were any doubt, it has been fully set atrest by the evidence of Rao Udai Singh, who wasexamined on behalf of the contesting respondent, and hasclearly deposed that he appointed two election agents,that is his own self and Shri Gulzari Sharma. No questionwas put to this witness in cross-examination on behalf ofthe petitioners challenging this statement of his. Thepetitioners themselves took no ground in their petitionthat the nomination paper Ex. D.l/B was wrongly rejectedon the ground that two election agents were appointedby Rao Udai Singh. My learned brother Shri A. N. Kaulhas given full reasons for believing the statement of RaoUdai Singh and for coming to a finding on the basis of hisstatement along with the declaration in the nominationform Ex. D.l/B that two election agents were in factappointed by Rao Udai Singh.
Next, coming to the question whether the appointmentof his own self by Rao Udai Singh is invalid because hedid not make any separate writing apart from the decla-ration form that' he had appointed his own self as hiselection agent, great stress was placed by Shri B.P. Agrawalon behalf of the petitioners on the words "appoint inwriting either himself or some one other person to be hiselection agent", which occur in section 40 of the Act.This section requires that every person nominated as acandidate at an election shall before the delivery of hisnomination paper under sub-section (1) of section 33 orunder that sub-section read with sub-section (4) of section39, as the case may be, appoint in writing either himselfor some one other person to be his election agent. Thisis sub-section (1) of section 40. By sub-section (2) it hasbeen provided that when a candidate appoints some per-son other than himself to be his election agent he shallobtain in writing the acceptance by such person of theoffice of such election agent. Then there is a Form 5-A inSchedule I of the rules framed under the Act. This givesthe form for the appointment of election agent, if thecandidate appoints somebody other than himself his elec-tion agent. There is no form given for the appointmentof his own self as an agent by the candidate. Any writing,therefore, which shows that the candidate appointed his
E.L.R.] DIN SINGH V. KAPIL DEO 287
own self as his agent would be sufficient. The writingshould be before the delivery of the nomination paper. Inthe present case, the declaration was made in the nomi-nation paper before its delivery. So it can be justifiablysaid that it was a writing made before the delivery of thenomination paper. It clearly shows that Rao Udai Singhappointed his own self as his agent, besides Shri GulzariSharma, in whose case the appointment has also been madein Form 5-A as required by the rules. It was argued thatit is simply a declaration saying that appointment wasmade at some earlier stage. As a matter of fact appoint-ment may be made orally much before the writing re-quired by section 40. But the appointment will take effectonly when the writing has been made as required by sec-tion 40. So, to say that the appointment was de factomade before the declaration in the nomination formwould not invalidate it. Of course, it would not have hadany legal force until the writing had come into effect. Sothe appointment of his own self by Rao Udai Singh legallycame into effect from the time he made the declaration inthe nomination form. I do not find anything in the Actto warrant the view that even in the case of a candidateappointing his own self as his election agent there shouldbe two writings, one by way of declaration and the otherby way of appointment. If any form were prescribed,even in the case of the candidate appointing his own selfas his election agent, this argument would have had force,but as no form is prescribed, any writing which shows thatthe candidate has appointed himself as his election agentwould suffice. The declaration form shows it, and to mymind it was quite sufficient for the valid appointment ofhis own self as his election agent by Rao Udai Singh. Thisview has been taken in a recent case under the Act by theAssam Election Tribunal in the case of Haji Nasimuddinv. Dandiram Dutta and Others^). Of course the judgmentis brief, and the reasons are not elaborately given, but theview to my mind is perfectly correct.
Coming to the question whether if two agents wereappointed, all the nomination papers would be invalid eventhough in some of them the declaration is made about asingle agent, my learned brother Shri A. N. Kaul has
(1) 1 E.L.E. 412.
288 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
referred to a number of authorities, and to a recent casedecided by the Ajmer Tribunal, Mengh Raj v. Bhimandasand Others^). The tribunal has given very good reasons forholding that if more than one agent has been appointedall the nomination forms become invalid. Authoritiesunder the old Act have been reviewed and on a full consi-deration of them the tribunal came to this finding. Ineed not repeat the arguments given by the tribunal orby my learned brother Shri A. N. Kaul. I am of theopinion that the nomination papers cannot be altogethertreated as quite separate entities for this purpose.
Section 33(3) of the Act as well as section 40 bothmake it clear that only one election agent should be ap-pointed. The appointment of more than one electionagent is, therefore, against the mandatory provision oflaw, and this constituted a good ground for the rejectionof all the nomination papers of Rao Udai Singh. It cannot,therefore, be said that the nomination papers of RaoUdai Singh were altogether improperly rejected, althoughthe ground on which nomination papers Exs. R. 1/4 andR.l/5, were rejected has not found favour with thistribunal. The petition, therefore, fails.
I also agree with the order of costs made by mybrother Shri A. N. Kaul.
By the Tribunal.—In view of the judgment of themajority, the petition is dismissed with costs to the con-testing respondent including Rs. 100 as counsel's fee.
Petition dismissed.
[ELECTION TRIBUNAL, BANGALORE.]
LINGE GOWDAv.
SHIVANANJAPPA.V. KANDASWAMI PILLAI (Chairman), K. N. PADMANABHIAH
and MIR IQBAL HUSSAIN (Members).May 11, 1953.
Corrupt practice—False personation—Necessity of mens rea—Omis-sion to file list of particulars—Maintainability of petition—Political leaders
(1) 2 E.L.R. 301.
E.L.B.] LINGE GOWDA V. SHIVANANJAPPA
—•Declaration of policy and undue influence distinguished—Speeches byMinisters to support their party—Whether permissible—False statementsabout rival party—Election expenses-—Moneys paid to Congress Organisationbefore nomination—''Prospective candidate", meaning of—Bepresentation ofthe People Act, 1951, ss. 44, 83 (2), 123 (2), (3), (5)—Bepresentation of thePeople Bides, 1951, r. 111.
A corrupt motive is necessary to make personation a corrupt practicewithin section 123 (3) of the Bepresentation of the People Act, 1951.
Stepney Case (4 O'M. & H. 34), Chhail Behari Lall Eapur v. ShyamSunder Lall (3 Jagat Narain 59), Maulvi Yaqinuddin Ahmad v. MaulviKader Bux (2 Jagat Narain 75) and Belfast Case (4 O'M. & H. 108)referred to.
A director of a company does not become a Government servantmerely because the Government owns a large number of shares in thecompany and he was nominated as a director by the Government under aclause in the articles of association of the company which empowered theGovernment to nominate some directors of the company.
A leader of a political party is entitled to declare to the public thepolicy of the party, and ask the electorate to vote for his party withoutinterfering with any electoral right and such declarations on his partwould not amount to undue influence under section 123 (2). The fact thathe happens to be a Minister or Chief Minister of the State would notdeprive him of this right.
Lichfield (l O'M. & H. 26) and Surendra Narayan Sinha v. BabuAmulyadhone Boy and Others (2 Doabia 368) referred to.
Eeferring to past benefits conferred by a particular party and promiseof various future benefits to the public if a party is returned to power aremere declarations of public policy and do not amount to undue influence.
Comparing a party (the K.M.P. party) to a Kudike marriage and atransitory bubble does not amount to an attack on the personal conductor character of the candidate of the party and would not come withinsection 123 (5).
Cumberland (Cockermouth Division) Case (5 O'M. & H. 155) referred to.Keeping the account of election expenses in mere sheets of paper is a
contravention of section 44 of the Eepresentation of the People Act, 1951,and rule 111 of the rules framed under the Act, but is not a seriousmatter where the expenses were few and the total expenditure incurredwas far below the permissible limit.
Until an intending candidate begins to 'institute a canvass' of theconstituency thinking that the election is imminent he cannot be styled a'prospective candidate'. Consequently, where the Congress Organisationcalled for applications for candidature early in September, 1951, and therespondent deposited on the 3rd September, Us. 250 as application fee andBs. 1,500 for propaganda work on his behalf and he filed his nominationpaper only on the 21st of November, and there was nothing to show thathe started his election campaign before filing his nomination: Held, thathe became a 'prospective candidate' only from the date of nomination
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290 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
and he was not, therefore, bound to include the two sums of Rs. 250 andEs. 1,500 in his return of election expenses.
Munuswami Gounder v. Khader Shariff and Others [No. 2] (4 E.L.E.283) dissented from. Rochester Case (4 0' M. & H. 159) referred to.
The provisions of section 83 (2) are mandatory and an election peti-tion is liable to be rejected if full particulars of the corrupt practicesalleged are not clearly set out in a list accompanying the petition or atleast in the petition itself.
Debi Prasad v. Mohammed Naseer (3 E.L.E. 137) relied on.
ELECTION PETITION NO. 121 of 1952.
K. P. Muddappa, for the petitioner.D. N. Narasinga Rao, for the respondent.
ORDER.
Parties were the only candidates for election to theHouse of the People from Mandya Parliamentary constitu-ency. Petitioner was nominee of K. M. P. Party andrespondent Congress nominee. The strength of the electo-rate in this constituency was about 3 | lakhs. There wereas many as 355 polling booths spread over the consti-tuency. The election was very keenly contested and therespondent was declared duly elected as having securedmajority of votes.
2. Petitioner has brought this election petition undersection 81 of the Representation of the People Act, 1951,challenging the election of the respondent on variousgrounds.
3. According to the petitioner, the then ChiefMinister to the Government of Mysore, Sri K. Chengala-raya Reddy, and the then Ministers to the Government,Sri H. C. Dasappa, Sri K. T. Bhashyam and Sri T. Mari-yappa, who were in power and authority during the elec-tion, toured extensively throughout the constituency, andcarried on election propaganda by means of speeches,holding out promises and threats and thereby broughtundue influence to bear on the electorate to exercise theirfranchise in favour of the respondent.
4. (a) It is admitted that Sri A. G. Bandi Gowda,Chairman of the Mysore Sugar Company, was also theChairman of the Congress Propaganda Committee forMandya District at the time of election. Petitioner makes
E.L.R.] LIKGE GOWDA V. SHIVANAKJAPPA 291
it appear that Sri A. G. Bandi Gowda is a public servantby virtue of the Government of Mysore owning sixty percent, of the shares in the company. His case is that hetoured in the constituency and exercised undue influenceon the, voters, including cane-grower voters, to vote forthe respondent, the Congress candidate, by means ofspeeches, by allowing the purchase of about 40,000 tons ofnon-oppige sugar canes by the Mysore Sugar Factory atabout the period of election, at rates very favourable tothe cane-growers, and by making several of his subordi-nates including some lent officers of the Government inthe Factory, to canvass for him.
(b) It is further averred that Sri T. V. Rudrappa,Legal Adviser of the Company, canvassed for the respon-dent.
(c) There is also the further allegation that severalautomobile vehicles, such as cars, lorries and jeeps belong-ing to the company, were freely used for canvassing forthe respondent and securing voters.
(d) It is averred by the petitioner that at Boothana-hosur polling booth, an employee of the Mysore SugarCompany under the control of the Chairman of the Com-pany, was detected introducing several ballot papers intothe respondent's ballot boxes and handed over to thePolice soon after.
5. Sri H. K. Veeranna Gowda is the Chairman of theSugar Cane Cess Committee and Sri K. V. Shankare Gowdawas the Chairman of the Rural Development Committeeof Mandya District at the time of election and he is also amember of the Sugar Cane Cess Committee. Petitioner con-tends that they moved about the constituency and exer-cised undue influence on the voters to vote for the respon-dent.
6. Petitioner has made a broad assertion that therespondent and his agents have got practised generalpersonation on a very large scale at all the polling booths.Thereafter he has set out specific instances of personationof dead voters in Gejjalagere and Channapatna PollingBooths alleged to have been committed at the instance ofrespondent, his agents and blood-relations. Description ofdead voters said to have been so personated, has been
292 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
out by him thus, with their numbers in the voters' list:* * # *
7. Petitioner asserts that the election has not been afair and free one due to the said instances of general undueinfluence which were within the knowledge of respondentand his agents, and personation.
8. Petitioner has also set out that the respondenthas not kept proper and valid accounts of his election ex-penses and he has exceeded the maximum limit of ex-penses prescribed for election to the House of the Peopleunder rules framed under the Act.
9. Petitioner therefore prays that it may be declaredthat the election of the respondent is void and he be dulyelected in his stead.
10. Respondent has formulated his objections se-riatim. According to him, the election petition is liable tobe dismissed for non-payment of court fee thereon underarticle 22, schedule II, of the Court Fees Act. Clause 2 ofsection 83 of the Representation of the People Act, 1951,enjoins the submission of list of corrupt and illegal prac-tices with certain details, along with the election petition.Respondent raises a point out of the omission on the partof the petitioner in not having submitted such a list withhis petition and contends that it is therefore liable to bedismissed under clause (4) of section 90 of the Act. Accord-ing to respondent, the then Chief Minister and otherMinisters did not canvass for him in their official capacitybut as leaders of Congress party under the present demo-cratic Constitution, explaining the aims and policies of theCongress party—they having toured in the constituencyas they have done in other districts in the State. He em-phatically denies that, in the course of their election pro-paganda, they ever held out any promises or threats tothe electorate and thus exercised undue influence on themin the choice of the candidate. Respondent further deniesthat either he or his agents or his blood-relations did getvoters personated at any polling booth. He denies know-ledge of the death of certain voters borne on the electoralrolls of Gejjalagere and Chennapatna Town, specified inthe election petition as having been personated at the
polls. As regards Sri A. G. Bandi Gowda, his version isj
E.L.B.] LINGB GOWDA V. SHIVANANJAPPA 293
that he never used his position as Chairman of MysoreSugar Company in carrying on election propaganda onbehalf of the Congress candidates from Mandya district,and as Chairman of Congress Propaganda Committee ofthe District, he carried on election propaganda for them,and he never exercised undue influence on the cane-growersin the cane-growing area of the Mysore Sugar Factoryand elsewhere and its labourers and its farm labourersto vote for him and he did not make any of his subordi-nates to canvass for him and they did not do so. Heconcedes that Sri T. V. Rudrappa, being a party man,has worked for the Congress party but adds that he did sowithout making use of his influence as Legal Adviser ofMysore Sugar Company. Respondent does not at alladmit that any of the vehicles of the Mysore Sugar Com-pany had been used either by him or his agents for hiselection. As per respondent, the handing over of an em-ployee of the Mysore Sugar Company to the Police wasdue to a false information given by the petitioner's peoplewhen he went to the polling booth to vote. Respondentis not positive that Sri H. K. Veeranna Gowda canvassedfor him, as he pleads that he might have done so in hisown constituency from which he stood as a candidate forthe Assembly election, being a member of the Congressparty himself. As regards Sri K. V. Shankare Gowda, hisplea is that he never used his official position while can-vassing and even if he had canvassed for the respondent,he had every right to do so, he being a member of theparty. He puts the petitioner to strict proof of correct-ness of his return of election expenses and of its submis-sion in time. He denies that his election expenses hadexceeded the maximum prescribed by the rules, havingasserted that he had maintained proper and valid ac-counts thereof.
11. In the course of reply, petitioner affirms theallegations in his petition, after pleading that particularsof corrupt and illegal practices as were available to himwere set out in the petition itself, thus satisfying the re-quirement of the law in this respect and has raised twoother fresh grounds, namely:—
(i) that the respondent and his agents made free useof the National Flag to canvass votes, and
294 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
(ii) that he was disqualified from being chosen as amember to the House of the People as he was then a whole-sale agent of controlled cloth.
12. In his rejoinder, the respondent has denied theuse of the National Flag either by him or his agents andpleads that he was only a dealer in cloth under a licenseissued by the Government of Mysore and he surrenderedhis license one and half months prior to his nomination,after contending that these grounds raised for the firsttime in reply cannot be enquired into.
13. The following issues were framed in the case:—(1) Whether the election petition is liable to be dis-
missed under clause (4) of section 90 of the Representa-tion of the People Act, 1951, for non-compliance with theprovisions of sub-section (2) of section 83 of the Act?
(2) Whether the election petition is also liable to bedismissed for non-payment of court fee thereon?
(3) Whether the petitioner has filed his return ofelection expenses in time; if so, whether the return iscorrect?
(4) Whether the respondent has not maintained andrendered proper and valid accounts of his election expensesand whether the aggregate amount of such expensesexceeded the maximum limit prescribed by rules framedunder the Representation of the People Act, 1951, for elec-tion to the House of the People? If so, whether the res-pondent is disqualified from being a member of the Houseof the People?
(5) Whether the then Chief Minister and Ministersfor Finance, Law and Home to the Government of Mysore,toured extensively in Mandya Parliamentary constituencyjust before the general elections and made speeches there-on and thereby undue influence was brought to bear onthe electorate to vote for the respondent, the Congressnominee, by holding out promises and threats?
orWhether they toured then in Mandya district as in
other parts of the State and made speeches as leaders ofthe Congress party, explaining only the aims and policiesof the party?
E.L.R.] LINGE GOWDA V. SHIVANAtf JAPPA 295
(6) Whether the respondent and his agents had falsepersonation practised on a very large scale at the electionin 355 polling booths?
(7) Whether the voters referred to in paragraph (6)of the election petition are dead and they were personatedat the election, at the instance of the respondent, hisagents and relations?
(8) (a) Whether there was undue influence on thepart of Sri A. G. Bandi Gowda, the Chairman of MysoreSugar Company on the cane-growers and other voters inthe cane-growing area, to vote for the respondent, theCongress nominee, by means of speeches and meetings heheld, by allowing the purchase of non-contracted sugarcanes of about 40,000 tons from them (cane-growers) bythe company immediately before and after the election onterms very favourable to them and through his subordi-nates including farm and factory labourers, and he thusmaterially affected the result of the election in the saidentire area?
(b) Whether the several vehicles belonging to thecompany, were allowed to be used for the election cam-paign in favour of the respondent?
orWhether Sri A. G. Bandi Gowda carried on election
propaganda for the Congress party and its nominee asChairman of the Congress Party Publicity Committee,Mandya district?
(9) Whether Sri T. V. Rudrappa, Legal Adviser ofthe Mysore Sugar Company, Sri H. K. Veeranna Gowda,Chairman of Sugar Cane Cess Fund Committee and SriK. V. Shankare Gowda, Chairman of Mandya DistrictDevelopment Committee and member of the Sugar CaneCess Committee, exercised any undue influence on thevoters to vote in favour of the respondent?
orWhether they might have canvassed for the respon-
dent as members of the Congress party—the latter twoduring their campaign for their election to the LegislativeAssembly?
(10) Whether an employee of the Mysore SugarFactory under the control of the Chairman of the Mysore
296 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
Sugar Company, was found introducing several ballotpapers into the respondent's ballot boxes in Boothanahosurvillage polling booth and if so, whether it was with theconnivance of the candidate and his agents?
(13) To what reliefs, if any, are parties entitled?14. In the election petition, a vehement attack has
been made against the respondent and his agents that theywere responsible for personation on a big scale through-out the constituency. Petitioner has not been able to bringhome to them even a single instance of personation. Thecorrupt practice of perspnation is a major one and has beendefined at clause (3) of section 123 of the Representationof the People Act, 1951, thus:—
"The procuring or abetting or attempting to procureby a candidate or his agent, or by any other person withthe connivance of a candidate or his agent, the applicationby a person for a ballot paper in the name of any otherperson, whether living or dead, or in a fictitious name, orby a person for a ballot paper in his own name when, byreason of the fact that he has already voted in the sameor some other constituency, he is not entitled to vote".
The offence of personation has been defined in sec-tion 171-D of the Indian Penal Code on the same linesas in this clause. To constitute the corrupt practice ofpersonation in relation to a voter who is alive or dead, thefollowing ingredients are necessary.— 1. There mustbe an application by a person for a ballot paper in thename of any voter, whether alive or dead. 2. Theprocuring or abetting or attempting to procure the appli-cation must be by the candidate or his agent or with theconnivance of the candidate or his agent.
15. In England it has been held that before cor-rupt practice can be held to have been committed a cor-rupt motive must be established. This general rule hasbeen applied to impersonation by Denman, J., in StepneyCase^) thus:—
"It is thoroughly understood election law that, unlessthere be corruption, and a bad mind and intention in perso-nation, it is not an offence. If it is done under an honestbelief that the man is properly there for the purpose of
(1) i O'M. & H. 34.
E.L.R.] LINGE GOWDA V. SHIVANANJAPPA 297
voting, it is held in these cases and in other cases analo-gous that no offence has been committed "
In cases relating to former elections in India, thelearned Election Commissioners have found in severalcases that mens rea is an essential element of imperso-nation. In one of such cases, Chhail Behari Lall Kapurv.Shy aim Sunder LallQ), the view taken is that some suchword as 'voluntarily' has to be read in section 171-D of theIndian Penal Code as the courts in England have done inthe case of the provision of the English Ballot Act (sec-tion 24), denning personation, as both the sections are simi-larly worded. Only in one case Maulvi Yaqinuddin Ahmadv. Maulvi Kader Buz(z) the contrary view has been expres-sed with reference to the wording of section 171-D of theIndian Penal Code which is silent as to the intention orknowledge of the offender. With due respect, we agreewith the line of reasoning in the other cases—based on thewell-known principle that a practice, in order to bestyled as corrupt, must be accompanied by a corruptmind.
16-21. [The Tribunal discussed the evidence as topersonation].
21-A. A great doubt has been expressed as to whethergeneral personation could exist, in a case decided inEngland: Belfast^). The learned Judge, while remarkingthat there could be a case of general bribery or generalundue influence, feels considerable doubt as to whetherthere could be general personation as is evident from hisobservation which is reproduced hereunder:—
" but I cannot conceive such a thing in thecase of personation, because if a dozen people successfullypersonated a dozen people, the next dozen that cameup might have nothing to do with it at all. It is not acomplaint that is either contagions or infectious, exceptso far as the person gets the complaint, and when he getsthe complaint, the marks and tokens of it are visible uponhim by his doing and committing the direct offence".
22. After the arguments in the case were closed, peti-tioner filed Interim Application No. VII under section 151
(1) 3 Jagat Narain 59. (2) 2 Jagat Narain 75. (3) 4 O'M. &, H. 108.
298 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
of the Code of Civil Procedure, praying that the ballotboxes relating to Gejjalagere and Chennapatna pollingbooths may be sent for and opened to find out whetherthe personators of some dead voters have voted for therespondent or not at these booths. The counsel for therespondent has opposed this application. It is very muchbelated. Hence it is rejected.
23. For the foregoing reasons, the petitioner has notproved any of the ingredients of even a single case ofalleged personation including mens rea and our findingson issues 6 and 7 are in the negative.
24. Sri K. P. Muddappa contends that Sri A. G.Bandi Gowda, Chairman of the Mysore Sugar Company,is a Government servant, as the Government of Mysoreowns sixty per cent, of the shares in this company. It isargued by Sri D. N. Narasinga Rao that it is only a jointstock concern, not managed by the Government and SriA. G. Bandi Gowda is a non-official Chairman. The com-pany has been incorporated under the Mysore CompaniesAct as a joint stock concern and Exhibit CC is a copy ofMemorandum and Articles of Association of the Company.The Government of Mysore owns more than fifty per cent,of the shares in this concern, but the management of itsbusiness vests with the Chairman and Board of Directors.Out of seven Directors, four of them including Sri A. G.Bandi Gowda, R. W. 21, have been nominated by the Gov-ernment and at the meeting of the Board of Directors, hewas elected by them as Chairman and Managing Directorof the concern. Exhibit Q is copy of proceedings of theGovernment, approving the election of R. W. 21 as suchby the Board. The original of Exhibit Q is dated 13thJuly, 1949. The Board had also resolved that R. W. 21should not be treated as a Government servant and thatthe political activities on his part, if any, are not banned.Tnis resolution also has been approved by the Government:(Vide the original of Exhibit Q). It was on the suggestionof R.W. 21 to the Board that no restraint might be placedon his political activities as deposed by him, that thisresolution was passed. Simply because the Governmenthas the right under the Articles of Association of the Com-pany to nominate some Directors on account of largenumber of shares owned by it, it cannot be treated as a.
E.L.B.] LINGE GOWDA V. SHIVANANJAPPA 299
Government concern. Our attention was invited to re-marks made by the President of the Mysore LegislativeCouncil as set out in Exhibit TT, Official report of theMysore Legislative Council Debate, issued under date18th January, 1949, about the Mysore Sugar Factory. Itis to the effect that the Government is 'vitally interested'in the factory, owning as it does sixty per cent, of sharesin it. As the Government is the major shareholder in thiscompany, it must be deeply interested in its successfulworking. This is the construction that can be reasonablyput on the words 'vitally interested'. This cannot be con-strued to import that the factory is owned by Govern-ment as suggested by Sri K. P. Muddappa. R.W. 21's payis also met out of the company's funds, not out of thegeneral revenues of the State: (vide evidence of R. W. 23,Sri T. Mariyappa). Hence he is a non-official Chairmanof the Company, a joint stock concern.
25-33. [Deal with questions of fact not material forthis report].
34. Sri K. P. Muddappa argues that the then ChiefMinister and the then Ministers for Finance, Law andHome had visited several places in Mandya Parliamentaryconstituency and made speeches, bringing to bear undueinfluence on the entire electorate. Sri D. N. NarasingaRao, counsel for the respondent argues that, as leaders ofthe Congress party, they made speeches explaining theaims and policy of the party to the electorate and neverfettered their discretion in the matter of choice of thecandidate. As leaders of the party, they had every rightto declare to the public its public policy, without anyintention to interfere with their electoral right and suchactions on their part come within the ambit of proviso (b)to clause (2) of section 123 of the Representation of thePeople Act, 1951, as under that proviso, inter alia, a decla-ration of public policy without intent to interfere withany electoral right does not amount to any undue influence.In order to style undue influence as general, it should beso general as to lead the Election Court to a finding thatit permeated the whole constituency and thus there wasno free and fair election: vide Lichfield^). It has oftenbeen said that the law cannot strike at the root of due
(1) 1 O'M. & H, 26.
300 LINGB GOWDA V. SHIVANANJAPPA [VOL. VI
influence and under the law of election, only undue influ-ence is forbidden. The leaders of a party will be deemedto exercise their due influence if they ask the electorate tovote "for their party candidate, even if they happen to beMinisters. The learned counsel for the respondent haveinvited our reference to a direct case on the point, RaiBahadur Surendra Narayan Sinha v. Babu Amulyadhone Boyand Others^). That case arose out of an election of nine mem-bers to the Bengal Legislative Council by the members ofthe Bengal Legislative Assembly. The then Chief Ministerof Bengal, Mr. A. K. Fazlul Haq, who was also the leaderof the Assembly Coalition Party had issued a mandate inthe Assembly under his signature only as leader, onthe date of election, that the members have to casttheir preference for the candidates in the order namedtherein. It has been held by the learned Election Commis-sioners that he was entitled to use his influence as leaderof his party in that manner and he cannot be divestedof that right simply because he was Chief Minister at thetime. This is a case of due influence on the part of a leaderof a party.
35. Petitioner has sought to prove that the thenChief Minister to the Government of Mysore, Sri K. Chen-galaraya Reddy, had visited some places, that is, Kanaka-pura, formerly known as Kankanahalli, Maddur, Satha-nur and Chennapatna and delivered speeches on election.At Kanakapura, he is said to have delivered a speech thepurport of which has been alleged to have been reproducedby the Secretary of Kankanahalli Taluk Congress Com-mittee in hand bills similar to Exhibit H(l). P.W. 16, SriH. Linge Gowda, a candidate for the Assembly fromKanakapura constituency, refers to all this and adds that,as soon as his party members were returned, he assuredthe gathering that the control over food grains would beremoved.
* * * *In Exhibit H(l) stress has been laid on the following
points:(1) that, on account of drought in Kanakapur Taluk,
the Deputy Commissioner has been instructed not to pro-cure food grains in the Taluk and movement of one or
(1) 2 Doabia 368.
E.L.E.] LINGB GOWDA V. SHIVANANJAPPA 301
two pallas of food grains for personal use is allowed exceptthat the sale of food grains is prohibited,
(2) that there will be an increase in the number offood depots with more supply of food grains,
(3) that tanks, wells, channels and roads will beopened, thus providing wages for the poor,
(4) that cattle will be supplied with more fodderwhen there is scarcity for it,
(5) that three lakhs of rupees has been set apart forthe benefit of those who have no means-in the country,
(6) that it had been arranged with the Central Gov-ernment through the Tariff Board, to raise the price of silkcocoons to not less than Rs. 1-9-0 per pound, the Govern-ment of Mysore not being responsible for the fall in theprice.
All these amount to a declaration of public policyor public promise at the most, as we shall presentlyshow. In the course of Exhibit H(l) the propagandaof K. M. P. Party that they would lift the control whenreturned and that the Government had spent all thereserve fund has been styled as false, and the K.M.P.Party has been likened to kudike marriage and a waterbubble which would burst after the election. At thefoot of Exhibit H(l) there is the note that it has beenprinted at P.M.M. Kankanahalli, published by Secretary,T.C.C., Kankanahalli. The petitioner has relied on thisexhibit to show that the then Chief Minister by his speechat Kanakapura exercised undue influence on the electo-rate by making some promises and decrying the K.M.P.Party, resulting in the defeat of the petitioner, K.M.P.Party candidate. When he has relied on it as one of themain planks in his case, he should have taken care to citeand examine the printer and the publisher to prove itscontents. He has failed to do so but, when the case forthe respondent had progressed far, he filed InterimApplication No. VI under section 151 of the Code of CivilProcedure, for issue of summons to one Sri B. C. Channiah,Manager, Praguthi Mudranalaya, Kankanahalli, to pro-duce the following:—(1) Order book of the Press, showingthe booking of orders during the months of November andDecember, 1951 and January, 1952 and (2) Proof strikeorder files for those months to enable him to prove that the
EL—39
302 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
agents of the respondent have placed an order with thatPress to print pamphlets similar to Exhibit H(l). Thereason given in his affidavit in support of the applicationis that the respondent's witnesses have pleaded want ofknowledge of issue of these pamphlets. The respondenthas raised the objection that it is not maintainable, as acase not set out in the election petition, is sought to bemade out by summoning the witness, at a late stage. Theonus lay heavily on the petitioner to prove his case to thehilt and he cannot be allowed to re-open his case after therespondent's case had sufficiently progressed, on a veryflimsy ground. Hence Interlocutory Application No. VIis dismissed.
36. Even assuming that the then Chief Minister hasmade his speech as summarised in Ex. H(l) the first por-tion of his speech that some benefits had been bestowedon the population of Kankanahalli or Kanakapura Talukand others would follow at best amounts to a declarationof public policy and public promise, without fettering thediscretion of the electorate to make their choice of thecandidate and such a declaration does not amount to un-due influence under proviso (b) of clause (2) of section123 of the Representation of the People Act, 1951. SriD. N. Narasinga Rao argues that, even assuming that thethen Chief Minister has compared the K. M. P. Party to akudike marriage and to a transitory water bubble, it doesnot amount to an attack of the personal character or con-duct of the K. M. P. Party candidate—the petitioner.Under clause (5) of section 123 of the Act, the publicationof a false statement of fact relating to the personal charac-ter or conduct of a candidate by any other candidate orhis agent or any other person with the connivance of thecandidate or his agent, to prejudice his election is a majorcorrupt practice. In Cumberland (Cockermouth Division)CaseQ), the following observation of Darling, J. , has adirect bearing on the point:-^
"What the Act forbids is this. You must not makeor publish any false statement of fact in relation to thepersonal character or conduct of a candidate; if you do,it is an illegal practice. I t is not an offence to say some-thing which may be severe about another person nor which
(1) 5 O'M. & H. 155.
E.L.R.] LINGE GOWDA V. SHIVANANJAPPA 303
may be unjustifiable nor which may be derogatory unlessit amounts to a false statement of fact in relation to thepersonal character or conduct of such candidate; there isa great distinction to be drawn between a false statementof fact which affects the personal character or conduct ofa candidate and a false statement of fact which deals withthe political position or reputation or action of the candi-date".
The latter part of the observation is suggestive thata candidate may go even to the length of attacking hisrival candidate's political position even by false statementof fact. When that is so, the leader of a party can attackthe political position or reputation of another party whichhad adopted its own candidates for election. The peti-tioner ought to have proved the use of the words 'kudikemarriage' in relation to his party by the then ChiefMinister by examining the printer and publisher of theoriginal of Exhibit H(l) and showing that it representedthe true purport of his speech.
37 to 52. [Not material for this report.]53. Shri K. P. Muddappa contends that the respon-
dent has not kept proper and valid accounts of his elec-tion expenses and he has exceeded the maximum limit ofexpenses prescribed by the rules under the Act for electionto the House of the People from Mandya Parliamentaryconstituency which is a single member constituency.Under Schedule V of the Representation of the People(Conduct of Elections and Election Petitions) Rules, 1951,the maximum limit of election expenses such a candidatecan incur is fixed at Rs. 25,000 so far as Mysore is con-cerned. Under section 44 of the Representation of thePeople Act, 1951, every election agent shall, for thepurpose of each election for which he is appointed as such,keep regular books of account, entering therein such parti-culars of expenditure in connection with the election asprescribed. What particulars should find a place in hisbook of accounts are specified in rule 111 of the said rules.Under section 76(1) of the Act, a return of election ex-penses of the candidate who has been nominated, signedby him and his election agent, shall be filed with theReturning Officer, with particulars and in the form men-tioned in rule 112(2) of the rules within the time pres-
304 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
cribed, after each election. In this case, the respondenthas appointed himself as his election agent and he hassubmitted the return of election expenses, Exhibit PP,under his signatures as candidate and election agent, show-ing that he had incurred an expenditure of Rs. 4,239-1-0as election expenses. It is far below the maximum limitprescribed. When he was in the witnesses-box as R. W.22, he was cross-examined by the counsel for the peti-tioner in respect of some specific items in Exhibit PP andthereafter an objection was taken by the respondent'scounsel that, in the election petition itself, no objectionwas taken to items in the return specifically. The matterwas argued and a ruling was given that the petitionershould have taken exception to specific items in the return,as urged. While arguing the main case, Sri K. P. Muddappacontends that the respondent has not kept proper andvalid accounts as required under the said rules. Sri D. N.Narasinga Rao contends that, as items of expenditure werefew, the respondent had noted them on sheets of paperregularly and compiled his return. The petitioner's counselhas not cross-examined the respondent, R.W. 22, as tothe form in which he has maintained his accounts. Therespondent's counsel has been frank enough to concede thathe had noted the items of expenditure on sheets of paperregularly. There is no doubt a non-compliance with thesaid rule 111 but it is not a serious one, as there were notseveral items of expenses. The non-compliance with thesaid rule has not been shown by the petitioner to havematerially affected the result of the election. .
54. Sri K. P. Muddappa argues that the respondentmust be deemed to have been a prospective candidatewhen he filed an application before the Congress Organi-sation for selection as a Congress candidate for electionto the House of the People from Mandya Parliamentaryconstituency. Such applications were called for by theCongress Organisation in the first week of September, 1951,and he deposited with it Rs. 250 as application fee andRs. 1,500 for propaganda work by the Congress Organi-sation on his behalf. Sri K. P. Muddappa has cited Munu-swami Gounder v. Khader Shariff and Others^). The firstrespondent who was returned to the State Legislative
(1) i E.L.R, 263,
E.L.E.] LINGE GOWDA V. SHIVANANJAPPA 305
Assembly, Madras, filed his application for election asCongress candidate before Tamil Nad Congress Committee,with an application fee of Rs. 500 and later deposited asum of Rs. 500 with the North Arcot District CongressCommittee. That application was granted. The lattersum, the Election Tribunal found, was utilised by the latterCommittee towards propaganda work on behalf of theCongress candidates for the Assembly. They also foundthat he became a prospective candidate when he filed hisapplication with a declaration for being chosen as Congresscandidate and the said sums ought to have been noted aselection expenses in his return. The term 'candidate' hasbeen defined in section 79 (b) of the Representation of thePeople Act, 1951, thus:—
'Candidate' means a person who has been or claimsto have been duly nominated as a candidate at any elec-tion, and any such person shall be deemed to have been acandidate as from the time when, with the election inprospect, he began to hold himself out as a prospectivecandidate.
The latter part of the definition relates to prospectivecandidature.
55. In the Rochester CaseQ) Lord M'Laren has clearlydefined, if we may say so with respect, the point of timewhen prospective candidature commences. His Lordshiphas observed thus:—
"If, for example, a candidate, not proceeding uponany public and patent facts, but trusting to his ownpolitical sagacity, and looking round the political horizonthinks that an election is imminent, and proceeds toinstitute what is called a canvass of the constituency,which he continues without intermission down to theelection, it may very well be that, in such a case, hisown judgment as to when it is necessary to attend tohis electoral interest shall be taken as fixing the com-mencement of that particular election".
Hence, unless an intending candidate institutes acanvass of the constituency thinking that the election isimminent, and continues such canvass of the constituency
(1) 4 O'M. & H. 159.
306 LINGE GOWDA V. SHIVANANJAPPA [VOL. VI
without a break till the date of election, he cannot bestyled as prospective candidate. In the present case,the respondent did not come before the constituency andcanvass it till he filed his nomination paper either on the21st or 22nd November, 1951 (vide his evidence as R. W.22). Hence the said sums of Rs. 250 and Rs. 1,500, hedeposited with the Secretary of the Mysore Pradesh Cong-ress Committee, on 3rd September, 1951, (vide Exhibit PP)cannot come under the category of election expenses ashe did not become a prospective candidate on that date,the commencement of prospective candidature having adirect bearing on the commencement of election expenses.Hence, with due respect, we do not agree with the saidview expressed by the Election Tribunal, Vellore. The saidsums of Rs. 250 and Rs. 1,500 need not have been shownby the respondent as election expenses in Exhibit PP, hehaving gone about his election campaign only from thedate of filing of his nomination paper. Sri K. P. Muddappadid not give out the object with which he pressed hiscontention about prospective candidature.
56. For the foregoing reasons our finding on issueNo. 4 is that the respondent as his own election agent,has not maintained accounts showing his election expenses,as required by rule 111 of the Representation of thePeople (Conduct of Elections and Election Petitions)Rules, 1951, but his non-compliance with this provisionhas not materially affected the result of the electionand he has not exceeded the maximum limit of expensesprescribed for election to the House of the People fromMandya Parliamentary constituency.
57-61. [Not material for this report]. .62. Clause (1), section 83 of the Representation of the
People Act, 1951, enjoins that an election petition shallcontain a concise statement of material facts on which thepetitioner relies and signed and verified by him. It isclause (2) of section 83 that is very relevant for the pur-pose of deciding the first issue and under it, the petitionshall be accompanied by a list of particulars of any cor-rupt or illegal practice on which he relies along with thename of the person that has committed the said practiceand the date and place of commission thereof, duly signed.
E.L.B.] LINGE OOWDA V. SHIVANAN JAPPA 307
and verified by him. In the present case, the electionpetition has not been accompanied by any such list. Wewould have deemed it a sufficient compliance with theprovisions of this clause if all the particulars of allegedcorrupt or illegal practices as required by it have been setout in the election petition itself. But the petitioner hasnot given in the election petition full particulars of almostall the corrupt or illegal practices relied on by him.
* * * *He has not chosen even to apply for amendment of
particulars of such corrupt or illegal practices as are set outin the election petition under clause (3) of section 83 ofthe Act. The provision of clause (2) of section 83 is ren-dered mandatory by use of the word 'shall' therein: videDebi Prasad v. Mohammed Naseer and Others^1). Underclause (4) of section 90 of the Act, the tribunal may dis-miss an election petition for non-compliance with the pro-visions of section 83 of the Act. Hence the election peti-tion is liable to be dismissed on account of the failure ofthe petitioner to comply with the mandatory provision inclause (2) of section 83. Hence our finding on the firstissue is in the affirmative.
63. The respondent secured 1,26,000 votes and thepetitioner 84,000 votes (vide evidence of R.W. 22). Thusthe respondent has come out successful with a vast major-ity of 42,000 votes over the petitioner. We are convincedthat the election of the respondent to the House of thePeople from Mandya Parliamentary constituency has beena fair and free one.
64. In the result, under the general issue, the elec-tion petition fails and we dismiss it with costs which isassessed at Rs. 500 (Five hundred). This sum includesrespondent's pleader's fee which is fixed at Rs. 300 (Threehundred).
Petition dismissed.
(1) 3 B.L.R. 137.
308 BENI MADHO RAI V. BHOLA [VOL. VI
[ELECTION TRIBUNAL, ALLAHABAD]
BENI MADHO RAIv.
BHOLA AND OTHERS.V. G. OAK (Chairman), N. N. MUKERJI and
BABU RAM AVASTHI (Members).May 11, 1953.
Disqualification of candidates—Grounds of disqualification—Power ofState. Legislatures to create new grounds —U.P. Panchayat Baj Bules,r. 61-A(l) disqualifying panches—Validity and effect—'Resignation of officeo/sarpanch—Whether terminates office o/panch also—Honorary Magistrates,whether disqualified—Constitution of India, arts. 173, 19l(l).
Under article 191(1) of the Constitution of India disqualificationsother than those expressly mentioned in the said article can be createdonly by any law made by the Parliament. The State Legislatures have nopower to create new disqualifications, and rule 61-A(l) of- the U.P. Pan-chayat Eaj Eules cannot, therefore, have the effect of disqualifying a panchfor membership to the State Legislature, though on the face of it, itpurports to do so.
An Honorary Magistrate is not disqualified for membership of theState Legislature.
A resignation by a panch has, under section 47 of the U. P. Pan-chayat Baj Act, to be submitted to an Assistant District PanchayatOfficer; a resignation addressed to the Panehayat Officer is not thereforevalid.
Where a person is a panch as well as a sarpanch of a panchayatiadalat, resignation of the office of sarpanch would not put an end to theoffice of panch held by him.
ELECTION PETITION NO. 275 of 1953.
Sehat Bahadur, for the petitioner.S. G. Khare, for respondent No. 1.
ORDER.
This is an election petition challenging the election toU.P. Legislative Assembly held in 1952 from Ghazipur(South-West) constituency. The petitioner's case is thathe and the thirteen respondents were the fourteen dulynominated candidates for the said election. RespondentsNos. 7 to 13 withdrew and the petitioner and respondentsNos. 1 to 6 contested the election. As a result of the poll,Sri Bhola, respondent No. 1, was declared elected. But
E.L.R.] BENI MADHO RAI V. BHOLA 309
the election is void for various reasons. Sri Bhola, respon-dent No. 1, was a panch and also sarpr.nch of panchayatiadalat of Nagsar Centre in the aforesaid constituency.As such he could not seek nomination or stand for election.Respondent No. 1 brought pressure upon respondentsNos. 7 and 10, and compelled them to withdraw from thecontest. Similarly respondent No. 8 was made to with-draw in favour of respondent No. 3; and respondent No. 9was compelled to withdraw in favour of respondent No. 2.Throughout the constituency there was canvassing oncommunal and caste lines. Sri Bhola, respondent No. 1,is an Ahir. In a meeting of Ahirs respondent No. 1 broughtpressure upon Ahirs for casting their votes in his favour.Respondent No. 1 committed acts of bribery. Respon-dents Nos. 1 and 2 furnished false returns of their electionexpenses. Respondent No. 2 was an Honorary Magistrate.He freely canvassed occupying the position of HonoraryMagistrate. A number of panches of panchayati adalats
1 canvassed in favour of respondent No. 1 in contraventionof Panchayat Raj Rules. The petitioner, therefore, prayedfor a declaration that the election of respondent No. 1 isvoid, and the petitioner has been duly elected. In thealternative it was prayed that the whole election bedeclared void.
Respondents Nos. 4 and 5 filed written statements insupport of the petition. The election petition was con-tested by Sri Bhola, respondent No 1. He pleaded thathe had resigned from his post of panch and sarpanch be-fore the date of nomination. Further, the post of a panchor sarpanch of a panchayati adalat does not constitute abar for seeking nomination or election. The charges ofundue influence and coercion were denied. It was deniedthat he induced Ahirs to vote for him on caste lines. Itwas denied that he or other respondents canvassed oncommunal lines. This charge of bribery was denied. Itwas denied that the returns of expenses of respondentsNos. 1 and 2 are false. It was denied that threats andpressure were employed to make candidates withdraw fromthe election. It was pleaded that respondent No. 1 tookreasonable precautions to prevent corrupt or illegalpractices. On these pleadings the following issues wereframed: [Issues Nos. 1 and 6 alone are given below].
EL-40
310 BENI MADHO BAI V. BHOLA [VOL. VI
1. Was respondent No. 1 a panch and a sarpanch onthe date of nomination? Was he disqualified for standingfor this election?
6. Was respondent No. 2 (as an Honorary Magistrate)disqualified for standing for election? Did he canvass asHonorary Magistrate? Did such canvassing materiallyaffect the result of the election? Was such canvassingimproper or illegal?
Issue No. 1.—Respondent No. 1 conceded that he wasat one time a panch and sarpanch of panchayati adalatof Nagsar Centre. But his contention is that he resignedfrom the posts of panch and sarpanch before his nomina-tion for the election to the Legislative Assembly. Thereare on the file two documents—Ex's. 1 and 2—which aresaid to be Sri Bhola Singh's resignations. Ex. 2 is dated29th December, 1950, and Ex. 1 is dated 23rd November,1951. Ex. 2, dated 29th December, 1950, was addressedto the Panchayat Inspector. It was submitted by the In-spector on 5th January, 1951, to the District PanchayatOfficer. No order on Ex. 2 appears to have been passedby the District Panchayat Officer. Sri Shiva Adhar Misra(P.W. 3) is Assistant District Panchayat Officer at Ghazi-pur. He gave a report (Ex. 3) on 4th September, 1952,to the effect that, there was no paper in his office about theresignation of Bhola Singh from the post of panch. ShivaDeni Rai (P.W. 1) is the secretary of the panchayatiadalt at Nagsar. He brought various registers, and showedthat Bhola Singh continued to work in the panchayatiadalat till September, 1951. It appears that the resigna-tion, Ex. 2, dated 29th December, 1950, was not acted upon.
The second resignation is Ex. 1, dated 23rd Novem-ber, 1951. November 24, 1951, was the last date for filingnominations. Thus Ex. 1 purports tt> have been presentedone day before the last date for filing nominations. SriSehat Bahadur appearing for the petitioner criticised theresignation Ex. 1 on five grounds—(a) the order on Ex. 1does not bear the seal of the office; (b) the order has beenante-dated; (c) the resignation was not presented to theprescribed authority; (d) Bhola Singh's signature on Ex. 1has not been proved; and (e) the resignation was from thepost of sarpanch and not from the post of panch.
E.L.E.] BENI MADHO BAI V. BHOLA 311
At the foot of Ex. 1 the District Panchayat Officer towhom the application was addressed passed the followingorder on 23rd November, 1951: "Resignation accepted.Applicant to be informed accordingly". There is a notebelow the officer's order to the effect that, the order wasgiven to the despatcher on 26th November, 1951. It was,therefore, argued that this document was prepared on26th November, 1951, and not on 23rd November, 1951.It is true that there is no office seal on the document, andthe order was not given to the despatcher till the 26th.But these considerations are not sufficient for holding thatthe District Panchayat Officer ante-dated his order. SriBhola did not enter the witness-box to prove his signatureon Ex. 1. This document was filed at the petitioner's in-stance. Sri S. C. Khare, appearing for the respondent,therefore contended that Bhola Singh's signature shouldbe taken as proved. The District Panchayat Officer'ssignature was proved by P.W. 3. But the petitioner wasnot bound to admit Bhola Singh's signature on the appli-cation. There is no other evidence to prove the signature.Sri Bhola's signature on Ex. 1 has not been strictly proved.
Ex. 1 was to the effect that for certain reasons theapplicant wished to be relieved from the duties of sarpanch.The application was addressed to the Panchayat Officer,district Ghazipur. Two questions now arise—-whetherEx. 1 was a resignation from the post of panch also, andwhether the application was addressed to the properauthority.
Section 43, U. P. Panchayat Raj Act, deals with theconstitution of panchayati adalat. Section 44 of the Actprovides for election of sarpanch from among the panches.Section 47 of the Act states:—"A panch may submit theresignation of his office to the prescribed authority".There is no corresponding section in the Act providing fora resignation by a sarpanch. But rule 62 of U. P.Panchayat Raj Rules contemplates a resignation of asarpanch of a panchayati adalat. We may, therefore,take it that it is open to a sarpanch to resign. The ques-tion, however, remains whether resignation from the postof sarpanch necessarily implies resignation from the postof panch. There is nothing in the Act or rules to suggestthat a resignation from the post of sarpanch puts an end
312 BBNI MADHO EAI V. BHOLA [VOL. VI
to the person's status as a panch. Appendix A to U.P.Panchayat Raj Rules contains a schedule of prescribedauthorities. For purposes of section 47 of the Act anAssistant District Panchayat Officer is the prescribedauthority. So a resignation by a panch under section 47has to be submitted to an Assistant District PanchayatOfficer. But Ex. 1 was addressed to the Panchayat Officer.So Ex. 1 cannot be considered as a valid resignation undersection 47, Panchayat Raj Act. On any view of the matterthe resignation Ex. 1 could not have the effect of puttingan end to Sri Bhola's status as a panch of panchayatiadalat, Nagsar Centre.
Shiva Deni Rai (P.W. 1) stated that there was nosignature of Bhola Singh dated 23rd November, 1951, orany subsequent date on any proceedings of the panchayatiadalat. No judgment of 1951 bears Bhola Singh's signature.Ram Nath (P.W. 9) stated that Sri Bhola did not doany work as panch or sarpanch after November, 1951, andgave charge to Ramnath as panch and sarpanch. Ram-nath said that Sri Bhola's post as panch is still lyingvacant. It is true that Sri Bhola did not take part inthe work of the panchayati adalat after November, 1951.Nevertheless, in law, he continues to be a panch. We holdthat Sri Bhola, respondent No. 1, was a panch (and per-haps also a sarpanch) on the date of nomination.
The question now arises whether Sri Bhola was dis-qualified for standing for election due to the fact that hewas a panch of the panchayati adalat. The petitionerrelies upon Rule 61-A of U. P. Panchayat Raj Rules.Rule 61-A (1) runs thus:—
"If any sarpanch or panch of a panchayati adalator his son or brother or any other close relation desires tostand for election to a local body other than a gaon pan-chayat or panchayati adalat or to the Provincial Legis-lature from the area in which he exercises jurisdiction,the sarpanch or panch concerned shall inform the pres-cribed authority concerned of such intention. The pres-cribed authority shall immediately take steps to ensurethat the sarpanch or panch does not take part in anybench for the disposal of cases or suits or proceedings ofthe area to which the election relates. No sarpanch orpanch shall take part in any election to a local body other.
E.L.B.] BENI MADHO BAI V. BHOLA 313
than a gaon panchayat or panchayati adalat or to theState Legislature in any area within his jurisdiction other-wise than by casting his own vote as an elector".
Rule 61-A(1) consists of two parts. The first partcontains a direction that, a panch should inform. the pres-cribed authority about his intention to stand for election.The second part lays down that no panch shall take partin any election to the State Legislature in any area withinhis jurisdiction. On the face of it the rule creates a dis-qualification for membership to the State Legislature. Ithas now to be considered whether the rule can in fact createsuch a disqualification.
The learned counsel for the parties referred to differentprovisions of the Constitution about qualifications anddisqualifications for membership of the Legislature. Arti-cle 173 of the Constitution prescribes the qualificationsfor membership of the State Legislature. Article 191 con-tains disqualifications for membership. Article 191(1) runsthus:
"A person shall be disqualified for being chosen as,and for being, a member of the Legislative Assembly orLegislative Council of a State—
(a) if he holds any office of profit under the Govern-ment of India or the Government of any State specifiedin the First Schedule, other than an office declared by theLegislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declaredby a competent court;
(c) if he is an undischarged insolvent;(d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State, or is under anyacknowledgment of allegiance or adherence to a foreignState;
(e) if he is so disqualified by or under any law madeby Parliament".
It will be noticed that clauses (a) to (d) of article 191(1) contain four specific disqualifications. Clause (e) is: "ifhe is so disqualified by or under any law made by Parlia-ment". It is significant that clause (e) refers to laws madeby Parliament, but contains no reference to laws made bythe State Legislature, although the disqualification relates
314 BENI MADHO BAI V. BHOLA [VOL. VI
to membership of a State Legislature. Article 328 dealswith the power of the Legislature of a State to make provi-sion with respect to elections to such Legislature. Article328 states: "Subject to the provisions of this Constitutionand in so far as provision in that behalf is not made byParliament, the Legislature of a State may from time totime by law make provision with respect to all mattersrelating to, or in connection with, the elections to theHouse or either House of the Legislature of the State
" It was urged for the petitioner that article328 confers powers on the State Legislature to createdisqualifications for membership of the Legislature. Butthis power is subject to the provisions of the Consti-tution and in so far as provision in that behalf has notbeen made by Parliament. We have seen that article 173deals with qualifications for membership of the StateLegislature, and article 191 deals with disqualificationsfor membership. It appears that articles 173 and 191of the Constitution exhaustively deal with the questionsof qualifications and disqualifications for membership. Itis not, therefore, possible to create new disqualificationsnot contemplated by articles 173 and 191. The only man-ner of creating new disqualifications is as laid down inclause (e) of article 191(1). The disqualification must beunder a law made by Parliament. The language of clause(e) shows that it is Parliament alone which can make alaw on the question of disqualification. It is not open toa State Legislature to create a new disqualification, muchless, it is open to the State Government to create a newdisqualification not contemplated by articles 173 and 191.Since the subject of disqualifications for membership hasbeen exhaustively dealt with in article 191, new disquali-fications cannot be created by a State Legislature underarticle 328 of the Constitution.
Rule 61-A of U.P. Panchayat Raj Rules has beenframed by the U.P. Government under powers conferredupon it by section 110, U.P. Panchayat Raj Act. We haveseen that neither the State Legislature nor the State Gov-ernment is competent to create a new disqualification formembership of the State Legislature. So rule 61-A cannothave the effect of creating such a disqualification. How-ever, rule 61-A need not be wholly ineffective. Rule 61
E.L.R.] BENI MADHO RAI V. BHOLA 315
states that the prescribed authority may remove a panchor sarpanch for contravention of rule 61-A. A panch, whoviolates rule 61-A, becomes liable for removal under rule61. But the person's position as a panch does not involvehis disqualification for membership. We, therefore, holdthat, although Sri Bhola Singh was a panch of a pancha-yati adalat, he was not disqualified for standing for elec-tion to the State Assembly.
Issue No. 6.—It is common ground that respondentNo. 2 was at one time Honorary Magistrate, and Sri SehatBahadur did not point out in what way an Honorary Magis-trate is disqualified for standing for election. An Hono-rary Magistrate is not disqualified by any provision inarticle 191 of the Constitution. We, therefore, hold thatan Honorary Magistrate is not disqualified for standingfor election. There is no evidence that respondent No. 2canvassed as Honorary Magistrate. If respondent No. 2could stand for election, he could also canvass. We,therefore, hold that respondent No. 2 was not disqualifiedfor standing for election on the ground of being an Hono-rary Magistrate, that he did not canvass as HonoraryMagistrate, and that there was no improper or illegal can-vassing on his part. It is not, therefore, necessary to con-sider how far such canvassing materially affected theresult of the election.
The election petition is dismissed. Respondent No. 1shall receive Rs. 800 as his costs from the petitioner.The petitioner and other respondents will bear theirown costs. The petitioner shall be entitled to get arefund of the balance (Rs. 200) from his security depositof Rs. 1,000.
Under section 99, Representation of the People Act,1951, it is declared that no charge of any corrupt or illegalpractice has been established against any respondent.
Petition dismissed.
3 1 6 SARDTTL SINGH V. HUKAM SINGH [VOL. VI
[ELECTION TRIBUNAL, PATIALA.]
SARDUL SINGH CAVEESHARv.
HUKAM SINGH AND OTHERS.V. B. SARWATB (Chairman), RAGHTJNANDAN SARAN and
E. M. JOSHI (Members).May 12, 1953.
Corrupt practice—Appeal on the ground of religion — When amountsto corrupt practice or undue influence—General principles—Use of "Panth"and Panthic"—Appeal to vote for religious symbols of Sikh Gurus—Pro-paganda against rival party—Statements that Congress is interfering withreligion—Undue influence—Limits of spiritual influence-—Election peti-tion—F'artiest-Candidates who have withdrawn—Impleading after limita-tion—Conditions—Representation of the People Act, 1951, ss. 82, 85,10l(l)(a), 100(2)(a), 123(2), 124(5).
The words "Panth" and "Panthic" have gained so much currency asreferring to the Akali Party of the Sikhs that no special religious or com-munal appeal is conveyed to the electorate by the 'use of these words duringelection propaganda than the use of the officially recognised name of"Akali Party".
Baba Gurdit Singh's Case (l Doabia 92) referred to.Criticism of the policy and doings of the Congress party is not objec-
tionable unless it oversteps the legitimate bounds of criticism and comeswithin some forbidden corrupt practice.
An appeal to the effect that the Congress is interfering with the Sikhreligion and the electorate should make the Akali Party strong by notvoting for the Congress, is an appeal on the grounds of religion and wouldfall within section 124(5) of the Act if it is made systematically.
An appeal to vote for the symbol of Tirkaman and for the saffron flagbecause of their association with the Gurus of the Sikhs is an appeal tovote on the ground of community within section 124(5).
Though in determining the scope of section 124(5) of the Representa-tion of the People Act, 1951, which makes systematic appeal to vote orrefrain from voting on grounds of caste, race, community or religion acorrupt practice, regard should be had to articles 13, 19(1) (a), 25(1) and29(1) of the Constitution, the scope of section 124(5) cannot be narroweddown to prohibition of attacks on a particular religion or on a candidate,only on the ground that he is a follower of a particular religion. The scopeof the words of section 124(5) is much wider as it prohibits all kinds ofappeals to vote on the ground of religion, whether it be the religion of theelectorate or o-f the candidate; and even in its wider sense it would not beinconsistent with the power of the State to make laws restricting the free-dom of speech and expression in the interests of security of the State etc.which is conferred by article 19(2).
Moinuddin v. B. P. Divgi (3 E.L.E. 248) dissented from.
E.L.B.] SARDUL SINGH V. HTJKAM SINGH 317
An appeal to vote or refrain from voting need not be in expresswords. It may be implied from the tenor and effect of the words used.
Agency in election law has a much wider significance than under theordinary law of principal and agent and may be inferred from the circum-stances and conduct. Newspapers which make special propaganda for theelection of a particular candidate, can be treated as his agents for purposesof election law.
To constitute "undue influence" within section 123(2) of the Act,it is not necessary that there should be any actual threat or physicalcompulsion, but the method of inducement adopted should convey to themind of the person addressed that non-compliance with the wishes of theperson offering the inducement may result in physical or spiritual harm tohimself or to any other person in whom he is interested. Some fear ofharm resulting from non-compliance with the request is thus an essentialelement in undue influence. Where the influence is said to be by a reli-gious appeal it should be shown that it was made to appear to the personsaddressed that non-compliance would be considered to be irreligious or sinful.This kind of undue influence can generally be exercised by religious teachersor persons having reputation for learning and piety, but it may be exer-cised by a newspaper editor also if he has some standing in the society.
Where the propaganda which has been carried on in favour of a candi-date or party does not amount to undue influence within section 123(2)but only to a corrupt practice within section 124(5), the election cannotbe set aside unless it is proved further that the result of the election hasbeen materially affected by such propaganda.
Candidates who have withdrawn their candidature are "duly nomi-nated candidates" and as such they should be made parties to an electionpetition under section 82 of the Act. The petition is not, however, liableto be dismissed for such non-joinder. The tribunal will in such cases beguided by the rules contained in Orders I and VI of the Civil ProcedureCode and such candidates can be joined as parties even after limitation.But if a party is added after limitation the petitioner cannot be allowedto claim the relief that he or any other candidate should be declared dulyelected. There is no material difference in this respect between the lawbefore Act XLIII of 1951 and the present law under this Act.
ELECTION PETITION NO. 268 OP 1952.
ORDER.
The petitioner, S. Sardul Singh Caveeshar, and therespondents 1 to 8 contested the election held in January,1952, to the House of the People from the double memberKapurthala Bhatinda constituency in the Pepsu State.Respondents 1 and 2, S. Hukam Singh and S. Ajit Singh,who were candidates set up by the Akali party were de-
EL—U
318 SARDUL SINGH V. HUKAM SINGH [VOL. VI
clared elected, the former to the general seat and the latterto the reserved seat. The petitioner and the respondentNo. 7, who were nominees of the Congress Party wereboth defeated.
2. The petitioner challenged the election of respon-dents 1 and 2 and asked for a declaration that their elec-tion was void and claimed the seat of respondent No. 1for himself and also a seat for respondent No. 7 in placeof respondent No. 2. In the alternative he asked for adeclaration that the election was wholly void. He allegedthat respondent No. 1 had committed a corrupt practiceby publishing false and defamatory statements in relationto his candidature in a leaflet and in two newspapers theSpokesman and the Prabhat owned by respondent No. 1 orunder his control and that this had seriously prejudicedhis election. He further alleged that respondent No. 1,who was President of the Shromani Akali Dal, which wasa communal organisation of the Sikhs and was often styledas the 'Panthic Party', and the respondent No. 2, who wasa member and representative of the aforesaid organisation,committed the corrupt practice of undue influence bymaking a systematic appeal to the general body of Sikhson the ground of religion or community for the further-ance of the prospects of their election and this propagandawas carried on mainly through four newspapers, viz.,Spokesman, Ajit, Prabhat, and Akali Patrika. The peti-tioner alleged that all the above newspapers representedthe 'Panthic' point of view and the respondent No. 1was himself the Editor, Printer and Publisher of Spokes-man, while the policy of the other three newspapers wasguided by respondents Nos. 1 and 2 and Master Tara Singh,who was the leader of the Shromani Akali Dal. The peti-tioner also alleged that respondent No. 4, Kharati Ramwho was a candidate for the reserved seat was not allottedthe ballot box with a proper symbol specially marked forthe reserved seat and was wrongly treated by the Return-ing Officer as a general seat candidate, that these illeg-alities seriously prejudiced the election of respondentNo. 4 and resulted in his defeat and that this vitiatedthe whole election.
3. The petition was contested by respondents Nos. 1 and2. Respondent No. 4 supported the petition. Respondents
E.L.B.] SABDUL SINGH V. HUKAM SINGH 319
Nos.'l and 2 raised a preliminary objection to the main-tainability of the petition on the ground that four otherpersons whose nominations were accepted but who laterwithdrew were necessary parties as they were 'duly nomi-nated' candidates within the meaning of section 82 of theRepresentation of the People Act, 1951, and as they werenot joined, the petition was liable to be dismissed. The peti-tioner then sought leave to join them as respondents andtheir names were tentatively brought on the record asrespondents 9 to 12 by an order dated 30th September,1952, leaving the effect of late joinder to be finally decidedat a later stage. Upon objections raised to their joinderpreliminary issues were framed by us which we dealt within our order dated 29th November, 1952, which is An-nexure 'A' of this order.* We held that respondents 9 to12 were necessary parties and the tribunal had power toorder their joinder under the provisions of the Civil Pro-cedure Code. But in view of the fact that these respon-dents were deprived of their right to recriminate due tothe laches of the petitioner we further held that the peti-tioner could not be permitted to claim the relief about aseat for himself or for the respondent No. 7.
4. Respondents 1 and 2 denied the commission bythem of any of the corrupt practices as alleged by the peti-tioner and denied all adverse allegations. They statedthat they had no connection with the policy of Ajit, Pra-bhat and Akali Patrika. Respondent No. 1, however, ad-mitted that he was the Editor, Printer and Publisher ofSpokesman but further stated that the impugned defama-tory statement published in the Spokesman was publishedwhile he was absent from Delhi and such publication waswithout his knowledge, consent or connivance. He addedthat soon after the election when he reached Delhi andnoticed that statement in the Spokesman, he took stepsto convey to the petitioner that, had he been aware, hewould not have permitted publication of that statement,but during his absence the Editor-in-charge of the paperhaving come to know about the facts allowed the same tobe published believing them to be true.
5. The issues arising out of the pleadings of theparties are as follows:—
*See page 335 infra.
320 SAEDUL SINGH V. HTTKAM SINGH [VOL. VI
1. (a) Did respondent No. 1 or his agent, or anyother person with his or his agent's connivance publishthe statements A-l and B-l appearing in 'Spokesman' and'Prabhaf respectively and the leaflet A-2?
(b) Were these statements false and does their publi-cation as alleged in paragraph 9 of the petition constitutea corrupt practice within the meaning of section 123 (5)of the Representation of the People Act, 1951?
2. (a) Did respondents Nos. 1 and 2 or their agentsor others on their behalf and with their connivance makea systematic appeal to the general body of Sikhs on theground of religion or community to vote for them and didthey carry on propaganda against the petitioner throughthe four newspapers, 'Spokesman', 'Ajit', 'Prabhat', and'Akali Patrika', as alleged in paragraph 11 of the petitionand the particulars given in paragraph III of the list undersection 83(2) of Representation of the People Act, 1951and does this appeal amount to a corrupt practice withinthe meaning of section 124(5), Representation of the PeopleAct of 1951?
(b) Does the above appeal amount to undue influenceand corrupt practice within the meaning of section 123(2)of the Representation of the People Act, 1951?
3. Has the result of the election been materiallyaffected by any corrupt practice or by the Returning Offi-cer wrongly treating Kharati Ram, respondent No. 4, as acandidate for the general seat, when he was a candidatefor the reserved seat only?
4. If any corrupt practices are proved, does therespondent No. 1 satisfy the tribunal that he is entitledto the benefit under section 100(3) of the Representation ofthe People Act, 1951?
5. Is the petitioner entitled to a declaration that theelection is wholly void or that the election of the respon-dent No. 1 or of the respondent No. 2 is void?
6. What is the appropriate order to be made undersections 98 and 99 of the Representation of the People Act1951.
6. Issue 1.—[The Tribunal found that the state-ments were not entirely false and therefore, no corruptpractice under section 123(5) was proved].
E.L.B.] SARDTTL SINGH V. HUKAM STNGH 321
Issue No. 3. [This issue was also found against thepetitioner.]
20. Issue No. 2.—On the point of corrupt practices bypropaganda through newspapers, the petitioner has reliedas already stated, upon the issues of four newspapers—Spokesman of Delhi, and Prabhat, Ajit and Akali Patrika ofJullunder. The Spokesman is an English Weekly publishedby the respondent No. l,S.Hukam Singh, himself. Prabhatand Ajit are Urdu dailies and Akali Patrika is a Punjabidaily—these three being, it is alleged, the organs of theAkali Party of which S. Hukam Singh was the nominee inthe general seat and S. Ajit Singh, respondent No. 2, thenominee in the reserved seat. The nominations wereaccepted on 1st December, 1951, while the polling in thisParliamentary constituency took place from 15th to 24thJanuary, 1952. The issues of these papers publishedbetween 1st December, 1951 and 24th January, 1952, areaccordingly exhibited by the petitioner after marking onthem the offending passages which are said to make thecorrupt practice of undue influence under section 123(2),proviso (ii), or of systematic appeal on ground of religionor community under section 124(5) of the Representationof the People Act. To make the subsequent narrativeintelligible it is necessary to describe here the schemewhich has been followed by the petitioner in givingdistinguishing marks to the large number of newspaperissues exhibited in the case. The tribunal has not changedthat scheme in the trial.
21. The issues of the Spokesman are marked by asingle letter of the alphabet like A, B, C, etc., the one ormore passages in each issue being distinguished by a serialnumber placed after the letter as A-l, A-2, B-l, B-3, etc.
The issues of Ajit are marked by double lettering likeAA, BB, DD, etc.—the different passages in each issuebeing distinguished by a serial number such as AA-1,AA-3, BB-4. The Akali Patrika issues for December, 1951are marked with triple lettering such as AAA, BBB, toZZZ and those for January, 1952 with four letters such asAAAA, BBBB, etc., the different passages in each issuebeing distinguished by a serial number put after the letter-ing. The Prabhat issues are marked by the letter A followedby a letter of the alphabet such as AxA? AxB; AxC, 4
322 SARDTTL SINGH V. HUKAM SINGH [VOL. VI
so on to AxZ and the subsequent issues by the doubleletter AA again followed by letters of alphabet like AAxA,AAxB, AAxE, etc.; here again the different offendingpassages of each issue are indicated by the serial numberplaced after the distinguishing letters used for markingthe issue, such as AAxB-1, AAxA-3 etc. The distinguish-ing marks made in this way will enable us to know at aglance in how many issues of each paper a particular typeof propaganda has appeared.
22. It should be stated here that in all these papersuse is made very freely of words and phrases like 'Panth','Panthic Party', 'Panthic Ticket', 'Panthic candidate','Panthic box' or 'Panthic vote' in canvassing support forthe party of which the respondents 1 and 2 were thenominees. This, as a recognized political party for elections,is officially designated as Akali Party. The Akali Party is ina sense a communal organisation because its membership isopen only to men belonging to Sikh community who are fol-lowers of the Sikh religion. For purposes of election theparty was allowed the use of a symbol "bow and arrow"(Tir-kaman) which is intimately associated in the mindof every believing Sikh with one of their greatest Gurus—10th Guru Govind Singh. Besides being a great spiritualhead, Guru Govind Singh was reputed to be a great archerand political leader and is held by all Sikhs in high vene-ration. For having been a great exponent of archery, theTir-kaman has come to be regarded as his peculiar symboland he is more often than not referred to as ''Tir-kamanWala" (the wielder of bow and arrow). We think thatthe Akali Party had undoubtedly this association of thesymbol in their minds when they claimed the bow andarrow symbol as the party's choice. Having secured thatsymbol it became an easy matter to exploit its sacredassociation for the party's propaganda amongst believersin the Sikh religion.
23. The pleading of the petitioner about the corruptpractices which he sought to make out of the propagandain these four newspapers is contained in paragraphs 11and 12 of the petition which are as under:—
"11. That a systematic appeal was made by respon-dents Nos. 1 and 2 or on their behalf or with their conni-vance, to the general body of Sikhs on the ground of reli-
E.L.R.] SARDUL SINGH V. HUKAM SINGH 323
gion or community for the furtherance of the prospects oftheir election in the 'Spokesman', the 'Ajit', the 'Prabhaf,the 'Akali Patrika' and on the platform. They wererepresented as 'Panthic candidates' signifying therebythat they solely stood for the interests and welfare of theSikh community and religion. For the Sikhs the expres-sion 'Panth' has a religious sanctity and to vote for a Con-gress candidate, which the petitioner was, as againstPanthic candidates, which the respondents Nos. 1 and 2were, became an act of sacrilege. Respondents Nos. 1 and 2are foremost leaders of the Panthic Party and the PanthicParty claims to stand exclusively for the protection andpreservation of Sikh rights, culture and solidarity. It waspropagated both in the Press and on the platform thatvote for the Congress candidate meant political iHaraKiri', suicide en masse of Sikhs. The 'Panthic' leaders,including respondents Nos. 1 and 2 and Master Tara Singh,agitated that the Congress was hostile to the Sikhs gene-rally and had even made lakhs of them to become apostatesand that to save themselves from extinction the Sikhsmust vote against the Congress and for the 'Panthic'candidates.
12. That undue influence was brought to bear uponthe electors by propaganda on the lines indicated in para-graph 11, supra. This materially affected the result infavour of respondents Nos. 1 and 2 and caused serious pre-judice to the petitioner and respondent No. 7 (SardarNirmal Singh) who was a Congress candidate for thereserved seat".
24. The petitioner does not rely upon and has notproved any propaganda on the platform except the reportsthereof as may be found in the impugned passages fromthe exhibited newspapers. Paragraph 11 of the petitionseems to state the effect of the propaganda rather thanrefer to the different heads under which the offensive state-ments will be found to fall. We have read critically allthe passages and the counsel on both sides referred to andcommented upon a good number of them, some howeverbeing omitted as they were considered to be innocuous.Those which were referred to would seem to fall under thefollowing general types:—
324 SARDTTL SINGH V. HITKAM SINGH [VOL. VI
(A) Passages in which there is reference to 'Panthic'to tell the readers that the candidates of the Akali Partyare to represent the 'Panth' or that ' Tirkaman' is symbolof the 'Panth', or that vote should be given to the 'Panth'.Such references are to be found in every paper and 'Panth'is a most general expression used to refer to the Sikh elec-torate vis-a-vis the elections.
(B) Mention of 'Panthic candidate', 'Panthic Vote','Panthic future' and such like phrases used in referencesto the Akali Party.
(C) Criticism of Congress policy and of attitude ofthe Congress party towards the Sikh community or sometimes towards Sikh religion by use of expressions like thefollowing:—
(i) Congress bent upon to defame the Sikhs.(ii) Congress enemy of the 'Panth' and the Sikhs.(iii) Congress determined to stab 'Panth' in the
back.(iv) Congress Government crushing the Sikhs.(v) Congress humiliating the Sikhs and making the
Panth miserable.(vi) Congress a Hindu or communal body or Con-
gress dividing the Sikhs and no Sikh to vote for Congress.(vii) Sikhs not to vote for Congress because Con-
gress Government imposed curfew at Shri Darbar Sahib,Amritsar and Sikhs assembled before Akal Takhat werefired upon and because it has deprived the Sikhs of Nan-kana Sahib.
(viii) Congress interfering with Sikh religion.(D) Your vote is a trust of the Panth or reserved
for the Panth.(E) Panthic sentiments and regard to be tested in
the elections.(F) Waxing praise of the Panth.(G) Not to vote for Panthic candidate will be poli-
tical Kara Kiri. Suicide en masse.25. The above list maybe taken to be illustrative of
the nature of statements appearing in the impugnedpassages and the references given under each head areonly a few out of the many which may be found in them.We may refer more particularly to the following passages
E.L.R.] SARDTTL SINGH V. HTIKAM SINGH 325
upon which much stress was laid on behalf of the peti-tioner as showing definitely an appeal on the ground ofcommunity or religion and in some cases even amountingto undue influence:
(a) Congress Government interfering with Sikh reli-gion.
(b) To overthrow Congress is a holy crusade.(c) To vote against the 'Panth' is to turn against
ihe Guru and to commit treason.(d) The threatening clouds over Sikh religion.(e) Political power is necessary to protect the Sikh
religion.(f) Vote for those who make welfare of the Sikh re-
ligion their aim of life.(g) Our Guru as well as ancestors have borne untold
hardships for the sake of our Panth.(h) In respect of Sikhism and community we can
never be separated.(i) The race of Sikhs will not vote for the Congress
which is conspiring to cut at the root of the Panth.(j) O-Moths (lovers) of the Panth, let the Sadguru
shield you.(k) We shall glorify our community.(1) Earnest appeal of Master Tara Singh to the
community (Kom).(m) Votes claimed in the name of Guru and his
saffron flag.(n). Vote for the box with Tirkaman of the Guru.
The Guru was using a bit of gold at the tip of each of hisarrows to provide for the coffin of the victim who waskilled by it.
(o) Remember Khalsa Ji (Sikh community) not tovote for Congress. Appeal addressed as "0 Singhos".
(p) Khalsa Panth to vote for Tirkaman.(q) Guru's Nishan (Flag).(r) Harijan class of Sikhs addressed as Panth and
exhorted to remember the religion and the religious flagand the sacrifices of the leaders in the cause of the Panth.
(s) 0 Tirkaman Wallah, give me light and courageto vote like a crusader.
(t) Vote on Tirkaman and get blessings of Guru.EL—42
326 SARDUL SINGH V. HUKAM SINGH [VOL. VI
(u) Wah Guru (God Almighty)—Guru Govind Singhsaid that his blessings will go to those who will keep theKhalsa separate. If they go the way of Brahmans hewill not love them.
(v) It is reported that vow is taken by all Sikhsthat it would be silly to vote for the Congress.
(w) Vote for the Panth to please the Guru.(x) To finish the Congress is moral warfare (Dharam
Yudha).26. The passages referred to in the above two para-
graphs are not written with reference to or intended to beread by people of any particular locality and so may berelied on by the petitioner as intended to influence theminds of the electorate in this Kapurthala-Bhatinda con-stituency of the Pepsu as well. We think we ought toexclude from our consideration certain passages whichwere written in the columns of these papers with referenceto other constituencies in Punjab or Pepsu, which did notform part of this Parliamentary constituency, or withreference to other candidates not concerned with theelection in question. Such passages are :—[The Tribunalreferred to the passages and continued].
27. As we have said, though the Akali Party under thisdesignation is parading as a political organisation, itmakes a definite discrimination in the matter of enlistingits members, the membership being strictly confined tomen of Sikh community who are necessarily professingthe Sikh religion. The word 'Panth' is not new or broughtto existence with this party. As told to us by Bhai JodhSingh (P.W. 1) a great scholar of Sikh theology, it is aword of Sanskrit origin literally meaning the 'way', butin the Sikh religion it has been in use to denominatecollectively all those who follow the Path of the Guru andso signify the Sikh community. 'Panthic' is an adjectivecoined to connote 'of the Panth'. So Panthic candidateshould literally signify a candidate of the Sikh com-munity, but as Bhai Jodh Singh again tells us Panthiccandidate is now understood as a synonym of Akali Partycandidate. It is the religious and communal character ofthe Akali Party which is forcefully demonstrated by theparty preferring to style itself as Panthic Party and thecandidate who is the nominee of the party as Panthic
E.L.R.] SARDUL SINGH V. HTJKAM SINGH 327
candidate. Even at the time when there were separateSikh electorates, the Akali Party used the word Panth forpropaganda purposes against a rival candidate of thesame community and in Baba Gurdit Singh's Case^) theElection Tribunal in 1937 did not consider it objectionablefor the Akali Party to appeal to the electorate under thename of the Panth. Since that time it seems to havebecome a common practice of referring to the Akali Partyas 'Panthic Party' and even the petitioner seems to acceptthat this nomenclature is now generally used to denoteAkali Party. He himself used it with that import inappropriate places in his election petition, though in para-graph 4 he avers that the Shiromani Akali Dal is using thisname 'Panthic Party' for itself to indicate that it is re-presentative of the religious and communal interests ofthe Sikh Panth or community. We find that the words'Panth' and 'Panthic' have now gained so much currencyas referring to the Akali Party that in our view no specialreligious or communal appeal is conveyed to the commonman by their use than would be implicit in the officiallyrecognised name of 'Akali Party'. The passages whichmake use of these words may therefore be safely treatedas innocuous, no special appeal being conveyed to theelectorate by such passages that their vote is canvassedon religious grounds for the Akali Party candidate. Inthis case the petitioner is perhaps as much a devout Sikhas any other member of Akali Party. If people by reasonof the petitioner's association with a rival political partydo not have the same consideration for him as for anAkali Party candidate, it is not^because of that party styl-ing itself as 'Panthic party' but because of its organisa-tion on communal basis. We may therefore regard pas-sages of the type described in (A) and (B) of paragraph 24above as not helpful to prove commission of any corruptpractice.
28. Criticism of the policy and doings of the Con-gress party (which is forming the Government at present)at the hands of a rival political organisation like AkaliParty is not objectionable under the election law unless thecriticism oversteps the legitimate bounds and enters upona course which brings it within some forbidden corrupt
(1) 1 Doabia 92.
328 SAEDUL SINGH V. HITKAM SINGH [VOL. VI
practice. Passages like those in (i) to (v), in (C) of thesame paragraph 24 may not thus be considered objection-able; the same, however, cannot be said of the manner inwhich that criticism is given shape in the passages like (vi)and (vii) of that paragraph and in (a) to (f) of the nextparagraph 25. In them the Congress is referred to as in-terfering with Sikh religion and therefore there is appealto the voters to make the political organisation of theAkali Party strong by voting against the Congress. Section124(5) of the Representation of the People Act, 1951, makes"the systematic appeal to vote or refrain from voting ongrounds of caste, race, community or religion or the use of,or appeal to, religious and national symbols, such as, thenational flag and the national emblem, for the furtheranceof the prospects of a candidate's election" a minor corruptpractice.
In the above mentioned passages interference of theCongress with Sikh religion is assumed and the necessityof avoiding that interference is made a plank for askingthe voters to refrain from voting for the Congress candi-date. It is true that in this particular case the Congresscandidate happens to be of the same religion, but in viewof the Congress policy as interpreted in these papers evena Sikh Congress candidate cannot be a defender of theirfaith and therefore the Sikhs must vote an Akali PartySikh into the legislature. This in our view clearly impliesan appeal to vote for the Akali Party candidate on theground of his religion because in view of the interferenceof the Congress with that religion a Congress candidatemust be ruled out. Such a propaganda done on the eve ofelections should necessarily imply an appeal to vote orrefrain from voting even if in every case there is no ex-press appeal made to the voters about casting votes.
29. The remaining passages like (g) to (x) in para-graph 25 constitute in our view an appeal on the groundof community, many of the passages making such appealin the name of the community by drawing attention tothe religious sanctity of the symbol 'Tirkaman' because ofits association with the Guru, the defender of the faith.This appeal is coupled in some passages with the induce-ment of blessings of the Guru going to those who will voteon that symbol. There is also a reference in some passages
E.L.E.] SAEDUL SINGH V. HTJKAM SINGH 329
to the saffron flag of the Guru. The Tirkaman and theflag are thus associated with \he Guru and given a religiouscharacter, and by reference to these as religious symbolsthe appeal is made to vote for the symbol of Tirkaman.People who are appealed to as 'Khalsaji' or 'Khalsa Panth'or as '0 Singho' are clearly the entire Sikh community.There has been an attempt throughout in these papers torouse the religious sentiments of the Sikh community to ahigh pitch and to tell the Sikh people that they gain spiri-tual advantage and become defenders of the faith by vot-ing for the Akali party candidates and by refraining fromvoting for the Congress candidates.
30. Section 124(5) is a new provision in our electionlaw which has been found necessary in consonance withthe policy of the framers of our Constitution to makeIndia a secular State— a State which has no religion of itsown and which refrains from discrimination on grounds ofreligion. There is no corresponding provision in the elec-tion law of England and there in cases of this nature theappeal to religion could be regarded objectionable only ifit could be found to amount to "undue influence". Wewere referred to the following passage from Parker's Elec-tion Agent and Returning Officer (p. 305):
"All clerical or spiritual influence is not, however, un-due. In the proper exercise of their legitimate influence,priests and clergy may lecture the people, and address theircongregations upon the conflicting claims of the differentcandidates, even in their chapels; they may counsel, advise,recommend, entreat or explain why one candidate shouldbe preferred to another; for a priest is a citizen, and en-titled to have his political opinions, and to exercise hislegitimate influence legitimately. So also if priests believethat a spirit of antagonism to their church, religion orclergy has arisen, and recognise in a particular politicalparty elements of danger to religion, they may use theirinfluence to assert and maintain due respect to religion,and may express their opinion, in suitable language, thatissues of great importance to religion are involved in apending political contest".
It is therefore urged that when the leaders of AkaliParty have reason to think that the religion of the Sikhs
330 SAEDUL SINGH V. HUKAM SINGH [VOL. VI
is in danger due to the policy of the Congress Governmentin power, it is legitimate for them to point out the dangersresulting from that policy, one danger being, as they be-lieved, evidenced by the fact of the turning of lakhs ofSikhs in Uttar Pradesh as apostates, as stated in Ex. G. 4.In such circumstances it is urged that it shquld be legiti-mate in India as it would be in England for them to ap-peal that votes should be given to Akali Party candidatesin preference to the Congress candidates. The above pas-sage may be good law in India so far as spiritual undueinfluence is concerned, but it will not justify such appealas not contravening the provision in section 124(5) of theRepresentation of the People Act.
31. We agree with the view of the Bombay ElectionTribunal in Moinuddin v. B. P. Divgi{1) that in determin-ing the scope of section 124(5) we should have regard toarticles 13, 19(1)(a), 25(1) and 29(1) of the Constitution,but do not think that in consonance with those provisionsof the Constitution the scope of the section is narroweddown to prohibition of attacks on a particular religion oron a candidate, only on the ground that he is a follower ofa particular religion. The wider scope of the words insection 124(5) which prohibits all kinds of appeals for votein the name of religion, whether it is the religion of theelectorate or of the candidate, would be quite in keepingwith the power of the State to make laws restricting thefreedom of speech and expression "in the interests of thesecurity of the State, friendly relations with foreignStates, public order, decency or morality, or in relation tocontempt of court, defamation or incitement to an offence",which is now conferred by the amended article 19(2) ofthe Constitution.
32. The repetition in effect, if not in the same words,of the offending statement over and over again (as is evi-dent from the different issues of the papers in which theyappear) amounts in our view to a systematic appeal.Though the appeal to vote or refrain from voting mayhave to be read into the passages by implication where itis not expressly made, there may be no doubt about suchrequest for vote being earnest in character, which is anessential of appeal according to the dictionary meaning of
(1) 3 B.L.R.248,
E.L.B.] SABDTJL SINGH V. HUKAM SINGH 331
the word. The respondents 1 and 2 as nominees of theAkali Party had a common cause and were being sup-ported by the Akali Party to an equal extent. They hadcommon election offices and all propaganda was done forboth together. Therefore, both the respondents 1 and 2become answerable for the propaganda equally. So far asthe Spokesman is concerned, the respondents are directlyresponsible because the respondent No. 1 was himself theproprietor of that paper. There is no denying the fact thatMaster Tara Singh is a great leader of the Akali Partyand had been President of the Shiromani Akali Dal forlong. At the time of this propaganda the respondent No. 1S. Hukam Singh himself had become President of Shiro-mani Akali Dal and the respondent No. 2 was a prominentmember of that body. There is no doubt also that thethree newspapers Ajit, Prabhat and Akali Patrika havebeen advocating the policy of the Akali Party. ThePrabhat bears the caption "Under the Leadership ofMaster Tara Singh, Spokesman of the Panth" under itstitle. Whoever may be the proprietor, printer, editor orpublisher of these papers, they were advocating the viewpoint and the cause of the Akali Party, and the respon-dents 1 and 2 do not aver that they have been ignorantof all this. These three papers in making this propagandain so far as it was intended to affect the election in thisKapurthala Bhatinda constituency should therefore beregarded as agents of respondents 1 and 2. It is now com-monly accepted that agency in election law has a widersignificance than under the ordinary law of principal andagent and has to be inferred from circumstances and con-duct. We may refer to cases of Mohammad Zakria Kitchlewv. Sheikh Mohammad Sadiq(x) and Manjoor Hussain v.Gholam Mohiuddini?). In Rogers on 'Elections' we find thefollowing observation of Blackburn, J., on this point whichis very pertinent (p. 391):—
"A candidate is responsible generally, you may say,for the deeds of those who to his knowledge for the pur-pose of promoting his election, canvass and do such otheracts as may tend to promote his election, provided that thecandidate or his authorised agents have reasonable know-ledge that those persons are so acting with that object".
(1) Sen & Poddar 34. (2) Sen & Poddar 746. "
332 SARDTJL SINGH V. HUKAM SINGH [VOL. VI
33. This brings us to the important question whetherwe can find the election vitiated by reason of all thispropaganda in the newspapers. It must be stated aboutthis propaganda that it is nearly all in general terms with-out reference to this particular Kapurthala Bhatinda con-stituency or to the merits or demerits of the rival candi-dates of the Congress or Akali Party in this election. Weare not referring here to]the statements regarding the insu-rance fraud case against S. Caveeshar which have beenseparately considered for the corrupt practice under sec-tion 123(5). About the other allegations the petitioner'scase is sought to be brought under section 124 (5) of theRepresentation of the People Act, and this case as we havesaid may be taken to be established. In paragraph 12 ofthe petition, the petitioner somewhat hesitatingly hassought to relate the case to "undue influence" also, whichif made out would result in avoidance of the electionunder section 100 (1) (a) of the Representation of thePeople Act, without the necessity of showing that theresult of the election has in fact been materially affectedthereby. "Undue influence" is defined in section 123(2) ofthe Act as a direct or indirect interference with the freeexercise of the electoral right, but the proviso to that sec-tion shows what kind of interference is contemplated tobring the case under the corrupt practice of "undue influ-ence". Undue influence is exercised according to the pro-viso by a person who—
(i) threatens any candidate or any elector, or anyperson in whom a candidate" or an elector is interested,with injury of any kind including social ostracism andexcommunication or expulsion from any caste or commu-nity, or
(ii) induces or attempts to induce a candidate or anelector to believe that he or any person in whom he isinterested will become or will be rendered an object of di-vine displeasure or spiritual censure.
It is not necessary that there should be any actualthreat or physical compulsion held out but the method ofinducement as may be adopted should convey to the mindof the person addressed that non-compliance with thewishes of the person offering the inducement may resultin physical or spiritual harm to himself or to any other
E.L.R.] SARDTIL SINGH V. HUKAM SINGH 333
person in whom he is interested. Some fear of harmresulting from non-compliance with the request, thusseems to constitute an essential element in "undue influ-ence". Where the influence is said to be by a religiousappeal as in this case, it should be shown that it was madeto appear to the persons addressed that non-compliancewould be considered to be irreligious or sinful. This man-ner of undue influence can generally be exercised by reli-gious teachers or persons having reputation for learningand piety, but it may be inferred to be exercised by anewspaper editor also if he has some standing in the society:see Habibur Rahman v. Nawab Sir K. G. M. Faroqui(l).For instance, if the editor quotes from a religious book,his act can easily influence the minds of the readers. Butthe definition seems to recognise that such influence canresult only from a threat of harm and not from an assur-ance of spiritual benefit which the writing may hold out.
34. Viewed in this light, we cannot find any passagewhere any such harm is threatened to be likely to resultto persons who will not vote for the Akali Party candi-dates. There is reference in some passages as at (t), (u)and (w) in paragraph 25 above, about blessings of the Gurudescending upon those who will vote for the Panth or thesymbol of Tirkaman, but there is no suggestion of any cursefalling on or harm resulting to those who will not so vote.We therefore find that no case of exercise of undue influ-ence has been made out by the petitioners.
35. Considering the propaganda as a corrupt prac-tice under section 124(5) it will help to avoid the electionof the returned candidate only upon proof that the resultof the election has been materially affected thereby. Thisis not a «case of the election being procured or inducedby the corrupt practice. The proof that the result of theelection has been materially affected is necessary under sec-tion 100 (2) (a) of the Representation of the People Actand therefore the petitioner in the latter part of paragraph12 of the petition has averred it. We cannot however findany material to find this established. This propaganda, aswe find, was general for elections all over the Punjab andPepsu where the contest was between the Akali Party
(1) Sen & Poddar 802.EL - 4 3
334 SARDTTL SINGH V. HUKAM SINGH [VOL. VI
and the Congress Party. We cannot infer that the AkaliParty candidates succeeded in this Parliamentary consti-tuency only because of the propaganda of these news-papers. We know that the propaganda did not affect thechances of Sadhu Ram, P.W. 7, a Congress candidate fromPhagwara constituency of the Pepsu assembly, which waspart of this Parliamentary constituency. He was returnedagainst an Akali Party candidate. Such reverses weresuffered by the Akali Party in many constituencies in thePunjab also, though the propaganda of these papers wasmainly directed to elections in the Punjab. Though S.Sardul Singh Caveeshar must be as good a Sikh as any ofthe respondents, the Sikh electorate could have consideredS. Hukam Singh as better deserving of their support forthe reason that he was not only a member but the Presi-dent or the head of the party which from its religious andcommunal character must be nearer to the average Sikh'sheart than the Congress Party. We cannot commend thecommunal spirit of these newspapers in resorting to thekind of systematic propaganda that they carried on forsupporting the Akali Party candidates during the elec-tions but we do not feel satisfied that the petitioner lostin the election because of this propaganda amounting tominor corrupt practice under section 124(5). We accord-ingly find that the petitioner cannot be given the decla-ration about the election of the returned candidates beingvoid as claimed by him. This disposes of issues III, IVand V as well.
36. Issue VI.—The respondents were not directlyresponsible for the corrupt practice even as it is proved,and so no question of their disqualification is to be con-sidered under section 99 of the Representation of the Peo-ple Act. In so exonerating the respondents from the con-sequences of this propaganda, we should not be understoodto have put our seal of approval upon it. On the contrarywe think the propaganda was rather odious and in badspirit and the mentality behind it may even be describedas opposed to the spirit of the Constitution. Though wedo not help the petitioner, we think that he has done apublic service by inviting attention to the nature of pro-paganda resorted to by the Akali Party in the last elec-tions. We feel we should mark our disapproval of it and
E.L.B.] SABDTTL SINGH V. HUKAM SINGH 335
our approval of the petitioner's action in fighting out theissue by not mulcting him with payment of the respon-dent's costs. We dismiss the petition but direct the partiesto bear their own costs as incurred.
ORDER.*
(November 29, 1952.)The petitioner having lost in the election to a double
member Parliamentary constituency in which the respon-dents Nos. 1 and 2 have been declared to be returned, pre-sented this election petition in which he claims the follow-ing reliefs:—
(1) A declaration that the election of the returnedcandidates respondents Nos. 1 and 2 is void.
(2) Upon such declaration the respondent No. 7 tobe declared to have been duly elected in the reserved seatin which respondent No. 2 is declared to be returned.
(3) Upon the grant of reliefs (1) and (2) above, thepetitioner himself to be declared to" have been dulyelected in the general seat in which the respondent No. 1has been declared to be returned.
(4) In the alternative, a declaration that the elec-tion is wholly void.
2. To the petition as presented under section 81 ofthe Representation of the People Act, 1951, the petitionerjoined as respondents only the respondents Nos. 1 to 8 whowere actually in the contest with the petitioner in theelection. After publication of the petition under section 90of the Act by this tribunal, the respondent No. 1 filed hiswritten statement in which he pointed out that besides thepetitioner and the respondents Nos. 1 to 8, there were fourother persons whose nominations had been accepted bythe Returning Officer under section 36(7) but who hadwithdrawn their candidature under section 37 of the Actand it was contended that these four persons, being thusduly nominated, were necessary parties who should alsohave been joined as respondents under section 82 of theAct. The petitioner was thereupon allowed to join thesepersons as respondents Nos. 9 to 12.
3. To this late joinder objection is taken on behalfof respondents Nos. 1 and 2 and a claim has been made on
* See p. 319 supra.
336 SABDUL SINGH V. HUKAM SINGH [VOL. VI
behalf of the newly added respondent No. 9 that if his join-der now is permitted, there should be a fresh publicationof the amended petition under section 90 to enable himto effectually exercise the right of recrimination undersection 97 of the Act.
4. For disposal of these objections, the following fourpreliminary issues have been framed by us:—
(1) Were not the newly joined respondents Nos. 9 to12 necessary parties according to section 82 of the Repre-sentation of the People Act, 1951?
(2) What is the effect of non-joinder initially withintime allowed for filing the petition of respondents Nos. 9to 12 as parties on the maintainability of the petition andon the several reliefs claimed by the petitioner?
(3) (a) Can the petitioner claim the declaration thathe himself or respondent No. 7 has been duly elected inview of his failure to join the respondents Nos. 9 to 12within the time allowed for filing the petition?
(b) If he can, have the newly joined respondents aright to recriminate under section 97 against the petitionerand for the exercise of the right within the time allowedby that section to claim a republication of the petitionunder section 90?
(4) Should respondents Nos. 9 to 12 be retained asparties on the record or should they be struck out?
5. Having heard the counsel of the parties at lengthon these issues we proceed to decide them as below:—
6. Issue No. 1.—Under section 82 of the Act allcandidates duly nominated at the election must be joinedas respondents. We find no difficulty in holding that respon-dents Nos. 9 to 12 were such duly nominated candidates-when upon a scrutiny under section 36 of the Act, theirnomination papers having been found to be in order wereendorsed as accepted. They did not then cease to be dulynominated by the mere withdrawal of their candidatureunder section 37. From the terms of section 38 it is clearthat those who have not so withdrawn their candidatureare referred to as valid nominations, the petitioner and therespondents Nos. 1 to 8 being of that category in this case.Section 82 does not enjoin the joinder of validly nominated
E.L.R.] SARDUL SINGH V. HUKAM SINGH 337
candidates only, which may be a more restricted categorythan that of duly nominated candidates as in the presentcase. That there is a distinction to be made betweenduly nominated and validly nominated candidates is putbeyond all doubt by clause (f) of rule 2 of the Represen-tation of the People (Conduct of Elections and ElectionPetitions) Rules, 1951, according to which "validly nomi-nated candidate" means a candidate who has been dulynominated and has not withdrawn his candidature. Res-pondents Nos. 9 to 12 in this case though not validly nomi-nated candidates were duly nominated and so, were neces-sary parties according to section 82 of the Act.
7. Issue No. 2.—We are unable to accept the conten-tion of the respondents that the petition is liable to bedismissed altogether for the failure of the petitioner toimplead respondents Nos. 9 to 12 within the time allowedfor presentation of the petition under rule 119 of the rulesabove referred to. Section 82 of the Act is directory aboutthe persons who should be joined as necessary parties to anelection petition. This direction as we had occasion toobserve recently in connection with another election peti-tion, has, in our view, been given by the legislature in orderto ensure that all persons who were concerned with theelection from the earliest stages should be present beforethe tribunal in order to enable the tribunal to get all mate-rial facts and information from all probable sources andupon them to determine if the election had been free andfair or not. This, we think, is the purpose of the legislaturein enacting the provisions in Part VI of the Act relating todisputes regarding elections and their settlement by Elec-tion Tribunals to whom the election petitions may be re-ferred. Therefore, if the petitioner has omitted to bringa proper and necessary party before the tribunal, the tri-bunal should have power to call such party before it.
8. Though in section 85 of the Act a power is givento the Election Commission to dismiss the petition fornon-compliance of the provisions of section 81 or section83 or section 117 and the same power may be exercised bythe tribunal under section 90(4) of the Act, there is noprovision in the Representation of the People Act or therules thereunder, for such dismissal of the petition fornon-compliance of the provision in section 82. The power
338 SAEDUL SINGH V. HUKAM SINGH [VOL. VI
of the tribunal to order joinder of necessary parties will,therefore, be regulated and the effect of non-joinder deter-mined according to the provisions as regards the trial ofsuits under the Civil Procedure Code, which according tosection 90(2) of the Representation of the People Act,1951, governs the procedure of the tribunal in the trial ofelection petitions. The rules in the Civil Procedure Codewill not permit of an outright dismissal of a suit for failureof the plaintiff to join the necessary parties. In fact, wehave the provision in Order I, rule 9, Civil Procedure Code,that no suit shall be defeated by the misjoinder or non-joinder of parties and the court may in every suit dealwith the matter in controversy so far as regards the rightsand interests of the parties actually before it. The power ofthe tribunal to join respondents Nos. 9 to 12 is thus derivedfrom the provision in section 82 of the Representation ofthe People Act, -but, for determining the effect of the peti-tioner's failure to join them within time allowed for pre-sentation of the petition, we have to look to the CivilProcedure Code.
9. Under that Code such joinder of the parties wouldbe treated as an amendment. In terms of Order I, r. 10(4) ofthe Code, the election petition so far as respondents Nos. 9to 12 are concerned will be deemed to have been institutedonly on the date on which they were added. This amend-ment cannot relate back to the date on which the petitionwas presented under section 81 of the Act. It will, there-fore, be permissible to the tribunal to allow it only in sofar as granting of permission to amend the plaint in asuit would be proper under Order VI, r. 17, Civil ProcedureCode. In allowing amendments under that rule, twoprinciples must be borne in mind: (1) that the amendmentdoes not have the effect of prejudicing the rights of theother parties in the matter of defence, and (2) the peti-tioner cannot be allowed to derive any advantage by hislaches in the matter of the joining of necessary parties.
10. Upon an application of these tests, it is clearthat respondents Nos. 1 to 8 are in no way prejudiced intheir defence by the permission for late joinder of respon-dents Nos. 9 to 12 in order to satisfy the .requirement ofsection 82 of the Representation of the People Act. Ifrespondents Nos. 9 to 12 by their presence can help the
E.L.E.] SARDUL SINGH V. HTJKAM SINGH 339
Tribunal in supplying additional information for sustain-ing the claims of the other respondents, such help should bewelcome to them. According to our observations inparagraph 7 above, these respondents 9 to 12 as parties tothe .petition may lend support to the returned candidatesin the defence which they want to make to thepetition or support the petitioner in his case. So far asthe petitioner may try to rely on the support of theserespondents, we would not be justified in allowing him todo it because that would be prejudicial to the defence ofthe other respondents. But in so far as they would givesupport to the defence made against the petitioner, thepetitioner could not be allowed to avoid their help to thetribunal or to the other respondents by keeping them outof the petition against the provision in section 82. So faras the reliefs about declaration of the election as whollyvoid or as partially void in respect of the return of therespondent No. 1 or respondent No. 2 are concerned, thelate joinder of respondents Nos. 9 to 12 dobs not in any wayaffect their trial or prejudice the rights of any other personexcept perhaps the petitioner himself in that he will notnow be allowed to count on their support. There is novalid reason, therefore, to penalise the petitioner by throw-ing out the petition as regards these reliefs when he joinsrespondents Nos. 9 to 12 to satisfy the requirements ofsection 82. We, therefore, find that the petition wouldstill be maintainable for trial of the reliefs (1) and (4) asset out in paragraph 1 above subject to this.conditionthat these newly joined respondents in their right as partiesto the petition will not be entitled to claim to render helpto the petitioner to sustain his claim for these reliefs.
11. In so far as the reliefs (2) and (3) are concernedby which the petitioner seeks a declaration about himselfor the respondent No. 7 as having been duly elected, wefind that the petitioner cannot now be allowed to sustainhis claim for them without doing violence to the twoprinciples adverted to in paragraph 9 above. The claim tothe seats as envisaged in these reliefs would be sustainablesubject to the right of the respondents to recriminate undersection 97 of the Representation of the People Act. Theproviso in sub-section (1) of that section, however, puts alimitation upon the exercise of that right, that the party
340 SARDUL SINGH V. HTJKAM SINGH [VOL. VI
claiming it must give a notice of his intention to do sowithin 14 days from the date of the publication of the elec-tion petition under section 90. There is no provision in lawfor a re-publication of the petition after any amendment asmay be allowed, so that the result of the joinder by the peti-tioner of these parties after the expiry of the 14 days afterpublication of the petition, effectually deprives these newlyjoined respondents of their right to recriminate. True itis, that these respondents could themselves within 14 daysof the publication of the petition have been entitled toapply for their joinder as respondents and further, as suchparty to the petition, to recriminate under section 97. Butbecause they had this option of claiming to be made party,that did not relieve the petitioner of his responsibility ofjoining them as respondents under section 82 and, havingfailed to comply with that provision, he cannot now claimthat he should be placed in the advantageous position ofsecuring the seats for respondent No. 7 or for himselfwithout any challenge from respondents Nos. 9 to 12 as aresult of his own laches which deprives them of the rightof recrimination under section 97. The only equitable wayof remedying the resulting awkward situation by whichthe petitioner would be in the happy position of takingaway the valuable right of recrimination against his claimfor seats would obviously be to render the petitioner'sclaim for such reliefs unsustainable and we hold that thepetitioner's claim for the reliefs (2) and (3) as set out abovecannot be maintainable now.
12. Some cases were cited on behalf of the partiesin which the claim to a seat was disallowed if all theduly nominated candidates had not been brought beforethe court, even though the election of the returned candi-date, the respondent before the court, was declared void.These cases being under the old law are not directly help-ful in the present case because in the election rules underwhich these cases were decided there was a specific provi-sion that if the seat was claimed, then only all the dulynominated candidates were necessary parties. In the Re-presentation of the People Act, 1951, there is no suchspecific provision and section 82 makes it obligatory thatall the duly nominated candidates must be joined as res-pondents whether the seat is claimed or not. But in our
E.L.R.] BALBIR SINGH V. ARJAN SINGH 341
opinion this has not made any material change in the lawand the main consideration would still be the one on whichwe have proceeded, viz., whether any party in whose ab-sence it would not be possible for the tribunal to adjudi-cate upon the petition or upon any part of it had beenleft out.
13. This disposes of issues Nos. 3 and 4 as well. Inthe view which we take that the petitioner cannot nowclaim declaration about him or the respondent No. 7 beingduly elected, the question of republication of the petitionshould not arise. We find also that respondents Nos. 9 to12 should be retained as parties for opposing the peti-tioner, if they so choose, about his claim for the reliefs forwhich the petition is found to be still maintainable.
Issues found accordingly.
[ELECTION TRIBUNAL, BARNALA.]
BALBIR SINGHv.
ARJAN SINGH AND OTHERS.JAGJIT SINGH (Chairman), SHIVA GOPAL MATHUR and
DALIP SINGH JAIN (Members).
May 13, 1953.Disqualification of candidates—Office of profit—Assessor of Sessions
Court—Election petition—Grounds not raised before Beturning Officer—Constitution of India, art. 19l(l)(a).
A person who is put on the list of assessors of a Court of Sessionsdoes not thereby hold an office of profit within the meaning of article19l(l)(a) of the Constitution.
The fact that the objection that a candidate was disqualified for stand-ing as a candidate was not taken before the Returning Officer at the timeof scrutiny cannot create any estoppel or bar against contesting his elec-tion in an election petition on that ground.
ELECTION PETITION NO. 127 of 1952.
ORDER.
S. G. MATHUR.—This is an election petition undersection 81 of the Representation of the People Act, 1951,
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342 BALBIR SINGH V. AEJAN SINGH [VOL. VI
by Balbir Singh, a defeated candidate, in respect of theelection held for the Mahal Kalan constituency of thePepsu Legislative Assembly in the last general elections.Arjan Singh, respondent No. 1, was the successful candi-date for the non-reserved seat and Dhanna Singh Gulshan,respondent No. 2, for the reserved seat. After layingdown the grounds for a claim for setting aside the election,the petitioner prayed for two reliefs in paragraph 9 of thepetition to the effect that the election of the respondentNo. 1 be declared to be void, and that the petitioner bedeclared to have been duly elected from this constituencyto the said Assembly. He had also added a prayer at thehead of the petition for a declaration that the electionbe declared to be wholly void.
The petitioner challenged the election with the allega-tions that Nachittar Singh, respondent No. 3, a defeatedcandidate, was below 24 years of age on the day the nomi-nation papers were filed and as such he was not qualifiedto contest the election, and further that he was ineligiblefor election also on the ground that he was occupying theposition of an assessor and was thus to be deemed to beholding an office of profit and that consequently the ac-ceptance of his nomination papers by the ReturningOfficer was improper in law. Instances of bribery, undueinfluence and non-compliance with the provisions of lawwere further alleged to have prevailed during the election,which were said to have materially affected the result ofthe election against the interests of the petitioner.
* * * *The respondents Nos. 1, 2 and 13 have contested the
petition. They have denied all the allegations of bribery,undue influence and non-compliance with the provisionsof law, as mentioned in the lists "A", "B" and "C",attached with the petition, and urged that Prof. SurinderSingh Nirola had not committed any such irregularities aswere alleged against him in the petition. It was alsodenied that Nachittar Singh, respondent No. 3, was underage, or was not eligible for election because of hisholding the position of an assessor. It was also con-tended that the petitioner was estopped from raising thequestion of the respondent No. 3 being under age or
E.L.R.] BALBIR SINGH V. ARJAN SINGH 343
of his being an assessor at his stage, as these objectionswere not taken before the Returning Officer at the time ofscrutiny. A plea was also taken by the respondents Nos. 2and 13 to the effect that the allegations made in para-graph 5 of the petition were ineffective for want of a listof particulars of corrupt practices as required by law.
The respondents Nos. 3 to 12 and 14 and 15 remainedabsent and did not contest. The pleadings as putforward by the petitioner and the respondents Nos. 1, 2and 13 have given rise to the following issues.—[IssuesNos. 2 and 3 alone are material for this report.]
(2) Whether the nomination papers of S. NachittarSingh, respondent No. 3, were improperly accepted as hewas an assessor and thus holding an office of profit? Ifso, has that materially affected the result of the election ?
(3) Whether the petitioner is estopped from raisingobjections regarding the improper acceptance of the nomi-nation papers of S. Nachittar Singh, respondent No. 3, forthe reason that he did not take up those objections beforethe Returning Officer at the time of scrutiny?
Issue No. 2.—Nachittar Singh, respondent No. 3, wasadmittedly on the list of assessors for the Court of SessionsJudge, Barnala, in the year 1951, and a point is raised inthe petition that, as he was holding the position of anassessor, he was not eligible for election. The main pointfor consideration is whether by virtue of his being anassessor he had lost his right for election as is urged bythe petitioner.
Article 191 of the Constitution of India lays downdisqualifications for membership and it says that a personshall be disqualified for being chosen as, and for being, amember of the Legislative Assembly or Legislative Councilof a State—(a) if he holds any office of profit under theGovernment or the Government of any State specified inSchedule I, other than those declared by the legislature ofthe State by law not to disqualify its holder Now thequestion is whether assessorship amounts to an office ofprofit, as is contemplated by this article. In our opinion"office of profit" would not cover an assessor, who isrequired to attend the sessions cases to help the SessionsJudge in the trial. It is not of his own free will that he
344 BALBIB SINGH V. ARJAN SINGH [VOL. VI
aspires to acquire this position, but according to the schemeof the Criminal Procedure Code a bounden duty is laid onevery citizen of the country to render assistance for dis-charge of the sessions work. Sections 319 and 320 of theCriminal Procedure Code may be looked into to ascertainthe actual position an assessor occupies in the scheme ofthe criminal law. Section 319 says that all male personsbetween the ages of 21 and 60 shall, except as next here-inafter mentioned, be liable to serve as jurors and assessorsat any trial held within the district in which they reside,or, if the local Government on consideration of local cir-cumstances, has fixed any smaller area in this behalf, with-in the area so fixed. Section 320 enumerates a few classesof persons who are exempted from liability to serve asjurors or assessors. Thus, it is under law that all citizensof particular ages are bound to serve as assessors as a partof their duty. Holding an office of profit would imply thatone is occupying a position wherefrom he is deriving anybenefit, material or otherwise, or at least exercises anypowers or influence by virtue of such a position. But nopowers or privileges are attached to the position of assess-orship nor any material gain is allowed to him while serv-ing in that capacity. He is not paid any fee or remuner-ation or allowance for that purpose. He is simply paidtravelling allowance and diet money for the hearing thathe has been called upon to attend, but the payment in theshape of diet money or travelling allowance cannot betaken as a payment in lieu of the services rendered by theperson concerned. So there is neither any material gainnor any special privileges or powers attached to such aposition. On the other hand, the position of an assessor isin fact a liability which every citizen is required to dis-charge whenever called upon by the Government.
The point came up for discussion in Bejay Singh v.Narbada Gharan Lai and Others^) and the learned membersof the tribunal have very elaborately discussed in it theeffects of the position of an assessor and of his dutieswith reference to article 102 of the Constitution of India,which are similar to those as are covered by article 191 ofthe Constitution, and held that the case of an assessor isnot one of holding an office of profit within the meaning
(1) 2 E.L.fy 42§.
E.L.R.] BALBIE, SINGH V. AEJAN SINGH 345
of article 102. The view expressed in the commentary onthe Constitution of India by Basu at page 346 is in thewords that, in order to be an "office of profit" it mustfirst be an 'office' which means as 'employment' with feesand emoluments thereunto belonging (Blackstone). In thecase of an assessor, however, no question of fees andemoluments arises at all.
After giving our full consideration to the point in dis-cussion we are of opinion that merely holding the positionof an assessor does not amount to holding an office of profitwithin the meaning of article 191 of the Constitution ofIndia, and does not disqualify an elector from claiminga right to seek election for the Legislative Assembly ofthe State. The issue is, therefore, decided against thepetitioner.
Issue No. 3.—The plea that the petitioner had notcome forward with any objection before the ReturningOfficer against the nomination of Nachittar Singh is novalid ground to debar him from contesting the election byan election petition before a tribunal on the ground thata particular candidate stood disqualified for seeking elec-tion, as there is no provision of law under which one mustfirst come before the Returning Officer with his objectionsbefore he can assert a right to contest the election after itis over. The contention has no force and the issue isdecided against the respondent No. 1.
[Issues Nos. 5 and 7 to 13 were decided against thepetitioner.]
Issue No. 6.—This issue is not pressed and is decidedagainst the petitioner.
Issue No. 4.—In view of the decisions given on issuesNos. 5 and 7 to 13 it is apparent that the charges forcorrupt and illegal practices of bribery and undue influ-ence set up in the petition are not established at all byany evidence, and consequently there is no force in thecontention that the election was not conducted in a freeand a straightforward manner. The issue is decidedagainst the petitioner.
Issue No. 14.—The petitioner has totally failed toestablish the charges of bribery, undue influence and thenon-compliance of the provisions of law enunciated in lists
346 SHIV DAYAL V. TEG RAM [VOL. VI
"A", "B" and "C" attached with the petition and he isnot entitled to any relief on the strength of them. But inview of the finding on issue No. 1 that the nominationpapers of the respondent No. 3 were accepted improperlyby the Returning Officer and it had affected the result ofthe election materially, the entire election has to be setaside, both in respect of the general seat and the reservedseat. The only proper relief, in the circumstances of thecase, is to cancel the election as a whole. We, therefore,accept the election petition, set aside the elections of thecandidates, Arjan Singh, respondent No. 1, and DhannaSingh Gulshan, respondent No. 2, and declare the electionto be wholly void.
The responsibility for costs is to lie on NachittarSingh, the respondent No. 3, and not on the respondentsNos. 1 and 2, as it was his wrongful act of presentingfalse affidavits that led to the passing of the order foraccepting his nomination papers, and which gave thepetitioner a cause of action for the present petition. We,therefore, order that the respondent No. 3 shall pay Rs.250/- as costs to the petitioner.
Election declared void.
[ELECTION TRIBUNAL, LUDHIANA.]
SHIV DAYAL AND OTHERSv.
TEG RAM AND OTHERS.HARBANS SINGH (Chairman), HANS RAJ KHANNA and
PARMA NAND SACHDEVA (Members).May 14,1953.
Nomination of candidates—Electoral roll number—Failure to statezail or sub-division of roll—Whether fatal defect—Duty ofBeturning Officerto make summary inquiry—Withdrawal of petition—Guiding principles—Bepresentation of the People Act, 1951, ss. 33(1), 36(4), 110—-Form ofnomination—Footnote (6).
Failure to mention the name of the zail or sub-division of the electo-ral roll in which the names of the candidate, his proposer and seconder areentered is not a fatal defect justifying the rejection of the nominationpaper. If the name of the zail or sub-division is not given, the ReturningOfficer should refer to the relevant zail or sub-division if it is in his posses-sion, or is produced by the candidate at the time of scrutiny.
E.L.B.] SHIV DAYAL V. TEG RAM 347
Amhala North Sikh Bural Constituency, 1937 (Sen and Poddar 10),Batala Sikh Bural Constituency, 1946 (Sen and Poddar 122), Anglo-Indian Constituency {Punjab), 1946 (Sen and Poddar 66), MathraDas v. Dara Singh (4 E.L.R. 441), Surat Singh v. Jang Bahadur Singhand Others (4 E.L.B. 306), Baipur North (2 Jagat Narain 146), PunjabNorth East Towns (2 Jagat Narain 143), Shahabad case (1 Jagat Narain 85),and Golaghat case (Sen and Poddar 10) referred to.
Non-compliance with the instructions contained in the footnote (6)to the Eorm of nomination paper given in Schedule II does not amount tonon-compliance with a mandatory provision of law-
A petitioner who asks for withdrawal of his election petition is notbound to show sufficient reasons for withdrawal. It is for those who objectto the withdrawal, if any, to prove why the petitioner should not beallowed to withdraw his petition.
North Durham Case (3 O'M. & H. 2) referred to.
ELECTION PETITION NO. 157 OF 1952.
ORDER.
PARMA NAN'D SACHDEVA.—The election of Shri TegRam, respondent No. 1 (generally mentioned as MasterTeg Ram in these proceedings), to the Khuyan Sarwarconstituency of the Punjab Assembly, was originallychallenged by Shri Shiv Dayal, an elector of the said c6n-stituency, by means of a petition on various grounds setout in the said petition.
On the 31st October, 1952, Shri Shiv Dayal, however,presented an application under section 109, clause (i), ofthe Representation of the People Act, 1951, for leave towithdraw the said election petition before the completionof the service on the respondents in the case and the filingof written statements. Permission to withdraw the peti-tion was granted to Shri Shiv Dayal by order of the tribu-nal, dated the 23rd of January, 1953 (Annexure 'A'). ShriSuraj Mai and Shri Sawarn Parkash, originally respon-dents Nos. 5 and 14, applied under section 110(3)(c) of theAct for being substituted as petitioners in place of thewithdrawing petitioner and as their applications werewithin time and they had deposited the requisite securityof Rs. 1,000 each, orders were passed by the tribunal onthe 6th March, 1953, for substituting them as petitionersin place of Shri Shiv Dayal (Annexure 'B').
The contesting respondent Shri Teg Ram filed a de-tailed written statement vehemently controverting the
348 SHIV DAYAL V. TEG RAM [VOL. VI
various allegations in the petition and in the list of parti-culars. These will be dealt with below at their properplaces.
On the 17th March, 1953, petitioners made a state-ment before the Tribunal that they do not press the allega-tions contained in paragraphs 7, and 10 to 14, and as re-gards paragraph 6, they only press the allegation that thelambardars acted as polling agents for respondent No. 1.They thus gave up all other allegations contained in thepetition and in the list of particulars. Similarly, respon-dent's counsel did not press the objections raised in para-graphs 15 and 16 of the written statement.
With regard to the allegation in paragraph 6 of thepetition, that lambardars acted as polling agents for res-pondent No. 1, no particulars were given at all and thisbeing major corrupt practice, full particulars with regardto this under section 83 of the Representation of thePeople Act ought to have been given, i.e., the names of thelambardars alleged to have acted as polling agents andthe places and dates on which they acted ought to havebeen given. This having not been done, the tribunal passedorder on 17th March, 1953, striking off these allegationsfrom the petition for want of particulars and allegationsin paragraphs 7, and 10 to 14, in view of the statement ofthe petitioner: vide (Annexure 'C') which will be read aspart of this order.
The case, having thus been narrowed down as a resultof the statements of the parties and the orders of thetribunal, the following issues were framed:
1. Were the nomination papers of respondent No.14 improperly and illegally rejected by the ReturningOfficer? If so, was the result of the election not materiallyaffected thereby?
2. Did respondent No. 1 use vehicles for bring-ing voters to the polling booths as detailed in List 'C relat-ing to paragraph 8? If so, what is its effect?
3. Did Shri Hanuman with the connivance of res-pondent No. 1, abet the impersonation of the persons asdetailed in paragraph 9 of the petition? If so, what is itseffect?
The parties have produced both oral and documentary
E.L.B.j SHIV DAYAL V. TEG RAM 349
evidence in support of their contentions and have arguedthe case at length before us. I would now take up theissues seriatim.
Issue No. 1.—Shri Bachitar Singh, originally respon-dent No. 11, stated before us that he raised an objectionagainst the nomination paper of Shri Sawarn Parkash,originally respondent No. 14, and now petitioner No. 2, onthe ground that he had omitted to specify the Zail incolumn No. 8 of the nomination form against his electoralnumber and that this objection prevailed. He, however,stated that he had not raised any objection with regard tothe identity of the proposer and the seconder of the saidcandidate. Shri Sawarn Parkash, petitioner No. 2, hasmade a statement as P.W. 12 before us that he had filedtwo nomination papers, Exs. P.W. 12/A and P.W. 12/B. Headmits that, objection was taken to his nominationpapers on the ground that he had omitted to mention thename of the Zail against his electoral number, the electo-ral number of his proposer and the electoral number of hisseconder in columns Nos. 8, 10 and 14 respectively, of thenomination form. He, however, states that he informedthe Returning Officer that his name and that of his pro-poser and seconder were duly entered at the numbersgiven in the form in the Sarawan Zail of the said con-stituency, and produced before the Returning Officer theelectoral list to substantiate his contentions. He admitsthat in spite of it the Returning Officer rejected his nomi-nation papers saying that this was a technical defectwhich could not be cured. Shri Teg Ram, respondent No. 1,has, however, in his statement as R.W. 10, contradictedthe statement of Shri Sawarn Parkash, to the effect thatShri Sawarn Parkash did not show to the Returning Offi-cer any electoral roll at the time of the scrutiny and thathe did not see even the electoral roll with the ReturningOfficer at the time. Both the parties had cited Shri M. D.Ahuja, the then Returning Officer but subsequently gavehim up and I do not think the personal appearance of thiswitness before the tribunal would have in any manneradvanced the case of any party. Therefore, the tribunalalso did not think it necessary to examine him as a courtwitness. It is impossible to believe that the Returning
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350 SHIV DAYAL V. TEG BAM [VOL. VI
Officer had not the copy of the electoral roll with him atthe time of the scrutiny, and it is equally impossible tobelieve that Shri Sawarn Parkash, when confronted withthat objection on the date of scrutiny, would not be ableto point out the name of the Zail in which his name, hisproposer and his seconder were entered as electors on num-bers specified in the nomination form.
Shri Sawarn Parkash had filed two nomination paperswhich are marked as Nos. 40 and 41, Exs. P.W. 12/A andP.W. 12/B, respectively. The nomination paper No. 41Ex. P.W. 12/B, appears to have been rightly rejected onthe ground that the same proposer and seconder who hadsigned as proposer and seconder the Form No. 40 Ex. P.W.12/A, could not legally sign in the same capacity on thesecond nomination paper. The nomination paper Ex.P.W. 12/A was rejected by the Returning .Officer by hisorder dated the 9th November, 1951, which reads as below:
"Objection has been taken to the nomination formof the candidate Sawarn Parkash. In columns 8, 10 and14 contrary to the specific instructions as mentioned inNo. 6 in the foot-notes of the nomination form itself, onlya number has been given without specifying either theconstituency or any part of the electoral roll of the con-stituency concerned. I have heard the objection at lengthand have also heard Shri Sawarn Parkash, the candidate.The provisions of section 33(1) of Act XLIII of 1951,where it is laid down clearly that the nomination formshall be completed in the form prescribed, and of rule2(1) (d) of the Representation of the People (Conduct ofElections and Election Petitions) Rules, 1951, re-empha-size the position as clearly stated in the foot-note 6 of thenomination form. I am also unable to construe the omis-sion as a clerical error as contemplated in section 33(5) (a)and (b). I hold the objection as valid and reject thenomination form Serial No. 40 of Sawarn Parkash, KhuyanSarwar constituency".The above order clearly shows that the Returning Officerdid not agree to refer to the electoral roll of the constitu-ency at all, and he appears to have taken up this attitudeon the ground that the nomination form had not beenfilled up in strict compliance with foot-note '6' and rule2(1) (d) of the Representation of the People (Conduct of
E.L.R.] SHIV DAYAL V. TEG RAM 351
Elections and Election Petitions) Rules, 1951. There was,however, no dispute with regard to the identity of thecandidate, his proposer and seconder. Shri Bhim Singh,Sub-divisional Officer, Fazilka, who took over from Mr.Ahuja as a Returning Officer of the said constituency from30th November, 1951, has stated before us as R.W. 1 thatthis constituency is divided into 8 Zails having sepa-rate electoral lists with separate serial numbers and thesewere produced in court. A summary examination of theselists would show that the serial numbers of the electoralrolls for six Zails do not go beyond 6,666. The serial numberof the candidate, as given in column No. 8, that of his pro-poser in column No. 10 and that of his seconder in columnNo. 14, is 7,660, 7,658 and 7,837 respectively. Thesenumbers could possibly occur only in the electoral rolls ofthe remaining two Zails, and a cursory glance on these twowould clearly show that the serial number of the candi-date, his proposer and his seconder could easily be tracedin Zail Sarawan only as pointed out by Shri Sawarn Par-kash at the time of the scrutiny when he was confrontedwith the objection. No effort whatsoever appears to havebeen made by the Returning Officer to trace these numbersfrom any list whatsoever at the time. According to the rulesit was incumbent upon him to make an enquiry on thespot with regard to this objection and, however summarythat enquiry may be according to the exigencies of time,the enquiry has to be made and in this case it was only areference to the relevant portion of the electoral rollwhich was only needed. As explained above, it wouldhave hardly taken the Returning Officer a minute or soto locate the numbers in the Sarawan Zail when peti-tioner No. 2 had brought it to his notice that all thesenumbers occur in that Zail only.
With a view to fully understand the necessity and thesignificance of the enquiry to be made by the ReturningOfficer it is better to reproduce the contents of the certi-ficate of scrutiny as given on the nomination form whichthe Returning Officer would have to fill up in case hefound the nomination form to be in order. This runs asfollows:
"Certificate of scrutiny.I have scrutinised the eligibility of the candidate,
352 SHIV DAYAL V. TEG RAM [VOL. VI
the proposer and the seconder and find that they are res-pectively qualified to stand for election, to propose and tosecond the nomination".
The very words of this certificate clearly show thatthe Returning Officer has to make a scrutiny irrespectiveof the fact whether any objection is raised to the nomina-tion form of a candidate or not, and that scrutiny presup-poses an enquiry which may only constitute a reference tothe electoral list with a view to find out that the names ofthe candidate, his proposer and seconder do really occurat the numbers given by them respectively. It does notstand to reason that the Returning Officer may not havethe electoral roll with him at the time of scrutiny as issuggested by Shri Teg Ram, respondent No. 1, in his state-ment as R.W. 10. Even if that was the case, there is noreason to disbelieve the statement of Shri Sawarn Parkashthat he had the electoral list with him and pointed out tothe Returning Officer that his name, that of his proposerand of his seconder, were duly entered at the numbersgiven in the form in Sarawan Zail. It would thus appearthat the Returning Officer refused to look to the electoralroll, whether in his possession or when shown to him byShri Sawarn Parkash, and refused to verify the allegationsof Shri Sawarn Parkash. He seemed to have acted on theplea that the nomination form was not complete in all itsdetails and that was a fatal defect and, therefore, he re-jected the same. It would have been much better if peti-tioner No. 2 had indicated the name of the Zail againstthe electoral number given by him in columns 8, 10 and14 of the nomination form, but it is to be seen whetherthis omission is fatal and the nomination paper must berejected on that ground. On this point both the partieshave cited a number of cases decided by the previousElection Tribunals and I have carefully examined all theseand I find that there has been a trend of decisions infavour of the proposition that failure to mention the nameof the Zail or the sub-division of the electoral roll in whichthe name of the candidate, his proposer and seconder isentered, is not a fatal one to justify the rejection of nomi-nation paper. It is no doubt obligatory to comply strictlywith the provisions of the statute which are mandatorybut equally strict compliance with the provisions of the
E.L.R.] SHIV DAYAL V. TEG RAM 353
rules as those now present before us, is not insisted uponas these are directory and a substantial compliance withthese rules would be quite sufficient.
Prior to the promulgation of the present legislation,i.e., Representation of the People Act, nomination paperswere sometimes rejected on technical grounds of unsub-stantial character and there was no provision in the lawto avoid these. As a result of past experience it has beenmade clear by the Legislature that this resulted in hard-ship and with a view to avoid the recurrence of these,special statutory provision has been made in sub-section(4)of section 36 to the effect that "the Returning Officershall not reject any nomination paper on the ground ofany defect which is not of a substantial character".
In view of the above provision, cases of the kind haveto be examined with due care and caution and the Return-ing Officer would have been well advised to exercise thatdue care and caution to avoid the improper rejection ofnomination papers, in this case.
With a view to appraise fully the point at issue whe-ther the omission in this case was a technical one of an un-substantial character not sufficient to justify the rejectionof nomination paper, it will be proper to examine thelegal aspect of the whole case. The Returning Officer ap-pears to have rejected the nomination paper under theprovisions of section 33(1) of the Act, rule 2(1) (d) of theRepresentation of the People (Conduct of Elections andElection Petitions) Rules, 1951, and foot-note 6 of thenomination form. Section 33(1) lays down that
"On or before the date appointed under clause (a) ofsection 30 each candidate shall, either in person or by hisproposer or seconder, between the hours of eleveno'clock in the forenoon and three o'clock in the afternoondeliver to the Returning Officer at the place specified inthis behalf in the notice issued under section 31 a nomi-nation paper completed in the prescribed form and subs-cribed by the candidate himself as assenting to the nomi-nation and by two persons referred to in sub-section (2)as proposer and seconder".
Rule 2(1) (d) lays down as follows:—" 'Serial number of an elector in an electoral roll'
354 SHIV DAYAL V. TEG RAM [VOL. VI
includes such particulars regarding the name or descrip-tion of the electoral area in reference to which the saidelectoral roll has been prepared as will identify the entryrelating to such elector in that electoral roll".
The nomination form prescribed for the purpose isgiven in Schedule II, and foot-note 6 lays down:—
"Where the electoral roll is sub-divided into parts andseparate serial numbers are assigned to the electors en-tered in each part, a description of the part in which thename of the person concerned is entered must also be givenin items Nos. 8, 10 and 14".
The above analysis of the statutory provisions con-tained in section 33(1), rule 2(1)(d), the contents of theform and the foot-note '6' would show that the columnsin the nomination paper are to be filled up in the light offoot-note '6' and in accordance with the provision con-tained in rule 2(1) (d) and a form, completed on the abovelines, is to be delivered to the Returning Officer undersection 33(1). Applying these tests to the form in ques-tion, the only defect is that against the numbers mention-ed in columns 8, 10 and 14, the name of "Sarawan Zail"has not been given. This is at the most an omission andnot a defect or a mistake. The Returning Officer, as statedabove, was legally bound to make a scrutiny and this scru-tiny could only be made by a reference to the electoralroll of the constituency. For deciding objections to thenomination forms, the Returning Officer was bound tomake an enquiry, however summary it may be, and theonly enquiry in a case of the kind was reference to the rele-vant Zail of the electoral roll which is bound to be in pos-session of the Returning Officer at the time and in case itwas not there, the Returning Officer was bound to look atit when petitioner No. 2 produced it in court according tohis statement which has to be taken at its face value.Under these circumstances it cannot be said that thenomination form was defective to such an extent that itwas invalid. At the most the omission in the form is onlya non-compliance with the directions given in the foot-note, which cannot have the same force as a non-compli-ance with the statutory provisions of the law.
The attention of the Tribunal was drawn to various
E.L.R.] SHIV DAYAL V. TEG RAM 355
rulings bearing on the subject during the course of the argu-ments and some of these, relevant to the present issue, maybe cited with advantage as under.
(1) In Ambala North (Sikh) Rural Constituency,1937(:) it was held that "omission to specify in the nomi-nation paper the description of the sub-division of theconstituency in which the name of the proposer is entered,is trivial, and the rejection of nomination paper on thatground is improper."
(2) In Batala Sikh Rural Constituency, 1946(2) itwas laid down that "omission to describe the sub-divisionof the electoral roll in which the candidate's name is en-tered" is not fatal to the nomination, and the rejection ofnomination on this ground is improper. It was also laiddown that the "provisions as to the filling in of nominationforms, are merely directory and substantial complianceonly is required". After discussing various cases in favourof and against the above propositions, the learned Com-missioners laid down in the abovenoted case (sic.) that the"provisions relating to the filling up of nomination papersare not mandatory and slight omissions are not fatal. Theobject of naming the sub-division is to enable the Return-ing Officer or any elector to refer to the electoral rollin order that the identity and eligibility of the candidatemay be established". Further on it was remarked that"the details to be filled in the nomination paper are inten-ded to ensure either the identity or eligibility of thecandidate, the proposer and the seconder. Mention ofthe sub-division of the electoral roll does not throw anylight on the eligibility of the candidate or his proposer orseconder The omission of the sub-division, therefore,does not go to the root of the validity of the nominationpaper If the provision with regard to the mention ofthe sub-division had been of such a stringent character, itwould not have been relegated to a foot-note and theword "sub-division" would have been more clearlydefined".
(3) Similarly in Anglo-Indian Constituency (Punjab),1946(3) it was held that "omission to describe sub-divisionin which names of the candidate, his proposer and
(1) Sen & Poddar 10. (2i Sen & Poddar 122. (3) Sen & Poddar 66.
356 SHIV DAYAL V. TEG RAM [VOL. VI
seconder are entered, or the omission to state the denomi-nation in the nomination form, is not a breach of anymandatory provision of law and cannot invalidate anomination paper". It was also held that "The Return-ing Officer has power to make summary enquiry for decid-ing objections as to nomination. While scrutinisingnominations, he performs a judicial function and shouldact judicially. He should not mechanically reject nomi-nation and if any obscurity in nomination can be clearedup by summary enquiry he should do so".
(4) In Mathra Das v. Dara Singh^) it was laid downthat "the petitioner attempted all right to mention theelectoral area but misdescribed it as Halqa Patwar Amloh,this misdescription consisting in writing 'Halqa Patwar'for the word, "village" or "town" as the electoral area ofAmloh, will properly be designated. This misdescriptionmay seem to have been only accidental due to the circum-stance that at the top of each page of the electoral rollof Amloh the name of the Halqa is also printed. If nomanner of description of the electoral area had been at-tempted to be given, it might have been possible to saythat an elaborate search through the electoral roll of theconstituency of Amloh-Payal would be necessary in orderto find out where the candidate's number is actuallyentered....Note 6 in the form of nomination paper in pro-viding that "a description of the part of the electoral roll,in which the name of the person concerned must be given"is, in our view, only directory. If it were intended to bemandatory the words "shall be given" would have beenused. Being merely directory, a failure to comply with itstrictly should not render the nomination paper invalid.Substantial compliance of a directory provision is suffi-cient and as we have shown there has been a substantialcompliance with the rule in this case".
(5) Suraj Narain v. Ram Naih and Others^"): In thiscase the electoral number of the seconder had been givenas No. 729 instead of 728 as a result of the mistake inprinting and the nomination paper had been rejected onthat ground. The learned Commissioners remarked at page310: "It is thus clear that the Returning Officer shouldhave satisfied himself by looking into the electoral roll of
(1) 4 E.L.B. 441. (2) 3 E.L.R. 305.
B.L.R.] SHIV DAYAL V. TEG RAM 357
Deoria South constituency which was before him and heshould have satisfied himself by making inquiries fromrespondent No. 9 as to how No. 729 had been enteredinstead of No. 728 regarding Ram Narain seconder, and ifthis had been done the mistake in printing would havebeen brought to his notice in no time".
(6) In Surat Singh v. Jang Bahadur Singh and Others^)the learned Commissioners were pleased to remark:
"It is undoubtedly of considerable assistance to theReturning Officer and everybody else interested in thematter, if not only the serial number of the proposeris mentioned but also the sub-division in the electoralroll in which that serial number occurs, but quite ob-viously, the sole purpose of this is to facilitate identifi-cation of the proposer so that no time is wasted in ascer-taining whether the proposer is a person qualified to actas such. Where, however, there is no doubt about eitherthe identity of the proposer or his capacity to act as aproposer, a mere omission of a small detail in his descrip-tion in the nomination paper ought not to affect thematter. Section 36, sub-section (4), of the Representationof the People Act, 1951, under which the rule relied uponby learned counsel is framed, very clearly says that"the Returning Officer shall not reject any nominationpaper on the ground of any technical defect which is notof a substantial character'. We have no doubt that thedefect pointed out in this connection was only technical.We say this because both the proposer and the seconder inthis particular case were undoubtedly entered in the listof voters. They were both competent to act in themanner they did and there was never any doubt aboutthe identity of either".
(7) Similarly in Indian Election Reports by BhagatSingh and Gurdev Singh, at page 67, it is laid down that"Where a petitioner did not give in the nomination paperthe description of the sub-division against his electoralroll, an objection was taken to the effect that this omissionwas fatal, it was held that the non-observance of the foot-note was not so vital and should be condoned and thatthis omission does not invalidate the nomination".
(1) 4 B.L.R. 306.EL -46
358 SHIV DAYAL V. TEG RAM [VOL. VI
(8) In Nanak Chand's Law of Elections, 1951, at page115 under heading '3' while discussing the law regardingthe omission of sub-division from the name of the consti-tuency and its effect on nomination, it has been stated thatthere is some conflict as to whether the omission of a sub-division's name is fatal to the nomination. That it is fatalwas held in Raipur North^), Punjab North East Towns i^),and Shahabad cases (3). The contrary view was taken inthe Palamau^), Tirhut(5), Aligarh(6), Midnapur South(7),Golaghat(s) and Ambala North Sikh cases (9). I t was sug-gested that the latter view is correct.
The learned counsel for the respondent has citedAmbala(10) and Bhandara cases(n), Ambala Division case1930(12), Gondia General Rural Constituency 1937(13), PunjabNorth East Towns case(2) and Palamau casei^), referred toabove, in addition to an English authority, Baldwin andOthers v. Ellis and Others (").
Most of the Indian cases referred to by the learnedcounsel for the respondent have been discussed and dis-tinguished in the cases referred to by the petitioner'scounsel and discussed above, and need not be discussed atlength. The consonance of authority from 1937 up to thepresent day appears to be on the side of condoning theomission of the name of the Zail in the nomination paperas a technical defect of unsubstantial character.
The English case referred to by the respondent,related to the election of a Local Government Rural Dis-trict Council and the omission of the name of theparish in the nomination papers for which the candidatewas qualified as Local Government elector. This has noapplication at all to the facts of the present case becausethe nomination papers of the concerned persons for elec-tion as Rural District Councillors merely stated in columnNo. 5 under the heading "how qualified" that the personsnominated were Local Government electors, and did notstate the name of the parish for which they were qualified
(1) 2 Jagat Narain 146. (8) 2 Jagat Narain 83.(2i 2 Jagat Narain 143. (9) Sen & Poddar 10.(3) 2 Jagat Narain 175. (10) i Kharma 22.(4 3 Jagat Narain 228. (11) 4 Khanna 55.(5) 2 Jagat Narain 180. (121 Hammond, 77.(6 2 Jagafc Narain 3. (13) Son & Poddar 326.(7; 2 Jagat Narain 113. (14) [1929] 1 K.B. 273.
E.L.R.] SHIV DAYAL V. TEG RAM 359
as Local Government electors as required by rule 4 of theRural District Councillors Election Order, 1898. TheDeputy Returning Officer rejected the nomination papersas being invalid because the parish within the poor lawunion for which qualification was claimed, was not stated.Upon an election petition it was held that the omissionto state in the nomination paper the name of the parishin which the person nominated was qualified as LocalGovernment elector was a non-compliance with therequirements of rule 4 of the Rural District CouncillorsElection Order, 1898. From a perusal of the judgment ofthe case, it would appear that the rules made under thislaw were given the same force as the statutory law. Themention of the parish was absolutely necessary in the caseunder discussion to establish the qualification of thecandidate against the column "how qualified". In the casebefore us, the candidate, his proposer and seconder derivedtheir rights of franchise from the entries in the electoralroll of the constituency and it was on the basis of thisentry that they were qualified to stand for the election,propose and second the nomination of the candidate. Theomission of the name of sub-division in columns Nos. 8, 10and 14 against their numbers in the electoral roll, couldnot possibly disqualify them from standing, proposing andseconding because they derived this right by being enteredin the electoral roll of the constituency which had beenmentioned in the nomination form. No useful purposewill be served by quoting at length the extracts from theEnglish law and I am clearly of the view that this casehas no application to the facts of the present case andcannot in any manner succeed to change my view. I amthus clearly of the opinion that the nomination paper ofShri Sawarn Parkash, petitioner No. 2, marked Ex. P.W.12/A, was improperly rejected by the Returning Officer.
I will now take up the second part of the issue, whe-ther this rejection has not materially affected the resultof the election. The burden of this part of the issue wasrightly placed on the respondent and besides producinghimself as his own witness and stating that he was an oldman and genuine worker of the Congress of long standing,which I have no reasons to doubt, he has not adducedany evidence to rebut the well established presumption
360 SHIV DAYAL V. TEG RAM [VOL. VI
laid down consistently since the promulgation of theelection law that the result of the election is presumed tohave been materially affected in the case of rejection of anomination paper. No doubt the respondent succeeded atthe polls by an overwhelming majority and but for oneother candidate, i.e., Shri Bachitar Singh, P.W. 1, whoescaped forfeiting his security by a narrow margin, allother contesting candidates forfeited their securities. Thismight show that the respondent, as a genuine and sincereCongress worker of long standing, might have a stronghold on the constituency but it cannot be in any mannersaid with accuracy as to what would have been the stateof affairs if petitioner No. 2 had been in the field and hisnomination paper had not been rejected. Petitioner No. 2has also stated with confidence as P.W. 10 that he hadresigned from a Gazetted Government service on 1stNovember, 1951, with a view to stand for election in thesaid constituency where he commanded a lot of influenceas one of the big allottees and a refugee, besides being adescendant of famous Bedi family which has many fol-lowers in the constituency. It is altogether difficult toforestall as to what would have been the exact position ifboth petitioner No. 2 and respondent No. 1 were in thefield of election along with their other rivals. Whetherpetitioner No. 2 would have succeeded or respondent No. 1had succeeded, I am not concerned with. Petitioner No. 2had not the chance to measure his strength in the field ofelection and the electorate had no chance to exercise itschoice in his favour at all. Be that as it may, the clear,consistent and strong presumption is well established byall decided cases on the point so far, that the result ofelection must be presumed to have been materially affectedin case the nomination of a candidate had been improperlyrejected. The burden was heavy on the respondent and hehas failed to discharge it. I am, therefore, clearly of theopinion that the result of the election in this case has beenmaterially affected by the rejection of the nominationpaper of petitioner No. 2. I would, therefore, find issueNo. 1 in favour of the petitioners.
Issues Nos. 2 and 3. [These issues were found againstthe petitioners.]
In view of the above, the petition is accepted and it is
E.L.R.] SHIV DAYAL V. TEG RAM 361
declared that the election of the returned candidate, viz.,Shri Teg Ram, respondent, is void on the ground that thenomination paper of petitioner No. 2 was improperly re-jected by the Returning Officer and this has materiallyaffected the result of the election.
As regards costs, I do not think there is any justifica-tion for awarding costs to the petitioners as the electionhas been avoided on account of the error of the Return-ing Officer due to no fault of respondent No. 1 who hadnot raised any objection to the nomination of petitionerNo. 2. Moreover the petitioners having themselves givenup most of the allegations of corrupt practices and havingfailed on issues Nos. 2 and 3, they are not equitably en-titled to any costs although their petition has been ac-cepted. Under these circumstances I would order thatthe parties shall bear their own costs in these proceedings.
HARBANS SINGH.—I concur in the order proposed.HANS RAJ KHANNA.—I concur in the order proposed.
Election declared void.
ORDER.
(January 23, 1953).In the last general elections Shri Teg Ram, respon-
dent No. 1, was declared elected from the Khuyan Sarwarconstituency to the Punjab Legislative Assembly. Thepetitioner Shri Shiv Dayal filed the present election peti-tion for seeking a declaration that the election of respon-dent No. 1 was void.
On the 31st of October, 1952, before even the respon-dent filed a written statement to the election petition, anapplication was put in under section 109(1) of the Repre-sentation of the People Act, 1951, by the petitioner seek-ing leave of the tribunal for withdrawal of the electionpetition. It was stated in the petition that the petitionerwas not in a position to prosecute the petition as some ofthe witnesses who were to be cited by the petitionerwere not prepared to support the petitioner and that someof them were not available. It was further stated by thepetitioner that the allegations in the petition aboutcorrupt practices and other allied matters were based onsome misunderstanding and that it was impossible for the
362 SHIV DAYAL V. TEG RAM [VOL. VI
petitioner to substantiate them even partly. It was alsostated that the withdrawal of the petition was not basedupon any bargain or other consideration.
An order was passed on that very day that the peti-tion should be published in the State Official Gazette andthat notice of the same should be given to all the res-pondents.
On the 13th of December, 1952, the date fixed, ShriSuraj Mall, respondent No. 5, appeared and put in a replyopposing the grant of the application for withdrawal ofthe petition. It was stated by Shri Suraj Mall, respon-dent, that the application for withdrawal was not volun-tary and bona fide. It was alleged that one Shri Bal Ram,a near relative of the petitioner, was being prosecutedunder section 302 of the Indian Penal Code, and in thatcase Shri Teg Ram had tried to influence the prosecutionwitnesses in favour of the accused. It was also stated thatone Shri Sukhram Dass, who was a right hand man ofShri Teg Ram, respondent, had filed a criminal case undersection 506/352 of the Indian Penal Code against ShriKhiali Ram and Shri Anant Ram, close relatives of thepetitioner, and that Shri Teg Ram, respondent, had usedhis influence in favour of the petitioner's relatives andhad got the complaint dismissed. It was also stated thatpressure had been brought to be put on the petitionerby the respondent through some influential persons andthat the respondent had held out an assurance to the peti-tioner that the respondent would not do any act in or out-side the Legislative Assembly which might be derogatoryto the interests of the landlords. It was, therefore, prayedthat the withdrawal application maybe rejected.
Subsequently, Shri Sawarn Parkash, respondent No.14, also appeared and opposed the application for with-drawal. It was stated on behalf of Shri Sawarn Parkashthat the withdrawal application had been procured underpressure, and also in consideration of Shri Teg Ram's hav-ing promised not to say anything against the landlords.
The statements of Shri Suraj Mall, respondent, ShriShiv Dayal, petitioner, and Shri Teg Ram, respondent,were recorded. No other evidence was adduced beforethe tribunal. Shri Suraj Mall stated that he had no per-
E.L.B.] SHIV DAYAL V. TEG RAM 363
sonal knowledge with regard to the witnesses in the caseunder section 302 of the Indian Penal Code against therelative of the petitioner having been won over at the in-stance of respondent Sri Teg Ram. He added that he hadonly heard it from the relations of Shri Shiv Dayal. Withregard to the allegation about the case by Shri SukhramDass, it was stated by Shri Suraj Mall that though he hadnot been informed by anybody, he believed that that caseby Shri Suraj Mall had been withdrawn at the in-stance of Shri Teg Ram. With regard to pressurehaving been brought on the petitioner, it was stated byShri Suraj Mall that he had been told about it by the rela-tives of the petitioner. Shri Suraj Mall also added thathe would like to be substituted as a petitioner in case thewithdrawal is allowed and nobody else comes forward witha prayer to be substituted.
Shri Shiv Dayal, petitioner, in his statement statedthat he was withdrawing the petition for two reasons:Firstly, that there was some sort of misunderstanding thatelectors were entertained with liquor by respondent No. 1.Further investigation had shown that this was not so.Secondly, the petitioner and Shri Abnash Chander haddecided to file two petitions challenging the election ofKhuyan Sarwar constituency, i.e., the present election peti-tion and that of Abohar constituency in case Shri AbnashChander v. Shri Chandi Ram. Shri Abnash Chander hadwithdrawn his application with the permission of thetribunal and Shri Shiv Dayal added that he did not wantto remain alone in the field and fight the election all by him-self. The petitioner further stated that he did not want toproceed with the election petition under any circumstances.The petitioner denied that the withdrawal had been actu-ated by any bargain or other consideration moving fromthe respondent. With regard to the deputation alleged tohave been taken to the petitioner, Shri Shiv Dayal statedthat the deputation did come but the talk was only in theform of a lecture by Swami Keshwa Nand that the Ian-lords and tenants should live amicably together.
Shri Teg Ram, respondent, in the course of his state-ment stated that he had no hand in prompting the with-drawal of the application and no consideration or bargainhad passed from him to the petitioner or had been settled
364 SHIV DAYAL V. TEG EAM [VOL. VI
between them. Shri Teg Ram stated that he was in chargein Ferozepore District of the Bhudan Yajna Movementstarted by Acharya Vinobha Bhave. Shri Teg Ram alsostated that he, Swami Keshwa Nand and Shri AchintRam visited the village of the petitioner in connectionwith the above movement and Swami Keshwa Nandadvised the landlords and tenants to have amicable rela-tions as, according to him, Bhudan Yag campaign couldonly succeed if the relations of landlords and tenants werecordial. The petitioner was in no way induced to with-draw the petition. Shri Teg Ram added that he hadnothing to do with the withdrawal of the complaint byShri Sukhram Dass.
It has been urged by Shri Suraj Mall, respondent,that the application for withdrawal has been actuated bya bargain or consideration which ought not to be allowed.The law on the subject of withdrawal of election petitionis laid down in sections 108 to 111 of the Representationof the People Act, 1951. The material section with whichwe are concerned at the present time is section 110 of theAct which runs as under.
"(1) If there are more petitioners than one, no appli-cation to withdraw an election petition shall be madeexcept with the consent of all the petitioners.
(2) No application for withdrawal shall be grantedif in the opinion of the Election Commission or of theTribunal, as the case may be, such application has beeninduced by any bargain or consideration which ought notto be allowed.
(3) If the application is granted—-(a) the petitioner shall, where the application
has been made to the tribunal, be ordered to pay the costsof the respondents theretofore incurred or such portionthereof as the Tribunal may think fit;
(b) notice of the withdrawal shall be published inthe Official Gazette by the Election Commission or by theTribunal, as the case may be ;
(c) a person who might himself have been a peti-tioner may, within fourteen days of such publication,apply to be substituted as petitioner in place of the partywithdrawing, and upon compliance with the conditions of
E.L.R.] SHIV DAYAL V. TEG BAM 365
section 117 as to security, shall be entitled to be so sub-stituted and to continue the proceedings upon such termsas the Tribunal may think fit".
According to sub-section (2) of the above section, noapplication for withdrawal should be granted if in theopinion of the tribunal the application has been inducedby any bargain or consideration which ought not to beallowed. The question arises whether the evidence on therecord shows that there has been any bargain betweenrespondent No. 1 and the petitioner or whether any consi-deration has flowed from respondent No. 1 to the petitionerwhich ought not to be allowed. In our opinion, theevidence on the record fails to show that there has beenany bargain between the petitioner and respondent No. 1.It is true that the explanation furnished by the petitionerfor his refusal to pursue the application is not very con-vincing and satisfactory, but in the absence of any directevidence, in our opinion, we shall not be justified in con-cluding that there has been any bargain or consideration.The statement of Shri Suraj Mall shows that he has nopersonal knowledge with regard to any bargaining or con-sideration.
There is another reason on account of which also, wethink the application for withdrawal should be granted.The law does not require that the petitioner in an appli-cation for withdrawal should adduce sufficient reasons be-fore the application for withdrawal can be accepted. Aperusal of sub-section (2) of the above section shows thatthe withdrawal application should be granted in due courseunless it is shown that the application has been inducedby any bargain or consideration which ought not to beallowed. The burden would thus shift upon those whooppose a withdrawal application to show that there hasbeen any bargain or consideration which ought not to beallowed. That burden, Shri Suraj Mall and Shri SwaranParkash, respondents, have failed to discharge.
The matter can also be looked at from another angleand it is whether the tribunal would be justified in proceed-ing with the petition when the petitioner himself is reluc-tant to proceed with the same. The present petitioninvolves questions of facts and law, and there might be
EL—17
366 SHIV DAYAL V. TEG RAM [VOL. VI
difficulty in calling witnesses and bringing evidenceon the record; for questions would also arise in that con-tingency as to who should bear the expenses of the wit-nesses.
This aspect was considered by Grove, J., in the NorthDurham Case^). It was observed by the learned Judgein that case as under :
"The withdrawal of a petition must be by leave ofthe judge, and if the judge saw that the withdrawal wasthe result of any compromise to prevent evidence frombeing brought forward, he ought not to allow a petitionto be withdrawn, but he ought, as far as he has power todo so, to insist upon the petition being proceeded with.But although the Act of Parliament to my mind ratherexpects that on the part of a judge, no doubt it is an ex-tremely difficult task, because, if the parties do not callwitnesses forward, a judge himself cannot become counselfor the petitioner and judge at the same time. He cannotforce a reluctant or antagonistic witness to answer ques-tions and at the same time keep the scales of justice even.Therefore, if the duty is thrown upon the judge of occupy-ing the position of counsel and judge at the same time, itis simply, according to the practice of the law of Englandan impossibility for him to perform that duty. I mentionthis because the task is an unusual one which the Actimposes on the judge, namely, of exercising a discretionas to the withdrawal of a petition. I think there mightpossibly be cases in which a judge would not allow a peti-tion to be withdrawn, and would, as far as he could, usehis power to prevent it. He might, for instance, exercisethe power which is given to him of recommending thecourt not to allow the deposit to be withdrawn withoutconsiderable explanation. The task no doubt would bean extremely difficult one, and the mode in which a judgeis to compel parties to go on with a petition which theyhave determined to withdraw remains to be discovered.I am not aware of how it can be made compulsory but atall events the judge has a power over the deposit in court,which may in some degree be indirectly used as a com-pulsion".
In the present case, as stated above, the respondents(1) 3 O'M. & H. 2.
E.L.R.] SHIV DAYAL V. TEG BAM 367
have not even filed their written statements. There is noevidence before the tribunal on which a finding can begiven with regard to any of the grounds set down in theelection petition. We have, therefore, no alternativebut to permit the withdrawal of the election petition.
It has been argued before us that one of the groundsstated in the petition, was that the nomination papers ofShri Sawarn Parkash, respondent, were improperly reject-ed and that not much evidence was required to determinethe points covered in the above allegation. We, however,feel that to refuse to permit the withdrawal of the appli-cation, would result in the tribunal remaining confined tothe ground of the alleged improper rejection of the nomi-nation papers of Shri Sawarn Parkash. Serious allega-tions of impersonation, bribery and treating by liquorhave been made in the petition. The effect of rejecting theapplication would be that there would be nobody to adduceevidence in support of these allegations as the petitionercan hardly be expected to lead evidence after the presentapplication, in view of his attitude and statement that hedoes not want to pursue the petition under any circum-stances. This would not be a desirable result as the objectof the election law is to ensure the purity of election; andany course, that obstructs the bringing before the tribunalof all material to show that there have been grave illegali-ties, should be avoided. In case, however, the withdraw-al application is granted, then under section 110, clause(3) (c) of the Act, Shri Suraj Mall, Shri Sawarn Parkash orany elector in the constituency can apply to be substi-tuted as a petitioner and pursue the application and prose-cute all the allegations made therein.
We, therefore, grant the application for withdrawal.As the petition has been withdrawn at an early stage, wedo not deem it desirable to impose heavy costs on thepetitioner. The petitioner shall pay the costs of respon-dent No. 1 which we assess at Rs. 100. Notice of thewithdrawal of this application shall be published in theState Official Gazette under section 110, clauses (b) and (c)of the Representation of the People Act, 1951.
Order (March 6, 1953).Shri Mast Ram, advocate, has produced the treasury
receipt for having deposited Rs. 1000 in the Imperial Bank
368 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
of India, Ferozepore, on 8th March, 1953, in compliancewith the order of this court, dated the 27th of February,1953. There are thus two persons, Ch. Suraj Mall andShri Sawarn Parkash, who have applied under clause (c) ofsub-section (3) of section 110 of the Representation of thePeople Act, 1951, within the prescribed time for beingsubstituted as petitioner. Both of them were respondentsin the original petition and were entitled to put in thepetition in the first place. Ch. Suraj Mall has no objec-tion in Shri Sawarn Parkash being joined with him as co-petitioner. No objection to these applications has beenraised on behalf of respondent No. 1. We, therefore, orderthat under the provisions noted above, Ch. Suraj Mall andShri Sawarn Parkash be substituted as petitioners in placeof Shri Shiv Dayal.
The respondent No. 1 was directed at the last hearingto file his written statement today. His counsel statesthat the same is not ready as he has not been able to con-tact his client. He should now file his written statementat Ferozepore on 11th March, 1953. He will also pay Rs.50 as costs of this adjournment.
[ELECTION TBIBUNAL, HISSAR,.]
AJAYAB SINGH AND ANOTHERv.
KARNAIL SINGH AND OTHERS.MAHAEAJ KISHORE (Chairman), T.C. SETHI and
G. S. GYANI (Members).May 16, 1953.
Nomination of candidates—Electoral roll number—Omission to statepart of roll—Whether fatal defect—Bepresentation of the People, Act, 1951,ss. 33(2)(d), (5), (6), 36(4)—Form of nomination—Foot-note(6).
Where a constituency was composed of two towns, Sirsa and Dabwali,each of which was divided, into wards, and in a nomination paper, againstcolumn 8 the candidate simply mentioned "1400 Ward No. 1" withoutadding Sirsa also, but it appeared that in Ward No. 1 of Dabwali therewere not more than 800 voters and there would have been no difficulty intracing out the entry against 1400, Ward No. 1 in Sirsa, but the Returning
E.L.R.] AJAYAB SINGH V. KARNAIL SINGH 369
OflScer rejected the nomination on the ground that the name of the part inwhich the candidate's name was entered was not given, though he wassatisfied about the eligibility of the candidate to stand for election.
Held, per MAHARAJ KISHOBB and T. 0. SETHI (G. S. GYANI,dissenting) that there was only a technical defect not of a substantialcharacter and the nomination paper was improperly rejected.
Surat Singh v. Jang Bahadur Singh and Others (4 B.L.E. 306),E. Few v. G.E. Gibbon (Sen & Poddar 66), Narotam Singh v. DesBaj andOthers (4 E.L.E. 309),P.N. Balasubramayan v. G. R. Narasimhan & Others(l E.L.E. 461), Bameshwar Prasad v. Krishna Gopaldas & Others(4 E.L.E. 112), Baddrudduja Syed v. Md. Khoda Buhsh and Others,(2 E.L.E. 189), Prem Nath v. Bam Kishan (l E.L.E. 271) and GhanderNathv. Kunwar Jaswant Singh & Others, (3 E.L.E. 147), referred to.
ELECTION PETITION NO. I l l OF 1952.
Ram Kishan, for the petitioners.Respondent No. 1, in person.
ORDER.
MAHARAJ KISHORE.—This is an election petition byShri Ajayab Singh and Shri Ram Lai, two registered voterson the electoral rolls of Dabwali constituency, HissarDistrict, against the election of Shri Karnail Singh, res-pondent No. 1, resident of village Haibuwana, TehsilSirsa,to the Punjab Legislative Assembly. The election to fillthis seat was held in January, 1952, and respondent No. 1,Shri Karnail Singh, was declared to have been duly elect-ed to fill this seat on 23rd February, 1952, by Shri G. S.Mann, Returning Officer.
2. The petitioners allege that the election of ShriKarnail Singh to fill this seat is wholly void because itsresult has been materially affected by the illegal and im-proper rejection of the nomination paper of Shri SherSingh, respondent No. 20, by Shri G. S. Mann, ReturningOfficer for this constituency, on 9th November, 1951,which was the date fixed for scrutiny of nominationpapers. They contend that the nomination paper of res-pondent Shri Sher Singh was complete and legal in allrespects and it bore the full description of respondentNo. 20 which was sufficient to identify him and to locatehim in the electoral rolls of the constituency and that thesaid respondent was in fact duly located by the Returning
370 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
Officer, that the absence of the name of the part of theelectoral roll in the particular column of electoral numberof the candidate did not make any difference in the cir-cumstances of the case, that the defect, if any, was of atechnical nature with no force or substance in it and thatthe Returning Officer had duly located the name of res-pondent Shri Sher Singh by the description given in thecolumn meant for the purpose and, therefore, there wasno justification to reject the nomination paper of ShriSher Singh.
3. Out of 20 respondents in all, only 2, i.e., KarnailSingh the successful candidate, and Shri Sher Singh whosenomination paper was rejected by the Returning Officer byan order passed on 9th November, 1951, and which is thesubject-matter of this petition, have appeared before thetribunal through counsel.
4. Shri Karnail Singh pleads that the nominationpaper of Shri Sher Singh was properly rejected by theReturning Officer suo motu and that its rejection had notmaterially affected the result of the election because evenif the nomination paper of respondent Shri Sher Singh hadbeen accepted, he being only a covering candidate for res-pondent No. 1, would have withdrawn in favour of res-pondent No. 1 and would not have contested the electionagainst him, that the order of rejection was quite valid inso far that the nomination paper of Shri Sher Singh wasnot properly filled in and the omission or defect which wasthe basis of rejection was not technical but, on the otherhand, it was of substantial character, that the ReturningOfficer was unable to locate the name of Shri Sher Singhrespondent from the electoral roll of this constituencyfrom the description given in the nomination papers andit was respondent Shri Sher Singh himself who pointedout his name to the Returning Officer after considerabledifficulty and after fumbling with a number of electoralrolls. It is further pleaded that the present petition byShri Ajayab Singh and Shri Ram Lai was devoid of anyforce in the absence of any challenge to the election byrespondent Shri Sher Singh or by any candidate who hadstood or withdrawn after nomination, that Shri SherSingh's conduct in this petition by supporting the pleasadvanced by respondent No, 1 was against the petitioners,
E.L.R.] AJAYAB SINGH V. KARNAIL SINGH 371
It is also pleaded that the nomination paper of Shri SherSingh was defective and invalid not only on the groundon which it had been rejected but on some other groundsas well, viz., that his father's name in column No. 3 of thenomination paper was mentioned as Tarlok Singh whilein the electoral roll it is Talok Singh and that in columnNo. 8 neither the name of the village nor of the town norof the police station nor tehsil nor the name of the con-stituency was given. Lastly, it is pleaded that the peti-tioners had not filed their petition in good faith and theyhave only been set up by Pandit Ram Dial, respondentNo. 2, the defeated candidate, and, therefore, their peti-tion was not bona fide and in their own interest.
Shri Sher Singh, respondent No. 20, has supported thepleas advanced by Shri Karnail Singh.
On the above pleading of the contesting parties thefollowing issues were struck:—
1. Whether the nomination paper of Shri Sher Singh,respondent No. 20, was invalidly and illegally rejected bythe Returning Officer and was the defect pointed out onlyof a technical nature and the respondent was located out-right by the Returning Officer notwithstanding this defectwhich was enough for him according to law and if so itseffect?
2. (a) What is the effect of Shri Sher Singh respon-dent's conduct in this petition in so far that he is sup-porting the pleas advanced by respondent No. 1 and is notcontesting the election of respondent No. 1?
(b) Whether Shri Sher Singh would have withdrawnfrom the contest in favour of respondent No. 1 and if so,rejection of his nomination paper did not affect the resultof the election in any way?
3. Whether the nomination paper of Shri Sher Singhwas defective and invalid on other grounds (detailed inparagraph 10 of the written statement) besides the one onwhich it was rejected and can those grounds be now takenup and if so, what is its effect?
4. Whether the petitioners have not filed their peti-tion in good faith and they have only been set up to byrespondent No. 2 and if so, its effect?
Issue No. 1.—This issue can be split up in three parts,
372 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
firstly, whether the nomination paper of Shri Sher Singhwas properly filled in; secondly, if not so, then was thedefect found out by the Returning Officer a technical oneand not of substantial character; and thirdly, how therejection of the nomination paper of Shri Sher Singhaffected the result of the election.
Shri Sher Singh, respondent No. 20, presented twonomination papers on 5th November, 1951, which was thelast date for filing nomination papers and these nomi-nation papers are Ex. D.W. 1/1 and Ex. D.W. 1/2. Boththese nomination papers were scrutinized by Shri G. S.Mann, Returning Officer, D.W. 1, on 9th November, 1951,which was the date fixed for scrutiny and the order passedby him on these nomination papers runs as follows:—
"(A) I have scrutinized the eligibility of the candi-date, the proposer and the seconder and find that they arerespectively qualified to stand for election, to propose andto second the nomination (A).
The name of the part in which the name of the candi-date is written is not given. Rejected". See Exs. D.W.1/3 and D.W. 1/4.
The portion marked A to A in this order is in printwhile the rest of the order is in type. According toold election law the provisions regarding the filing andpresentation of nomination papers and their scrutinywere pro tanto the same as contained in the Repre-sentation of the People Act, 1951, and although therewas no such provision in the old law and a proviso has beenadded now by section 36(4) of the Act, yet the consensusof opinion was in favour of the view that no nominationpaper should be rejected on the ground of any technicaldefect which was not of a substantial character and itappears that in view of this opinion expressed in electionpetitions decided under old law, the Legislature thoughtit fit to make a provision on this point and with that objectin view the following provision has been added as sec-tion 36(4):
"The Returning Officer shall not reject any nomi-nation paper on the ground of any technical defect whichis not of a substantial character".
We have, therefore, to see whether in the present case
E.L.B.] AJAYAB SINGH V. KAENAIL SINGH 373
the defect which was found in the two nomination papersof Shri Sher Singh was a technical defect and was not of asubstantial character. In column No. 8 of the nominationpaper which is meant for the Serial No. of the candidatein the electoral roll of the constituency in which his nameis included, Shri Sher Singh mentioned 1400 (Ward No. 1)but he did not mention Sirsa in this column. This is theonly defect or omission which was found at the time ofscrutiny and as far as I can see from the order, the orderof rejection was based on this defect alone. According tofoot-note 6 under the nomination papers there is a direc-tion given according to which where the electoral roll is sub-divided into parts and serial numbers are assigned to theelectors entered in each part, a description of the part inwhich the name of the person concerned is entered mustalso be given in columns 8, 10 and 14. We find that thisdirection was not complied with by Shri Sher Singh regard-ing the entry made in column No. 8. It is argued beforethe tribunal that this defect was fatal to the nominationpapers of Shri Sher Singh and that their rejection was in-evitable. In the rules framed under the Act of 1951,serial number of an elector in an electoral roll includessuch particulars regarding the name or description of theelectoral area in reference to which the said electoral rollhas been prepared as will identify the entry relating tosuch elector in that electoral roll. On the strength of thisdefinition of serial number it is urged that it was incumbenton Shri Sher Singh to note the electoral area in which theentry relating to his name existed. In this particular caseit is not denied that no candidate objected to the nomina-tion papers of Shri Sher Singh on any ground whatsoever,meaning thereby that the rejection of the papers of ShriSher Singh took place on an objection taken up by theReturning Officer suo motu. The evidence led on behalfof the petitioners is to the effect that there was no difficultyin locating the entry relating to Shri Sher Singh in theelectoral rolls and that the Returning Officer at oncelocated it, while on behalf of the respondent Shri KarnailSingh it is urged and sought to be proved that the Return-ing Officer was unable to locate the entry and that it wasafter considerable difficulty and fumbling with a number
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374 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
of electoral rolls that Shri Sher Singh pointed out the entryrelating to him to the Returning Officer. According tosection 33(5) of the Act when a nomination paper is pre-sented the Returning Officer has to satisfy himself that thenames and the electoral roll numbers of the candidate andhis proposer and seconder as entered in the nominationpaper are the same as those entered in the electoral rollsand the Returning Officer can at that time permit a clericalerror in the nomination paper in regard to the said namesor numbers to be corrected in order to bring them in con-formity with the corresponding entries in the electoralrolls and where necessary direct that any clerical or print-ing error in the said entries shall be overlooked. There isa further provision under section 33(6) that if at the timeof the presentation of the nomination paper the ReturningOfficer finds that the name of the candidate is not regis-tered in the electoral roll of the constituency for which heis Returning Officer he shall for the purposes of sub-section(5) require the person presenting the nomination paper toproduce either a copy of the electoral roll in which thename of the candidate is included or a certified copy ofthe relevant entries in such roll. When the scrutiny ofthe nomination papers takes place the Returning Officerhas to examine the nomination papers and decide allobjections which may be made to any nomination, andmay, on such objection or on his own motion, after suchsummary inquiry, if any, as he thinks necessary, reject oncertain grounds enumerated under section 36(2). It iscommon ground that the nomination papers of Shri SherSingh were rejected under section 36(2) (d), i.e., on theground that there had been a failure to comply with someprovisions of section 33. As already remarked above,according to the order of rejection, the Returning Officerhad found that Shri Sher Singh was qualified to stand forelection, because he had scrutinized the eligibility of thecandidate, which in other words would mean that he wassatisfied that the name of Shri Sher Singh was registeredas a voter on the electoral roll referred to by him, but thenomination papers were rejected simply on the ground thatthe name of the part in which the name of the candidatewas written was not given, which would clearly mean thatthe Returning Officer rejected the nomination papers in
E.L.B.] AJAYAB SINGH V. KABNAIL SINGH 375
question simply on a technical ground. It is commonground that in Dabwali constituency with which we areconcerned, only Sirsa town and Dabwali town were dividedinto Wards but in Dabwali town Ward No. 1 the number ofvoters did not go above 700 or 800, which would mean thatNo. 1400 could only be found in Ward No. 1, Sirsa, andconsequently there could not be any difficulty whatsoeverin tracing out the entry against No. 1400, Ward No. 1,Sirsa. Shri G. S. Mann, Returning Officer, states that atthe time of the scrutiny he tried to find out the name ofShri Sher Singh in the electoral roll from the descriptiongiven in the nomination papers but he could not find itout, that after some time had been spent in this mannerShri Sher Singh himself showed him the entry relating tohis name from the electoral roll. As is clear from the pro-visions of section 36(2) the Returning Officer had the powerto hold a summary inquiry if any doubt arose in his mind,as was the case here, because no other person raised anyobjection against the nomination papers of Shri Sher Singhand thus, in my opinion, summary inquiry was completedwhen Shri Sher Singh took out the entry relating to himand showed it to the Returning Officer, because there wasnothing left for the Returning Officer so far as the omissionin the entry in column No. 8 was concerned. It is notdenied that the nomination papers of the respective candi-dates were scrutinized one after the other which, wouldmean that the two nomination papers of Shri Sher Singhwere taken up one by one, and in any case the doubtcreated inM#ke mind of the Returning Officer must havebeen removed by the entry having been shown to himagainst No. 1400 when he took up the second nominationpaper of Shri Sher Singh. The Returning Officer in hisstatement takes up the position that he could not say ifhe passed the order of rejection of Shri Sher Singh's nomi-nation papers after or before Shri Sher Singh had pointedout his name from the electoral roll, but no other witnessproduced in the case has dared to say that Shri Sher Singhpointed out the entry relating to him after his nominationpapers had been rejected. In fact, it could not be so, be-cause after Shri Sher Singh's nomination papers had beenrejected there could be no occasion for him to show to theReturning Officer the entry relating to him, for by
376 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
then the Returning Officer must have taken up in handthe next nomination paper. The Returning Officer alsostates that even after Shri Sher Singh had pointed out hisparticulars noted in the electoral roll, he was not satisfiedwhether he had pointed out to him the entry relating tohim or to some other person of that name, but this is astrange position because Shri Sher Singh could only showthe entry against his number in the list and if any doubthad arisen in the mind of the Returning Officer he had toremove it by statutory inquiry, and to me, this does notappear to be the correct position because none of the can-didates or the agents of the candidates who appeared be-fore the Returning Officer ever objected to the identity ofShri Sher Singh. Moreover, this position of the Return-ing Officer appears to be rather contradictory because inthe order which he passed he says that he had scrutinizedthe eligibility of the candidate and he was satisfied thathe was qualified to stand for election and that could onlybe said if he had traced the entry relating to Shri SherSingh and had found its particulars to be correct. In factShri Sher Singh in his written statement, which in myopinion is admissible in evidence under sections 8 and 14of the Indian Evidence Act, only says that when theReturning Officer could not locate him in the electoral roll,he pointed out his name to him and he does not anywheresay that he took so much time as 15 to 20 minutes or thathe found out the name after fumbling with a number ofelectoral rolls. In my opinion, therefore, it is but clearthat the defect or the omission, whatever we may call it, inthe nomination papers of Shri Sher Singh was only a tech-nical one.
We have now to see whether this defect was of a sub-stantial character or not and my answer to it is in thenegative, i.e., the defect in question was not of a substan-tial character. A number of instances of previous casesdecided by different Election Tribunals under the old lawas well as under the new law have been cited before us butit cannot be denied that each case depends on its owncircumstances. A similar question arose in ElectionPetition No. 9 of 1952 decided by Election Tribunal, Delhi,Surat Singh Y.Jang Bahadur Singh and Others^), and it
(1) 4 E.L.B. 306.
E.L.B.] AJAYAB SINGH V. KABNAIL SINGH 377
was held in that case that the mentioning of the sub-divi-sion in the electoral roll in which the serial number occursis undoubtedly of considerable assistance to the ReturningOfficer and its sole purpose is to facilitate identification ofthe proposer so that no time is wasted in ascertainingwhether the proposer is a person qualified to act as suchwhen there is no doubt about the identity of the proposeror his capacity to act as proposer. A mere omission of asmall detail in his description in the nomination paperought not to affect the matter and with the descriptiongiven, it was held that the omission in question was only atechnical one and was not of a substantial character. Thecase before us stands on a stronger footing, because accord-ing to the order passed by the Returning Officer he wassatisfied with the eligibility of the candidate and that beingso, it could not be urged with any force that the entry re-lating to Shri Sher Singh was not traceable. It was arguedbefore us by the learned counsel of the respondent thatonly the typed part of the order of the Returning Officeris the effective part of the order but I do not agree withthis contention because if the printed part of the order,i.e., A to A, was not sought to be enforced, then the Re-turning Officer could very well have scored it out. On be-half of the respondent reliance has been placed on a deci-sion given, by the Election Tribunal, West Bengal, inBaddrudduja Syed v. Mohammad Khoda Bulcshi^) where thecandidate whose nomination paper was rejected had notmentioned the name of the Parliamentary Constituency inthe electoral roll, which meant that the nomination paperdid not show that the candidate was qualified to stand forthe constituency for which he filed his nomination papersand therefore that case stands on a quite different footing.We were also referred to the judgment of the ElectionTribunal, West Bengal, in Eameshwar Prasad Singh v.Krishna Oopal Das(*) in which it was held that the defect inthe description given in column No. 8 was of a substantialcharacter and was not of a trivial nature. I, however, findthat the facts of that case are quite distinguishable fromthe facts of the present case and the finding in that caseproceeded on the peculiar facts of that case. It was remark-ed in that very judgment that if the candidate or his
(1) 2E.L.R. 189. (2) 4 E.L.R. 112,
378 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
agent was present at the time of scrutiny and if any oneof them told the Returning Officer that the serial number ofthe candidate would be found in the electoral roll of certainvillage and that this village was mentioned in column No.5 as the address of the candidate, then the ReturningOfficer should have located in the electoral roll of thatvillage before passing his orders and that is exactly whathappened in this case. Shri Sher Singh was present beforethe Returning Officer and he at once pointed out the entryrelating to him to the Returning Officer; hence this WestBengal case has no application to the facts of the presentcase.
In E. Few v. G. E. OibbonQ), it was held that theReturning Officer has power to make a summary inquiryfor deciding objections as to nominations, that whilescrutinising nomination papers he performs a judicialfunction and should act judicially and that if anyobscurity in the nomination could be cleared up bysummary inquiry and he should do so. In the presentcase when the Returning Officer took up the objectionsuo motu Shri Sher Singh came forward and pointed outthe entry relating to him against No. 1400, whichamounted to a summary inquiry by the ReturningOfficer. Hence, after this had been done rejection of thenomination paper was clearly unjustified.
A number of other eases decided by different ElectionTribunals in the Province have also been cited before us.As already remarked, each case depends upon its peculiarcircumstances and therefore I think it unnecessary to citeall those cases. I am, therefore, of the opinion that thenomination paper of Shri Sher Singh was improperly re-jected because the defect which was found by the Return-ing Officer in Shri Sher Singh's nomination papers was onlya technical one and was not of a substantial character.
I now come to the effect of this improper rejection ofShri Sher Singh's nomination papers on the result of elec-tion of this constituency. It is not denied before me thatthe consensus of opinion has always been that if a nomi-nation paper is improperly and wrongly rejected, then itmaterially affects the result of the election, meaning therebythat a presumption arises in favour of the election having
U) Sen & Poadar 66,
E.L.R.] AJAYAB SINGH V. KARNAIL SINGH 379
been materially affected if the nomination paper of anycandidate is improperly rejected, but it cannot be deniedthat this presumption is rebuttable. I will, therefore,leave this third part of issue No. 1 with the remarksthat in view of the nomination papers of Shri Sher Singhhaving been wrongly rejected the result of election wasmaterially affected but this may be rebutted by certaincircumstances as urged in this case and which are thesubject-matter of issues Nos. 2 (a) and 2(b) and I will dis-cuss this point under these two issues.
Issues Nos. 2(a) and 2(b).—[The learned Chairmanconsidered the evidence and found these issues against therespondent].
Issue No. 3.—This issue has not been pressed at thetime of arguments.
Issue No. 4.—It is conceded before us that the peti-tioners who are duly enlisted as voters in this particularconstituency have got the right to file the petition andthe mere fact that it may go to benefit some one elsewould not matter and no further arguments were advancedto us on this issue.
In view of the above findings I am of the opinion thatthe nomination papers of Shri Sher Singh were improperlyrejected and this improper rejection had materially affect-ed the result of the election of Dabwali constituency andtherefore, the election of Shri Karnail Singh respondent, tothis seat is declared wholly void.
As regards costs, under ordinary circumstances Iwould have left the parties to bear their own costs but inview of the fact that Shri Karnail Singh respondent hadmanufactured lot of evidence to support his pleas I wouldaward Rs. 250 as costs to the petitioners.
T.C. SETHI.—I agree.
GURBAKHSH SINGH GYANI.—I had the advantage ofreading the order proposed by the learned Chairman. Theother Member, T.C. Sethi, has agreed with it. With alldue deference to the learned colleagues, I regret my inabi-lity to agree with the proposed order.
The most remarkable feature of this petition is, that
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this election has not been called in question by any of thecandidates, but by two electors of this constituency,who are so charitable as to take up cudgels on behalf ofrespondent No. 20 (Shri Sher Singh). They allege in para-graph 14 of the election petition that "Illegal and impro-per rejection of the nomination papers of respondent No.20 (Shri Sher Singh) has materially affected the result ofthe election in this constituency as the whole of the elec-torate in this constituency has been deprived of the exer-cise of its right to vote for respondent No. 20 and theelection is, therefore, liable to be declared as wholly void",whereas, Shri Sher Singh (now deceased) respondent No. 20not only contradicts, but categorically denies all the allega-tions in paragraph No. 14 of the statement filed by him be-fore the Chairman, Election Tribunal, on 6th September,1952. He added further in his statement that even if thenomination papers filed by him had been held to be validby the Returning Officer, he would have withdrawn fromthe contest by the date fixed for the withdrawal of thenomination in favour of respondent No. 1 (Shri KarnailSingh, the successful candidate). There is absolutely nobasis for the assertion made in paragraph 14 of the peti-tion that by the rejection of his nomination papers, theelectorate in this constituency had been deprived of theexercise of its right to vote for him and that on that scorethe election is liable to be declared void.
2. So everything in this case is to be judged in thelight of this important statement and other peculiar cir-cumstances which seem rather unparalleled in the historyof election petitions.
3. The tribunal framed the following four issues inthis case:—
[The issues are printed at p. 371, supra.]Issues Nos. 4 to 8.—The learned members found on
issue No. 4 that there was no force in the objection anddecided issue No. 4 in favour of the petitioners.
9. As regards issue No. 1.—The gravamen of thecharge is that the nomination papers of respondent No. 20(Shri Sher Singh) were invalidly and illegally rejected bythe Returning Officer. Both the parties have led evidenceon this point. The petitioners contend that the nomina-tion papers of respondent No. 20 (Shri Sher Singh) were
E.L.E.] AJAYAB SINGH V. KARNAIL SINGH 381
complete and legal in all respects. They bore full descrip-tion which was sufficient to identify and locate him in theelectoral roll of the constituency and the non-entry of thename of the part (sub-division) of the electoral roll incolumn No. 8 of the nomination papers of the respondentNo. 20 did not make any difference and this defect was ofa most technical nature and there is no force or substancein it. They further contend that at the time of the pre-sentation, the Returning Officer ought to have legally askedrespondent No. 20 to add the name of the part as well,if he considered necessary, adding that the provision beingdirectory only and its purpose being facilitation of loca-tion of the candidate by the other candidates and the Re-turning Officer. They further alleged that the respondentNo. 20 was located outright without any difficulty andthus his nomination papers were illegally and improperlyrejected. All the allegations were controverted by respon-dent No. 1 and evidence was led by both the parties. Allthis evidence can be termed as tainted, being of partisancharacter but the evidence of D.W. 1, Shri G. S. Mann,Returning Officer, in this case is of very great importance.He supports the stand taken up by respondent No. 1. Hestated that he scrutinized the two nomination papersfiled by Shri Sher Singh, respondent No. 20, on 9th Novem-ber, 1951, and rejected both of them (nomination papersare marked Exts. D.W. 1/1 and D.W. 1/2): vide orders Exts.D.W. 1/3 and D.W. 1/4 respectively. In column No. 8 ofthese 2 nomination papers the candidate has mentioned1400 (Ward No. 1), but had not specified the name of thetown or the number of the part of the electoral roll con-taining his name and it was on that account that herejected the nomination papers. At the time of the scrutiny,he tried to find out the name of Shri Sher Singh in theelectoral roll from the description given in the nominationpapers and he referred to some parts of the electoral roll,but he could not find it out. He further added that asfar as he remembered, after some time had been spent inthis manner, Shri Sher Singh himself took out his namefrom the electoral roll and showed it to him. He also de-posed that he had told Sher Singh that he could not findout his name from the electoral roll and then he became
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382 AJAYAB SINGH V. KA&NAIL SINGH [VOL. VI
busy in other work, and in the meanwhile Shri Sher Singhshowed him his name from the electoral roll. He alsostated that respondent No. 20 was called Sher SinghOdhanwala. In cross-examination he further revealedthat even after Sher Singh had pointed out his particularsnoted in the electoral roll he was not satisfied whether theentry he had pointed out to him related to Sher Singh,or to some other person of that name. However, he couldnot recollect if he passed the orders of rejection onSher Singh's nomination papers after or before Shri SherSingh had pointed out his name from the electoral roll.He did not remember whether the entry shown to him bySher Singh was against No. 1400 of Sirsa town or againstsome other number but that entry related to one SherSingh. The independent character of the witness couldnot be assailed and the only point urged by the peti-tioners' counsel was that he could not depose definitelyabout certain facts. This was but natural as the scrutinytook place on 9th November, 1951, and his evidence wasrecorded on 9th February, 1953, and it is humanly impossi-ble to remember the minute details after such a longperiod. I have no reason to doubt his statement made onoath before us. The only other person who is vitally inter-ested in this matter is Shri Sher Singh, respondent No. 20,who unfortunately died a day before his evidence was tobe recorded. In the circumstances his written statementwhich is admissible under sections 8 and 14 of the IndianEvidence Act, is the most important piece of evidence inthis respect. He fully supports the statement of Shri G.S. Mann, D,W. 1, the Returning Officer, in this case. Thepetitioner's counsel then took up the point of the certi-ficate of scrutiny on the nomination paper D.W. 1/1 ofrespondent No. 20, which read as below:
"I have scrutinised the eligibility of the candidate,the proposer and the seconder, and find that they arerespectively qualified to stand for election, to propose andto second the nomination" (printed portion on the pres-cribed form).
The typed order dated 9th November, 1951, below theabove-pointed lines reads, "the name of the part in whichthe name of the candidate is written is not given. Rejec-ted".
E.L.E.] AJAYAB SINGH V. KARNAIL SINGH 383
10. He advanced the arguments that there was nodoubt about the identity of the respondent No. 20 and ifit had not been established, the printed certificate men-tioned above would have been scored out by the Return-ing Officer. It is however, significant that no questionwas put in this respect to Shri G. S. Mann, D.W. 1, toclarify his position with regard to this point. It was con-tended from the other side that either the ReturningOfficer missed to score it out or the typist who typed theorder of rejection forgot to score it out. I think it wasan important point on which elucidation was necessaryand more particularly it was up to the counsel for thepetitioner to have got this position cleared at the timewhen the Returning Officer was in the witness box. Itappears the counsel did not raise this question, as hemust have thought the answer to be unfavourable. In thelight of the statement of the Returning Officer it is clearthat he could not locate the name of respondent No. 20Shri Sher Singh and his identity and eligibility were notestablished. Even, for the sake of argument, if it is grant-ed, that the eligibility and the identity of Shri Sher Singh,respondent No. 20, were not in dispute then another pointremains, that is, the validity of the nomination papers.Now validity of the nomination papers is quite differentand distinct from the question of identity or eligibility ofthe candidate. The two should not be confounded. Refer-ence is invited to Indian Election Law by Sarin and Pandit,at page 312, where it is stated "that a Returning Officeris empowered under the section to decide both the validityof the nomination paper and the identity and eligibilityof the candidate or his proposer or seconder. It is onething to say that the nomination form has not been pro-perly filled in and quite another that the candidate, hisproposer or the seconder is not identical with the personwhose electoral number is stated in the form. The ques-tion whether the person who actually appears before theReturning Officer and claims to be the candidate, or theproposer or the seconder is or is not identical with theperson whose description is given in the electoral rollagainst the number given in the nomination paper, isaltogether a different one, and ought not to be confoundedwith the question what is stated in the form",
384 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
Similarly Ram Chandra Annaji Khedgikar v. Shivbishal-singh Harpalsingh^), Narotam Singh v. Des Raj andOthers(2) and P. N. Balasubramanian v. G. R. Narasimhanand Others^) are quoted in support of this contention.
11. It is admitted that the nomination paper of ShriSher Singh, respondent No. 20, did not contain the nameof the part (sub-division) of the electoral roll. Thecounsel for the respondent No. 1 contends that thismaterial omission on the part of respondent No. 20 makeshis nomination papers invalid. He contends that the newlaw is more stringent and emphatic as regards the givingof the name or description of the electoral area (sub-division) in the columns in the nomination papers intendedfor that purpose than the old law. It was argued by thecounsel for the petitioner that foot-note (6) on thenomination paper only amounted to an instruction andwas simply of a directory nature and non-compliance withthat would not vitiate the nomination paper. If weexamine the foot-note (6) on the back of the nominationpaper which reads "where the electoral roll is sub-dividedinto parts and separate serial numbers are assigned tothe electors entered in each part, a description of the partin which the name of the person concerned is enteredmust also be given in items Nos. 8, 10 and 14", we findthe word used therein is 'must' which is of an imperativenature and mandatory, the non-compliance of which isfatal to the nomination paper. It may be stated that whileformerly this matter was governed by a foot-note, nowin addition to the warning contained therein it has beenincorporated in the definition of "serial number" in rule2 of the Representation of the People (Conduct of Electionsand Election Petitions) Rules, 1951. The words "serialnumber" has been substituted in the new law for the word'number' in the old law in order to lay more stress andemphasis on the series, viz., the electoral area or the sub-division in which the number is given.
12. Every nomination paper delivered under sub-section (1) of section 33 shall be completed in the pres-cribed form. The word 'complete' is not defined in theAct and we have to take the ordinary dictionary meaning.
(1) 1 Doabia 211. (2) 4 E.L.R. 309. (3) 1 E.L.R. 461,
E.L.R.] AJAYAB SINGH V. KARNAIL SINGH 385
In Chambers' Twentieth Century Dictionary the word'complete' is denned as "free from deficiency: perfect:finished: entire" thus it would be seen that the nomina-tion paper of respondent No. 20 lacked something andwas not complete in the sense required by the law. It wasargued by the counsel for the petitioner that this omissioncould have been got corrected at the time of the presen-tation of the nomination paper but a reference to section33(5) (a) of the Representation of the People Act wouldshow that the Returning Officer may permit any clericalerror in the nomination paper in regard to the said names ornumbers to be corrected in order to bring them into con-formity with the corresponding entry in the electoralrolls. It is significant that the Legislature has used theword 'may' and permission is only given for correction inthe case of clerical error, and the total omission of 'particu-lars' enjoined by law to be filled in would not fall underthe category of a clerical error. Again, it was argued thatthe rejection of the nomination papers of respondentNo. 20 was improper in view of sub-section (4) of section36 which reads that "The Returning Officer shall not rejectany nomination paper on the ground of any technicaldefect which is not of a substantial character". Law wascited by the petitioner's counsel to show that the omissionof the sub-division (electoral area) is a technical defectnot of a substantial character, but he was unable to advanceany authority or precedent which could apply on all foursto the peculiar circumstances of this case and thus thoserulings are distinguishable.- Similarly, counsel for therespondent contended that there is a large volume ofopinion in support of the contention that the omission ofthe sub-division (electoral area) is a material and sub-stantial defect on which basis a nomination paper can beproperly rejected by the Returning Officer. However, thefollowing decisions which have some bearing on this pointare quoted:
(i) Narainpur case—Rameshwar Prasad Singh v.Krishna Gopal Das and Others^). In this case the omissionof the name of the village where the name of the candi-date was registered as a voter was held to be fatal to thenomination paper although the name of the constituency
(1) £ E.L.R. 112.
386 AJAYAB SINGH V. KARNAIL SINGH [VOL. VI
as well as the name of the police station had been given.(ii) Murshadabad Constituency case—Baddrudduja
8yed v. MohammadKhoda Bukhsh and Others^). In this casethe name and description of the Parliamentary constitu-ency was not given. The omission was held to be fatal tothe nomination paper, in spite of the fact that there wasno doubt about the identity of the candidate who wasdescribed as a famous man in the political life of thecountry.
(iii) Bareta Budlada Constituency case—NarotamSingh v. Des Raj and Others^) where the omission of thename of the proposer in the column meant for the purpose,although his signatures appeared below it, was consideredto be fatal to the nomination paper.
(iv) Jullundur City North-West Constituency case—Prem Nath v. Bam Kishan(3) where it has been laid downthat
"The Legislature has chosen the Returning Officerto decide such matters as the validity of nominationpapers and no right of appeal has been granted to anaggrieved party to challenge such an order. The tribunalcan no doubt declare an election to be void if in its opinionthe acceptance or rejection of a nomination paper is im-proper. It seems to us that the tribunal would be entitledto interfere with the orders of the Returning Officer onlywhen a perversity or some violation of the principles ofnatural justice is to be discerned in the impugned order ofthe Returning Officer. In cases where a Returning Officermay give one of two possible decisions, it would not be afit case for interference of the tribunal".
13. In view of the above discussion, I am of the opi-nion that the nomination paper of Shri Sher Singh, res-pondent No. 20, was properly rejected by the ReturningOfficer and the defect pointed out was not of a technicalnature but of a substantial character and the ReturningOfficer could not locate respondent No. 20 outright asalleged by the petitioners.
14-28. The learned member discussed the evidence onissues 2(a) and 2(b) and held as follows: "All these factsleave no doubt that this election could not have been
(1) 2 E.L.R. 189. (2) i E.Ii.R. 309. (3) 1 E.L.R. 271 at p. 290.
E.L.B.] AJAYAB SINGH V. RAKNAIL SINGH 387
affected in any way, not to speak of 'materially affecting'even if the nomination papers of the respondent No. 20had been accepted. Hence I decide issue No. 2(a) and 2(b)against the petitioners".
29. The prayer of the petitioner is to the effect thatShri Sher Singh, respondent No. 20, may be declared to beduly nominated and that poll may be taken, but on ac-count of the death of Shri Sher Singh status quo cannot berestored and the prayer appears to have become infructu-ous.
30. In view of the special attendant circumstancesof this peculiar case I find that the initial presumption hasbeen amply rebutted and it has not materially affectedthe result of the election. In support of this view the fol-lowing two cases are cited which to some extent are identi-cal:—
(i) Jullundur City Constituency case—Prem Nath v.Ram Kishan and Other s^). The tribunal considered the merefact that the candidate Dr. Ram Rakha Mai whose nomi-nation paper has been rejected stated that he had nointerest in the matter, along with certain other matters tobe sufficient to rebut the presumption.
(ii) Bikaner Tehsil Constituency case—Chander Nathv. Kunwar Jaswant Singh and Others^). In this case it washeld that the fact that the rejected candidate and thesuccessful candidate were of the same party was, alongwith certain other matters, sufficient to rebut the presump-tion.
So far as issue No. 3 is concerned it was not pressedon the part of the respondent No. 1.
31. It would not be out of place to mention herethat there is no decision of any Election Tribunal avoidingan election where the rejected candidate was not the peti-tioner or he did not support a voter-petitioner by hiswritten statement and by his evidence. Similarly there isno decision of any Election Tribunal avoiding an electionwhere the candidate whose nomination paper was rejectedwas dead and therefore, the electorate could not exercisetheir right of vote in his favour.
32. Before concluding, I would like to repeat the(1) 1 B.L.R. 271. (2) 3 E.L.B. 147.
388 SATYA DEV BUSHEHBI V. GHAKSHIAM [VOL. VI
general exposition of law in the matter of setting asideelections as expressed in the weighty observations of BaronMartin in the Warrington case^). "I adhere" said BaronMartin "to what Willes, J., said at Lichfield(z) that a Judgeto upset an election, ought to be satisfied beyond all doubtthat the election was altogether void, and that the returnof a member is a serious matter and not to be lightly setaside".
My findings are, therefore, that the petition be dis-missed and the parties left to bear their own costs in viewof the peculiar circumstances of this case.
ORDER.—We, by majority of opinion, hold that thenomination papers of Shri Sher Singh were improperlyrejected and this improper rejection had materially affect-ed the result of the election of Dabwali constituency and,therefore, the election of S. Karnail Singh respondent, tothis seat is declared wholly void. We further order thatrespondent Sardar Karnail Singh should pay Rs. 250 ascosts to the petitioners.
Election declared void.
[HIMACHAL PRADESH JUDICIAL COMMISSIONER'S COURT.]
SATYA DEV BUSHEHRIv.
GHANSHIAM.CHOWDHRY, J. C.
May 21, 1953.Nomination paper—Forged nomination paper—Private complaint for
forgery and using forged document as genuine—Jurisdiction of magistrateto take cognizance—'Complaint from Election Tribunal, whether necessary—•Returning Officer and Election Tribunal, whether court"—CriminalProcedure Code, s- 195—Indian Penal Code, ss. 465, 471.
Proceedings before a Beturning Officer under section 36 of the Kepre-sentation of the People Act, 1951, are not judicial or even quasi-judicialproceedings and he is not therefore a 'court within the meaning of sec-tion 195 of the Criminal Procedure Code. The Election Tribunal is how-ever a "court" within that section.
Where a nomination paper which is alleged to be forged was produced(1) 10'M. &H. 42.(2) 10'M. &H. 22.
E.L.R.] SATYA DEV BUSHEHRI V. GHANSHIAM 389
by the petitioner before the Returning Officer and it was also producedsubsequently before the Election Tribunal at the instance of the rival candi-date in connection with a recriminatory petition, and a complaint wasfiled by the rival candidate before a Magistrate against the petitioner forthe offences of forgery under section 465, and using a forged document asgenuine under section 471, of the Indian Penal Code in respect of thatnomination paper, and it was contended that under section 195 of theCriminal Procedure Code the Magistrate had no power to- take cognisanceof the offences:
Held, that, though the Returning Officer was not a "court" withinthe meaning of section 195, Criminal Procedure Code, the Election Tribu-nal was a "court", and under section 195, the Magistrate had, therefore,no jurisdiction to take cognisance of the offences without a complaint inwriting by the Election Tribunal.
Held further, that, for the application of section 195, Criminal Proced-ure Code, it was not necessary that the nomination should have beenforged with the intention of using that document as evidence before theElection Tribunal, or that the proceedings before the Election Tribunalshould be pending when the complaint was made or that the documentshould have been produced by the accused himself before the Tribunal.
Gobindram v. Emperor (A.I.R. 1942 Sind 62), Emperor v. Bhawanidas(A.I.R. 1916 All. 299) and In re Baku Vyankatesh (A.I.R. 1925 Bom. 433)followed.
Emperor v. Kuckal Pal Singh (A.I.R. 1931 All. 443), Emperor v.Mallappa Tejappa (A.I.R. 1937 Bom. 14) and Janardhan Thakur v. BaldeoPrasad Singh (A.I.R. 1920 Pat. 147) not followed.
Municipal Corporation of Bangoon v. M. A. Shakur (A. I. R. 1926Rang. 25), Province of Bombay v. Khusaldas S. Advani (A.I.R. 1950 S. C.222), Pitman's Shorthand Academy v. B. Lila Bam and Sons (A.I.R.1950 E.P. 181), Emperor v. Bachappa (A.I.R. 1936 Bom. 221), Tenishahv. Bolahishah (14 C.W.N- 479), Kanahiya Lai v. Bhagwandas (A.I.R.1926 All. 30), Nalini Kanta v. Anulcul Chandra (A.I.R. 1918 Cal. 792),Khairati Bam v. Malawa Bam (A.I.R. 1925 Lah. 266), Tkadi Subbi v.Emperor (A.I.R. 1930 Mad. 869), Hayat Khan v. Emperor (A.I.R. 1932Sind 90) and Hariram Onkar v. Mt. Badha (A.I.R. 1943 Nag. 327)referred to.
CRIMINAL REVISION NO. 13 of 1953.
Bhagat Singh Chawala, for the petitioner.Panna Lai Bahl, for the respondent.A. G. Mehta, for the State.
JUDGMENT.
This is an application in revision against the order ofthe Magistrate, First class, Rasumpti, dated 11th March,
EL -50
390 SATYA DEV BITSHEHRI V. GHANSHIAM [VOL. VI
1953, taking cognizance of a complaint filed against thepetitioner by the respondent. The offences alleged againstthe petitioner are forgery under section 465, and using asgenuine a forged document under section 471, IndianPenal Code, in respect of a nomination paper filed by himbefore the Returning Officer on 12th October, 1951, undersection 33 of the Representation of the People Act, 1951.There was a quadrangular fight to fill a seat in the HimachalPradesh Legislative Assembly from the Rajgarh constitu-ency, the present petitioner Satya Dev Bushehri and res-pondent Ghanshiam being two of the contestants. Thenomination paper delivered by the petitioner to the Re-turning Officer on 12th October, 1951, mentioned oneSudarshanDas as the proposer. On 17th October, 1951, thedate fixed for the scrutiny of nominations, it was objectedthat the signature of Sudarshan Das on the nominationpaper had been forged. The Returning Officer rejected theobjection and accepted the nomination paper. The pollingtook place on 19th and 20th November, 1951, and on the30th of that month the Returning Officer declared therespondent Ghanshiam as the successful candidate. On 29thJanuary, 1952, the petitioner filed an election petition fora declaration that the election of the respondent Ghan-shiam was void and that he, the petitioner himself, hadbeen duly elected. The respondent filed a recriminatorypetition before the Election Tribunal on 30th May, 1952,under section 97 of the Act contending that, if the peti-tioner had been the returned candidate, his election wouldhave been void because he had committed the aforesaidforgery. Besides other issues, the Election Tribunal alsoframed an issue on this allegation of the respondent in hisrecriminatory petition. At the time of the arguments thecounsel for the petitioner withdrew his prayer that he him-self be declared as having been duly elected. The tribunaltherefore held that the recriminatory petition becameredundant and consequently the issues framed on the basisof that petition were not argued on behalf of the parties.Eventually the election petition was dismissed on 6thFebruary, 1953. The judgment of the Election Tribunal ispublished on pages 393 to 407 of Part II, Section 3, of theGazette of India Extraordinary, dated 14th February,1953(x). The following day, i.e., on 7th February, 1953, the
(1) Since reported as 4 B.L.R. 67.
E.L.B.] SATYA DEV BTTSHEHBI V. GHANSHIAM 391
respondent filed the aforesaid complaint in the said courtagainst the petitioner.
A preliminary objection was taken before the Magis-trate on behalf of the accused, the present petitioner, thatas the alleged forged document had been produced beforethe Returning Officer and subsequently before the ElectionTribunal, both of which were courts under the purview ofsection 195, Criminal Procedure Code, the Magistrate wasnot entitled to take cognizance of the offences otherwisethan on a complaint in writing of either of the said courts.The learned Magistrate repelled the contention and tookcognizance of the complaint on the findings that the Re-turning Officer was not a court and that, although theElection Tribunal was a court, it could not be said thatthe alleged forgery had been committed with the inten-tion of using the forged document as evidence before thattribunal. This last finding is on the face of it erroneousand was not supported by the learned counsel for the res-pondent. All that section 195(1) (c) requires is that theoffence in question should be alleged to have been com-mitted by a party to any proceeding in any court in res-pect of a document produced or given in evidence in suchproceeding, but not that the offence should have beencommitted by the party with the intention of its beingproduced in the said proceeding.
The learned counsel for the petitioner argued thatthe Returning Officer was a court under the provisions ofsection 195 of the Code. Under section 36 of the Represen-tation of the People Act, which provides for scrutiny ofnominations, it is open to the Returning Officer to refuseany nomination "after such summary inquiry, if any, ashe thinks necessary". In other words, it is open to himto refuse a nomination even without any inquiry. Thatbeing so, one of the essential attributes of a court, thatin arriving at its decision it must follow rules of proceduredefined by statute or recognised by law, is missing:Municipal Corporation of Rangoon v. M. A. 8hakur(l). Itwas laid down in Province of Bombay v. Khusaldas S.Advani(2) that a decision will be quasi-judicial if the lawunder which the authority is making a decision itselfrequires a judicial approach. That could not be predicated
(1) A.I.R. 1926 Rang. 25. (2) [1950] S.C.R. 621; A.I.R. 1950 S.C. 222.
392 SATYA DEV BUSHEHEI V. GHANSHIAM [VOL. VI
of the decision of a Returning Officer in scrutinizing nomi-nation papers under section 36 of the said Act because thelaw required no judicial approach but a decision evenwithout inquiry. The decision of a Returning Officer couldnot therefore be described even as quasi-judicial. I hold,agreeing with the Magistrate, that the Returning Officerwas not a court.
There could be no doubt however, that the ElectionTribunal is a court. Its members are not appointed aspersona designata, but the tribunal is appointed by theElection Commission for the trial of election petitionsunder section 86 of the said Act. Judicial duties are thusentrusted to the tribunal by operation of law and not byvoluntary submission of the parties. The dispute uponwhich it adjudicates is a dispute of a civil nature concern-ing, as it does, the right of a party to be elected to a certainLegislature. The tribunal also does not act merely as anadvisory body, as was the case under the Indian ElectionOffences and Inquiries Act (XXXIX of 1920), but gives adefinitive decision which is final under section 1Q5 of thepresent Act. Not only is it expected to conduct its proceed-ings with fairness and impartiality, but it must come toits decision according to the law laid down in the saidAct. Finally, the rules of procedure which the tribunalmust follow are not arbitrary but, as nearly as may be, inaccordance with the procedure applicable under the Codeof Civil Procedure, 1908, to the trial of suits, as providedby section 90 of the Act. Under this last mentioned sec-tion and section 92 the tribunal has power to summonand examine witnesses on oath and the provisions of theIndian Evidence Act, 1872, apply in all respects to thetrial of an election petition. An Election Tribunal there-fore possesses all the necessary attributes of a court, for,as laid down in Pitman's Shorthand Academy v. B. LilaEarn & Sons^1):
"A court of law may be defined as a tribunal dealingwith and adjudicating upon civil disputes by operation oflaw in a judicial manner untroubled by ulterior considera-tions or matters of executive policy and observing certaindefinite rules of procedure which are either defined bystatute or recognized by practice".
(I) A.I.R. 1950 E.P. 181,
E.L.R.] SATYA DEV BUSHEHEI V. GHANSHIAM 393
Indeed, it was conceded by the learned counsel forthe respondent that an Election Tribunal is a civil court.He contended however that the provisions of section 195(1) (c), Cr. P. C.j were not applicable, and he gave severalreasons in support of this contention.
The first point urged by the learned counsel for therespondent was that as the said sub-clause refers to adocument produced or given in evidence in the proceeding,it could not apply to a document like the nominationpaper in the present case, with which the proceedingsstarted, as do the proceedings of a civil suit by the filingof a plaint. Firstly, the proceedings before the ElectionTribunal did not start with the filing of the nominationpaper in question but with the filing of an election peti-tion under section 81 of the Representation of the PeopleAct, 1951. Even that portion of the proceedings before thetribunal in which the alleged forgery became relevantstarted, not with the filing of the nomination paper in ques-tion, but with the institution of a recriminatory petitionby the respondent under section 97 of the Act. Secondly,even if the proceedings in question had started with thefiling of the nomination paper, that would have amountedto production within the intendment of clause (c) of sub-section (1) of section 195 of the Code, for 'produced' doesnot mean produced in evidence: Gobindram v. Emperori(1)5.
The next argument put forward was that clause (c)applied only to cases where an offence is committed by aparty, as such, to a proceeding in any court in respect ofa document which has been produced or given in evidencein such proceedings. This argument was based on a FullBench decision of the Allahabad High Court reported asEmperor v. Kushal Pal Singh(2). This view has been dissent-ed from in Emperor v. Rachappa(3) wherein it was laiddown as follows:
"Under section 195(1) (c) the relevant date which hasto be considered by the court is the date the court is invit-ed to take cognizance of the complaint, and all that thecourt has to see is whether the offence in respect of whichit is asked to take cognizance is alleged to have been com-mitted by a party to any proceeding in any court and in
(1) A.I.R. 1942 Sind 62 (64). (2) A.I.B. 1931 All. 443.(3) A.IJR. 1936 Bom. 221.
394 SATYA DEV BTTSHEHRI V. GHANSHIAM [VOL. VI
respect of a document produced or given in evidence insuch proceeding. It is immaterial that the offence hasbeen committed by the party before the proceedings aretaken".
The above view of the Bombay High Court representsthe preponderance of authority in other High Courts also,including the Allahabad High Court: Tenishah v. Bolahi-shah^), Kanhaiya Lai v. Bhagwandas(2), Nalini Kanta v.Anukul Chandra^), Khairati Ram v. Malawa Ram^), Emper-or v. Bhawanidas(5), Thadi Subbi v. Emperor i^), HayatKhanv. Emperor^), Hariram Onkar v. Mt. Radha(s). Thecontention of the learned counsel for the respondent thatthe offence in question should have been committed by aparty, as such, to the proceeding has therefore no force.
It was next argued by him that for the application ofsection 195(1) (c) of the Code it is necessary that, at thetime that a Magistrate takes cognizance of a complaint, theproceedings in or in relation to which the offence is allegedto have been committed must be still pending. He based thisargument on a ruling of the Bombay High Court in Emper-or v. Mallappa Tejappa(9). There is no doubt that this is theview expressed in that ruling, which purported to follow theaforesaid earlier decision of that High Court in Emperor v.Rachappa(w). Now, there is nothing in section 195(1) (c) ofthe Code which could even remotely be said to support thisview. The earlier Bombay ruling was adjudicating upon thequestion whether it was necessary that the alleged offencemust have been committed by a person who was a party tothe proceedings in a court at the date of the commissionof the offence. And in repelling that contention, and inarriving at the view which has been cited above in exten-so, it followed the aforesaid ruling of the AllahabadHigh Court in Emperor v. Bhawanidas^). That ruling,it may be stated here incidentally, is the locus classicuson the subject and has been followed in most of the abovecited rulings laying down the view which I have respect-fully adopted. In that ruling, in repelling the argumentthat an offence could not with propriety be said to have
(11 14 C.W.N. 479. (2) A.I.R. 192C All. 30.(3) A.I.R. 1918 Cal. 792. (4) A.I.R. 1925 Lah. 2G6.(5) A.I.R. 1916 All. 299. (0) A.I.R. 1930 Mad. 869.(7) A.I.R. 1932 Sind 90. (8) A.I.R. 1943 Nag. 327.(9) A.I.R. 1937 Bom. 14. (10) A.I.R. 1936 Bom. 221.
E.L.R.] SATYA DEV BUSHEHRI V. GHANSHIAM 395
been committed by a party to a proceeding on a dateanterior to the institution of such proceeding, Piggott, J.,observed as follows:
"At any rate, I am decidedly of opinion that theLegislature employed the words 'an offence committed bya party to any proceeding' with reference not to the dateof the commission of the alleged offence, but with referenceto the date on which the cognizance of the criminal courtwas invited".And again:
"To my mind the provisions of the sub-section underconsideration require to be interpreted as applying to thecase of any person who, at the time when a criminalcourt is invited to take cognizance of the matter, canrightly be described as 'a party to any proceeding in anycourt' in which the document in question has been pro-duced or given in evidence, that is to say, who is or hasbeen a party to such proceeding".
It is manifest that emphasis was laid on the date onwhich the cognizance of the criminal court was invitedfor interpreting the words "an offence committed by aparty to any proceeding" in order to show that the offenceneed not have been committed in the course of the pro-ceeding. It is not therefore permissible to deduce as, if Imay respectfully say so, the learned Judges of the Bom-bay High Court purport to have done in the aforesaid twocases, that in referring to the date of the Magistrate tak-ing cognizance of the offence in question Piggott, J., pur-ported to lay down that the proceeding in or in relation towhich the offence is alleged to have been committed shouldstill be pending at the aforesaid date. I hold that it was notnecessary that the proceedings in the Election Tribunalshould have been still pending when the present complaintwas filed on 7th February, 1953. It was also contendedin this connection that as the tribunal had become func-tus officio after dismissing the election petition on 6thFebruary, 1953, it could not have filed a complaint undersection 195 of the Code. This argument also has no force.The particular election petition was no doubt disposed ofon 6th February, 1953, but the tribunal continued tofunction as it had other petitions to decide.
396 SATYA DEV BUSHEHRI V. GHANSHIAM [VOL. VI
Finally, it was contended that the record containingthe nomination paper in question was summoned beforethe Election Tribunal at the instance of the respondentin connection with his recriminatory petition, and thattherefore the party who is alleged to have committed theoffence, i.e., the petitioner, could not be said to have pro-duced the document before the tribunal. In other words,the contention of the learned counsel for the respondentwas that the document in respect of which the offence isalleged to have been committed by a party to a proceed-ing in any court should have been produced in that courtby that party. In support of his argument the learn-ed counsel cited Janardhan Thakur v. Baldeo PrasadSingh^). This ruling does support the view propoundedby the learned counsel, but I am unable, if I may say sorespectfully, to agree with that view. All that clause (c)requires is that the document in question should have beenproduced or given in evidence in the proceeding in ques-tion, it does not say who should have produced the docu-ment or given it in evidence. The Patna ruling relied uponby the learned counsel for the respondent based it decisionon three rulings which have already been cited, i.e., NaliniKanta v. Anukul Chandra^), Tenishah v. Bolahishah(z) andEmperor v. Bhawanidas^). In none of those rulings how-ever has it been laid down that the document in questionshould have been filed by the party against whom it is soughtto file a complaint under section 195 of the Code. Onthe other hand, it has been laid down in In re BhauVyankatesh(5), that in section 195(1) (c), Criminal ProcedureCode, the phrase "a document produced or given in evi-dence" means a document produced or given in evidenceeither by the party who is alleged to have committed theoffence or by any one else. To the same effect was the viewexpressed in the aforesaid ruling in Gobindram v. Emperor(6).
This disposes of all the objections raised by thelearned counsel for the respondent. On the other hand, allthe necessary conditions of section 195 (l)(c) of the Codeare satisfied. The offences alleged to have been committedby the petitioner fall within the clause, that under section
(1) A.I.R. 1920 Pat. 147. (2) A.I.R. 1918 Gal. 792.(3) 14 C. W. N. 479. (4) A.I.E. 1916 All. 299.(5) A.I.R. 1925 Bom. 433. (6) A.I.R. 1942 Sind 62.
E.L.R.] GULABCHAND V. THAKUR NARAIN 397
471 being specifically mentioned there, and the other oneunder section 465 being included under the comprehen-sive section 463: Khairati Bam v. Malawa Ram (1).The offences are also alleged to have been committedby a party to the proceeding in a court, i.e., by the pre-sent petitioner in the Election Tribunal. Furthermore, theoffence is alleged to have been committed in respect of adocument, i.e., the nomination paper, both produced andgiven in evidence in the proceeding before the ElectionTribunal in support of the respondent's recriminatorypetition. It is immaterial that the contingency of decid-ing the recriminatory petition did not arise by reason ofthe petitioner having withdrawn the prayer that he him-self be declared to have been duly elected. I thereforehold that a private complaint by the respondent againstthe petitioner in respect of the aforesaid offences wasbarred, and that the Magistrate had no jurisdiction to takecognizance of that complaint. Accordingly, the revision isallowed, the order of the Magistrate taking cognizance ofthe respondent's complaint is set aside and the proceed-ings in that court based on the complaint are quashed.
Petition allowed.
[ELECTION TRIBUNAL, AJMER.]
GULABCHAND CHORDIAv.
THAKUR NARAIN SINGH AND OTHERS.J. D. SHARMA (Chairman), C. JACOB and
S. N. AGARWAL (Members).May 22, 1953.
Disqualification of candidates—"Office of profit"—Istimrardar—Representation of the People Act, 1951, s. 7 (d).
An Istimrardar is not the holder of an office of profit under theGovernment.*
sNote.—The question whether an Istimrardar is the holder of an office of profitunder the Government was considered and decided in the negative by the ElectionTribunal, Ajmer, in the following cases also: Madan Singh v. Kalyan Singh andOthers (Election Petition No. 233 of 1952), Bhairon v. Thakur Ganpat Singh andOthers (Election Petition No. 234 of 1952) and Budha v. Kishenlal Lamor andOthers (Election Petition No. 235 of 1952).
(1) A.I.R. 1925 Lah. 266.EL- 51
398 GULABCHAND V. THAKUR NARAIN [VOL. VI
Dr. Hansa Jivraj Mehta v. Indubhai B. Amin (1 E.L.R. 171) and Inre Vindhya Pradesh Legislative Assembly Members (4 E.L.R. 422) andMahendra Sahu v. Didia Haul and Others (3 E.L.R. 117) referred to.
ELECTION PETITION NO. 241 of 1952.
Mukat Beharilal Bhargava, for the petitioner.B. P. Beri, for respondent No. 1.
ORDER.
The respondents contested the election to AjmerLegislative Assembly from Masuda constituency in whichrespondent No. 1, Thakur Narainsingh, Istimrardar ofMasuda, was declared elected.
The petition was presented before the Secretary, Elec-tion Commission, on the 3rd May, 1952, and it bears anendorsement that it was presented by Shri Rikhabchandwho had been duly authorised in this behalf by the peti-tioner.
The election of respondent No. 1 is challenged in thepetition mainly on the ground that he, as the Istimarardarof Masuda, was holding an office of profit under the Gov-ernment of India within the meaning of article 102 of theIndian Constitution read with section 17 of the Govern-ment of India Part C States Act, 1951, and as such he wasdisqualified to stand and contest the election to the Legis-lative Assembly of this State. At the time of the scrutinyof the nomination paper of the candidate, the petitionerhad challenged the candidature of respondent No. 1, onthis ground but the Returning Officer rejected this objec-tion and accepted the nomination of respondent No. 1. Thecontention of the petitioner now is that the nomination ofrespondent No. 1 was wrongly accepted and on that ac-count the result of the election has been materiallyaffected.
Out of the seven respondents only respondent No. 1has contested the petition. He pleaded that as the Istim-rardar of Masuda he was not a holder of an office of pro-fit within the meaning of article 102 of the Constitutionof India. He has also raised a plea that the petition wasnot maintainable as the petitioner was not an elector.
On the pleadings the following issues were framed:—
E.L.B.] GULABCHAND V. THAKTTB NARAIN 399
1. Does the respondent No. 1, as Istimrardar ofMasuda, hold an office of profit within the meaning ofarticle 102 of the Indian Constitution?
2. Is the petition not maintainable for reasonsstated in paragraph 9 of the written statement of therespondent No. 1?
3. To what relief, if any, is the petitioner entitled?The findings of this Tribunal are as under: —Issue No. 1.—The expression "office of profit" is not
defined in the Constitution or the Representation of thePeople Act, but it is not a term of art and its meaning andimport are well understood. The essential characteristics ofan "office of profit" are:—(i) It involves an appointmentby the State in one form or the other, (ii) It carriesemoluments payable mostly periodically, (iii) It is for alimited period, (iv) It is terminable, (v) It is not assigna-ble, (vi) It is not heritable, (vii) The holder of the officemust be sui juris.
It has to be judged in the light of the above charac-teristics whether an Istimrardar is the holder of an officeof profit. According to Wilson's Glossary, p. 345, anIstimrar is a farm or lease granted in perpetuity by theGovernment or Zamindar at a stipulated rate. An Istim-rardar is the holder of a perpetual farm or lease. Undersection 20, Regulation II of 1877, an Istimrari estate meansan estate in respect of which an Istimrari Sanad has beengranted before the passing of the Regulation by the ChiefCommissioner with the previous sanction of the Governor-General in Council and Istimrardar means the person towhom such a Sanad has been granted or any other personwho becomes entitled to the Istimrari estates in successionto him. The status of an Istimrardar has, therefore, to bedetermined on the basis of the Sanad in his favour. Themain terms and conditions of the Sanad are:—
I. "The Istimrardar shall at all times remain faith-ful in his allegiance to Her Majesty Queen Victoria, HerHeirs and Successors, and perform all the duties which,in virtue of such allegiance, may be demanded from him.If any question arises as to whether this condition hasbeen faithfully observed, the decision thereon of the Gov-ernor-General in Council shall be final.
400 GTTLABCHAND V. THAKTJR NARAIN [VOL. VI
IV. He shall, in accordance with custom, makereasonable provision for the support of such survivingrelatives of his immediate predecessor as are hereinaftermentioned, and, in the event of any dispute arising as tosuch provision, shall conform without objection to theorders he may receive from the Chief Commissioner orother Principal Officer charged with the administration ofAjmer. The relatives above referred to are the following:—
Grand parents, parents, widows, brothers, sisters,sons, whether natural born or adopted, daughters, nephews,nieces and grand-children.
X. He shall furnish to the Deputy Commissionerall statistics and information for which he, under theorders of Government, may call, and shall keep up suchestablishments as may be declared necessary for the pre-paration of such statistics, or for the supply of such infor-mation.
XI. He shall report all crime occurring on hisEstate, and assist in its detection, or repression, in such away as he may be directed, he shall not harbour offenderswithin his Estates, and he shall use his best endeavours topreserve order and prevent crime, and whenever calledon by the Officers of Government for assistance he shallrender every aid and assistance in his power".
Particular stress is laid on the condition that an Istim-rardar will owe allegiance to Queen Victoria and her suc-cessors, and the Governor-General will be the final judgeof whether an Istimrardar has been true to his allegiance.The mere fact that an Istimrardar under the Sanad owesallegiance to the Crown cannot, by itself, lead to the con-clusion that he is an holder of an office of profit. Everycitizen, in a way owes allegiance to the Crown who is nowreplaced by the Constitution of India. It is open to questionif in view of the fundamental rights mentioned in the Con-stitution of India, allegiance can be demanded of an Istim-rardar which cannot be demanded of any other citizen ofthe State.
Also the provision in the Sanad for providing mainten-ance to a certain class of relations does not make anIstimrardar a holder of an office of profit or detract inany manner from his status as an ordinary citizen. The
E.L.B.] GULABCHAND V. THAKUB NAEAIN 401
provision is a necessary corollary to the mode of succes-sion which is by rule of primogeniture. At the same time,it creates an obligation and does not confer a right on theIstimrardar. It is most significant that in the Sanad thereis no condition for resuming the estate a.nd there has beenno instance in which an estate has been resumed. ThakurGopalsingh, the old Istimrardar of Kharwa, was detainedunder Regulation III of 1818 for his activities considereddisloyal at that time but the estate was not resumed andit was at his own instance that Thakur Gopalsingh abdi-cated the estate in favour of his son. It clearly meansthat the estate of an Istimrardar is not terminable as anoffice of profit is, at the option of the State and also ofits holder.
An "Istimrari Estate" does not carry any emolumentsas an office of profit does. The contention of the petitioneris that an office of profit may have perquisites not essen-tially in the nature of salary and an Istimrardar has. thelargest perquisite in the shape of a fixed charge. The term"Istimrar" itself connotes a farm or lease in perpetuity ata fixed charge. That is, no doubt, a valuable perquisite in-asmuch as the Estate is not liable to enhancement of chargebut an Istimrari Estate is not an exception in this respect.There is permanent settlement in the whole of Bengal andin the Eastern Districts of the U.P. Hence the mere factthat the Estate is held in perpetuity at a fixed charge doesnot make it an office of profit. Further reliance is placedon the provisions of Regulation II of 1877 relating toIstimrari Estates. Section 21 provides that all tenants inan Istimrari Estate shall be presumed to be tenants-at-will. Under section 22, an Istimrardar cannot alienate hisEstate except for life. Section 23 lays down the rule ofsuccession and provides that no adoption made by awidow shall be deemed valid until confirmed by the Gov-ernor-General in Council. Under section 24, any questionas to the right to succeed to the Istimrari Estate arisingin a case not provided for by section 23 shall be decidedby the Governor-General in Council or by such officer ashe may appoint in this behalf subject to the proviso thatthe Governor-General in Council may grant a certificatedeclaring that the matter is one proper to be determinedby a civil court. Section 25 says that all claims for main-
402 GULABCHAND V. THAKUR NARAIN [VOL. VI
tenance against an Istimrardar by any member of hisfamily shall be preferred to the Chief Commissioner whosedecision thereon shall be final. Section 27 confers on anIstimrardar the privilege of being tried for a criminaloffence by the District Magistrate or Sessions Judge withthe previous sanction of the Chief Commissioner. Undersection 28, no Istimrardar can be arrested in execution ofany process of any civil or revenue court except with theprevious sanction of the Chief Commissioner. And undersection 29 no decree for money against an Istimrardar canbe executed after his death and no decree for money canbe passed against any person as the representative of adeceased Istimrardar.
Certain privileges are, no doubt, attached to anIstimrari Estate, but neither singly nor collectively arethey such as to make an Istimrari Estate an office of pro-fit. It is not uncommon to find provisions in the oldenactments laying down that the tenants of a particularEstate shall be tenants at will. Under section 21, thereis only a presumption that the tenants are at will. Itdoes not mean that there cannot be tenants other thantenants at will. The provision relating to an adoption bya widow only places a disability on her and is by no meansa characteristic of an office of profit. Similarly the provi-sions relating to succession and maintenance do not conferon an Istimrardar the status of a holder of an office ofprofit. The privilege conferred by section 27 is inconsistentwith the provisions of the Constitution of India and itsvalidity is open to question. It is also doubtful if theprovision really confers a privilege.
Section 28 does confer a privilege on an Istimrardarbut women are entitled even to a greater privilege as theycannot be arrested at all for a decree for money. We are,therefore, of the opinion that none of the provisions inRegulation II of 1877 confers on an Istimrardar the statusof the holder of an office of profit.
It is further pointed out that an Istimrardar has theprivilege of distilling liquor without a license. Undersection 67 of Regulation I of 1915, the State Governmentis empowered to confer this privilege on any person. Itis not one of the privileges mentioned in the Sanad. It is
E.L.R.] GTILABCHAND V. THAKUB NARAIN 403
further pointed out that an Istimrardar can keep armswithout having to pay license fee. Under section 27, ArmsAct, the State Government can exempt any person fromthe license fee. It is also urged that an Istimrardar isunder an obligation to provide force for the maintenanceof law and order. Reliance in this connection is placedupon a circular, dated 22nd November, 1951. Under sec-tion 17, Police Act, the services of any person can be re-quisitioned to help in the maintenance of law and order.Similar duties are prescribed by sections 42, 43 and 44,Criminal Procedure Code. It is noteworthy that underthe Scheduled Districts Act, 1871, the Criminal Proce-dure Codes of 1861 and 1871 did not apply to theprovince of Ajmer. Some provisions peculiar to the Pro-vince had, therefore, to be made for the maintenanceof law and order and it was why a duty was cast on anIstimrardar to provide necessary force when so required.It will, thus, appear that an Istimrardar lacks almost allthe essential elements of a holder of an office of profit.
(1) He is not an appointee of the State. (All thepresent Istimrardars are by virtue of succession).
(2) He does not have the emoluments which the holderof an office of profit has. Indeed he gets no remunerationfrom the State revenues.
(3) He holds the estate in perpetuity and not for alimited period.
(4) The estate is not terminable.(5) The estate is assignable at least for life. (An office
is never assignable).(6) The estate is heritable. (An office is seldom herit-
able) .(7) Holder of an Istimrari estate may not be sui juris.
All these charateristics materially distinguish an Istim-rari Estate from an office of profit and it is impossibleto hold that an Istimrardar is the holder of an office ofprofit.
It has been pointed out that an Istimrardar isabsolutely subservient to the Government and the policyunderlying article 102 of the Constitution is that all per-sons who are under subservience or tutelage to the Gov-ernment should be disqualified for the membership of alegislature. Subserviency or the so-called tutelage to theGovernment is not a test of judging whether a particular
404 GULABCHAND V. THAKUR NARAIN [VOL. VI
person holds an office of profit as it is not possible to laydown any standard for judging the degree of subserviency.Article 102 places a restriction on eligibility for electionand must therefore be strictly interpreted and no officewhich does not satisfy the essential elements of an officeof profit as commonly understood can fall under the scopeof article 102.
Reliance has been placed upon Dr. HansaJivraj Mehtav. Indubhai B. Anting) in which Shrimati Hansa Mehtawas held to be disqualified for election on the ground thatas Vice-Chancellor of the University of Baroda she held anoffice of profit under article 102 of the Constitution. Shewas appointed Vice-Chancellor by the State Governmentand held the office for a limited period. She was also re-movable by the State under certain circumstances. Thedecision has therefore no bearing on this case. Furtherreliance has been placed upon the decision of the Elec-tion Commission in In re Members of the Vindhya Pra-desh Legislative Assembly^). That case also has no bear-ing as the members of the Legislative Assembly were theappointees of the State Government and as members ofthe District Advisory Council drew certain emoluments.On behalf of the respondent No. 1, reliance is placed uponthe decision of the Cuttack Tribunal in Mahendra Sahu v.Dutia Raul and Others^) in which it was held that a Sar-barakar was not a holder of an office of profit, althoughmany of the incidents inconsistent with the position of anoffice holder are common to the Sarbarakar.
We are therefore of the opinion that the respondentNo. 1 as an Istimrardar did not hold an office of profitand was not disqualified for the membership of the legis-lature and his nomination papers were not improperlyaccepted.
Issue No. 2.—[This issue was not pressed.]Issue No. 3.—In view of the finding on issue No. 1
the petition is liable to be dismissed.The petition is accordingly dismissed with costs
assessed at Us. 250 payable to respondent No. 1.Petition dismissed.
(1) 1 E.L.R. 171. (2) 4 E.L.R. 422. (3; 3 E.L.B. 117.
E.L.E.] MADAN SINGH V. KALYAN SINGH 405
[ELECTION TBIBUNAL, AJMEB.]
MAD AN SINGHv.
KALYAN SINGH AND OTHERS.J. D. SHABMA (Chairman), C. JACOB and
S. N. AGABWALA (Members).May 22, 1953.
Disqualification of candidates—Office of profit—Istimrardar—Electionpetition—-Practice—Whether respondent can challenge election on groundsnot raised by petitioner—•Bepresentation of the People Act, 1951, s. 7(d).
An Istimrardar is not a holder of an office of profit under the Govern-ment.
A nomination paper cannot be rejected merely because the thumbmarks of the proposer and seconder were not put in the presence of andattested by the Returning Officer.
It is open to a respondent who is not the returned candidate to chal-lenge the election on grounds not alleged in the election petition.
ELECTION PETITION NO. 233 of 1952.
OBDEB.
This is a petition for declaring void the election ofShri Kalyan Singh, respondent No. 1, and further for de-claring the petitioner to have been duly elected to theAssembly of the Ajmer State from Bhinai constituency.
The petitioner was a candidate for election to theAjmer State Legislative Assembly from the Bhinai consti-tuency and secured 2,970 votes. The respondent No. 1,Tazimi Istimrardar of Bhinai, was also a candidate andsecured 3,164 votes. The respondent No. 2, Shri Lai Chand,withdrew his candidature within the prescribed time. Thenomination papers of Shri Munshi Ram, respondent No. 3,were rejected on the ground that the thumb marks of theproposer and seconder Rugha and Hazari were not madein the presence of and were not attested by the ReturningOfficer.
The election of the respondent No. 1 is challenged onthe grounds that as an Istimrardar, he is the holder of anoffice of profit and therefore disqualified for the member-ship of the legislature and that he has been guilty of the
EL—52
406 MADAN SINGH V. KALYAN SINGH [VOL. VI
corrupt practices mentioned in the appendices A, B and Cvitiating the election.
The respondent No. 1 contests the petition on thegrounds that the petitioner is not the person 'Madan Singhs/o Har Lai' appearing at serial No. 527 in the electoralroll and the respondent No. 1, as an Istimrardar, is not aholder of an office of profit. It is further pleaded that therespondent No. 1 was not guilty of the corrupt practicesalleged in the petition which has not been properly pre-sented and is not within limitation.
The respondent No. 3 has raised the plea that hisnomination papers were wrongly rejected and the rejectionhas materially affected the result of the election.
On the pleadings, the following issues were framed:—1. Is the petitioner not the person 'Madan Singh, son
of Har Lai' appearing at serial No. 527 in the ElectoralRoll? Is this plea open to respondent?
2. Does the respondent No. 1 as Istimrardar ofBhinai hold an office of profit within the meaning of sec-tion 102 of the Constitution of India? Was his nomina-tion wrongly accepted?
3. Was the respondent No. 1 guilty of corrupt prac-tices mentioned in paragraph 8 (2, 3, 4 and 5) of thepetition and appendices A and B?
4. Has the petition been properly presented and isit within limitation?
5. Was the nomination of respondent No. 3 wronglyrejected? Has the rejection materially affected the result ofthe election?
6. Is the petitioner entitled to be declared elected?Issue No. 1.—[On the evidence, it was held that the
petitioner Shri Madan Singh was the same as MadanSingh, son of Har Lai, appearing at serial No. 527 in theelectoral roll.]
Issue No. 2.—[Judgment is the same as Issue No. 2at pp. 399ff. supra]
Issue No. 5.—Reference has been already made to thecircumstances in which the nomination papers of the res-pondent No. 3 were rejected by the Returning Officer. Itis urged on behalf of the petitioner and respondent No. 3
E.L.B.] MAD AN SINGH V. KALYAN SINGH 407
that the nomination papers were duly subscribed undersection 33(1) of the Representation of the People Act.Reliance on behalf of the respondent No. 1 has been placedupon rule 2(2) of the rules framed under the Re-presentation of the People Act, 1951, which says that for thepurposes of the Act or the rules, a person who is unable towrite his name shall, unless otherwise expressly providedin these rules, be deemed to have signed an instrument orother paper if he has placed a mark on such instrumentor other paper in the presence of the Returning Officer orthe presiding officer or such other officer as may be speci-fied in this behalf by the Election Commission and suchofficer on being satisfied as to his identity has attested themark as being the mark of such person. It is contendedthat as the thumb marks of Rugha and Hazari were notplaced in the presence of the Returning Officer, they can-not be deemed to have signed or subscribed to the nomi-nation papers under section 33(1). In our view, rule 2(2)referred to above prescribes a mode of authenticatingthe thumb-marks and does not require an illiterate voterto subscribe to the nomination paper before a ReturningOfficer. If that were the intention of the legislature, aprovision to that effect would have certainly found aplace in section 33. The same conclusion is reinforced bythe absence of the word 'only' after the word 'if in rule2(2) of the Rules, 1951. The nomination papers ofthe respondent No. 3 were properly subscribed to byRugha and Hazari. Even assuming that there was a defectinasmuch as the thumb marks were not placed before theReturning Officer, it was not a defect of a substantialcharacter. It was not disputed that the thumb-marks onthe nomination papers were of Rugha and Hazari. Therespondent No. 3 has stated that Rugha and Hazari werepresent at the time of the scrutiny and his counsel ShriMukat Behari Lai Bhargava asked the Returning Officerto verify the thumb-marks from Rugha and Hazari. TheReturning Officer was empowered under section 36(2) ofthe Representation of the People Act to make a summaryenquiry and we are clearly of the view that if he felt anydoubt for which there was, perhaps, no room, about thegenuineness of the thumb-marks of Rugha and Hazari,then he was under the statutory obligation to make the
408 MADAN SINGH V. KALYAK SINGH [VOL. VI
enquiry. There can be no doubt that the nomination papersof the respondent No. 3 were in proper form and werewrongly rejected.
It has been argued on behalf of the respondent No. 1that as the rejection of nomination papers of the respon-dent No. 3 is not a ground on which the election is chal-lenged in the petition, it is not open to the respondentNo. 3 to challenge the election on that ground. Reliancehas been placed upon Mahadev Parasharam Diwan v. Vina-yak Pandharinath Thorat^). That was a decision under theold law which was materially different from the law asembodied in the Representation of the People Act and has,therefore, no bearing on the present case. The respondentNo. 3, as a duly nominated candidate, is a necessaryparty to the petition under section 82. If a candidate isomitted from being made a party to the petition, he is en-titled to be joined as a respondent under section 90 with-in 14 days of the publication of the petition in the OfficialGazette. If the withdrawal of petition is permitted undersection 109, a respondent is entitled to get himself sub-stituted for the petitioner. The policy of law is clearly togive a respondent all opportunity to have an effective sayin the matter and if necessary to prosecute the petition incertain circumstances. The respondent No. 3 is, therefore,perfectly within his right to challenge the election of res-pondent No. 1 on any ground open to him. Also, in thepetition, there is an allegation that the nomination papersof the respondent No. 3 were rejected. It is true thatthe election is not challenged in the petition on thatground but section 83(1) says that an election petitionshall contain a concise statement of the material facts onwhich the petitioner relies. Above all, the issue No. 5was framed as arising out of the pleadings of the parties.We are, therefore, of the opinion that it is open to therespondent No. 3, as also to the petitioner, to challenge theelection on the ground that the nomination papers of therespondent No. 3 were improperly rejected.
The improper rejection of the nomination papersraises a strong presumption which has not been rebuttedin any manner that the result of the election has beenmaterially affected thereby.
(1) Sen & Poddar 741.
E.L.R.] BHAIEON V. THAKUE GANPAT SINGH 409
Issue No. 6.—In view of the above findings, theelection of the respondent No. 1 is declared void. For thesame reason, the petitioner is not entitled to be declaredelected. In the circumstances, it appears just and properthat the parties should bear their own costs.
The election of the respondent No. 1 is declared void.The parties will bear their own costs.
Election declared void.
[ELECTION TRIBUNAL, AJMER.]
BHAIRONv.
THAKUR GANPAT SINGH AND OTHERS.J. D. SHABMA (Chairman), C. JACOB and S. N. AGAEWAL
(Members).May 22, 1953.
Disqualification of candidates—" Office of profit"—Istimrardar—•Nomi-nation—Same person signing more than one nomination paper as proposer—Election agent—Candidate appointing himself—Whether should writehis name—Representation of the People Act, 1951, ss. 7 (d), 33 ^2), (3)and (7).
An Istimrardar does not hold an office of profit under the Govern-ment.
The nomination of a candidate cannot be rejected merely because hehas filed several nomination papers in which the same persona have signedas proposer and seconder respectively.
Hansraj v. Bam Singh (2 E.L.R. 12) and Vijaya Mohan Beddy v.Paga Pulla Beddy (2 E.L.R. 414) followed.
The nomination of a candidate who has appointed himself as hisagent cannot be rejected on the ground that he has not written his namein the declaration of appointment in the form of nomination paper but re-tained the word "myself".
Haji Nasimuddin v. Dandiram Dutta (1 E.L.R. 412) referred to.
ELECTION PETITION NO. 234 OF 1952.
Muhat Beharilal Bhargava, for the petitioner.Debi Dayal Bhargava, for respondent No. 1.S. S. Deedwania, for respondent No. 4.K, K. Bharqava, for respondent No, 6,
4 1 0 BHAIBON V. THAKUE GANPAT SINGH [VOL. VI
ORDER.
This is a petition challenging the election of respon-dent No. 1 Thakur Ganpatsingh to the Ajmer LegislativeAssembly from the Nayanagar constituency and for adeclaration that the petitioner was duly elected from thisconstituency.
The petition was presented before the Assistant Sec-retary, Election Commission, on 2nd May, 1952, and bearsan endorsement that it was presented by Sri Madan Singh,who had been duly authorised in this behalf by the peti-tioner.
The petitioner and respondents Nos. 1 to 6 were candi-dates from the above mentioned constituency but the elec-tion which was held in January, 1952, was contested onlyby the petitioner and respondents Nos. 1 to 3. The res-pondents Nos. 4 and 5 withdrew their candidature beforethe last date fixed for withdrawals. The nomination ofrespondent No. 6, Shri Sadual,wasrejectedby the ReturningOfficer on the ground that his two nomination papers wereproposed and seconded by the same persons. Against thenomination of respondent No. 1 the petitioner had takenan objection before the Returning Officer at the time ofscrutiny that he, as Istimrardar of Kharwa, was holding anoffice of profit within the meaning of article 102 of theConstitution of India. This objection was rejected. Onthe result of the election respondent No. 1 was declaredduly elected.
The petitioner has challenged the election of respon-dent No. 1 on the grounds that the nomination of respon-dent No. 1 was improperly accepted and the nomination ofrespondent No. 6 was improperly rejected and this hasmaterially affected the result of the election. The peti-tioner has also alleged that respondent No. 1 was guilty ofcertain corrupt practices alleged to have been committedby or on his behalf inasmuch as he personally and throughother persons distributed wine to the voters of certainvillages and also paid Rs. 20 for each of the women votersfor voting in his favour. The names of these villages aregiven in Appendix 'A' of the petition.
It is also alleged by the petitioner that the result ofthe election had been materially affected by the non-com-
E.L.R.] BHAIROH V. THAKUR, GANPAT SINGH 411
pliance of the provisions of the Representation of thePeople Act and the Rules because the voters of villagesLiri, Pabuthan and Rampura were made to go to a dis-tance of about seven miles for casting their votes as a con-sequence of which not a single woman voter from Rampurawent to cast her vote and only ten lady voters cast theirvotes from villages Liri and Pabuthan.
Written statements have been filed only on behalf ofrespondents Nos. 1, 4 and 6. The main contestant is res-pondent No. 1, who has pleaded that as Istimrardar ofKharwa, he was not a holder of an office of profit within themeaning of article 102 of the Constitution of India and sohe was not disqualified for election. He has also deniedall the allegations about corrupt practices. On his appli-cation the tribunal had directed the petitioner to give fur-ther particulars about those corrupt practices but no suchparticulars were given. The petitioner then gave up theground about the corrupt practices.
Respondent No. 4 has filed a written statement ad-mitting all the allegations of the petitioner. RespondentNo. 6 has also filed a lengthy written statement support-ing the case of the respondent No. 1. He has also allegedthat even if his nomination was accepted he would havewithdrawn from the election because he had come to knowbefore the scrutiny of the nomination papers that all hissupporters had deserted him so much so that he could noteven get more than one proposer and one seconder for hisnomination. This respondent had also raised a plea thatthe presentation of the petition was invalid and illegal forwant of an authority in favour of Shri Madan Singh asrequired by section 81(2) of the Representation of thePeople Act.
From the pleadings of the parties the following issueswere framed:—
(1) Has the petition been properly presented?(2) Does the respondent No. 1 as Istimrardar of
Kharwa hold an office of profit as defined under article102 of the Constitution of India; and was his nominationimproperly accepted?
(3) Was the nomination of the respondent No. 6improperly rejected? Has the rejection materially affectedthe election?
412 BHAIRON V. THAKUB GANPAT SINGH [VOL. VI
(4) Could not the lady voters of villages Liri, Pabu-than and Rampura go to the polling booths because ofthe alleged distance of 7 miles from their places of resi-dence? If so, how does the fact affect the election?
(5) To what relief, if any, is the petitioner entitled?Our findings on the above issues are as under:—Issue No. 1.- -Clause (a) of section 81(2) of the Repre-
sentation of the People Act lays down that an electionpetition may be presented either by the person making thepetition or by a person authorised in writing in this be-half by the person making the petition. In the presentcase the petition was presented by Shri Madan Singh onbehalf of the petitioner. It was contended by the learnedcounsel for the contesting respondent that there was novalid presentation because the petition was not accom-panied by any written authority in favour of Shri MadanSingh as required by the above mentioned provision. Thiscontention has no force. The petition bears an endorse-ment by the Assistant Secretary to the Election Commis-sion that it was presented by Shri Madan Singh who hadbeen duly authorised in this behalf by the petitioner.There is nothing to rebut the presumption about the cor-rectness of this endorsement. In addition, the petitionerhas sworn that he had authorised Shri Madan Singh inwriting to present the petition on his behalf. We, there-fore, find that the petition has been properly presented.
Issue No. 2.— [The judgment of the Tribunal on issueNo. 2 in this case is the same as that relating to IssueNo. 1 in Gulabchand Chordia v. Thakur Narain Singh,printed at p. 399, supra].
Issue No. 3.—This issue relates to the rejection of thenomination of respondent No. 6, Shri Sadual. Two nomi-nation papers were received by the Returning Officer forShri Sadual and in both these nomination papers the pro-posers and the seconders were the same persons, viz., Azimaand Karima respectively. The Returning Officer rejectedboth these nomination papers on the ground that theywere proposed and seconded by the same set of personsand so the provisions of section 33(2) of the Representa-tion of the People Act were violated. Learned counselfor the petitioner urged that the decision of the Returning
E.L.B.] BHAIRON V. THAKUE GANPAT SINGH 413
Officer was erroneous because it was based on a wronginterpretation of section 33(2). On the other hand, thelearned counsel for the contesting respondent supportedthe decision of the Returning Officer and contended thata voter cannot propose or second more than one nomina-tion paper.
We find that the decision of the Returning Officer inrejecting the nomination paper is not sustainable. There isno provision in the Representation of the People Act debar-ring a voter to be a proposer or a seconder in more thanone nomination paper. The restriction laid down in theproviso to section 33(2) does not apply to a single consti-tuency. Clause (7) of section 33 makes it further clear thata candidate can be nominated by more than one nomina-tion paper for election in the same constituency. It isapparent from the provisions of section 33 that thechoice of a proposer and a seconder is restricted in so faras the number of seats in the constituency are concernedbut his choice for the number of nomination papers withinthat limitation is not restricted. A similar point came upfor decision before the Election Tribunal of Delhi in HansRaj v. Bam Singh^). In that case one Shri Fateh Singh hadfiled three nomination papers and he was the proposer intwo of them. The Returning Officer rejected all the threenomination papers on the ground that the proposer hadsubscribed more than one nomination paper. It was heldthat the rejection was wrong. This decision was followedby the Secunderabad Election Tribunal in Vijaya MohanReddy v. Paga Pulla Reddy(z). We are in full agreementwith the above decision. It was also argued by the learnedcounsel for the contesting respondent that the nominationpapers of Shri Sadual were invalid because they did notspecifically mention the name of the agent but only con-tained the word "myself". According to him, a candi-date, even if he was appointing himself as an agent, mustwrite his name in view of clause (3) of section 33. We areunable to accept this view. A plain reading of clause (3) ofsection 33 makes it amply clear that a candidate wasbound to give the name of his agent, only when he ap-points somebody else other than himself as an agent. The
(1) 2 E.L.R. 12, (2) 2 E.L.R. 414.
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414 SATYA bEV BtTSHAHRI V. PADAM DEV [VOL. VI
clause "who shall be named in the declaration" does notapply to cases where the candidate has appointed himselfas the agent. The same view was held by the AssamTribunal in Haji Nasimuddin v. Dandiram Dutta^). In factin the form for nomination itself the word "myself" hasbeen used. We see no irregularity if the name of thecandidate is not specifically mentioned in the nominationpapers. Otherwise too, even if the nomination paper wasassumed to be defective in this respect the defect was notof a substantial character. It is, therefore, held that thenomination papers of Shri Sadual were improperly reject-ed and the issue is accordingly decided in the affirmative.
The improper rejection of the nomination of ShriSadual has materially affected the result of the election.The electorate by this improper rejection had been de-prived of the right to vote for respondent No. 6 and apresumption arises that this has materially affected theresult of the election.
Issue No 4.—[Not material for this report.]Issue No. 5.—In view of our decision on issue No. 3
the election of respondent No. 1 has to be set aside.The petition is accordingly accepted and the election
of respondent No. 1 is declared void and is set aside.Under the circumstances of the case we direct that theparties should bear their own costs.
Election declared void.
[ELECTION TRIBUNAL, SIMLA.]
SATYA DEV BUSHAHRIv.
PAD AM DEV AND OTHERS.J. N. BHAGAT (Chairman), TEJ SINGH VAIDYA and
DAULAT RAM PREM (Members).May 23, 1953.
Disqualification of candidates—Applicability of rules to Part G States—Material date of qualification—Corrupt practice—Contract to supplygoods—Whether contract subsists after delivery until payment is made—•Procuring assistance of Government servants—Extra departmental agentsof post office, whether Government servants—Appointment as polling agent
(1) 1 E.L.R. 412.
E.L.R.] SATYA DEV BTJSHAHRI V. PADAM DEV 415
—Subscribing as proposer or seconder—•Whether assisting prospects ofelection—•Bepresentation of the People Act, 1951, ss. 7(a), 123 (8)—Govern-ment of Part G States Act', 1951, ss. 7, 8, 17.
*Held, per J. N. BHAGAT, TE.T SINGH VAIDYA and DAULAT BAMPBEM—
(i) Part II of the Eepresentation of the People Act, 1951, does notapply to Part C States.
(ii) The material date for determining whether a candidate was dis-qualified to be chosen as a member is the date of his nomination.
(iii) A contract for supply of goods does not subsist after goods havebeen delivered merely because payment has not yet been made.
*Held, per J. N. BHAGAT and T E J SINGH VAIDYA (DAXJLAT EAM PEEMdissenting)—•
(i) Extra departmental agents of the Post Office appointed under thePost Office Rules are not Government servants within section 123(8) ofthe Eepresentation of the People Act, 1951.
(ii) By merely appointing a Government servant as his polling agenta candidate does not obtain or procure his assistance for the furtheranceof the prospects of his election and does not commit a corrupt practiceunder section 123(8).
Naraindas v. Manohar Rao Jatar (E. P. 3 of 1952), Lahri Singh v.Attar Singh and Others (3 E.L.E. 403) and Ghasi Bam v. Bam Singh andOthers (2 E.L.E. 124) dissented from.
(iii) Signing a nomination paper of a candidate as a proposer orseconder would not by itself amount to assisting the candidate for the
"Note. - The petitioner, Satyadev Bushahri, preferred an appeal from the orderof the Tribunal in this ease to the Supreme Court, but the appeal (Civil Appeal No.52 of 1954) was dismissed on the 25th May, 1954. The Supreme Court held:
II) The disqualifications mentioned in section 7 of the Representation of thePeople Act, 1951, must be held to be comprised in section 17 of the Government ofPart C States Act (XLIX of 1951) and therefore apply to elections to the LegislativeAssemblies of Part C States
(2) Contracts entered into with the executive head of Part C States are not con-tracts with the Central Government but with the Government of the Part C States.
(3) A contract to supply goods or performance of services does not cease to sub-sist as soon as the goods are delivered or services are performed, but continues tosubsist until payment is made to the contractor as laid down by the Supreme Courtin Chathurbhuj Vithaldas Jasani v. Moreshwar Parashram (Civil Appeal No. 155 of1953) decided on 15th February, 1954.
(4) It is not sufficient if the candidate was not disqualified on the date fixedfor nomination but the disqualification of a candidate would apply during the wholeof the period commencing with the nomination and ending with the declaration ofthe result.
'5) Subscribing to a nomination paper as proposer or seconder would not in it-self amount to assisting the candidate for the furtherance of the prospects of hiselection as laid down by the Supreme Court in Raj Krushna Bose v. Binod Kanunqo(Civil Appeal No. 239 of 1953 decided on 4th February, 1954).
(6) As an abstract proposition of law, the mere appointment of a Governmentservant as a polling agent, in itself and without any further act, would not amountto a corrupt practice under section 123 (8) of the Representation of the People Act,1951, as laid down in Raj Kruslina Bose's case (supra).
416 SATYA DEV BUSHAHRI V. PADAM DEV [VOL. VI
furtherance of the prospects of that candidate's election. In any case inorder that there may be a corrupt practice under section 123(8) in such acase it must farther be proved that the act of proposing or seconding wasdone for the furtherance of the prospects of that candidate s election.
An allegation of a corrupt practice in an election petition is like acriminal charge. The quantum of proof required is as it would be in acriminal case and benefit of doubt would go to the respondent.
Per DAULAT EAM PREM.—(i) Extra departmental agents appointedunder Post Office Enles are Government servants; (ii) acting as a pollingagent of a candidate and signing a nomination paper of a candidate as pro-poser or seconder per se amount to assisting him for the furtherance of theprospects of his election. A candidate cannot get any assistance from aGovernment servant in the matter of his election except the giving of avote by such person.
ELECTION PETITION NO. 14 of 1952.
Mukat Beharilal Bhargava, for respondent No. 1.
OKDEB.
This petition relates to an election from Rohruconstituency in Mahasu District of Himachal Pradesh tothe Legislative Assembly of that State. Nominationpapers were filed on 12th October, 1951. Their scrutinycame off on 17th October, 1951. Kanwar ShivPal, DeputyCommissioner, Mahasu District, at Kasumpti, was theReturning Officer. After the acceptance of nominations,there were five candidates from this constituency, all ofthem being respondents now. Respondent No. 5 was origi-nally the petitioner in this case, but he withdrew and wassubstituted by Shri Satya Dev.
There were 11 polling stations in the constituency.Polling at all of them took place on 23rd November, 1951.The result was declared on 30th November, 1951, and waspublished in the Gazette of India, dated 20th December,1951. Shri Padam Dev, respondent No. 1, was declaredelected. It is common ground that Shri Padam Devsecured 1,387 votes. According to paragraph 3 of the peti-tion, the original petitioner secured 533 votes, Shri Nupa,respondent No. 2, 937, Shri Rameshwar Das, respondentNo. 3, 625 and Shri Sanam Ram, respondent No. 4, 576.It is common ground that Pt. Padam Dev was a nomineeof the Congress. According to Shri Gian Singh, the originalpetitioner, (P.W. 10), the said petitioner was a Jan Sanghcandidate; Shri Sanam Earn was a nominee of the Kisan
E.L.R.] SATYA DEV BTTSHAHRI V. PADAM DEV 417
Mazdoor Praja Party; Shri Nupa represented ScheduledCastes Federation; and Shri Rameshwar Das stood as anindependent candidate.
This petition was originally brought by Shri GianSingh. It was presented before the Election Commissionon 14th February, 1952. On 4th August, 1952, Shri GianSingh applied before this tribunal for withdrawal of thepetition. After notices were issued in accordance withsection 108 of the Representation of the People Act (No.XLIII of 1951), the withdrawal was allowed on 20thSeptember, 1952. Notices of the grant of withdrawal werethen issued under section 110. Shri Satya Dev, an electorin the constituency, applied within the prescribed period,to be substituted for the original petitioner and this wasallowed on 21st November, 1952. Shri Satya Dev alsoapplied for permission to make some amendments in thepetition. This prayer was disallowed on the aforesaid date.As was, however, suggested by him, Shri Gian Singh wasthen impleaded as respondent No. 5.
The petition seeks to have the election of Shri PadamDev, respondent No. 1, to be declared void on the allegedgrounds of various corrupt and illegal practices havingbeen committed by him. The commission of these was,of course, totally denied by the respondent in his writtenstatement. The petitioner filed some lists or annexureswith the petition, giving details of the alleged corrupt andillegal practices, etc. The allegations in this connectionwould be explained, when dealing with the various issues.
Shri Nupa, respondent No. 2, filed a brief written state-ment and prayed that the petition be dismissed, so faras he was concerned, with costs. In paragraphs 8 and 9of the petition, the petitioner had made some allegationsagainst the said respondent No. 2, which were denied bythe respondent. On 21st November, 1952, before theframing of issues, the substituted petitioner, Shri SatyaDev, made a statement that he did not want any issues tobe framed regarding respondent No. 2, in connection withparagraphs 8 and 9 of the petition.
In paragraph 12 of the petition it was stated that thepetitioner claimed a recount and scrutiny of votes. Thiswas given up by the substituted petitioner in his afore-
418 SATYA DEV BTJSHAHEI V. PAD AM DEV [VOL. VI
said statement of 21st November, 1952. In paragraph 7of the petition the name of the Pharmacy of Shri PadamDev respondent was said to be "Simla Ayurvedic Phar-macy". In his aforesaid statement of 21st November, 1952,the substituted petitioner stated that the aforesaid namewas wrongly given in the petition and that the name ofthe Pharmacy in fact was D.A. V. Pharmacy. Although anamendment in this connection was not allowed, yet theorder of the tribunal dated 21st November, 1952, permit-ted evidence to be led, in due course, as to what was thename of the respondent's Pharmacy.
While the corrupt practices of bribery, undue influ-ence, treating etc. were also alleged in the petition tohave been committed by the respondent, emphasis waslaid on his having procured assistance of various Govern-ment servants for furthering the prospects of his election.It was further emphasised that the respondent was dis-qualified for standing as a candidate, because "he was acontractor interested in a contract for the supply of Ayur-vedic medicines to the Himachal PradeshGovernment as well as to the Government of India" (videparagraph 7 of the petition). It was also emphasised thatthe return of election expenses filed by the respondent wasfalse in material particulars and was not in accordancewith law. Arguments centred mostly round these threematters, more so, round the first two of them.
There was also a prayer in the petition that the peti-tioner may be declared to have been duly elected. Thiswas made by the original petitioner, Shri Gian Singh, whowas a candidate. The present petitioner, Shri Satya Dev,was, however, not a candidate from this constituency butwas only an elector. Therefore, admittedly this prayer isnow redundant.
Shri Padam Dev, respondent No. 1, who was the suc-cessful candidate, is the contesting respondent in the case.Shri Nupa did not take any interest beyond filing a briefwritten statement. Shri Rameshwar Das and Shri SanamRam, respondents Nos. 3 and 4 respectively, did not con-test the petition as respondents, but both of them appear-ed as witnesses for the petitioner, being P.W. 18 and P.W.24 respectively. Shri Padam Dev, besides denying theallegations made against him by the petitioner alleged in
E.L.B.] SATYA DEV BUSHAHRI V. PADAM DEV 419
his written statement that the petitioner and respondentsNos. 2 to 4 were in collusion and had made a commoncause against him (vide paragraph 8 of the written state-ment).
The following issues were framed in the case on 21stNovember, 1952:—
(1) Is the election of respondent No. 1 void onaccount of the alleged corrupt practices referred to inclauses (a) to (f) of paragraph 5 of the petition and in therelative lists?
(2) Is the return of election expenses filed by respon-dent No. 1 false in material particulars and not in accord-ance with law? If so, what is its effect?
(3) Does respondent No. 1 lose all his votes andshould the same be deemed as "thrown away" for reasonsgiven in paragraph 6?
(4) (a) Was respondent No. 1 disqualified for stand-ing as a candidate at the election for reasons alleged inparagraph 7; if so, what is its effect?
(b) Is he, for the same reasons, disqualified forremaining a member of the H. P. Legislative Assembly; ifso, what.is its effect?
(c) Was the alleged disqualification known to thevoters and should all his votes be deemed to be "thrownaway" on that account?
(5) Were Shri Gian Singh petitioner and respondentsNos. 2 to 4 in collusion against respondent No. 1, and didthey make a common cause against him? If so, what is itseffect?
(6) Were any illegalities and irregularities, as allegedin paragraph 11 and list "J", committed? If so, what isits effect?
(7) Were the constituencies for elections to H. P.Legislative Assembly not delimited according to law, asalleged in paragraph 15? If so, what is its effect?
(8) Is the election of respondent No. 1 void becausethe election was procured and induced, and the result ofthe election was materially affected, by corrupt and illegalpractices, illegalities and irregularities?
The onus of all the aforesaid issues, except No. 5, was
420 SATYA DEV BTTSHAHKI V. PADAM DEV [VOL. VI
on the petitioner, while onus of isaue No. 5 was on res-pondent No. 1.
Issues Nos. 2, 3, 5, 6 and 7.—[These issues deal withquestions of fact and are not material for this report].
Issue No. 4.—Paragraph (a) of this issue is this:—•''Was respondent No. 1 disqualified for standing as a
candidate at the election for reasons alleged in paragraph7; if so, what is its effect?
Paragraph 7 of the petition says that Pt. Padam Devwas disqualified for standing as a candidate "because atthe time of his nomination he was a contractor, interestedin a contract for supply of Ayurvedic medicines from hisPharmacy styled as "Simla Ayurvedic Pharmacy" as wellas from other sources to the Himachal Pradesh Govern-ment as well as to the Government of India ". Ref-erence is expressly made in the paragraph to section 7(d)of the Representation of the People Act, 1951, under whichthe disqualification was alleged to have been incurred. Inparagraph 7 of the written statement, respondent No. 1denied that he was disqualified, and he also denied that hewas a contractor to Government for supply of medicines.He further pleaded that section 7 (d) of the Representationof the People Act did not apply at all to his case.
The present petitioner had applied for amendment asregards the name of the Pharmacy of the respondent. Hesaid that the name "Simla Ayurvedic Pharmacy" waswrongly given as the name of the respondent's Pharmacyin the petition. He said that the correct name was"D.A. V. Pharmacy" and prayed that an amendment tothat effect be allowed to be made in the petition. Theprayer was disallowed but he was allowed to lead evidenceas to what was the name of the respondent's Pharmacy.It is now common ground that the name was "D. A. V.Pharmacy" and this matter therefore need not detain usany further.
The first important question in this connection iswhether section 7 of the Representation of the People Actapplies to the case. When the Representation of the PeopleAct, 1951, was enacted, there were no legislatures in Part'C States, such as Himachal Pradesh is. The aforesaid Actreceived the assent of the President on 18th July, 1951.
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 421
It is Act No. XLIII of 1951. In September, the Govern-ment of Part 'C States Act, No. XLIX of 1951, waspromulgated. It received the assent of the President on6th September, 1951. Section 8 of the Government ofPart 'C' States Act is headed "Elections to the LegislativeAssembly". It lays down: "The provisions of Part I andParts III to XI of the Representation of the People Act,1951 (XLIII of 1951), and of any rules and orders madethereunder for the time being in force, shall apply in rela-tion to an election to the Legislative Assembly of a State,as they apply in relation to an election to the LegislativeAssembly of a Part 'A' State, subject to such modifica-tions as the President may, after consultation with theElection Commission, by an order direct". This sectionexpressly excludes the application of Part II of the Re-presentation of the People Act. Section 7 of the Represent-ation of the People Act, under which the respondent isalleged to have been disqualified falls in Part II. On page 47of Doabia's Law of Elections and Election Petitions (1952)in paragraph 82 it is observed as follows:—
"It is important to note that Part II of the Re-presentation of the People Act, 1951, is not applicable to themembership of Part 'C States' Legislative Assemblies andconsequently its section 7 and other sections in this Partcannot be considered while determining the qualificationsor disqualifications for such membership".
The petitioner's counsel referred to section 17 of theGovernment of Part 'C States Act, which is headed "Dis-qualifications for membership". It reads thus:—
"A person shall be disqualified for being chosen as,and for being, a member of the Legislative Assembly of aState, if he is for the time being disqualified for beingchosen as, and for being, a member of either House ofParliament under any of the provisions of Article 102",
Clause (1) of Article 102 of the Constitution, whichdeals with "Disqualifications for membership", says that"a person shall be disqualified for being chosen as, and forbeing, a member of either House of Parliament" and thenfollow five clauses (a) to (e). We are not concerned withclauses (a) to (d) here. Clause (e) reads thus:—
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422 SATYA DEV BTTSHAHBI V. PADAM DBV [VOL. VI
"If he is so disqualified by or under any law madeby Parliament".
It is argued on behalf of the petitioner that thisclause makes section 7 of the Representation of the PeopleAct applicable. We do not agree with this contention. In"The Interpretation of Statutes" by Maxwell (1946 Edi-tion), on page 163, under the heading "Repugnancy", wefind the following observation:—
"An author must be supposed to be consistent withhimself, and, therefore, if in one place he has expressedhis mind clearly, it ought to be presumed that he is stillof the same mind in another place, unless it clearly appearsthat he has changed it".
Again, on the same page it is observed:—"It cannot be assumed that Parliament has given
with one hand what it has taken away with another".As has been seen, Part II of the Representation of the
People Act was expressly excluded from application toPart 'C States by section 8 of the Government of Part 'CStates Act. This express exclusion clearly indicates theintention of the Legislature. If it be assumed, as the peti-tioners' counsel has asked us to do, that by means of sec-tion 17 of the same Act, the Parliament meant to re-imposethe said section 7 through article 102 (1) (e), it will amountto this, as is observed in Maxwell, that Parliament wastaking away by one hand what it had given with the other.It was also observed in Kihabhoy Chandabhoy v. Commis-sioner of Income-tax, Bombay City (l) that a "court as far aspossible must reconcile the different sections of the Act inorder to carry out the object of the Legislature". There theAct in question was the Income Tax Act. The petitioner'scounsel referred to page 166 (165?) of Maxwell where it isobserved: "If the two sections are repugnant the knownrule is that the last must prevail". But the counsel forboth the parties themselves observed that there was norepugnancy in the two sections.
The petitioner's counsel further brought to our noticea notification of the Election Commission published inthe Gazette of India Extraordinary, Part I, section 1,dated 6th March 1952 (Exh. P.W. 24/B) by which certain
(1) A.I.R. 1950 Bom. 6.
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 423
candidates of the Himachal Assembly were disqualifiedon account of their having failed to file returns of theirelection expenses. In the said notification, besides section143, section 7 (c) of the Representation of the People Actis also cited for disqualifying the candidates. From this itwas argued that in the opinion of the Election Commis-sion, section 7 of the Representation of the People Act didapply to Part C States. The counsel for the respondentthought that there was a stereotyped form in the office ofthe Election Commission for use with regard to all theStates, whether of Part A, B or C. It was further con-tended on behalf of the respondent that it was not clearwhether the Election Commission had applied its mind tothe matter of the application of section 7 to Part C States,It was further submitted that the tribunal is not boundby the notification, in the matter under dispute, even ifit be assumed that it expressed the opinion of the Elec-tion Commission and that it is for the tribunal to inter-pret the Acts. There is force rn this argument. The res-pondent's counsel showed to us, in the course of his argu-ments, an Order of Adaptations promulgated by thePresident under the aforesaid section 8 of the Governmentof Part C States Act on the very date on which the assentof the President was given to the Act, namely 6th Septem-ber, 1951 and the same also showed that Part II of the Re-presentation of the People Act did not apply to Part CStates. After the above discussion we hold that Part IIof the Representation of the People Act, 1951 does notapply to Part C States and consequently section 7 of theRepresentation of the People. Act, under which the res-pondent is alleged to have been disqualified, does not applyin this case, because the said section falls within the ex-cluded Part II.
Assuming for the sake of argument, that section 7 (d) ofthe Representation of the People Act applies to the presentcase, we have to see whether, as is alleged in paragraph 7of the petition "at the time of his nomination he (i.e., therespondent) was a contractor, interested in a contract forthe supply of Ayurvedic medicines" to the Government.It is not disputed that the crucial date for determiningdisqualification was the date which was fixed for filing ofnomination papers, which in this case was 12th October,
424 SATYA DEV BUSHAHEI V. PADAM DEV [VOL. VI
1951. As has been seen, paragraph 7 of the petition it-self says "at the time of his nomination". The presentpetitioner filed further particulars regarding the aforesaidparagraph 7 on 25th November, 1952. There also in para-graph 2 he said: "That on the date of the nominations forthe election to the Himachal Pradesh Legislative Aesembly,Shri Padam Dev was supplying Ayurvedic medicines....". In Brindaban Prasad Tiwari v. Sitaram and Other sQ)the Indore Election Tribunal observed "that the materialdate for consideration of the validity of the nominationpaper is that of the nomination. ". InNarasimhe Gowda v. Lakkappa and Others(2) the Banga-lore Election Tribunal also observed that "a candidateshould not have incurred any disqualification for beingchosen as a member on the date of his nomination andthat is the material point". Further, under the law, ithas to be shown that there was a subsisting contract onthe date of the nomination. In Kesab Chandra Patwari v.Oouri Sankar Bhattacharyar and Others^) the Assam Elec-tion Tribunal observed that what was to be shown was"that at the time of the nomination the contract in ques-tion was, in fact, subsisting in law".
It may be noted that there was no direct or expresscontract between the respondent and the Government. Inthe further particulars filed by the petitioner on 25thNovember, 1952 he did not even use the word "contract"anywhere, although the word had been used in paragraph7 of the petition. In the further particulars he statedthat the respondent "was supplying Ayurvedic medicinesand goods to the Himachal Pradesh Government". Thesystem obtaining was this. The Director of Health Ser-vices, or more often a District Medical Officer, invited quo-tations from various firms including the D.A.V. Pharmacy,Simla, which was the firm of the respondent. Severalfirms of different places were registered with the Hima-chal Pradesh Government for supply of medicines. In onelist 18 such firms are mentioned and in another 12. It isadmitted by the respondent that his aforesaid firm, whichwas at first an agency, and later a branch, of the D.A.V.Pharmacy of which the Head Office, before the partition,was at Lahore, and after the partition, at Amritsar, was
(1) 5 E.L.R. 48, (2) £ E.L.R. 234. (3) 2 E.L.R. 215 at p. 220,
E.L.B.] SATYA DEV BTISHAHRI V. PADAM DEV 425
registered with the Himachal Pradesh Government as oneof the approved firms for supplying Ayurvedic medicinesfor dispensaries in Himachal Pradesh. When quotationswere invited, the various firms, of course, if they so desir-ed, submitted quotations. In some official letters, thewords used are that the firms should quote minimum ratesacceptable to them. Of course, medicines were specifiedin the official letters and quotations were invited regard-ing prices which the various firms would charge for themedicines. When the firms submitted their quotationsof prices the office of the D.H.S., or, more often, D.M.O.,would select medicines and firms and would place ordersfor different medicines with different firms and it was upto those firms to supply all or any of the medicines indent-ed. This would not amount to a contract in the ordi-nary sense of the term. The petitioner's counsel, however,would infer contracts from the above dealings.
According to the petitioner's counsel, when a firmsubmitted quotations, it amounted to an offer and whenthe Government placed an order, it amounted to accept-ance of that offer and constituted a contract. Accordingto the respondent's counsel, if the aforesaid correspondenceat all constituted a contract, the submission of quotationsamounted to an invitation for offer, the order placed bythe Government amounted to an offer and if any firmchose to supply goods or convey acceptance, that wouldconstitute a contract.
By way of analogy, reference was made by the res-pondent's counsel to Thanawala v. Shahzada BasudeoSinghQ) where it was held that "a catalogue of goods forsale is not a series of offers but only an invitation foroffers". It was further held in that case that when theplaintiff, on seeing the catalogue placed an order, he madethe proposal and the defendant accepted it, when hecomplied with the proposal. Similar view was expressed inFirm Durga Parshad v. Firm Ruliamal(*), In State-AidedBank of Travancpre v. Dhirt Ram(B) a party ascertainedrates of interest from a Bank for deposits and the Banksent quotations and the party filled up the form andinvested money. It was held that "the Bank's letter withquotations was not an offer but only a quotation of busi-
(1) i led. Cas. 325. (2) A.I.B. 1922 Lak 100. (3) A.I.R 1942 P.O. 6.
426 SATYA DEV BTTSHAHRI V. PAD AM DEV [VOL. VI
ness terms. The contract was made by the offer by theparty in the opening form accepted by the Bank by theissue of the deposit receipt". This supports the viewtaken by the respondent's counsel in this case. The peti-tioner's counsel cited Surendra Nath Roy v. Kedar NathBose(l) in which it was held that "a letter communicatingwillingness to sell certain property for a certain sum inreply to a letter inquiring whether the property is to besold amounts to an offer or proposal within the meaningof section 2 and is not merely an invitation to an offer".This ruling does not seem to apply appropriately to thesystem detailed above.
Further, section 7 (d) of the Representation of the Peo-ple Act, applies to executory contracts. In the Indian Elec-tion Law by Sarin and Pandit it is thus observed on page277: "Clause (d) of section 7 of the Act of 1951 applies toexecutory contracts only, and not to contracts completelyexecuted before the election, and where all that remainsto be done is for the Government to make payment to thecontractor who receives the payment after the election".The English law in the matter being identical, referencewas made by the respondent's counsel to page 22 of"Roger on Elections" Volume II—"Parliamentary Elec-tions and Petitions" (1928 Edition) where also it wasobserved thus:—"It has been held that the above Actapplies to the executory contracts only and not to con-tracts completely executed before the election and whereall that remains to be done is for the Government topay the money". Exactly the same is stated on page 52of "Parker's Election Agent and Returning Officer" (FifthEdition). Compare also section 55(1) of the Indian Saleof Goods Act, which lays down: "Where under a con-tract of sale the property in the goods has passed to thebuyer and the buyer wrongfully neglects or refuses topay for the goods according to the terms of the contract,the seller may sue him for the price of the goods". Pro-perty in the goods passes ordinarily on delivery and if itsprice is not paid the seller has the right to sue for theprice of the goods supplied.
The petitioner's counsel referred to Satyendra KumarDas v. Chairman of the Municipal Commissioners of
(1) A.I.R. 1937 Cal. 87.
E.L.R.] SATYA DEV BUSHAHBI V. PADAM DEV 427
Dacca^), in which, under the Bengal Municipal Act, acontractor, whose bill for work done had not been paid bythe Municipal Committee, was held to be disqualified forbeing a Municipal Commissioner. That ruling does nothelp in the present case. Apart from the fact that thecase was under the Municipal Act, the words of whichwere different, there the person concerned appears to havebeen a contractor in the ordinary sense of the term, whilethe respondent here is not so.
After having discussed the law bearing on the subject,we shall now proceed to examine whether there was anysubsisting contract for the supply of medicines on behalfof the respondent on 12th October, 1951, which was thedate of nomination. It may be mentioned here that ac-cording to the respondent he transferred his business toShrimati Subhadra Devi, R. W. 30, in the first week ofOctober and had nothing to do with the business, includ-ing the supply of medicines to Government, after theaforesaid time. We shall, however, examine the questionwhether there was any subsisting contract on the crucialdate, ignoring, for the time being, the plea of transfer.
The petitioner's counsel relied on one instance eachfrom three out of four districts of Himachal Pradesh,namely Mahasu, Sirmur and Mandi, in his attempt toprove a subsisting contract. Evidence regarding the cor-respondence and dates, etc. has been given principally bythree witnesses, namely, Shri Ram Lubhaya (P.W. 25),Accountant of the office of the District Medical Officer,Mahasu, Shri Phul Chand Gupta (P.W. 17), Auditor of theAccountant-General's office, Simla, and Shri Mithan Lai,Superintendent, Establishment, Himachal Pradesh, whowas formerly Superintendent of the office of the Directorof Health Services, Himachal Pradesh and who wasexamined as a court witness on the 2nd instant. Supple-mentary statement of the aforesaid Shri Phul Chand Guptawas recorded on the 2nd instant and of Shri Ram Lubhayaon the 4th. A very large number of documents were filedin court on behalf of the office of Director, Health Services,and D.M.O., Mahasu, etc., at the instance of the petitioner.We shall take up each of the three instances one by one.
In the Mahasu instance, the D.M.O. called for quota-(1) A.I.E. 1936 Gal. 87.
428 SATYA DEV BUSHAHBI V. PADAM DBV [VOL. VI
tions on 25th July, 1951. As the order in this case wasplaced on 19th November, 1951, even if, according to thearguments of the petitioner's counsel, that were to betaken as acceptance, the contract came into being muchlater than the date in question namely 12th October, 1951.It is common ground that any disqualification incurredsubsequently is not within the jurisdiction of an ElectionTribunal.
In the case of Sirmur, the D.M.O. placed an order withfour firms including the D.A.V. Pharmacy, Simla, on 25thSeptember, 1951, for supply of certain medicines. On 24thOctober, 1951, the D.M.O. issued a reminder. On 31stOctober, 1951, Lai Singh, an employee at the D.A.V. Phar-macy, Simla wrote to the D.M.O. that the supply was be-ing arranged. On 27th November, 1951, the D.M.O. pressedthat the supply be made by the end of the month, addingthat otherwise the order should be taken as cancelled. Inthis connection it was pertinently remarked by the respon-dent's counsel that if the quotations constituted proposaland the D.M.O's. order acceptance, the Government neednot have said that the order be taken as cancelled butwould have claimed damages for a breach of the contract.On 30th November, 1951, a telegram was sent to the CivilSurgeon, Nahan, requesting extension of the date forsupply up to the 5th December. The telegram also saidthat delay was due to elections. The telegram purportedto have been sent by "Padam Dev". The original telegramis not in court. It is the copy which was received by theCivil Surgeon. On the same date, i.e. 30th November, 1951,the aforesaid Lai Singh sent a copy of the telegram by postin confirmation to the said D.M.O., adding that medicineswould reach Nahan by the 5th. This copy and the endorse-ment below it are typed. It is signed by Lai Singh andbelow his signature within brackets there is typed thename "Padam Dev". It appears from this that the tele-gram also was given by Lai Singh in the name of Pt.Padam Dev. The medicines appear to have been suppliedby 5th December as the bill submitted was dated 6thDecember. The contract, if any, should be taken to havecome into being on 31st October, 1951 when Lai Singh con-veyed acceptance by writing that the supply was beingarranged. This date also is subsequent to the crucial date
E.L.R.] SATYA DEV BTJSHAHRI V. PADAM DEV 429
12th October, 1951. It has not been shown when paymentfor this supply was made as the relevant receipt has notbeen found.
Mandi instance.—[The learned members found thatthe actual payment to the Pharmacy was made in Sep-tember, 1951 and said:] Assuming that payment was madein March, 1952, still there was no executory contract. Thebill having reached D.M.O. Mandi in September, 1951, leftno doubt that medicines had been supplied by then. Wehave already referred to Rogers and Parker etc. to theeffect that the mere fact that payment was yet to be madeis immaterial and we have held Satyendra Kumar Das v.Chairman of the Municipal Commissioners of Dacca(^) to beno guide in this case. This finishes the only three instancesspecifically relied on by the petitioner's counsel in hisarguments.
There remains the question of the alleged transfer ofthe business of D.A.V. Pharmacy, Simla, by the respon-dent to Shrimati Subhadra Devi, in the first week ofOctober, 1951. We find it unnecessary to examine theevidence about the alleged transfer, in view of our findingsrecorded above, namely that section 7 of the Representa-tion of the People Act does not apply in the present caseand, assuming that it does, there was no subsisting con-tract on the date of nomination, i.e. 12th October, 1951.Therefore, transfer or no transfer, the respondent was notdisqualified for standing as a candidate for the HimachalPradesh Legislative Assembly.
Our finding, therefore, on part (a) of issue No. 4 isagainst the petitioner. Parts (b) and (c) of the said issueno longer arise. Moreover, the matter of part (b) is out-side the jurisdiction of the tribunal.
Issue No. 1 (again).—Only one portion remains to beexamined under issue No. 1. It forms the subject-matterof clause (f) of paragraph 5 of the petition. It runsthus:—
"The respondent No. 1 or his agents or other personswith the connivance of respondent No. 1 or his agentsobtained or procured or abetted or attempted to procure
(1) A.I.R. 1931 Cal. 288.
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430 SATYA DEV BUSHAHRI V. PAD AM DEV [VOL. VI
the assistance for the furtherance of the prospects of theelection of the respondent No. 1, from a large number ofpersons serving under the Government. Full particularsof the corrupt practices mentioned in this sub-paragraphare given in the List marked as 'F' attached with thispetition, which may be read as a part of this petition".
List 'F', however, reads thus:—"Regarding the facts to be mentioned in this list,
the petitioner relies upon the particulars and facts men-tioned in the List 'D' which at the same time constitutesthe corrupt practice of getting help etc., from Governmentservants as provided in section 123 of the Representationof the People Act, 1951".
List 'D' consists of nine items. Of these Nos. 1 and2 relate to alleged spiritual undue influence and as suchthey have been dealt with. There is no mention of anyGovernment servant in item No. 2. In item No. 1, how-ever, there is a mention of Amar Singh Zaildar and thiswould be examined. The remaining 7 items do relate tothe alleged assistance by Government servants and wouldbe gone into.
The matter falls under sub-section (8) of section 123of Representation of the People Act. The said sub-sectionruns thus:—
"The obtaining or procuring or abetting or attempt-ing to obtain or procure by a candidate or his agent or,by any other person with the connivance of a candidateor his agent, any assistance for the furtherance of theprospects of the candidate's election from any person serv-ing under the Government of India or the Government ofany State other than the giving of vote by such person".
Before proceeding to assess the proof of the allegedcorrupt practice we shall notice generally what the lawexpects in this connection. Section 83 of the Representationof the People Act says in sub-section (1) that "an electionpetition shall contain a concise statement of the materialfacts on which the petitioner relies ". And its sub-section (2) runs thus:—
"The petition shall be accompanied by a list signedand verified in like manner setting forth full particularsof any corrupt or illegal practice which the petitioner
E.L.R.] SATYA DEV BTTSHAHRI V. PADAM DEV 431
alleges, including as full a statement as possible as to thenames of the parties alleged to have committed such cor-rupt or illegal practice and the date and place of the com-mission of each such practice".
The word used in sub-section (2) is "shall", whichshows that the furnishing of full particulars in a list ismandatory. In Pandit Nanak Chand's Law of Elections(1951 Edition), this matter is discussed on pages 380-383.There it is stated that the furnishing of full particulars isrequired "with a view to give the earliest possible noticeof the charges relied upon by the petitioner to the respon-dent and to prevent his being harassed by fresh matterbeing introduced at later stages". It is further observed:"The allegation of corrupt practice is a quasi-criminalcharge and the respondent should know the exact chargeat the earliest possible moment". It is also observed therethat if particulars are not given, the relevant paragraphsin the petition should be struck off. Authorities are citedunder the aforesaid observations. It is also pointed outthat in the election case of Amritsar Cityi^), "the Commis-sioner opined that it would be a dangerous precedent toencourage any laxity with regard to this rule". It is fur-ther observed that "evidence should be confined to corruptpractices of which particulars have been filed". With refer-ence to another case, reported in 3 Hammond's ElectionPetitions page 241 (sic), it is observed that "where evidencewas led by the petitioner on various charges which had notbeen included in the list of the particulars and the counselfor the respondent raised an objection as to this, the Com-missioners upheld the objection and refused to considerthe evidence tendered on behalf of the petitioner on suchcharges". On page 382 reference is made to a case wherethe Commissioners dismissed a petition on the ground offailure to give material facts and particulars.
In Debi Prasad v. Mohammed Naseer and Others^), listsof particulars were filed with the petition, but the listswere not verified as required by sub-section (2) of section83. Subsequently, verified lists were submitted afresh. Thiswas, however, done after the limitation for submission ofthe petition was over. The verified lists therefore were notaccepted and the petition itself was dismissed on the ground
(1) 2 Hammond E.P. 17. (2) 3 E.L.E. 137,
432 SATYA DEV BTJSHAHRI V. PADAM DEV [VOL. Vl
that it did not fulfil the requirements of sub-section (2) ofsection 83, which were mandatory.
Now we shall proceed to examine the evidence. Itwould be better to take up the case of each person sepa-rately.
Baghubir Das Zaildar.—He is referred to only in para-graph No. 7 of list 'D', where it is stated that on 19thNovember, 1951, he arranged a meeting at village Dalgaonand there asked the voters to vote for respondent No. 1and other Congress candidate. He is also alleged to havetold the voters that he was instructed by the Governmentto do so.
The only witness who has given evidence supportingthe allegation in paragraph No. 7 of the list is a defeatedcandidate Sanam Ram (P.W. 24), admittedly a politicalally of the present petitioner from the start of their poli-tical activities. Surat Singh (P.W. 3) and Sanju (P.W. 8)alleged that the Zaildar canvased for the respondent atKaralish, while the original petitioner Gian Singh (P.W.10) deposed similarly regarding Rohru. The aforesaid Sa-nam Ram also stated about village Pujarli. All this evidenceis inadmissible and cannot be considered, because no villageother than Dalgaon is referred to in the list. Nasir AllKhan v. Nawabzada Mohammad Faiyaz All Khan(l) is asimilar case and there it was held "that the petitionercannot be allowed to establish the commission of thecorrupt practice at any place not mentioned in thepetition or in the list appended to it". Consequently,evidence produced regarding 13 villages was rejected.Here the evidence in support of the particular instancecited in the list being that of one interested witnessonly, it is hereby found that the charge of obtainingassistance from Raghubir Das Zaildar is not proved.
Sital Singh and Kahan Chand.—They are brothers.Sital Singh was an extra-departmental agent of the postoffice at Arhal and Kahan Chand at Rohru. They were per-forming the functions of Branch Postmasters. Kahan Chandbegan to work as extra-departmental Sub-Postmasterafter the elections. Regarding them the allegations arecontained in paragraphs 3 and 9 of list 'D'. Paragraph 3related to the visit of Rajkumari Amrit Kaur, It stated
(1) Sen & Poddar 428 (434).
E.L.R.] SATYA DEV BTTSHAHRI V. PADAM DEV 433
that Sital Singh and Kahan Chand took part in the propa-ganda for respondent No. 1 and the Rajkumari and theyimpressed upon the audience to vote for the official candi-dates. They are also said to have held out "promises tovoters to make efforts to open a sub-post office at Rohru
". The audience mentioned refers to the meetingwhich took place at Arhal on the visit of the Rajkumari.There is no evidence at all that Kahan Chand and SitalSingh made any speech whatsoever on that occasion.According to the respondent's witnesses, Kahan Chandwas not even present. They themselves also have come intothe witness box as witnesses for the respondent and havedenied the allegations made against them: Sital Singh isR.W. 20 and Kahan Chand is R.W. 31.
Paragraph 9 of list 'D' alleges spreading of a falserumour that the original petitioner Gian Singh was man-handled at Tikkar, etc. This rumour is stated in the saidparagraph to have been spread by "Karam Chand Chau-han with the connivance of the respondent No. 1 as wellas his agents Sital Singh and Kahan Chand Postmasters".This allegation has been dealt with already, and found tobe not proved.
Nothing was said about Kahan Chand by the peti-tioner's counsel in his arguments. He, however, laid stresson the admitted fact that Sital Singh was one of the twopolling agents of respondent No. 1 for the polling stationArhal, the other being Shadi Ram, R.W. 28. It was vehe-mently argued that the appointment of Sital Singh as apolling agent was a major corrupt practice under section123(8). There was, however, no such allegation at all inthe list 'D'. It was argued that the words "his agents SitalSingh and Kahan Chand" in paragraph 9 of list 'D' im-pliedly refer to the matter. We are not prepared to acceptthis contention. Kahan Chand is not alleged even nowto have been an agent of the respondent. Under section83(2) the petitioner was bound to specifically allege thatSital Singh was appointed by the respondent as his poll-ing agent and should have given the date and place, etc.,if he sought to rely on it as a corrupt practice. Evidentlyit is an after-thought to introduce the matter as a corruptpractice. On the basis of the law already cited, this can-not be allowed and the tribunal cannot go into this matter,
434 SATYA DEV BUSHAHKI V. PADAM DEV [VOL. VI
Assuming that this matter can be gone into, let usfirst see whether Sital Singh was a Government servant.The words used in section 123(8) "person serving underthe Government of India or the Government of any State"do not necessarily connote anything different from thecommon expression "Government servant". While inclause (f) of paragraph 5 of the petition, the petitioneruses the words "persons serving under the Government",in the relevant list (F' referred to in that clause, he usesthe words "Government servants". The expression usedin paragraphs 3 and 5 of the relevant list 'D' is also "Gov-ernment servant".
It is not disputed that Sital Singh and Kahan Chandare what are styled "extra-departmental agents" underPost Office Rules. We shall notice the particular pointsrelating to such persons. The evidence in this connectionwas given by Shri Ram Parshad Singhal of the GeneralPost Office, Simla (R.W. 29) and some Post Office Rulesetc. were further referred to in this connection in thecourse of arguments by the parties' counsel. The sameshow that extra-departmental agents are appointed fromamong "school masters, station masters, shop-keepers,land-holders and pensioned servants of Government whohave sources of income apart from their allowance forpostal work": (vide paragraph 284 of Post and TelegraphManual, Volume IV). It is emphasized in the rules inmore than one place that "they should possess some inde-pendent means of subsistence or should have spare timeto earn sufficient income in addition to the allowance":[vide paragraph 572 A(3), ibid]. In the present case, bothSital Singh and Kahan Chand were school masters, Bothseem to have retired. Kahan Chand cultivates land andSital Singh is salesman of a co-operative society, besidestheir doing Post Office work. Paragraph 4 of the Manualof Appointments and Allowances of Officers of the IndianPosts and Telegraphs Department, Chapter I, re classifica-tion and status of services lays down that extra-depart-mental agents, like pankhapullers, bahishtis, sweepers,grass-cutters, cobblers, etc. are wholly excluded from theoperation of the Civil Services Rules. Paragraph 62 ofCircle Orders of the Punjab and North West FrontierPostal Circle, Section VIII, says: "Persons employed as
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 435
extra-departmental agents have no claim whatever to anypermanent appointment or promotion in the department".Memo. No. A116-1/48, dated 20th March, 1948, from theDirector-General, Posts and Telegraphs, New Delhi, says:"The basic idea of the extra-departmental system is thatextra-departmental agents should be employed only whenthere is not enough work to justify the employment of thedepartmental staff. It has been decided that generally whenwork exceeds 5 hours per day, extra-departmental agentsshould not be employed, and if any are now employedthey should be replaced by departmental staff". ShriSinghal (R.W. 29) stated: "Postal Rules relating to leave,gratuity, pay and pension etc. do not apply to them. Theyare not entitled even to casual leave". He also statedthat in case they want to absent themselves temporarilyfrom their duty, they have to make arrangement for asubstitute on their own responsibility. In these circum-stances, we are inclined to hold that extra-departmentalagents like Sital Singh and Kahan Chand are not Govern-ment servants or "persons serving under the Government"within the meaning of section 123(8) of the Representa-tion of the People Act.
Assuming that Sital Singh was a "person servingunder the Government", it has to be seen whether his ap-pointment as a polling agent was "for the furtherance ofthe prospects of the candidate's election". Nothing hasbeen shown beyond the fact that he was appointed a poll-ing agent: there is no evidence worth the name that hecanvassed votes for the respondent. The respondent asR.W. 33, stated that he appointed him as one of his twopolling agents in order to identify the voters and preventpersonation and that he was only to sit inside the pollingbooth to assist the polling staff in the aforesaid matter,while Shadi Ram, the other polling agent was to workoutside the polling booth. Sital Singh himself (R.W. 20)also denied that he did any canvassing, etc. for the res-pondent. In Naraindas v. Manohar Rao Jatar and Others (*)the Election Tribunal, Jabalpur, held thus about a poll-ing agent in that case: "He had no doubt worked as res-pondent No. l's polling agent on the date of the pollingat Kalar Banki. But in our opinion a polling agent is a
(1) E.P No. 3 of 1952.
436 SATYA DEV BTTSHAHRI V. PADAM DEV [VOL. VI
person more to assist the work of polling than to workfor the candidate in the polling station". The peti-tioner's counsel referred to two decisions of the PatialaElection Tribunal in which they held the appointmentof Government servants as polling agents to be a cor-rupt practice. The decisions were given in Lahri Singh v.Attar Singh and Others^) and in Ghasi Bam v. Bam Singhand Other si^). In one of the cases the polling agentwas an Army officer, who was also lambardar andin the other, he was a member of the Debt ConciliationBoard. It was alleged by the petitioner that these influ-ential Government servants actively procured votes forthe returned candidates. There is no such proof in thepresent case. We do not regard the said Patiala rulingsto be an appropriate guide in the present case. We are in-clined to agree with the view of the Jabalpur Tribunalreferred to above. It is to be noted that now the ballotis secret and no cross-mark, etc. is to be put on a ballotpaper, and therefore a polling agent who merely sits withthe polling staff to identify voters cannot be said to fur-ther the prospects of a candidate's election.
For the aforesaid reasons we hold that, assuming SitalSingh to be a Government servant, his appointment as apolling agent, which was not specifically alleged as a cor-rupt practice, and which is not proved to have been forfurtherance of the prospects of the election of the respon-dent, is not detrimental to the respondent's case.
Moti Bam and Daulat Bam.—They are referred toonly in paragraph 5 of list 'D', which reads thus.—
"Moti Ram and Daulat Ram of Sharog who wereworking as postman and packer in the Post Office and wereGovernment servants did extensive propaganda in favourof respondent No. 1, and told the voters that they mustvote for the respondent No. 1 who was an official candi-date helped by the Government and in case they did notdo so they would be severely dealt with. These two per-sons were the seconder and proposer of the respondentNo. 1. Shri Daulat Ram took leave from 15th November,1951, and for some other days also, and came back to hisduty long after 23rd November, 1951, after helping the
(1) 3E.L.R. 403. (2) 4 E.L.R. 124.
E.L.R.] SATYA DEV BTTSHAHRI V. PADAM DEV 437
respondent No. 1 by making propaganda in his favourand in various other ways".
It is clear that the complaint regarding these two Gov-ernment servants was that they actively helped the causeof the respondent and did extensive propaganda for him.There is, however, no proof worth the name in support ofthis allegation. Regarding Moti Ram, a postman, of G.P.O.,Simla, there is no such evidence at all. Regarding DaulatRam, a postal packer attached to G.H.Q. Post Office, Simla,only the original petitioner Gian Singh (P.W. 10) madesuch an allegation, which cannot be relied on. Moti Ramand Daulat Ram denied the allegation as respondent'switnesses, R.W. 18 and R.W. 32, respectively. Some otherwitnesses for the respondent also stated that these twomen did no propaganda. Daulat Ram admitted that hewent home on leave for 10 days from 18th or 19th Nov-ember and added that the reason for his taking leave wasthat his wife was about to give birth to a baby and a sonof his was ill and that therefore, he only stayed at home.
Great stress was laid in the course of the argumentsby the counsel for the petitioner on the fact of Moti Ram'sand Daulat Ram's having seconded and proposed nomi-nation papers of the respondent and it was contended thatthis was per se a major corrupt practice, enough to de-clare the election of the respondent to be void. Para-graph 5 of list 'D' which has been reproduced above inextenso would show that the petitioner did not specificallyrely,ras a corrupt practice, on the proposing and second-ing of nomination papers of the respondent by Daulat Ramand Moti Ram. If it was desired to rely on the same asa corrupt practice it was incumbent on the petitioner,under section 83(2) of the Representation of the People Act,to specify the date and place, etc., with respect to thenomination papers: but this was not done. Clearly para-graph 5 complained only about propaganda alleged to havebeen done by the two men in favour of the respondentNo. 1. The sentence: "These two persons were the se-conder and proposer of the respondent No. 1" appears tohave been introduced only to strengthen the allegation ofthe alleged propaganda. Obviously, it was not pleaded asa separate and specific act of corrupt practice. Therefore,
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in view of the law already cited, the matter, as sought tobe argued now, cannot be gone into.
We might however brie-fly examine the matter fur-ther. The respondent as R.W. 33 stated that he did not askthese two men to do any propaganda for him or help himin his election in any manner, nor did they do so. He fur-ther stated that he made them sign his nomination papersbecause he thought that every voter could propose orsecond a nomination. He added: "I did not find any barto the same as far as I looked up the law at that time".
There is no decision of any court, so far, one way orthe other, as to whether a Government servant is or isnot debarred from signing the nomination paper of acandidate at an election as a proposer or a seconder. It istrue that section 123 (8) expressly saves only "the givingof vote" by a Government servant. This right of votebeing available to him, we have to see whether a Govern-ment servant is precluded from signing a nominationpaper. Section 33(2) of the Representation of the PeopleAct, 1951 lays down: "Any person whose name is regis-tered in the electoral roll of the constituency and who isnot subject to any disqualification mentioned in section16 of the Representation of the People Act, 1950 (XLIIIof 1950), may subscribe as proposer or seconder as manynomination papers as there are vacancies to be filled butno more". Section 16 of the Representation of the PeopleAct, 1950, enumerates "Disqualifications for registrationin an electoral roll". Its clause (c) requires that such aperson should not be "disqualified from voting under theprovisions of any law ". It is not alleged thatMoti Ram and Daulat Ram were disqualified from voting.This right is expressly saved for Government servantsunder section 123(8) of the Representation of the PeopleAct, 1951. Thus, Moti Ram and Daulat Ram were quali-fied for registration in an electoral roll. This is not dis-puted and they were in fact so registered and only as such,a person could propose or second a nomination paper.Reading section 123(8) and section 33(2) of the Represen-tation of the People Act, 1951, along with section 16(c) ofthe Representation of the People Act, 1950, we are inclinedto the view that a Government servant is not neces-sarily debarred from proposing or seconding a nomination
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 439
paper, which right, under the law, appears to accrue toevery voter; and a Government servant is not debarredfrom being a voter.
In any case, according to the requirements of sub-section (8) of section 123 it must be proved that the act ofproposing or seconding was "for the furtherance of theprospects of the candidate's election". We find that thisis not proved. In our opinion, the act of signing thenomination papers was, at least in the present case, onlya formal paper affair. These two persons did not evenattend at the time of the scrutiny of the nominationpapers. It is also not proved that they did any propagandafor the respondent or rendered him aid in the matter ofhis election in any other manner whatsoever.
Another argument worth consideration was also ad-vanced by the counsel for the respondent. Pandit PadamDev filed four nomination papers and all the four wereaccepted. One of them which is on pages 163 to 166 ofthe file of nomination papers is not alleged to have beenproposed or seconded by any Government servant. Asappears from the re-examination of the respondent (R.W.33) Fina Das seconder was not a Government servant. So,the respondent could contest the election, solely on thestrength of the aforesaid nomination paper, which also wasaccepted. In this view of the matter, the other threenomination papers, one of which was proposed by DaulatRam and another was seconded by Moti Ram, becamesuperfluous. In this view of the matter also, it cannot besaid that the proposing of one nomination paper by DaulatRam and the seconding of another by Moti Ram, furtheredthe prospects of the candidate's election.
As the aforesaid acts of proposing and seconding aresought to be brought in as a corrupt practice, we mightadvantageously refer to the authorities cited by therespondent's counsel as to what is a corrupt practice. Onpage 392 of "Parliamentary Elections" by A. NormanSchofield (1950 Edition), it is thus observed on thebasis of authorities cited there: "To make the doing ofan act corrupt it must be done with an evil mind, with theknowledge that it is wrong and with an evil feeling andevil intentions". In Oobardhan Das v, Eao Bahadur Oh.
440 SATYA DEV BilSHAHRI V. PADAM DEV [VOL. VI
Lai Chand^1) the Commissioners are reported to have held:"To constitute a corrupt practice it is essential that thereshould be a corrupt or wicked motive. Mere suspicion ofsuch motive, however strong, cannot take the place ofproof".
The circumstances of the present case do not evensuggest that the respondent had any evil or corruptmotive in making these two men sign his nominationpapers. He got their signatures in their postal quartersand these men did not even attend the office of the Re-turning Officer. Therefore, this was only a formality andwas not meant for furtherance of the prospects of elec-tion.
The law contained in sub-section (8) of section 123 isnew. Under the old law, taking assistance from a Govern-ment servant was not a corrupt practice, unless the samewas accompanied by the exercise of undue influence bysuch a Government servant and the same materiallyaffected the result of the election. We have alreadyobserved that so far, there is no decision, one way or theother, on the point under discussion. It is not disputedthat an allegation of a corrupt practice in an electionpetition is like a criminal charge, that the quantum ofproof required is as it would be in a criminal case, and thatthe benefit of doubt would go to the respondent and notto the petitioner.
For all these reasons we hold that the act of DaulatRam and Moti Ram, postal employees, in having signedthe nomination papers of the respondent would notconstitute a corrupt practice under section 123(8). Wemust repeat that no such corrupt practice was specificallyalleged in the petition or in the list and therefore, in thefirst instance, the tribunal has no jurisdiction to go intothe allegation sought to be made out later.
This finishes paragraph 5 of the petition, Lists 'F' and'D' and issue No. 1. We find on this issue against thepetitioner, in its entirety.
Issue No. 8.—This is a general issue. It was framed be-cause a general allegation like this was made in paragraph16 of the petition. Its decision rests on that of the other
(1) 1 Jagat Narain 57.
E.L.R.] SATYA DEV BTISHAHRI V. PADAM DEV 441
issues, especially Nos. 1, 4 and 6. Like the aforesaid para-graph 16, it is only a summing up of the allegations form-ing the subject-matter of the preceding issues. Findingson all the issues, the onus of which was on the petitioner,have been given against him. The onus of only one issue,namely No. 5, was on the respondent. The matter of thatissue has been held to be not proved, but the same has noeffect. We, therefore, find on this issue No. 8 also againstthe petitioner. Thus, no ground has been made out onwhich the election of the respondent can be declared to bevoid.
For the foregoing reasons, the petition fails and ishereby dismissed. Shri Satya Dev petitioner is directedto pay Rs. 700, as costs to Pandit Padam Dev, respondentNo. 1.
DAITLAT RAM PREM.—With unfeigned respect to mylearned colleagues, I feel constrained to differ from themon findings arrived at on issue No. 1, relating to appoint-ment of Sital Singh, extra departmental agent as pollingagent and subscription of the nomination papers of respon-dent No. 1 by Daulat Ram and Moti Ram, two employeesof the Postal Department. On all other issues we havebeen unanimous in our decision, though I cannot subscribeto all the reasons advanced for arriving at such conclu-sions. The learned Chairman of the Tribunal has set outthe case of the parties in his judgment and has also setout therein the issues framed in the case, and it is unneces-sary to recapitulate the same. With regard to issue No. 1,concerning the procuring of official assistance by therespondent from Sital Singh, Daulat Ram and Moti Ram,Government servants, I have been unable to agree withthe learned Chairman, the view taken being different. I,therefore, proceed to record my view by this separatejudgment on these points.
It is admitted fact that Sital Singh, an extra depart-mental agent was appointed polling agent at Arhal by therespondent and that he acted as such on the polling day.Respondent No. 1 as R.W. 33 admits that he appointedSital Singh as polling agent for Arhal because he knew allthe people. Sital Singh (R.W. 20) also deposes that heacted as polling agent for the respondent.
442 SATYA DBV BUSHAHRI V. PADAM DEV [VOL. VI
Three main objections were taken by the learnedcounsel for the respondent:—
(a) That Sital Singh was not a person serving underthe Government of India.
(b) That, assuming that Sital Singh was a Govern-ment servant, his merely acting as polling agent does notfall within the ambit of section 123(8) of the Represen-tation of the People Act, and does not constitute a majorcorrupt practice.
(c) That the petitioner has stated neither in the peti-tion nor in the annexures that Sital Singh acted as pollingagent. Hence, this tribunal has no jurisdiction to go intothis matter.
As to (a) it has been strenuously urged by Shri MukatBihari Lai Bhargava, the learned counsel for the respon-dent No. 1, that Sital Singh is not a person serving underthe Government, because he has been described as extradepartmental agent and not a servant; he is not a wholetime employee; Classification and Appeal Rules do notapply to him and his hours of work are limited to five.
In order to find out whether a person is a servant oran agent, mere nomenclature given to a person is not thedeciding factor. The distinction between a servant and anagent has been clearly brought out in a number of textbooks on the Law of Contracts. Chitty on Contracts, 20thEdition, at page 1153, remarks that "the contract creatingthe relationship of master and servant must be dis-tinguished from the contract of agency, though a servantmay also be an agent and from the contract for services asdistinct from the contract of service. It is a question offact to be decided on all the circumstances of each case,but is dependent in part on the amount of control exer-cised by the employer": Simmons v. Heath Laundry^);Gold v. Essex CC.(2).
During the arguments I questioned the counsel forthe respondent to explain the difference between a servantand an agent. His answer was that an agent was governedby the terms of agency while a servant was not. Theanswer is unsatisfactory. What is the test to determinewhether a particular person is a servant or an agent?
(1) [1910] 1 KB. 543 (549-50). (2) [1942] 2 K.B. 293,
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 443
That which distinguishes an agent from a servant is notthe absence or presence of fixed wage or the payment onlyof commission for business done but rather the freedomwith which an agent may carry out his employment. Ishe controlled in the hours he must work, the place wherehe must work; is he at liberty to leave the work withoutpermission; is he to obey the direction of the employerin the manner of carrying out those directions; is he liableto punishment for dereliction of duties etc? These aresome of the tests to distinguish a servant from an agent.
According to Oxford Dictionary, a servant is "a per-son who has undertaken to carry out the orders of hisemployer". The criterion is to find out if there is controlover his action by the person employing him. An agentis not under the control of his principal, whereas a ser-vant is under the control of his master: B. v. Walker^),B. v. Negus(*), B. v. Bowers(3). A person is under thecontrol of another if he is bound to obey the orders ofthat other not only as to the work which he shall executebut also as to the details of the work and the manner ofits execution: Stein v. Larking), Simmons v. HeathLaundry(5), Templeton y. William Parkin & Go.(6). It isnot necessary that control should be continuously exer-cised. It is the right or power to control, derived fromagreement between the parties, that creates the relation-ship: Bobby v. Grosbie^), Richards v. Pitt(a), Sadler v.Henlock{9).
The question whether a person is under the controlof another is always a question of fact to be decided onthe circumstances of each particular case: Jones v. Scul-lord(10), Simmons v. Heath Laundry (5). I t was pointed outby Bramwell, J., in B. v. Walker^) that "a principal hasthe right to direct what the agent has to do, a master hasnot only that right but also the right to say how it is tobe done".
Bearing these principles of law in mind let us scanthe evidence adduced in this case in order to find out
(1) (1858) 27 L.J.M.C. 207. (2) L.E. 2 C.O.E. 34.(3) (1866) L.R. 1 CO. at p. 45. (4) (1934) 1 K.B. at p. 196.(5) (1910) 1 K.B. 543. (6) (1929) 140 L.T. 519.(7) (1915) 85 L.J.K.B. 239. (8) (1915) 84 L.J.K.B. 1417.(9) (1855 24 L.J.K.B. 138. (10) (1898) 2 Q.B. 565.
444 SATYA DEV BUSHAHEI V. PADAM DEV [VOL. VI
whether Sital Singh was only an agent or servant. ShriRam Prashad Singhal, Complaint Inspector, General PostOffice, Simla, R.W. 29, has stated in his evidence that ap-plications are called for when an extra departmentalagent is desired to be appointed. Before appointment anenquiry is made regarding his character. He has to givea declaration as prescribed by rule 16(1 )(b) of Posts &Telegraphs Manual, Vol. I l l , which runs thus: "I do here-by declare that I have read the Government Service Con-duct Rules and thoroughly understood them". Such adeclaration has to be given even by persons appointed topermanent posts. The extra departmental agent has tofurnish security because he has to handle cash. He has toapply for permission before he can go on leave and accord-ing to the note under rule 91 of the Manual, applicationsfor leave from extra departmental agents are required tobe preserved for 3 years. Acquittance Rolls are preparedregarding payment of allowance to extra departmentalagents and they are paid allowances monthly. Such Agentsare liable to punishment like permanent servants of thesame classunderrulel2-A(2) of Posts & Telegraphs Manual,Vol. II. Such punishments are detailed under rule No. 11.As in the case of permanent servants, charges have to beframed and inquiries made. When they are summoned bya court to give evidence, summons is served through thedepartment.
Mere cursory reading of the evidence given by R.W.29, makes it abundantly clear that Sital Singh, ExtraDepartmental Agent, is under the control of the PostalDepartment with regard to his appointment, leave, punish-ment, etc., and as such fulfils the conditions of a servant.
Kahan Chand, Extra Departmental Sub-Post-master,Rohru, has appeared as witness (R.W. 31). He is brotherof Sital Singh. He deposes that Sital Singh used to getRs. 10 as dearness allowance.
It is significant that in the circle orders, rule 62, theword used as to extra departmental agent is "employed".Rule 62, as it appears from the evidence of R.W. 29, runsthus: "Persons employed as extra departmental agentshave no claim whatever to any permanent appointmentor promotion in the department". Section 2(e) of thePost Office Act defines "Officer of the Post Office" which
E.L.B.] SATYA DEV BUSHAHRI V. PADAM DEV 445
"includes a person employed on behalf of the Post Office orto do any work of the Post Office". In Stroud's JudicialDictionary, Vol. II, at p. 945, the expression "Person em-ployed under the Post Office" as used in the Post OfficesOffences Act, 1837 and Post Office Act, 1908, has been de-fined thus:—
"The term 'employed' in this statute means 'engagedor occupied': R. v. Reason(l), and it was there held that aperson who at a Postmaster's request gratuitously assist-ed him in sorting letters was within the section".
In Emmens v. Eldertoni?), it was held that "theword 'employ' does not necessarily mean employed inactual work but, as observed in the judgment of the courtbelow, may be fulfilled by keeping him in the service".
Again, Sital Singh, extra-departmental agent, used tohandle cash and received money on behalf of Governmentof India. Section 21 (10), Indian Penal Code, lays down thatany person who receives any money on behalf of the Gov-ernment is a public servant. The learned counsel for therespondent contends that Sital Singh may be a publicservant for the purpose of penal statutes, but he is not aperson serving under the Government. The words used insection 123(8) of the Representation of the People Act are"serving under the Government of India". It is plain thathe is a servant in the postal department and getting re-muneration for the same. The department has controlover his movements with regard to leave, hours of work,etc. and he can be punished for dereliction of his duties.I hold that he is a person serving under the Governmentof India. Morever, the employment of Sital Singh willamount to holding an office of profit.
In United States v. Hartwell(3), it is laid down that "anoffice is a public station, or employment, conferred by theappointment of Government. The term embraces theideas of tenure, duration, emolument and duties". It isalso held that an office is "an employment on behalf of theGovernment, in any station of public trust, not merelytransient, occasional or incidental": Cong. 3rdSess., quotedby W. W. Willoughby, Constitution, (Vol.1, p. 605).Actual making of profit is not necessary to make an office
(H 23 L.J.M.C. 13. (2) 4 H.L.O. 624. (3) 6 Wall. 385.EL-57
446 SATYA DEV BUSHAHM V. PADAM DEV [VOL. VI
one of profit and it is enough if the holder may reasonablybe expected to make a profit out of it. Delanev. Hillcoat^)quoted in Basu's Constitution of India, 2nd Edn., p. 345.
It cannot be said that Sital Singh's appointment wasonly occasional or transient. He himself admits as R.W.20 that he had been doing the postal work for over 20years and that he was popularly called 'postmaster'. Hewas subject to the control of the postal department as re-gards leave, obeying of postal circulars and punishmentrules like other employees of permanent services. Underthe circumstances set forth above, the conclusion isirresistible that Sital Singh was serving under the Gov-ernment of India and his appointment as polling agentamounted to a major corrupt practice within the meaningof section 123(8) of the Act.
As to (b), the contention of respondent No. 1 is thatmere appointment of a Government servant as pollingagent does not amount to a major corrupt practice, as de-fined under section 123(8), Representation of the PeopleAct. The contention is that a polling agent is employedmore for the purpose of securing purity of election ratherthan advancing the prospect of the candidates'election. Inthis connection our attention has been drawn to three cases:two of Pepsu tribunal and one of Jubbulpore tribunal.
In Lahri Singh v. Attar Singhi2), the Commissioners ofthe Pepsu Election tribunal observed "it is proved beyonddoubt that Chajju Ram, a Government servant, was appoint-ed polling agent by Attar Singh and did act as such atNandha polling station and that this amounted to a corruptpractice under clause (8) of section 123 of the Represen-tation of the People Act and on issue 1 (d) our decision isthat in view of the commission of this corrupt practicethe election of respondent No. 1 is liable to be declared voidwithout the necessity of finding whether the result of theelection was thereby materially affected or not".
In Ghasi Earn v. Ram 8ingh(5), the said tribunal said:"We feel driven to the conclusion that the appointmentof Mehtab Singh of Igra by Ram Singh as polling agent atBibipur and his working as such on two daj s are factsproved beyond all doubt The crux of this provision of
(1) 9 B & 0. 309; 109 E.K. 115. (2) 3 E.L.R. 403. (3) 4 E.L.R. 124 (135)
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 447
corrupt practice is to prevent a candidate from taking ad-vantage of the influence which a Government servant, byreason of his position, is supposed to have with the people.It cannot be gainsaid that a member of Debt ConciliationBoard can have considerable influence Avith the ruralpopulation of the area within his jurisdiction. When theGovernment has appointed a person to be member of theBoard and pays him for working as such, he cannot beanything other than a servant of the Government, bywhatever name one may refer to the emoluments. Fur-ther, looking to the duties of a polling agent which areprimarily to safeguard the interests of his candidate inthe election, there cannot be any doubt that the assistancegiven by the polling agent is in furtherance of the prospectof the candidate's election. We, therefore, find on issue IIthat the corrupt practice under section 123(8) of the Re-presentation of the People Act, is established in this case".
But, in Narain Das v. Manohar Rao Jatar(l), the Ja-balpur Election Tribunal said, "He (Tooman Chand, a Gov-ernment servant) had, no doubt worked as respondentNo. l's polling agent on the date of the polling at KalarBanki. But in our opinion a polling agent is a personmore to assist the work of polling than to work for thecandidate in the polling station". With this observation Icannot agree. No reasons have been given for such a pro-position. The provisions of section 123(8) of the Represent-ation of the People Act 1951, have neither been mentionednor duly considered. A judgment, in order to be a bindingprecedent, must contain three essential elements: law, logicand literature. With great respect to the learned Commis-sioners, I maintain that the law has not been correctly laiddown in this respect.
Law speaks with clear voice and indubitable languagewhen it says that so far as persons serving under the Gov-ernment are concerned, they can only give their votes.This is the only exception added to section 123(8) of theAct. It necessarily follows that other acts in the con-duct of an election are necessarily barred. The mischiefguarded against is the interference by Government servantsin the election. Appointment of polling agents by a candi-date is more for safeguarding the interest of the candi-
(1) E.P.No. 3 of 1952.
448 SATYA DEV BUSHAHRI V. PADAM DEV [VOL. VI
date than for performing a mere public function to pre-serve the purity of election. If the polling agent who isvigilant and knows the people gets a few votes of the rivalcandidate rejected by valid objections, the prospects ofthe election of his own candidate are considerably increasedthereby. Respondent No. 1, as R.W. 33,- admits that heappointed Sital Singh as polling agent because he fullyknew the people of the constituency. He had been a Post-master for over 20 years. I hold that appointment of SitalSingh as polling agent is per se a major corrupt practice.
As to (e), it has been strenuously urged by respon-dent's counsel that as Sital Singh's appointment as pollingagent has not been mentioned in any of the annexures, itwould amount to introducing a fresh instance of corruptpractice and the tribunal has no jurisdiction to go intothis matter. I think there is considerable force in his con-tention. It is nowhere mentioned in the petition or theannexures that Sital Singh was a polling agent. All thatis set out is that Sital Singh did propaganda, took an activepart and canvassed for respondent No. 1. In paragraph 9of list 'D' it has been alleged that "on 21st November, 1951,Karam Chand Chauhan with the connivance of the respon-dent No. 1, as well as his agents Sital Singh and KahanChand, postmasters of Arhal and Rohru respectively, toldthe voters of the neighbouring ilaqa and spread a rumourthat the petitioner was man-handled at Tikkar by thevillagers who did not want him to contest and as a resulthe had to leave behind his horse and kit. This was a whollyfalse rumour. The voters were also told that the petitionerhad withdrawn from the contest.
The rule enunciated in section 83(2) of the Represen-tation of the People Act is a salutory rule and is intendedto avoid surprise to the opposite party and manipulationsand developments on the case as originally presented.Fresh instances of corrupt practices cannot be introducedas this would virtually amount to amendment of electionpetition after the period of limitation and an Election Tri-bunal has no jurisdiction to do so. The tribunal is autho-rised under section 83 of the Act to ask for better parti-culars and to amplify the same if they are vague or in-sufficient.
In another election petition decided by this tribunal,
E.L.R.] SATYA DEV BTTSHAHBI V. PADAM DEV 449
viz., Hari Das v. Hira Singh Pal{^), I had occasion to dealwith this matter. The petitioner stated that "The electionhas not been a free election by reason of coercion and inti-midation exercised on the tenants by threats held outthat if they voted for the petitioner, the land in theiroccupancy will be taken away from them. No particularswere furnished as to the names of tenants nor the placeand date of the alleged corrupt practice. To substantiatesuch vague allegations petitioner sought to lead evidence tothe effect that undue influence was exercised on Saudagru,Gandhi, Tiku, etc., some of the tenants." On 5th Septem-ber, 1952, I passed the following interlocutory order: "Inmy opinion this evidence with regard to the intimidationheld out by the polling agent to Gandhi, Saudagru andTiku, tenants, is inadmissible as the petitioner has notgiven the particulars with regard to this matter.
"In marshalling evidence parties have to confine them-selves to particulars annexed to the petition and thewritten statement. The law regarding this is well settled.In the case of false statement, particulars must clearly andsuccinctly state that the alleged false statement was madeto certain specified persons on a particular date and at aparticular place. The object is to give the other party fullnotice so that he can also make enquiries in that placeand lead evidence in rebuttal. It will be a dangerous pre-cedent to allow laxity in this respect. Any particularnot complying with the standard set forth above shallhave to be rejected and any evidence led in contraventionof this rule shall have to be rejected if objected to by theother party. Paragraph (iv) (b) of the petition is vague.A concession was given to the petitioner to file full parti-culars with regard to the same. In his particulars he nevermentioned this fact that several tenants including Gandhi,Saudagru and Tiku at Dhundhan were threatened by HariRam, polling agent of Hira Singh Pal. I, therefore, holdthat evidence with regard to this matter is inadmissibleand it shall be deemed to be expunged. I have stated myreasons at some length, because I want the parties to takeparticular note of this fact so that in future they have toconfine their evidence only with regard to particulars theyhave stated in the petition or the written statement, No
(1) 4 E.L.R. 466.
450 SATYA DEV BTJSHAHRI V. PADAM DEV [VOL. VI
departure from this rule will be permitted, otherwise therecord of this case will become unnecessarily cumbersome".My learned colleagues did not agree with me in ruling outthe evidence sought to be led to substantiate this vagueallegation without any particulars and they passed theorder in the following terms:—
"We reserve our opinion in this matter till the finalstage of the case", with the result that such evidence wasadmitted.
It has been urged by Shri Rajinder Sachar, learnedcounsel for the petitioner, that as Shri Padam Dev, res-pondent himself admits in his evidence as R.W. 33, thecommission of the corrupt practice, the tribunal has juris-diction to go into the matter. He has brought to ournotice a decision of the Election Tribunal in the case ofSheikh Muhammad Sadiq v. Dr. Saifud-Din Kitchlew(l).
I agree that the tribunal has jurisdiction but absolutelyfresh instances cannot be introduced by the petitioner.It is true that Sital Singh has been described as agent inparagraph 9 of list 'D' in connection with spreadingrumour against Thakur Gian Singh, but this will notamount to sufficient notice to the respondent that peti-tioner wants to challenge the election petition on theground of his appointing Sital Singh as polling agent. Anagent for canvassing is necessarily different from thepolling agent. In spite of the decision in Saifud-DinKitchlew'scasel^), I take a broad view of the matter andeven if I err on the side of leniency, I would give the benefitof doubt to the respondent. Consequently I hold that theappointment of Sital Singh as polling agent cannot betaken into consideration against^ the respondent and Iorder accordingly.
Issue No. 1.—Admittedly, Daulat Ram of Sharog, aPacker, G.H.Q. Post Office, Simla (R.W. 32) was a pro-poser and Moti Ram, a Postman, Secretariat Post Office,Simla (R.W. 18), a seconder of the nomination papers ofShri Padam Dev, respondent No. 1. These facts are un-disputed. The allegations against these two Governmentservants that they were proposer and seconder of respon-dent No. 1 are contained in paragraph 5 of list 'D' whichruns as follows :—
(1) Sen & Poddar 28 at 30. . '
B.L.R.] SATYA DEV BUSHAHRl V. PADAM DEV 451
"Moti Ram and Daulat Ram of Sharog who wereworking as postman and packer in the Post Office andwere Government servants did extensive propaganda infavour of respondent No. 1 and told the voters thatthey must vote for the respondent No. 1 who was theofficial candidate helped by the Government and in casethey did not do so they would be severely dealt with. Thesetwo persons were the seconder and proposer of the respon-dent No. 1. Shri Daulat Ram took leave from 15th Novem-ber, 1951, and for some other days also and came back tohis duty long after 23rd November, 1951, after helping therespondent No. 1 by making the propaganda in his favourand in various other ways".
In his written statement dated 31st May, 1952, ShriPadam Dev respondent replies :—
"It is denied that Moti Ram and Daulat Ram ofSharog did any propaganda work in favour of respon-dent No. 1, or any of them told the voters to vote forrespondent No. 1. It is, however, admitted that thesetwo persons were seconder and proposer of respondentNo. 1. The rest of the paragraph is denied for want ofknowledge".
Both Daulat Ram and Moti Ram have been producedby respondent No. 1 as witnesses. Moti Ram, R.W. 18,postman, Secretariat Post Office, Simla, states that hesigned the nomination papers of Pandit Padam Dev asseconder. He further states that the respondent No. 1asked him to write letters to his relations, etc. to give voteto him, but the witness excused himself by saying that hecould not do so.
Daulat Ram of Sharog, Packer, G.H.Q. Post Office,Simla, (R.W. 32), states, "I identify my signature as aproposer on a nomination paper of Shri Padam Dev (page171 of the file of nomination papers). I signed the nomi-nation papers in my own quarter at Simla".
Shri Padam Dev, respondent No. 1 (R.W. 33), deposesas under :—
"On the nomination papers on page 171, the signatureas the proposer is of Daulat Ram of Sharog who appearedas my witness today".
In his cross-examination he states, "I did get my
452 SATYA DEV BUSHASEI V. PADAM DEV [VOL. VI
nomination papers signed by Moti Ram, Postman andDaualt Ram, Postal packer, as a seconder and a proposerrespectively. They did so on different nomination papers.I got their signatures in their own postal quarters. It wasabout 8 or 9 A.M. I do not remember the date. PhinaDas was a seconder of one of my nomination papers.Sham Lai was a seconder on another nomination paperof mine. None of the aforesaid four persons was withme in the office of the Returning Officer at Kasumpti onthe day of the scrutiny. I know that the aforesaid fourmen were in service. / knew that they were in Governmentservice".
Faced with the difficult situation the learned counselfor respondent No. 1 asked him to explain the circum-stances under which he got assistance of Governmentservants and in his re-examination he states:—
"I made Moti Ram, Daulat Ram and Sham Lai signmy nomination papers as a proposer or a seconder be-cause I thought that every voter could propose or seconda nomination. I did not find any bar to the same as faras I looked up the law at the time. Moreover, being verybusy I had to take proposers and seconders from Simla.Sham Lai was on leave here in those days. I knew thatthey were Government servants".
Shri Mukat Bihari Lai Bhargava, learned counsel forrespondent No. 1, has raised a number of objections and Ipropose to consider these objections separately.
Firstly, he contends that the fact of proposing andseconding by Daulat Ram and Moti Ram has not beenspecifically mentioned as corrupt practice and, therefore,the tribunal has no jurisdiction to go into this matter. Hefurther contends that the particulars were insufficient and,therefore, there was no sufficient notice to respondentNo. 1. It is clear that in paragraph 5, three corrupt prac-tices have been grouped together:—
(i) Moti Ram and Daulat Ram of Sharog who wereworking as postman and packer in the Post Office andwere Government servants did extensive propaganda infavour of respondent No. 1 and told the voters that theymust vote for the respondent No. 1 who was the officialcandidate helped by the Government and in case they did
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 453
not do so they would be severely dealt with.(ii) These two persons were the seconder and proposer
of the respondent No. 1.(iii) Shri Daulat Ram took leave from 15th Novem-
ber, 1951, and for some other days also and came back tohis duty long after 23rd November, 1951, after helpingthe respondent No. 1 by making propaganda in his favourand in various other ways".
Of course, it was desirable that all these three corruptpractices should have been set forth in separate para-graphs but omission to do so is immaterial. The state-ment of fact that Moti Ram and Daulat Ram were theseconder and proposer of respondent No. 1 as containedin List 'D' appended to the petition and the written state-ment and evidence of Shri Padam Dev, respondent No. 1,as set forth above is so clear that it did not require anyamplification. In such a plain and obvious matter, nobetter and further particulars by any stretch of imagina-tion could be called for or ordered by any tribunal. To doso would have been to document the evident and, to use afamiliar expression, to guild the lily.
A contention has been raised that with this statementof fact in the annexure it should have been added thatproposing and seconding by Daulat Ram and Moti Ramconstitutes a corrupt practice. This contention is devoidof any force.
(i) The statement in the annexure D that these twopersons were proposer and seconder of respondent No. 1has to be read along with paragraph 5 (f) of the petitionwhich runs thus:—
"The respondent No. 1 or his agents or other personswith the connivance of respondent No. 1 or his agents ob-tained or procured or abetted or attempted to procure theassistance for the furtherance of the prospects of the elec-tion of the respondent No. 1 from a large number of per-sons serving under the Government. Full particulars ofthe corrupt practices mentioned in this sub-paragraph aregiven in the list marked as 'E" attached with this petition,which may be read as a part of this petition".
(ii) It is not necessary to add to the statement ofEL-58
454 SATYA DEV BUSHAHRI V. PADAM DEV [VOL. VI
facts any legal inference arising therefrom. The duty ofthe petitioner is to set out the facts constituting corruptpractice and it is for the court to apply the law to therelevant facts. In this connection the law has been veryclearly and succinctly laid down by various High Courts:—
In India, as in England, the duty of a pleader is to setout the facts upon which he relies and not the legal infer-ences to be drawn from them: Gouri Dutt Ganesh Lai v.Madho Prasad and Others(l).
In Gaura Telin v. Shriram Bhoyer & Others^) it waspointed out that the common idea that a court is notbound to consider, or rather is bound not to consider, anyview of the law in respect of the facts before it exceptsuch as is laid before it formally by the parties or theirpleaders, if they happen to have any and further is requiredto answer nothing but 'yes' or 'no' to any plea of law thatmay be taken is wrong. It is the duty of the court whe-ther with or without the help of the parties or theirpleaders to discover for itself and to apply the law appli-cable to the facts pleaded and proved.
(iii) Proposing or seconding a candidate is per se acorrupt practice and nothing more could be alleged in thisconnection.
(iv) No particulars regarding time, date or placecould be called for, nor could the petitioner by any stretchof imagination furnish such particulars. Moreover, suchparticulars were absolutely unnecessary.
It is significant that no objection was ever raisedabout the vagueness of particulars during the trial begin-ning from 31st May, 1952, when respondent No. 1 filed hiswritten statement admitting this corrupt practice.
The law as regards furnishing of particulars has beenthe subject-matter of many decisions both in India andEngland.
In the case of Wigani^), Bowen, J., said, "The object ofthese particulars is simply to prevent surprise and unneces-sary expense. In this case full particulars have been given,a number of names have been given of persons who aresupposed to have been treated or bribed at particular
(1) A.I.R 1943 P.O. Ul. (2) A.I.R. 1926 Nag. 265.(3) i O'M. & H. 1.
E.L.B.] SATYA DEV BUSHAHEI V. PADAM DEV 455
places and at the end of the list of names comes this, thatpersons are supposed to have been bribed whose names areat present unknown; and the persons who are presentingthe election petition may really be bona fide ignorant ofthe names of the persons who were receiving bribes or be-ing treated at that particular place; and they ought not tobe prevented from going into those cases simply becausethey cannot give the names of the persons with respect towhom the criminal act is supposed to have been committed.What they are bound to do is to tell the most they can atthe time these particulars are given; and at all events, be-fore the trial, to tell as much as they can to put the sittingmember and his counsel upon inquiry, and to prevent sur-prise or expense Grove, J., has pointed out that thisis not a fresh case which is being started, and his observa-tions are in accordance with what I find in the judgmentof Martin, B., in Beverley^), where he points out that theobject of the particulars is not to limit the witnesses called,but merely to limit the acts relied upon for the purposeof unseating the respondent. I should be perfectlyprepared to take broader grounds and to say that ajudge sitting here to try the election petition can atany moment receive any evidence, provided he takes carethat there is no surprise upon the sitting member by itsbeing tendered": See the Law of Parliamentary Electionsand Election Petitions by Sri Hugh Fraser, III Edition,pp. 220-221. "What they (petitioners) are bound to do isto tell the most they can at the time these particulars aregiven. But it is said that the order for particulars hasbeen drawn up by the court in a form that the petitionerscould be precluded at the trial from going into any caseof which the aforesaid particulars have not been delivered.That is an order that can be modified at any time andI confess I should not hesitate myself at any moment todisregard that prohibition and to amend the order bystating that further cases might be gone into if the justiceof the case required it and if there was no chance or dangerof surprise upon the sitting member". This statementwas approved in East Cork(2). See Rogers on Elections,Vol. II, Twentieth Edition, pp. 195-196.
It was held in Sheikh Mohammad Sadiq v. Saifud-din{l) 1 O'M. $ H. 143. (2) 6 O'M. & H. 318.
456 SATYA DEV BUSHAHBI V. PADAM DEV [VOL. VI
Kitchlew(^) that "on the evidence, the tribunal held thatit was not established that any promises on oath weretaken from the audience by the Maulana, who, however,admitted that at every place he said 'to vote for theUnionist Party candidate is haram'. It remains to con-sider whether this declaration constitutes a corruptpractice. A point of importance to note is that no suchallegation *was contained in the petition. There, it wasalleged only that the Maulana made his audience takeoaths to vote for Sheikh Hisam-ud-din and used spiritualthreat against persons who did not vote for him. There isauthority to the effect that where a returned candidate,who is a respondent himself admits the commission of acorrupt practice, the Commissioners may find that he wasguilty of such corrupt practice even though it was notspecifically alleged in the petition: vide Rangoon West(G.U.) 1926(3) and Bareilly City (N.M.U.) 1924(*)."
The cardinal question in this case is whether the alle-gation was vague and whether any surprise was sprungupon the respondent and whether he had insufficient noticeabout this particular. Respondent's admission in hiswritten statement and his own evidence conclusively estab-lishes that he had full knowledge of the allegation againsthim from the very beginning. I am surprised that such afrivolous objection should have been raised for the firsttime during the course of argument. I hold that the objec-tion is not only frivolous but groundless and, therefore, Ioverrule the same.
Secondly, the learned counsel for the respondent vehe-mently contends that the right to vote or to nominate acandidate is a fundamental right which includes proposingand seconding and to deprive one of such right wouldamount to disfranchisement. This argument is fallacious.
The suffrage or elective franchise is not a natural rightin the sense that anyone has a right to have it conferredupon him. It is rather a privilege which is conferred uponsuch persons or classes of persons as seem best fitted toexercise it and whose exercise it seemed likely to be mostconducive to general welfare.
The right to vote, properly viewed is an opportunityextended by the State to the citizen, and he should be free
(1) Sen & Poddar 27 at 30. (2) Hammond 605. (3) Hammond 127.
E.L.E.] SATYA DEV BUSHAHRI V. PADAM DEV 457
to take advantage of it or ignore it. Sound public policypoints not in the direction of compelling citizens to votebut rather in the direction of making the exercise of thisright purely voluntary by removing every influence whichnow militates against free choice. It is not a fundamentalor inalienable right. It is only a political privilege as dis-tinguished from civil right because in a democracy, it is ameans whereby the individual may participate in publicaffairs. The right to vote or nominate a candidate isderived from the Constitution and is regulated by thestatute in conformity with the dictates of the Constitu-tion. Before the inauguration of our Constitution on 26thJanuary there were property, income and educationalqiialifications for a person before right of vote was con-ferred on him. This was so in various States of the U.S.A.
By the Nineteenth Amendment to the U.S.A. Consti-tution adopted in 1920 both the State and National Gov-ernments were deprived of the right to discriminate amongcitizens of the United States in the matter of voting onaccount of sex. Since its adoption women acquired theright of voting on an equality with men throughout thenation. This amendment came under judicial review in1922 and the Supreme Court held it to have been validlyenacted: Lwsser v. Oarnett^), Fairchild v. Hughes^1). Asearly as 1874 a Mrs. Minor brought a suit to compel anelection officer to accept her vote on the ground that shehad a right to vote by virtue of being a citizen of the UnitedStates. The Supreme Court held that right to vote wasnot a necessary privilege of citizenship: Minor v. Hap-perset(3). A Georgia statute which excepted women fromrequirement to pay a poll tax as a prerequisite for votingwas held not to violate the Nineteenth Amendment.Breedlove v. Suttles^).
In the Klu Klux case(5), the Supreme Court intimatedthat the right to vote for members of Congress is a rightderived from the Federal Constitution and that Congress'is empowered to protect it against violence or intimida-tion on the part of mobs or private individuals. It wasnot only the power but also the duty of Congress to afford
(1) 258 U.S. 130. 12) 258 U.S. 126.(3) (1874) 21 Wall. 162. (i) (1937) 302 U.S. 277.
(6) 110 U.S. 651.
458 SATYA DEV BTJSHAHEI V. PADAM DEV [VOL. VI
such protection, not only because of the interest of thevoter "but from the necessity of the Government itselfthat its service shall be free from the adverse influence offorce and fraud practiced on its agents, and that the votesby which the members of Congress and its President areelected shall be the free votes of the electors, and theofficers thus chosen the free and uncorrupted choice ofthose who have the right to take part in that choice":Ex parte Yarborough(x).
In England the same qualifications were necessary.Moreover, it is within the right of a State to disenfran-chise a portion of citizens. The people and the electorsare two different things. A State can prescribe disqualifica-tions for voters. Till 1918, in an advanced country likeEngland, women had no right to vote and send their re-presentative to the Parliament. Women secured the rightof voting after a prolonged agitation by an Act of 1918.
"A woman shall be entitled to be registered as aparliamentary elector for a constituency (other than auniversity constituency) if she has attained the age ofthirty years and is not subject to any legal incapacity andis entitled to be registered as a Local Government Electorin respect of the occupation in that constituency of andor premises (not being a dwelling house) of a yearly valueof not less than £5 or of a dwelling house or is the wifeof a husband entitled to be so registered": See Representa-tion of the People Act, 1916 (7 & 8 George V, c. 64).
In 1928 an Act called Equal Franchise Act, 1928, (18& 19 George V, c. 12) was passed to assimilate the franchisefor men and women in respect of Parliamentary and LocalGovernment Elections. It eliminated all discriminationson the ground of sex.
The most widely accorded political privilege of theIndian citizens is that of voting at election. It is a privi-lege that is not extended to children, who are citizens butnot voters. It is not expedient to give this privilege to per-sons of immature age or of unsound mind who cannot exer-cise this right intelligently for the welfare of the Nation.People and electorate are two quite different things. Thebody of electors or voters comprise that portion of the
(1) (1884) 110 U.S. 631,
E.L.B.] SATYA DEV BUSHAHRI V. PADAM DEV 459
people to which it is expedient to give the suffrage. Theright to vote by Government servants has been preservedby section 123(8) of the Representation of the People Act,1951, but right to propose and second or to become a poll-ing or election agent has been taken away, in order topreserve the purity and free nature of the electioa.
Thirdly, it has been strenuously urged by the respon-dent that section 33(2) of the Representation of the PeopleAct prescribes the qualifications of persons who can subs-cribe to the nomination papers of the candidates, and, asno exception has been enacted in the case of Governmentservants they have absolute and unqualified right to pro-pose and second a candidate.
Section 33(2) lays down that "any person whose nameis registered in the electoral roll of the constituency andwho is not subject to any disqualification mentioned insection 16 of the Representation of the People Act, 1950(XLIII of 1950) may subscribe as proposer or seconder asmany nomination papers as there are vacancies to befilled but no more". Section 16 of the Representation ofthe People Act, 1950 says that "A person shall be disquali-fied for registration in an electoral roll if he—
(a) is not a citizen of India; or(b) is of unsound mind and stands so declared by a
competent court; or(c) is for the time being disqualified from voting
under the provisions of any law relating to corrupt andillegal practices and other offences in connection withelections."
Arguing on the basis of the above mentioned provi-sions of law, the respondent's counsel describes them as a"charter" for all the voters, including a Government ser-vant, to propose or second a nomination paper. Section33(2) is a permissive provision enabling all voters to subs-cribe as proposer or seconder. But section 123(8) is a res-trictive clause and debars all persons serving under theGovernment from giving any assistance for the further-ance of the prospects of the candidate's election except bygiving vote. Hence, the provisions contained in sec-tion 123(8) override section 33(2) of the Act. .
If the interpretation put by the respondent's counsel
460 SATYA DEV BUSHAHEI V. PAD AM DEV [VOL. VI
were to prevail, it would lead to absurd results. To illus-trate: section 40 of the Act prescribes that a candidate canappoint either himself or "some one other person to behis election agent". The only disqualification for appoint-ing an election agent is contained in section 41 whichsays that no person shall be appointed as election agentwho is disqualified from being an election agent undersection 145. The disqualifications mentioned in section145 make no mention of any Government servant. Thenecessary result would be that a Government servantcan be appointed as an election agent. Similarly, he canbe appointed a polling agent under section 46 or countingagent under section 47 of the Act. The whole schemeand the policy of the Act will be entirely frustrated ifa Government servant can be election agent, polling agentor counting agent; and the stringent and mandatoryprovisions of section 123(8) will be rendered nugatory.
Great stress was laid on the words "Any person"occuring in section 33(2) of the Act. But it must not beforgotten that section 33(2) is only a permissive clause,while provisions enacted in section 123(8) are restrictivein their nature, so far as Government servants are con-cerned.
The expression "any person" came under judicial re-view in England. In Nairn and Others v. University of St.Andrews^), it was observed by the House of Lords that bysection 27 of the Representation of the People (Scotland)Act, 1868, "Every person whose name is for the timebeing on the register of the general council of suchuniversity, shall, if of full age, and not subject to any legalincapacity, be entitled to vote in the election of a memberto serve in any future Parliament or such university interms of this Act"; and by section 28, sub-section (2), thefollowing persons shall be members of the general councilof the respective universities: "All persons on whom theuniversity to which such general council belongs has afterexamination conferred" certain degrees, "or any otherdegree that may hereafter be instituted". The appellantswere five women graduates of the University of Edin-burgh, and as such had their names enrolled on the generalcouncil of that university, and they claimed as graduates
(1) 1909 A.O. 147.
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 461
and members of the general council the right to vote atthe election of a member of Parliament for the university.It was held that the appellants were not entitled to votein the election of the Parliamentary representative of theuniversity. The words "every person" have to be read sub-ject to other disqualifying clauses of the statute or theConstitution. Hence, I hold that, so far as Governmentservants are concerned, their "charter" is not section 33(2)but section 123(8) of the Act, and they cannot subscribeto the nomination paper as proposer or seconder. If theydo so, it shall render the election of the returned candidatevoid.
Fourthly, it has been urged that the assistance des-cribed under section 123(8) of the Act contemplates only"in furtherance of the prospects of election" and does notapply to the stage of nomination. This contention has nosubstance at all. The word "election" has been denned insection 2(d) of the Act and means "an election to fill aseat or seats in either House of the Legislature ofa State ".
The question for adjudication is whether nominationcan be considered to be a stage of election and whetherassistance by a Government servant in subscribing to thenomination paper of a candidate is an assistance infurtherance of the prospects of the candidates' election. InChhota Nag-pur Division Case^), the Commissioner observed"election includes nomination which is one of the pro-cesses necessary to complete it". Again, in Belgaum DistrictCasei?) it was held that nomination is one of the earlieststages of election. The question as to the constitutionalityof a clause providing punishment for corrupt practice andthe maximum amount to be spent in election came up be-fore the Supreme Court of U.S.A. and it was contendedthat this clause did not apply to the process of nomination.Justice McReynolds, speaking for the five justices saidthat the word "election" as used in the Constitution meansmerely the "final choice of an officer by the duly qualifiedvoters".
In fact election begins about a month or so before thenomination papers are filed before the Returning Officer
(1) 2 Hammond B.P. 99 (102). (2) 1 Hammond E.P. 45,EL—59
462 SATYA DEV BTTSHAHRI V. PADAM DEV [VOL. VI
and a candidate is bound under the law to file a return ofelection expenses under section 76 of the Representationof the People Act. In such a case "election" begins whena candidate gives out his intention to fill a seat in theLegislature.
The provisions regarding nomination are containedin Part V, Chapter I of the Act. The heading is "Conductof Elections" and Chapter I begins with the "nominationof candidate". The matter is quite evident and requiresno further elucidation. A person can be elected when hisnomination paper subscribed by Government servants isaccepted and when there is no rival candidate, or whenthe nomination papers of rival candidates are rejected. Heis then "elected", without going to poll. I hold thatassistance given by a Government servant by subscribingto the nomination paper as proposer or seconder is infurtherance of the prospects of the candidate's election.
Fifthly, it is contended that in each case actualfurtherance of the prospects of election has to be provedas a question of fact. Section 123(8) penalizes even an at-tempt to obtain or procure any assistance for the further-ance of the prospects of election. It is not necessary thatassistance should actually further the prospects of thecandidate's election. If the assistance is solicited for thatpurpose it would fall within the ambit of section 123(8).If a candidate requests the Headmaster of a GovernmentHigh School for the use of the school ball or compound forholding an election meeting and he refuses to give suchassistance to the candidate, it is a major corrupt practice,falling within the ambit of section 123(8) of the Act andwill avoid the election.
If in a far off district the Deputy Commissioner sub-scribes a nomination paper as proposer and the Superin-tendent of Police seconds it, it is quite obvious that theprospects of the candidate's election have been increased.The learned counsel for the respondent himself gave anillustration that if Hon'ble the Prime Minister or his Pri-vate Secretary were to subscribe to the nomination paper asproposer, the prospects of the candidate's election would begreatly enhanced. He concedes that if two sweepers serv-ing under the Government are proposer and seconder andthe nomination paper is accepted and the candidate is
E.L.R.] SATYA DBV BUSHAHBI V. PADAM DEV 463
elected without any contest, the assistance rendered bythese two sweepers is in furtherance of prospects of the elec-tion. Shri Rajinder Sachar, learned counsel for the peti-tioner, submits that law makes no distinction betweena high Government servant and an ordinary one. EveryGovernment servant is presumed to have some influence byvirtue of the position he occupies as such and the inten-tion of the election law is that there should be absolutelyno interference or assistance by a Government servant inthe conduct of elections.
It is clear from the evidence of Daulat Ram, R.W. 32,that he was Secretary of the Union since 1935 and gaveup that office for sometime and is the Secretary evennow. He says that Moti Ram, R.W., is his uncle and thathe was a member of Prem Sabha. Considering the influ-ence which a Secretary of the Postal Union can exerciseover employees of the Department, respondent No. 1, ap-proached this witness to subscribe as his proposer to hisnomination paper. The object was to further the prospectsof his election. Moti Ram, R.W. 18, deposes that he wasa member of the Executive Committee of Prem Sabha,which has been started by Pandit Padam Dev. In cross-examination he stated—"I was never Secretary of thePrem Sabha, I was its Treasurer". In view of the publicposition held by Daulat Ram and Moti Ram, Postal Em-ployees, the subscribing of nomination papers by themwas for furtherance of the prospects of election and I holdaccordingly.
The central fact is that section 123(8) of the Represen-tation of the People Act envisages the shutting out of anyassistance by persons serving under the Government inthe conduct of election, except giving of vote by them bysecret ballot. It necessarily implies that they are not togive any indication as to which side they have voted. Res-pondent No. 1 has produced Shri Ram Prashad Singhal,Complaint Inspector, G.P.O., Simla, as R.W. 29. He quotedrule 23 of Appendix 2 of Post and Telegraph Manual,Volume II (Edition 1941) which has not been amendedsince and which runs thus.—"A wrhole-time Governmentservant shall not canvass or otherwise interfere or use hisinfluence in connection with, or take part in, any electionto a Legislative body whether in India or elsewhere. Pro-
464 SATYA DEV BTTSHAHRI V. PADAM DEV [VOL. VI
vided that a Government servant who is qualified to voteat such election may exercise his right to vote, but if hedoes so, shall give no indication of the manner in whichhe proposes to vote or has voted". We find ballot a mostadmirable machinery for election and it is universallyaccepted as the means by which public duties may be per-formed in public.
The policy of the present Act is that it forbids Gov-ernment servants from rendering any assistance except bygiving vote by secret ballot as there should be absolutelyno interference in the conduct of election. In this con-nection it is necessary to set out the rights and duties ofa proposer and seconder. Section 33(1) of the Act laysdown that a nomination paper can be filed either by thecandidate in person or by his proposer or seconder. Evena duly authorized pleader or agent cannot file nominationpaper on behalf of the candidate. Under section 35, theReturning Officer shall "cause to be affixed in some con-spicuous place in his office a notice of the nominationcontaining descriptions similar to those contained in thenomination paper, both of the candidate and of the personswho have subscribed the nomination paper as proposer andseconder". Section 36 of the Act prescribes that on thedate of the scrutiny of the nominations "the candidates,their election agents, one proposer and one seconder ofeach candidate, and one other person duly authorized inwriting by each candidate, but no other person, may attendat such time and place as the Returning Officer mayappoint; and the Returning Officer shall give them all rea-sonable facilities for examining the nomination papers ofall candidates which have been delivered within the timeand in the manner laid down in section 33".
There is a considerable force in the argument of peti-tioner's counsel that the proposer and the seconder becamethe agents of the candidate for the purpose of presenta-tion of nomination paper, and the scrutiny. As theirnames are published under section 35 by the ReturningOfficer they give out to the world that a particular candi-date is their nominee and that they are for him. Such acourse of conduct is clearly against the spirit of the presentAct and it means assistance in the conduct of election.
Lastly, it is contended that respondent No. 1 had no
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 465
wicked intention when he got Daulat Ram and Moti Ramto subscribe to his nomination papers. To prove corruptpractice, proof of evil mind is necessary when an act iscapable of two explanations. Whether a donation of, say,Rs. 10 was given to a temple as a pure act of charity orwhether it was given as a indirect bribe to the worshippersof the temple, it is necessary to find out whether it waspaid honestly or corruptly. The question of evil mindthen becomes a question of fact. But where an act is perse prohibited by law and constitutes major corrupt practice,it is not necessary to look for evidence as to evil mind.There can be no direct evidence of evil intention. Nobodycan pry into the mind of another to find out his motive orintention. Intention can be proved by surrounding circum-stances. In this case respondent No. 1, as R.W. 33, admitsthat he got the assistance of four Government servantswho signed his nomination papers. They are Moti Ram,Daulat Ram, Phina Das and Sham Lai. He further admitsthat he knew them to be Government servants at thattime. He pleads ignorance of law with regard to this matter.Ignorance of law is no defence to an offence, although itis a palliating or mitigating circumstance to be taken intoconsideration in apportioning punishment. The secondexplanation given by the respondent No. 1 is: "Being verybusy I had to take proposer and seconder from Simla".This statement is, on the fact of it, quite inaccurate andunconvincing. Shri Rajinder Sachar very forcibly andeloquently contends that there were four other personswho subscribed the respondent's nomination papers andthey belonged to different villages in Mahasu District.The respondent had sufficient time to get the signatures ofpersons other than Government servants. He further con-tends that he intentionally got the assistance of DaulatRam, postal packer, because he had been the Secretary ofthe postal union for a number of years and wielded a con-siderable influence. Both Daulat Ram and Moti Ram weremembers of the Praja Mandal and Moti Ram was itsTreasurer. Thus, both of them were not merely postal em-ployees but were taking active part in public and socialaffairs. In my opinion this argument has no substance in it.
Shri Rajinder Sachar relentlessly attacks the expla-nation given by respondent No. 1 in this respect. He con-
466 SATYA DEV BUSHAHEI V. PADAM DEV [VOL. VI
tends that respondent No. 1 is not a reliable witnessbecause he himself produced two letters, dated 17th July,1951, and 9th July, 1951, before the tribunal but he re-siled from this fact on oath and told a deliberate lie whenhe was examined as witness (R. W. 33). The portion ofhis statement is as follows:—
"A letter, dated 17th July, 1951 (on page 879) ad-dressed by the Director of Health Services, HimachalPradesh, to 13 firms including the D.A.V. Pharmacy,Simla, calling for quotations for supply of certain medi-cines has been shown to me. I cannot recollect whetherI received any such letter and whether any quotationswere submitted by my firm in compliance therewith. Ihave been shown a letter of the Civil Surgeon, Mandi, dated9th July, 1951 (on page 853) addressed to the manager,D.A.V. Pharmacy, Simla, asking for rates of certainmedicines specified therein. I cannot say whether any suchletter was received by my firm and whether the requiredquotations were submitted". It is remarkable that thesetwo letters were filed in the tribunal by the respondentthrough his counsel Shri Tek Chand Chitkara.
This is really unfortunate that respondent No. 1 whois occupying a responsible position as Home Minister andEducation Minister in the Himachal Pradesh Governmentshould take up such an unbecoming attitude in a court oflaw and swerve from the path of rectitude. In myopinion a person who gives evidence in this fashion beforea court of law stands self-condemned.
In the result, I find that the act of getting signaturesof Government servants on his nomination papers by res-pondent No. 1 is not an innocent act but is accompaniedwith evil mind and corrupt motive.
The only exception engrafted in section 123(8) is asfollows:—
"The obtaining or procuring or abetting or at-tempting to obtain or procure by a candidate or hisagent or, by any other person with the connivance of acandidate or his agent, any assistance for the furtheranceof the prospects of the candidate's election from any per-son serving under the Government of India or the Govern-ment of any State other than the giving of vote by suchperson".
E.L.R.] SATYA DEV BUSHAHRI V. PADAM DEV 467
The language of the section is quite clear and the onlyexception engrafted to it is that the only assistancethat can be given by the Government official is to cast hisvote and nothing more. For the purity and fairness ofelection our law advisedly provides for voting by ballot.Secrecy of ballot is guaranteed by the Representation ofthe People Act, 1951.
It is a well recognized principle of construction thatwhere one finds in the same section express exception fromthe operative part of the section, it may be assumed, un-less it otherwise appears from the language employed,that the exception was necessary, and it is equally clearthat nothing can be brought within the ambit of that ex-ception which is not comprised therein. In other words,it has to be construed strictly. In order to bring a casewithin the exception, strict compliance with its terms isabsolutely necessary.
Lord Thankerton observed that "it is a familiarprinciple of statutory construction that where you find inthe same section express exceptions from the operativepart of the section it may be assumed, unless it otherwiseappears from the language employed, that these excep-tions were necessary, as otherwise the subject-matter ofthe exceptions would have come within the operative pro-visions of the section": Province of Bombay v. HormusjiManekjiQ).
In interpreting this clause, we have to take into con-sideration the scheme and policy of the statute and thereasons that led to the changes of law in this respect.
During pre-partition period, there was wide spreadmisapprehension and unwarranted prejudice regardinginterference by the Government servants in the electionsto the legislature. During those days assistance by Gov-ernment servants was, according to law then existing, notobjectionable. They could exercise their legitimate in-fluence but not undue influence. What was prohibitedwas abuse of power. Election could be set aside onlyon proof of exercise of undue influence by officialswhich materially affected the result of election. This mis-apprehension justified a strong action and a drastic changein the law. To strike at the root of official interference
(1) A.I.R. 1947 P.O. 200.
468 SATYA DBV BUSHAHRI V. PADAM DEV [VOL. VI
it has been enacted in section 123(8) of the Representationof the People Act, that even an attempt to procure or ob-tain assistance from persons serving under the Governmentconstitutes major corrupt practice avoiding election of thereturned candidate. Officers of the Government have beenprohibited from interfering in the election and influencingthe voters directly or indirectly. We have introduced votingby secret ballot. Every man voting would thus be enabledto give his vote in accordance with his own conscientiousconvictions, entirely unfettered or uninfluenced by anyother considerations; and the result, I venture to say,beyond all contradiction, would give, in a more faithfulmanner than is possible under the present system, theactual conscientious verdict of the constituency.
Hence, a candidate cannot get any assistance from aperson serving under the Government except giving ofvote by such person. Subscribing to the nominationpaper as proposer or seconder is per se a major corruptpractice under section 123(8) of the Representation ofthe People Act, 1951.
From the foregoing analysis it is abundantly clearthat the provisions of section 123(8) of the Representa-tion of the People Act, 1951, are mandatory and restrictthe Government servant's right to "giving of vote only".This is a restrictive clause and has been enacted to keepup the purity of elections, so that there should notbe even the semblance of interference by Governmentservants in the conduct of election. This is the goldenthread which has been dextrously inter-woven into theentire web of the election law. The provision contained insection 123(8) of the Act which forbids a candidate fromobtaining or attempting to obtain or procure any assis-tance from any person serving under the Government isa unique enactment which finds no parallel throughoutthe world. This is the reason why the whole world hasbeen astonished at the great successs achieved by ourGovernment in running the last elections in the country.I hold that subscribing to the nomination papers of res-pondent No. 1 by Daulat Ram and Moti Ram, servants ofthe Postal Department, falls within the ambit of section123(8) of the Act and respondent No. 1 is clearly guilty ofobtaining assistance from these two persons in the conduct
E.L.R.] SATYA DEV BUSHAHEI V. PADAM DEV 469
of elections. In this view of the matter the election ofrespondent No. 1 is liable to be declared .void without thenecessity of finding whether the result of the election wasthereby materially affected or not. In the result, there-fore, I make an order under section 98 of the Represen-tation of the People Act declaring the election of thereturned candidate Shri Padam Dev, respondent No. 1,to be void.
To the question of disqualification of respondent No. 1under section 140 of the Representation of the PeopleAct I have given my anxious and careful consideration. Insection 140 of the Act the word used is "shall". It ismandatory in character. The Legislature thought it fitto impose such disqualification for the purity of electionwhich is the central theme throughout the Act, if I haddiscretion in the matter I would have placed a long cata-logue of services rendered by Shri Padam Dev, respon-dent No. 1 in the national cause in one scale and his system-atic course of obtaining assistance from a number ofGovernment servants in the other. In his evidence asR.W. 33 he admits that he got Moti Ram, Daulat Ram,Phina Das and Sham Lai, all Government servants tosign his nomination paper. He further admits : "I knewthat the aforesaid four men were in service. I knew thatthey were in Government service." Considering the prosand cons I would have exercised my judicial discretionone way or the other. But the law as it stands, leaves nodiscretion to me in this matter. Under section 99(1) (a),I record a finding that the corrupt practice of obtainingassistance of Government servants falling under clause (8)of section 123 is proved to have been committed by res-pondent No. 1, Shri Padam Dev. This will entail on himdisqualification under section 140 of the Representationof the People Act. I, accordingly, direct that he will be dis-qualified under that section for a period of 6 years fromthe date of this order.
As the petitioner succeeds only on one part of issueNo. 1, that is, assistance by Government servants, DaulatRam and Moti Ram, and has not been able to substantiatehis other allegations contained in the petition, I leavethe parties to bear their own costs.
EL—60
470 UGAM SINGH V. HARI SINGH [VOL. VI
Order of the Tribunal.—In accordance with themajority judgment, the petition fails and is hereby dis-missed. Shri Satyadev, petitioner, is directed to payRs. 700 as costs to Pandit Padam Dev, respondent No. 1.
[ELECTION TRIBUNAL, BIKANER.]
UGAM SINGHv.
HARI SINGH AND OTHERS.M. P. ASTHANA (Chairman), M. C. BHANDARI and
GOVERDHAN DAS (Members).May 23,1953.
Nomination of candidates—Electoral roll—Nomination filed for 2 con-stituencies before same Returning Officer—Copy of electoral roll filed in onealone-—Acceptance of one and rejection of the other for non-production ofcopy—Legality—Omission to give part or sub-division of roll—Whetherfatal defect—'Entry as to age—•Whether conclusive—Improper rejection—~Presumption that election is materially affected—Whether irrebuttable—Representation of the People Act, 1951, ss. 33(5) &(&), 36(7).
A candidate filed two nomination papers, one for Jalore A constitu-ency and the other, for Jalore B constituency, at the same time- Heattached a certified copy of the electoral roll of Jodhpur constituency, inwhich his name appeared, with the nomination paper for Jalore A, andrequested the Eeturning Officer to treat it as evidence for both the consti-tuencies. The Eeturning Officer who held the scrutiny of the nominationson the same day, accepted the nomination for Jalore A and rejected thatfor Jalore B on the ground that a certified copy of the electoral roll orentry therein was not produced with it: Held, (i) that, as the EeturningOfficer was in possession of the certified copy of the electoral roll at thetime of the scrutiny, though it was attached to the nomination for JaloreA, it was his duty to look into it and he acted improperly in rejecting thenomination for Jalore B; (ii) if the Eeturning Officer has evidence otherthan a copy of the electoral roll to decide the question of identity andeligibility he can proceed on that evidence. He is not bound to resthis evidence on the electoral roll alone and reject a nomination if a copyof the roll is not produced.
Omission to mention in the nomination paper the part and sub-divi-sion of the electoral roll in which the candidate's name ia entered is onlya technical defect not of a substantial character, where the identity of thecandidate can be ascertained without them.
Entry of age in the electoral roll is not conclusive and it is open to acandidate to adduce evidence to prove his real age before the EeturningOfficer, if the entry is wrong.
E.L.R.] UGAM SINGH V. HARI SINGH 471
Subrahmanyam v. Abdul Hameecl Khan (l B.L.R. 432), Aslam Khanv. Fazlul Haq (4 E.L.E. 341), P. N. Balasubramanian v. C. B. Nara-simhan and Others (1 E-L.R- 461), Jagan Nath Sharma v. Sham Char anGupta and Others (2 E.L.R. 8), Hakikatullah v. Nathu Singh and Others(6 E.L.E. 10), Brijnaresh Singh v. Thakur Huhum Singh and Others (2E.L.R. 266), and Laxman Bao v. Lakshminivas Ganerival and Others(2 E.L.R. 20), relied on.
Though a strong presumption that the result of the election has beenmaterially affected arises when a nomination is improperly rejected, thepresumption is not an irrebuttable one. Observations to the contrary inBrijnaresh Singh v. Thakur Hukum Singh and Others (2 E.L.R. 266), dis-sented from. [On the evidence the Tribunal found that the presumptionwas rebutted.]
Ghander Nath v. Kunwar Jaswant Singh and Others (3 E.L.R. 147)approved.
ELECTION PETITION NO. 314 OF 1952.
Mukat Beharilal Bhargava, B. N. Bhargava, 8. K.Acharya and Rawatmal Kochar, for the petitioner.
Thanchand Mehta and Bhopal Singh, for respondentNo. 1.
Jiwant Dutt, for respondent No. 8.Respondent No. 6 in person.
ORDER.
The petitioner is a voter in the Jalore "B" constitu-ency. In the last general election, the eight respon-dents filed their nomination papers for being returned asmembers. of the Rajasthan Legislative Assembly fromJalore "B" constituency. The nomination paper of respon-dent No. 8, Shri S. T. Porwal, was rejected by the Return-ing Officer. Respondents Nos. 4, 5, and 7 withdrew fromthe contest. Only respondents Nos. 1, 2, 3 and 6 contestedthe election in which respondent No. 1 was declared elected.
The petitioner's case is that respondent No. 8's nomi-nation paper was improperly rejected by the ReturningOfficer which has materially affected the result of the elec-tion. He has also pleaded in paragraph 8 of the petitionthat the respondent No. 1 resorted to illegal and corruptpractices and exercised undue influence in securing votes,the particulars of which he has given in Schedule A. How-ever, on December 16, 1952, the petitioner's counsel, ShriRawatmal Kochar, withdrew the allegations contained inparagraph No. 8 of the petition regarding corrupt prac-tices, undue influence, etc.
472 T7GAM SINGH V. HARI SINGH [VOL. VI
Respondents Nos. 6 and 8 filed written statementsadmitting the petition, which has been contested only byrespondent No. 1, who is the returned candidate. Theremaining respondents have not put in their appearance.
The respondent No. 1 denied that the order of theReturning Officer rejecting respondent No. 8's nominationpaper was improper or illegal. According to him therejection of the respondent No. 8's nomination paper wasfully justified. In paragraph 14 of the written statementhe has alleged:—
"That the electoral roll of the Jodhpur "B" consti-tuency in which the name of the respondent No. 8 isregistered as an elector is sub-divided into parts and sepa-rate serial numbers are assigned to the electors entered ineach part. The said respondent did not enter in the nomi-nation a description of the part and the sub-division andconsequently his nomination paper ought to have beenrejected on that score also".
He has further denied that the result of the electionhas been materially affected by the rejection of therespondent No. 8's nomination paper.
On these pleas the following issues were framed by thetribunal:—
Issue No. 1.—Was the nomination paper of respondentNo. 8 improperly rejected as alleged; if so, has it mate-rially affected the result of the election?
Issue No. 2.—Was the nomination paper of respon-dent No. 8 also liable to be rejected, as alleged in para-graph 14 of the written statement?
Issue No. 3.—To what relief, if any, is the petitionerentitled?
Issue No. I.—First part of Ex. A-6 is a copy of theorder passed by the Returning Officer rejecting the nomi-nation paper filed by respondent No. 8. It runs asfollows:—
"This is a nomination paper filled in by one ShivlalTrilokchand and the objection is that he has not submittedthe entry of electoral roll where his name has been pur-ported to be entered. The second objection is of age andthe third of serial No. 8714 in column No. 7. The reply isthat he has already submitted a certified copy of the entry
E.L.R.] ITGAM SINGH V. HAKI SINGH 473
of the name and that he has given another certified copyabout the exactness of his age which is 39. The nextobjection is of minor importance.
2. The fact is said to be that S. Shivlal has filed hisnomination from Jalore "A" constituency as well as fromthis constituency and that the 2 certificates to which areference has been made in his reply are said to be on thefile of the nomination paper of that constituency and heagrees to this that those copies may be placed on that filebut argues that these certificates can hold good for boththe constituencies.
3. I do not, however, agree with this that certificatesplaced on other files can also serve as evidence for pur-poses of enquiring in this file also. More so as the objectorsare clearly debarred from raising valid objections thereby.Section 33(6) of the Representation of the People Act,1951, clearly lays down the procedure of providing suchcopies at the time of filing nomination on the shoulders ofthe candidate, and a candidate in one constituency cannottake shelter behind the plea that the copies are on otherfiles. He could as well pay one nomination fee for boththe constituencies, which is not the intention of the Legis-lature. I, therefore, hold this nomination paper as invalid".
This order was passed on the objection filed by one ShriUggamsee Modi, respondent No. 4. A copy of the objectionis Ex. A-5, which runs as under:—
"With the nomination form of Shri Shivlal Trilok-chand, the candidate has submitted the entry of theelectoral roll where his name has been entered. MoreoverI am sure there can be no entry in the electoral roll likeShivlal Trilokchand. His age as mentioned in the electo-ral roll was 21 years only, which is also not corrected.
As such the form of Shivlal Trilokchand Porwal berejected.
Moreover he has given only serial No. as 8714 in col.No. 7, which does not give any correct idea where to findout his number in the Jodhpur "B" constituency. Heought to have given the ward No. also".
It appears that respondent No. 8 also filed his nomi-nation papers for contesting the seat in the RajasthanLegislative Assembly from Jalore "A" constituency. Exhi-
474 UGAM SINGH V. HARI SINGH [VOL. VI
bit A-5 is a copy of the objection filed by Shri Chattar SinghHarji to that nomination paper. Ex. A-6 is a copy of thereply filed by respondent No. 8 and Ex. A-2 is a copy ofthe order passed by the Returning Officer overruling theobjections and accepting respondent No. 8's nominationfrom Jalore "A" constituency. Ex. P-2 runs as under:—
"The candidate S. Sheolal Porwal has filled in 2nomination papers in Jalore "A" constituency and theobjector has raised the objections (1) that he has not givenward No. etc., (2) that the names of proposers andseconders do not tally, (3) that his age does not tally, (4)that he has put his initials only, to which the candidatehas replied that (1) he has given the certificate for hisidentification, (2) that these are minor mistakes, (3) thathe has already submitted a certified copy as regards hisage which is 39 years as corrected and (4) that he has notput his initials but his full signature.
I have gone through the objections and replies theretoand I am satisfied that the candidate is S. Sheolal Porwalhimself and the certificates establish his identity and thatobjection No. 3 is a minor mistake and that he has putdown his signatures.
I, therefore, hold that both these nomination papershave been correctly filled in and the objections are ruledout. I accept these nomination papers as valid".
It will thus appear that the objections filed againstthe nomination papers of the respondent No. 8 in both theconstituencies, viz., Jalore "A" and Jalore "B", werepractically of the same nature except that in the case ofJalore "A" they were more in number. The ReturningOfficer rejected all the objections raised against the nomi-nation papers for Jalore 'A' constituency including thosetaken against the nomination paper filed for Jalore "B"constituency on the ground that the respondent No. 8 hadnot filed along with it a certified copy of the Jodhpur elec-toral roll containing his name as a voter as he did with thenomination paper for Jalore "A". The Returning Officerwas satisfied about the identity of the respondent No. 8. Herejected the objections, viz., that in the electoral roll, theage of respondent No. 8 was entered as 21 years only andthat ward number in which the name of the respondent
E.L.R.] TTGAM SINGH V. HARI SINGH 475
No. 8 was entered in the electoral roll had not been shown.Now the question for our consideration is as to how far theReturning Officer was justified in rejecting respondent No.8's nomination paper for Jalore "B" constituency, simplyon the ground that respondent No. 8 had neither filed a copyof the electoral roll for Jodhpur constituency nor a certifiedcopy of the entries in the electoral roll containing his nameas an elector along with his nomination paper for Jalore"B" constituency. It has been contended by respondentNo. 1 in paragraph 10 of his written statement that sincethe name of Shri S. T. Porwal, respondent No. 8, was notregistered in the electoral roll of the Jalore "B" constitu-ency it was incumbent upon him to produce either a copyof the electoral roll in which his name was included or acertified copy of the relevant entries in such roll. Thefailure to do so on the part of Shri Porwal constituted anon-compliance with the provisions of section 33(6) of theRepresentation of the People Act, 1951 and his nomina-tion paper, was therefore, rightly rejected under section36 of the same Act.
It appears from the statement of the petitioner'scounsel Shri Rawatmal Kochar, dated December 15, 1952that respondent No. 8 did not file a copy of the electoralroll or a certified copy of entries in such roll along with thenomination paper for Jalore "B" constituency. It furtherappears from the order Ex. P-l/Ex. A-6 that respondentNo. 8 had filed such a copy along with the nominationpaper for Jalore "A" constituency and that he wanted itto hold good for both the constituencies, which the Re-turning Officer did not accept.
Section 33(5) and (6) of the Representation of thePeople Act of 1951 run as follows:—
"(5) On the presentation of a nomination paper, theReturning Officer shall satisfy himself that the names andelectoral roll numbers of the candidate and his proposerand seconder as entered in the nomination paper are thesame as those entered in the electoral rolls:
Provided that the Returning Officer may—(a) permit any clerical error in the nomination paper
in regard 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
476 UGAM SINGH V. HARI SINGH [VOL. VI
(b) where necessary, direct that any clerical or print-ing error in the said entries shall be overlooked.
(6) If at the time of the presentation of the nomina-tion paper the Returning Officer finds that the name ofthe candidate is not registered in the electoral roll of theconstituency for which he is the Returning Officer, he shallfor the purposes of sub-section (5) require the person pre-senting the nomination paper to produce either a copy ofthe electoral roll in which the name of the candidate isincluded or a certified copy of the relevant entries in suchroll".
The idea underlying these provisions is that the Re-turning Officer of one constituency is not expected to havethe electoral rolls of other constituencies at the time ofthe scrutiny of the nomination papers of the constituencyof which he is the Returning Officer. The law, therefore,has laid down sub-section (6) of section 33 and authorisedthe Returning Officer to require the person presenting thenomination paper to produce either a copy of the electoralroll in which the name of the candidate is included or acertified copy of the relevant entries in such rolls in orderthat he may satisfy himself that the electoral roll numberof the candidate as entered in the nomination paper is thesame as entered in the said electoral roll. These pro-visions do not necessarily suggest that the ReturningOfficer should be satisfied regarding these particulars onlyby the production of a copy of the roll or a certified copyof the entries in the electoral roll in which the name ofthe candidate appears. In our opinion there can be othermodes also than the one laid down in section 33(6) of theAct. As for example, if the Returning Officer has in hispossession a copy of the necessary electoral roll or a certi-fied copy of the entries in such roll produced by the candi-date in question or by any other candidate, he can referto such document to satisfy himself as to the correctnessof the entries in the nomination paper and should not insistupon the technicality of producing a copy of the said elec-toral roll or a certified copy of the entries in such roll.What is laid down in section 33, sub-section (5), of theRepresentation of the People Act, 1951, is that "on thepresentation of the nomination paper, the ReturningOfficer shall satisfy himself that the names and electoral
E.L.E.] UGAM SINGH V. HARI SINGH 477
roll numbers of the candidate and his proposer and seconderas entered in the nomination paper are the same as thoseentered in the electoral rolls". Therefore it follows fromthis that if the Returning Officer has got sufficient mate-rials available with him at the time of the presentation ofthe nomination paper to satisfy himself as regards thenames and electoral roll numbers of the candidate, heshould not insist upon the production of a copy of theelectoral roll or a certified copy of the entries in the saidroll, as to do this would amount to becoming too techni-cal which is not the intention of the Legislature, which isclear from the words of section 36(4) of the Represent-ation of the People Act, 1951.
In this case it is an admitted fact that the respon-dent No. 8 filed two nomination papers one for Jalore "A"constituency and the other for Jalore "B" constituencyon 26th November, 1951, before the Returning Officer, atone and the same time and had attached a certified copyof the entry in the electoral roll in which his nameappeared, along with one, and under section 33(5) of theRepresentation of the People Act, 1951, since he did notask the respondent No. 8 to produce another certifiedcopy, it should be presumed that the Returning Officer wassatisfied regarding the particulars mentioned in section33(5) of the Act, as he appears to have considered onecertified copy quite sufficient for both the nominationpapers. If he had any doubts as to these particulars, it washis duty to have asked the respondent No. 8 to either pro-duce a copy of the electoral roll or a certified copy of therelevant entry but this he could not do as he had onecertified copy of the necessary entry available with himwhich was quite sufficient for the purpose of his satisfac-tion. Another important fact in this case is that thenomination paper of the respondent No. 8 for Jalore "A"constituency which was scrutinised on the same day bythe same Returning Officer previous to the scrutiny ofthe nomination paper in question, had been accepted: videhis order, Ex. P-2. In view of this, the position taken bythe Returning Officer in rejecting the respondent No. 8'snomination paper, appears to be anomalous. In ouropinion the acceptance of the nomination paper for Jalore
EL-61
478 UGAM SINGH V. HARI SINGH [VOL. VI
"A" constituency by one and the same Returning Officer,would amount to sufficient satisfaction for the fulfilmentof the conditions laid down in section 33(5) of the Repre-sentation of the People Act, 1951. In this connection thefollowing observations made by the Lucknow Tribunal inBrij Naresh Singh v. Hukum Singh and Other s{1), are import-ant: "Section 33, sub-section (6), of the Representationof the Peope Act, 1951, (hereinafter to be called the Act),provides that if at the time of the presentation of thenomination paper the Returning Officer finds that thename of the candidate is not registered in the electoralroll of the constituency for which he is the ReturningOfficer, he shall for the purposes of sub-section (5) requirethe person presenting the nomination paper to produceeither a copy of the electoral roll in which the name of thecandidate is included or a certified copy of relevant entriesin such roll. The purpose mentioned in sub-section (5) isthe satisfaction of the Returning Officer that the namesand .electoral roll numbers of the candidate and his pro-poser and seconder as entered in the nomination paperare the same as those entered in the electoral rolls. Inorder to satisfy the Returning Officer on this point thepetitioner applied for and obtained a copy of the entry ofhis name in the electoral roll for his constituency andproduced it before the Returning Officer along with hisnomination paper. Sub-section (5) requires that on thepresentation of a nomination paper, the Returning Officershould satisfy himself on the said point and apparentlyhe was satisfied with the copy produced by the petitioner.Otherwise it was incumbent on him under sub-section (6)to require the petitioner to produce a duly certified copy.As he did not do so, the petitioner was not bound to pro-duce any other certified copy. The sub-section throws theburden on the Returning Officer, and not on the candidate,unless the latter is required to produce a certified copy.The Returning Officer need not always require a certifiedcopy for being satisfied. If he is satisfied with anyother evidence, he need not call upon the candidate to pro-duce a certified copy. In this view, whether the copy pro-duced by the petitioner is a properly certified copy or not,there was no failure on his part to comply with the provi-
(1) 2 E.L.R. 266 (268).
E.L.R.] TJGAM SINGH V. HAKI SINGH 479
sions of section 33, and the Returning Officer should nothave refused his nomination tinder section 36, sub-section2(d) of the Act, as he purports to have done".
This point had come for discussion before the Elec-tion Tribunal, Secunderabad, in the case of Laxman Rao v.Lakshminivas Oanerival and Others^) in which the tribu-nal, while adopting a similar view, has (on page 23)observed as under:—
"So far as issue No. l(a) is concerned, assuming thatsub-section (6) of section 33 applied to this case, we thinkthat the Returning Officer was not justified in rejectingthe nomination papers of these 2 candidates on the groundof non-production of the certified copies of the electoralrolls of the constituency in which their names appear aselectors. Under sub-section (5) of section 33, it is the duty ofthe Returning Officer to satisfy himself that the names andelectoral roll numbers of the candidates and their propo-sers and seconders as entered in the nomination papersare the same as entered in the electoral rolls. He is notabsolved from this duty merely because the candidateswhen called upon to do so failed to produce the electoralrolls or certified copies thereof. It has been held in anumber of cases that rejection of the nomination paperson this ground is improper. [See in this regard Basti Dis-trict North East General Rural Constituency 1937—KalapRaj v. Bishambhar Nath Tripathi and Another(a)]. I t waslaid down in this case that the production of electoral rollis merely a rule of evidence. It is not necessary for thecandidate or his proposer or seconder to produce a certifiedcopy of the electoral roll, if objection is taken. It is theduty of the Returning Officer to summon the rolls andverify himself. In that case, as in the present, the candi-date had requested the Returning Officer to look into therolls himself, and satisfy himself on this point, but herefused to do so and rejected the nomination papers. Thepetitioner has produced his application before the Return-ing Officer embodying this request in the present case.See also Azamgarh (N.M.R.) 1931—Shiva Shankar Singh v.Thakur Motisingh^)". In this case it was decided that thecertified copy of an entry made in the electoral roll of anyconstituency shall be conclusive evidence of the right of
(1) 2 B.L.R. 20. (2) Sen & Poddar 106 at 108. (3) Hammond 97 at 99,
480 TTGAM SINGH V. HARI SINGH [VOL. VI
any elector named in that entry to stand for the election.But it does not mean that the certified copy shall be theonly evidence admissible in proof thereof. It is not neces-sary that the candidate should produce certified copiescalled upon, and rejection of his nomination paper for thisreason is improper.
The learned pleader for the respondent relies on Coco-nada General Rural Constituency 1937—Eli Vadapalli Oaruv. Bayya Suryanarayanamurthi Oaru and Others^). Thiscase was decided under rule 14(2) of 1936. The wordingof this rule, which made it imperative on the candidateto produce electoral rolls and of the certified copies there-of was relied upon. There is no such provision in the pre-sent rules. This case cannot be taken as an authority.Moreover there are other cases which we have cited aboveunder those very rules in which a different view was taken.The learned pleader for the respondent also contends thatall the cases except this Coconada General Rural Consti-tuency case{1) which he has cited, are regarding the proposersand seconders, and not with reference to a candidate, andtherefore they are not applicable. We think there is nosubstance in this contention. The section 33, sub-sections(5) and (6), do not purport to lay down different rules forproposers and seconders and for the candidate. The ruleis exactly the same for all. This is plain from the word-ings of these sub-sections. It is also contended on behalfof the respondent that the candidate was asked to pro-duce the rolls but he refused to do so. We do not thinkthat this can make any difference. The candidates had, astheir application in this connection clearly shows, request-ed the Returning Officer to look into the roll himself andhad shown reason why they were unable to secure certifiedcopies thereof. We think that in the circumstances it wasincumbent on the Returning Officer who was also Return-ing Officer of Andole and Medak constituencies, and pre-sumably in possession of these electoral rolls, to look intothem and satisfy himself. As we have said above, it was hisduty under section 33, sub-section (5), to do this and he wasnot absolved therefrom by calling upon the candidates toproduce certified copies* of the rolls, or because some onehad raised objection in this connection. We, therefore, think
(1) Sen & Poddar 267.
E.L.R.] TTGAM SINGH V. HARI SINGH 481
that the nomination paper was improperly rejected on thisground. It is not necessary in view of our decision on thispoint to give a finding as to whether the electoral roll wasactually produced by the candidates as alleged by the peti-tioner or not. We therefore decide issue No. 1 (a) in favourof the petitioner.
It is thus clear that the Returning Officer need notalways require a certified copy for being satisfied that acandidate is entered in the electoral roll as a voter, andeven if he is satisfied with any other evidence, he need notcall upon the candidate to produce a certified copy. In thepresent case respondent No. 8 did produce before the Re-turning Officer a certified copy of the entries relating tohis name in the electoral roll of the Jodhpur constituencyand he requested the Returning Officer to treat it as evi-dence for both the constituencies. The scrutiny of boththe constituencies was held by the same Returning Officerand on the same day. He held the scrutiny of Jalore eA'constituency nomination papers first and accepted res-pondent No. 8's nomination papers for that constituency.At the time of the scrutiny of the nomination papers ofJalore 'B' constituency, he was aware that respondent No.8 was entered as a voter in the Jodhpur constituency. Atthat time he was in possession of a certified copy of theelectoral roll containing respondent No. 8's name as anelector filed along with the nomination papers of Jalore'A' constituency. It was the duty of the Returning Offi-cer to have looked into that electoral roll and satisfiedhimself. It is clear from the order of rejection passed bythe Returning Officer that while passing that order he wasaware of the fact that a copy of the electoral roll contain-ing respondent No. 8's name as a voter was in his posses-sion and formed a part of the file of respondent No. 8'snomination papers for Jalore 'A' constituency. The Re-turning Officer was, therefore, not justified in rejectingrespondent No. 8's nomination paper for Jalore 'B'constituency on the technical ground that he had filedonly one and not two copies of the electoral roll. There-fore we come to the conclusion that the nomination paperof the respondent No. 8 was improperly rejected by theReturning Officer on the ground of non-production of either
a copy of the electoral roll or certified copy of the entries
482 TTGAM SINGH V. HARI SINGH [VOL. VI
in such roll in which his name appeared.Next, it has been urged on behalf of the respondent
No. 1, that the certified copy of the electoral roll filed byrespondent No. 8, showed his age to be 21 years only, andas such he is disqualified from contesting the election asa candidate, being below 25 years and as respondent No. 8failed to get the entry as to his age in the electoral rollcorrected, it was not possible for the Returning Officer toaccept his nomination paper in which his age was men-tioned as 39 years.
It appears from the copy of the electoral roll, Ex. A-2,that the age of respondent No. 8 was entered in the elec-toral roll as 21 years. On 14th November, 1951, he appliedto the Electoral Registration Officer that his age waswrongly shown as 21 years instead of 39 and also the circlenumber in his entry was wrongly entered as No. 3 insteadof number 10 and requested that these mistakes be cor-rected. The Electoral Registration Officer, on the appli-cation of the respondent No. 8 ordered on 24th November,1951, vide order on Ex. A-7 on the same date (i.e. 14thNovember, 1951), that the circle number be corrected as10 instead of 3 but the age could not be corrected to 39instead of 21. The respondent No. 8 made another ap-plication containing the same facts and the same request,addressed to the City Magistrate, Jodhpur, who was alsothe Electoral Registration Officer, and who passed thefollowing order:—
"The circle number be corrected as No. 10 but asregards age, his age is entered as 21 in the electoral rolls.I personally know Shri Shivlal, Barrister, and he is about40 years of age. But the Chief Electoral Officer has ruledthat corrections in ages where the age falls between 21and 25 should not be regarded as minor correction. Fromthe affidavit filed by the applicant, the correct age worksout to 39 as the date of birth is stated to be 27th Sep-tember, 1912. The entry prima facie appears to beincorrect regarding age".
It is thus clear from the second order that the Elec-toral Registration Officer personally knew respondent No.8, whose age as entered in the electoral roll as 21 was primafacie incorrect, and that in fact he was 39 years old, but
E.L.E.] UGAM SINGH V. HAEI SINGH 483
he refused to correct the age simply because the ChiefElectoral Officer had ruled that corrections in age whereit fell between 21 and 25 years should not be regarded asminor corrections. However, the fact remains that atthe time the respondent No. 8 filed his nomination paper,his age as entered in the electoral roll was 21 years al-though in fact he was 39 years old. It has been arguedby the learned counsel for the petitioner that the Return-ing Officer should have made a summary enquiry undersection 36, sub-section 2(a) and (b), of the Representationof the People Act, 1951, which runs as under:—
"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 ob-jection or on his own motion, after such summary inquiry,if any, as he thinks necessary, refuse any nomination onany of the following grounds:—
(a) that the candidate is not qualified to bechosen to fill the seat under the Constitution or this Act;or (b) that the candidate is disqualified for being chosento fill the seat under the Constitution, or this Act;"
Section 19 of the Representation of the People Act,1950, lays down the conditions of registration as a voter;and provides that subject to the foregoing provisions ofPart III of the Act, every person who is not less than 21years of age on the qualifying date, shall be entitled to beregistered in the electoral roll for that constituency. Thismeans that so far as the age entered in the electoral rollis concerned, the only consideration is whether the personwhose name is to be entered in the electoral roll has at-tained the age of 21 years or not. No enquiry about theactual age is contemplated under section 19 of the Re-presentation of the People Act, 1951. As against this ithas been argued by the learned counsel for respondentNo. 1 that according to section 36(7) of the Representa-tion of the People Act, 1951, for the purposes of this sec-tion, the production of a certified copy of any entry madein the electoral roll of any constituency shall be conclusiveevidence of the right of any elector named in that entryto stand for election or to subscribe a nomination paper,as the case may be unless it is proved that the candidateis disqualified under the Constitution or this Act, or that
484 UGAM SINGH V. HAM SINGH [VOL. VI
the proposer or seconder, as the case may be, is disquali-fied under sub-section (2) of section 33 of this Act, and thatthe age of respondent No. 8 as entered in the certified copyof the electoral roll was conclusive evidence that he wasthen 21 years old. The minimum qualification of age ofan elector to be 21 years, has been prescribed in article 326of the Indian Constitution, which is as under:—
"The elections to the House of the People and to theLegislative Assembly of every State shall be on the basisof adult suffrage; that is to say, every person who is acitizen of India and who is not less than twenty one yearsof age on such date as may be fixed in that behalf by orunder any law made by the appropriate Legislature and isnot otherwise disqualified under this Constitution or anylaw made by the appropriate Legislature on the ground ofnon-residence, unsoundness of mind, crime or corrupt orillegal practice, shall be entitled to be registered as a voterat any such election".
The qualifications for membership of the LegislativeAssembly of a State as laid down in article 173 of the Con-stitution is that the person shall not be less than 25 yearsof age.
Now the question for determination is as to what is thepower of the Returning Officer to enquire into the real ageof a candidate, which as entered in the electoral roll, primafacie appears incorrect. In other words, is the ReturningOfficer empowered to hold an enquiry into the correct ageof a candidate, under section 36(a) and (b) of the Repre-tation of the People Act, 1951?
According to this section, it is the duty of the Re-turning Officer to make a summary enquiry and satisfyhimself whether the candidate is qualified or is disqualifiedfor being chosen to fill the seat under the Constitution orthe Act. This shows that the Returning Officer can gointo the question of age of a candidate at "the time ofscrutiny of the nomination papers to satisfy himself whe-ther the candidate is qualified or is disqualified for theabove purpose. This point has come up for discussion be-fore various Election Tribunals in Subramanyam v.Abdul Hameed Khan and Others^), Aslam Khan v. ShriFazlul Haq(2), Balasubramanian v. C. R. Narasimhan
(1) 1 E.L.R. 432. (2) i E.L.R. 341.
E.L.R.] TTGAM SINGH V. HARI SINGH 485
and Others^) and Jagannath Sharma v. S. G. Gupta andOthers^) in which it has been held that the ReturningOfficer and also the Election Tribunal have got power togo behind the age of a candidate as entered in the electoralroll, and hold an enquiry as to his correct age in order to seewhether he is duly qualified to become a member of a StateLegislative Assembly. This tribunal has also dealt with thesame point at great length in Hakikatullah v. Nathu Singhand Others^), in which, after a very careful consideration ofthe provisions of section 36(2) (a) and (b) and (7) (a) andthe above mentioned judgments, we have come to thefollowing conclusion:—
"There is nothing in the words of section 36(7) (a) ofthe Representation of the People Act, 1951, which suggeststhat the entry in the electoral roll by itself, shall be con-clusive so far as the qualifications of an elector are con-cerned. It merely says that the entry in the electoralroll shall be conclusive evidence of the right of any electornamed in the entry to stand for election or to subscribeto a nomination paper, which is entirely different anddistinct from making the said entry conclusive regardingthe possession of the requisite qualifications by a personwhose name is so entered, to be an elector so as to sub-scribe to a nomination paper. The words "evidence ofright" in section 36(7) (a) of the Representation of thePeople Act, 1951, mean that in the absence of any otherevidence to the contrary, the entry in the electoral rollshall be conclusive evidence of the right of any electornamed therein to stand for election or to subscribe a nomi-nation paper, as the case may be. Therefore, it follows thatif there is any evidence which negatives the right of anyperson to be entered in the electoral roll, as required bythe provisions of article 326 of the Constitution, it can beenquired and looked into for the purpose of determiningwhether the person in question is duly qualified to be anelector or a candidate for the House of the People or theState Legislature, as the case may be. Our attention hasbeen drawn to some of the cases decided on this point,under the old law and also under the present law, asto the powers of the Returning Officers and the Elec-
(1) 1 E.L.R. 461. (2) 2 E.L.R. 8. (3) 6 E.L.R. 10 (18).EL—62
486 UGAM SINGH V. HAKI SINGH [VOL. VI
tion Tribunals to hold an enquiry into the age ofa candidate in spite of an entry in the electoral rollgiving the requisite age, in order to determine whetherthe candidate in fact, possesses the requisite qualificationsas required by the provisions of law, on the qualifyingdate, which was fixed as first day of March, 1950, accord-ing to section 21 of the Representation of the People Act,1950. This could be done by the Returning Officer at thetime of scrutiny of the nomination paper, under section36(2) (a) and (b) of the Representation of the People Act,1951. The consensus of opinion of the Election Tribunals,in case of an enquiry into the qualifications or disqualifi-cations of a candidate for being chosen to fill the seatunder the Constitution or the Representation of the PeopleAct, 1951, is that the entries in the electoral rolls are notfinal, and the Returning Officers and the Election Tribunalcan enquire into the said qualifications or disqualificationsof the candidate in order to find out his eligibility to fillin a seat under the Constitution, or the Representation ofthe People Act. This view of the law has been adoptedby the Election Tribunal, Madras, in the case of Subra-manyam v. Abdul Hameed Khan and Others^) and it hasbeen held therein that the entry in the electoral rolls asregards the age of a candidate is not conclusive and it wasopen to him to satisfy the Returning Officer that he was infact more than 25 years which is the qualifying age for acandidate. We have very carefully gone through thejudgments of the various tribunals dealing with the ques-tion whether the entry of age of a candidate as enteredin the electoral roll is conclusive or not and whether anenquiry as to his correct age could be made by the Re-turning Officer or the Election Tribunal and we are of theopinion that there is no provision either in the Represen-tation of the People Act (Preparation of Electoral Rolls)Rules, 1950, which may suggest that the entry as to theage of a candidate in the electoral roll is final and conclu-sive and cannot be enquired into at the time of the scrutinyor by the Election Tribunal. To be of a proper agerequired for being an elector or a candidate is a statutoryqualification, the absence of which is a statutory disqualifi-cation about which there can be no waiver. If a person
(1) 1 E.L.R. 432.
E.L.E.] UGAM SINGH V. HAEI SINGH 487
is really below 21 years or 25 years, which are the qualify-ing ages for an elector, and a candidate respectively, thenhe is inherently lacking in the statutory qualification tobecome either an elector or a candidate as the case maybe The electoral roll is therefore not final if the personwhose name appears therein is under a statutory dis-qualification to be an elector, viz., that he was below 21years on the qualifying date, which can be looked into bythe Returning Officer or the Election Tribunal. As theminimum age of 21 years for an elector has been prescribedby the provisions of the Constitution, any contrary inter-pretation of any provisions of the Representation of thePeople Act, 1950 or 1951, or of the Representation of thePeople (Preparation of Electoral Rolls) Rules, 1950,will not be valid as it would defeat the provisions of theConstitution. On a consideration of the relevant provi-sions of the Constitution of India and the law made bythe Parliament relating to the elections, we have come tothe conclusion that the lack of statutory qualifications orstatutory disqualifications, specially of a personal nature,can be considered both by the Returning Officer and theElection Tribunal, whether it is the case of a candidate ora proposer".
Taking into consideration the facts of this case andapplying the above proposition of law, we see no reasonnow to take a view different from the one we have takenin the above mentioned case and hold that the ReturningOfficer and the election tribunal have powers to enquireinto the correct age of the candidate. It was admitted bythe learned counsel for respondent No. 1 on 19th February,1953, that the age of respondent No. 8 is about 39 yearsnow. The Returning Officer also was satisfied that respon-dent No. 8 was not less than 25 years old at the time whenhe filed the nomination papers for Jalore 'A' constituencywhich were accepted by the Returning Officer in spite ofrespondent No. 8's age being entered in the electoral rollas 21 years. We are therefore of opinion that the objec-tion as to the age of the respondent No. 8 raised by therespondent No. 1 in paragraph 12 of his reply is notmaintainable and that the nomination papers of the res-pondent No. 8 could not be rejected on this ground. We,therefore, hold on this issue that the nomination paper of
488 TTGAM SINGH V. HABI SINGH [VOL. VI
this respondent has been improperly rejected by theReturning Officer on the grounds alleged under this issue.Second part of this issue will be discussed after issue No. 2. •
Issue No. 2.—It has been pleaded by respondent No. 1in paragraph 14 of the written statement that the elec-toral roll of Jodhpur 'B' constituency in which the nameof the respondent No. 8 is registered as an elector is sub-divided into parts and separate serial numbers are as-signed to the electors entered in each part and as the saidrespondent did not enter in the nomination paper, thedescription of the part and the sub-division, his nomina-tion paper ought to have been rejected on that score also.A similar objection appears to have been taken againstthe nomination papers filed by respondent No. 8 for Jalore"A" constituency, but the Returning Officer overruled thesame and accepted his nomination papers as he was satis-fied from the certified copy of the entries in the electoralroll of Jodhpur constituency produced by the respondentNo. 8 along with his nomination paper, that the namesand electoral roll numbers of the candidate and his pro-poser and seconder as entered in the nomination paperwere the same as those entered in the electoral rolls. Sincethe respondent No. 8 was not an elector either in Jalore"A" constituency or in Jalore "B" constituency, but wasan elector in Jodhpur constituency, in support of whichhe had produced a certified copy of the entries in theelectoral roll in which his name appeared, the question ofthe Returning Officer verifying the details of the respon-dent No. 8's name, etc. appearing in the nomination paperfiled by him for Jalore "B" constituency did not arise, asthe Returning Officer was neither in possession of theelectoral roll of the Jodhpur constituency nor was he theReturning Officer of this constituency. Accordingly thenomination paper of the respondent No. 8 could be ac-cepted or rejected only on the basis of the certified copyof the entries in the electoral roll, filed with the nomina-tion paper of Jalore "A" constituency. This question hasalready been discussed by us under issue No. 1 and in viewof our finding on that issue in favour of the petitioner, viz.,that an omission to file a separate certified copy of theentries in the electoral roll of the Jodphur constituencyalong with the nomination paper of Jalore "B" consti-
E.L.R.] TTGAM SINGH V. HARI SINGH 489
tuency, by the respondent No. 8 in the circumstances ofthis case, viz., that he had already filed one such copy withhis nomination paper for Jalore "A" which was scruti-nised by the same Returning Officer on the same day andaccepted by him was not so fatal a defect as to justifyrejection of the second nomination paper. The questionwhether the omission to mention the ward number of theJodhpur constituency by the respondent No. 8 in thenomination paper in question does not arise, and as suchthe discussion of the case law on this question, which hasbeen cited before us, becomes unnecessary. We, therefore,come to the conclusion that the defect in the nominationpaper of respondent No. 8, if any, in not entering in thenomination paper description of the part and the sub-division of Jodhpur 'B' constituency was a technical defectbut not of a substantial character and respondent No. 8'snomination paper for Jalore 'B' constituency was notliable to be rejected on this score. Issue No. 2 is decidedin the negative.
Issue No. 1, second part.—The next question for con-sideration is whether the improper rejection of respondentNo. 8's nomination paper has materially affected theresult of the election in the constituency in question. Inparagraph 13 of his written statement, the respondentNo. 1 has alleged that the respondent No. 8, Shri Porwal,was a dummy candidate, and the official congress candi-date from the Jalore 'B' constituency was Shri Rama-chandra Singh, respondent No. 6 and that Shri Porwalnever meant to seriously contest the elections and as amatter of fact withdrew from the contest in favour of ShriJai Narain Vyas, a congress candidate from the Jalore 'A'constituency. This contention of respondent No. 1 isfurther reinforced by the fact that the said Shri Porwaldid not file any election petition before the Election Com-mission. The result of the election has not been, therefore,materially affected by the rejection of Shri Porwal's nomi-nation paper and in this view of the matter also, thepetition of the petitioner Shri Ugam Singh deserves to bedismissed.
It is a well settled principle of law that whenever itis proved that the nomination paper of any candidate hasbeen improperly rejected by the Returning Officer, a pre-
490 T7GAM SINGH V. HARI SINGH [VOL. VI
sumption arises that the result of the election in questionhas been materially affected and the same should thereforebe declared void. It has also been held by a majority of theElection Tribunals except the Lucknow Election Tribunalin the case of Brij Naresh Singh v. Hukum Singhand Others^), that very strong evidence is required to re-but this presumption. We have dealt with this point insome detail in the case of Chander Nath v. Kunwar JaswantSingh and Other s(?) in which, after a very careful consider-ation of the provisions of section 100(1) (c) of the Repre-sentation of the People Act, 1951, and the decisions of thevarious Election Tribunals, we have come to the conclu-sion that the presumption which initially arises on accountof improper rejection of a nomination paper by a Return-ing Officer, is capable of rebuttal and after considerationof the facts on the record of that case, we held that theresult of the election in question had not been materiallyaffected. To hold that this presumption is incapable ofrebuttal is to import into the words of section 100(1) (c)of the Representation of the People Act, 1951, a meaningwhich was, in our opinion, never intended by the Legis-lature even. We have also discussed this point in anothercase, Bankat Lai v. Madan Mohan and Others^), and held thesame view as in the case of Chandra Nath v. Kunwar Jas-want Singh and Others^), though in this case on the factsas proved we came to the conclusion that there was nomaterial on the record to rebut the presumption. The sameview has been taken by the Election Tribunal, Jaipur, inthe ease of Pandit Harish Chandra v. Raja Man Singh andOthers^), in which the Election Tribunal after a conside-ration of the provisions of section 100(1) (c) of the Repre-sentation of the People Act, 1951, our judgment in the caseof Chandra Nath v. Kunwar Jaswant Singh and Others^)and also the judgments of some other tribunals, has (onpage 145) observed as under:—
"We are in complete agreement with the views of theBikaner Tribunal on this point. As a matter of fact, ona plain reading of section 100(1) (c), it is difficult to makeany difference between the case of acceptance and that ofrejection of a nomination paper. If it is necessary to
(1) 2 B.L.B. 266. (2) 3 E.L.B. H7.(3) 3 E.L.B. 375, (4)5 E.L.B. 129,
E.L.E.] UGAM SINGH V. HABI SINGH 491
prove in the case of improper acceptance that the resultof the election was materially affected, it is equally neces-sary to prove it in the case of an improper rejection.However, there is consensus of opinion of the varioustribunals and Election Commissions right from the year1921 up to the present day that the improper rejection of anomination paper raises an initial presumption that theresult of the election has been materially affected. Wewould, on the principle of stare decisis, not like to goagainst this view. We are, therefore, prepared to go sofar that there is such an initial presumption, that it re-quires strong and convincing evidence to rebut it, but nofurther.
The learned members of the Lucknow Tribunal in thecase of Brij Naresh Singh v. Hukum Singh^) seem tobe of opinion that it is the result of the loose drafting thatthe words "the result of the election has been materiallyaffected" have been used in the context of the words "re-jection" also and probably it is an accidental mistake onthe part of the Legislature. Apart from the fact that thetribunal cannot assume a mistake in an Act of the Legis-lature, there are grounds for believing that it is not dueto any mistake or loose drafting that the said words havebeen used in connection with the acceptance as well asthe rejection of a nomination paper. The Legislaturemust have been fully conscious of the various decisions ofthe Election Commissioners under the old law that it hadbeen consistently held that it was very difficult to provein the case of improper rejection that the result of theelection had not been materially affected. In spite of this,they thought it proper to retain the words in question inthe context of "rejection" as well. Moreover, it appearsto be the anxiety of the Legislature that an election shouldnot be lightly set aside on any technical grounds. Thesetting aside of an election is a very serious matter, as agood deal of time and money, which is spent, is spent invain. The Legislature, therefore, thought that unless byany technical irregularity or illegality the result of theelection has been materially affected, the election shouldnot be declared to be void. This appears from the factthat the words "materially affected" do not occur only insection 100(1) (c), but also in clauses (a) and (c) of sub-
(1) 2 E.L.R. 266.
492 UGAM SINGH V. HARI SINGH [VOL. VI
section (2) of the said section. We are, therefore, of opinionthat simply the difficulty of proving that the election hasnot been materially affected by the improper rejection ofa nomination paper should be no reason to wipe off theclear words which occur in the clause in question.
Before we discuss the evidence in this case on thispoint, we may mention that we are conscious of the factthat with the exception of the two recent judgments—one of Jullundur Tribunal and the other, of Bikaner Tribu-nal referred to above—in all other cases the evidence inrebuttal was found to be insufficient; but that is a differentmatter, because every case depends upon its own facts".
After discussing the evidence in that case, the JaipurTribunal came to the conclusion that the improper rejec-tion of the nomination paper in that case did not material-ly affect the result of the election. We see no reason totake a view on this matter different from the one we havetaken in the two cases referred to above.
The only question for determination which now re-mains is as to how far the presumption which initiallyarises in favour of the petitioner on account of the im-proper rejection of respondent No. 8's nomination paperfor Jalore "B" constituency has been rebutted by theevidence led in this case.
The next question for our consideration is whetherthe facts which are sufficient to rebut the initial presump-tion which arises in favour of the petitioner, viz., that theresult of the election from Jalore "B" constituency hasbeen materially affected on account of improper rejectionof the nomination paper of the respondent No. 8 havebeen proved to the satisfaction of the tribunal. From theabove discussion of the evidence on the record, both docu-mentary and oral, the following facts have been proved:—
(1) That during the last general elections, the policyof the Indian National Congress, was to set up some dummyor covering candidates along with the official congress can-didate, practically in every constituency, so that in caseof the rejection of the nomination paper of the officialcandidate, the congress was not out of the contest, and itis also proved that as soon as the nomination paper of theofficial candidate was accepted, the other candidates were
E.L.R.] UGAM SINGH V. HARI SINGH 493
asked to withdraw and they in fact did withdraw, as theywere bound by the congress discipline.
(2) That during the month of October, 1951, i.e., muchbefore the filing of the nomination papers on 26th Novem-ber, 1951, it had been decided by the Congress High Com-mand that respondent. No. 6, Shri Ram Chandra Singh,shall contest the election in Jalore "B" constituency, asthe official candidate on behalf of the Congress, in prefer-ence to respondents Nos. 5 and 8.
(3) That Shri Nihalchand Bhandari, respondent No. 5,was set up as the first dummy candidate and Shri Porwal,respondent No. 8, as the second.
(4) That the selection of the respondent No. 6 as theofficial candidate in the constituency in question had beenfinally made before the filing of the nomination papers,and there is nothing to show that it was provisional andbecame final only on 1st December, 1951, when the Return-ing Officer was asked by the President, District CongressCommittee, Jalore, to allot the congress symbol to therespondent No. 6.
(5) That after the acceptance of the nomination paperof the respondent No. 6, the respondent No. 5, Sri Nihal-chand, withdrew his nomination under instructions fromthe President of the District Congress Committee, Jalore,Shri Madan Raj, R.W. 1, from this constituency.
(6) That the respondent No. 8, Shri Porwal, is an oldcongress man, and according to the mandate from theCongress, he had to withdraw his nomination after theacceptance of the nomination of the respondent No. 6 aswas done by the respondent No. 5 and also by him in thecase of Jalore "A" constituency in favour of Shri JayNarayan Vyas who was the official congress candidate butthe question of withdrawal by him did not arise in Jalore" B " constituency as his nomination paper was rejected.
(7) That the respondent No. 8, Shri Porwal, hasnowhere suggested in his evidence that he would certainlyhave contested the election from the constituency in ques-tion, in spite of the acceptance of the nomination paperof the official candidate, the respondent No. 6.
(8) That even the nomination paper of the respon-EL-63
494 TTGAM SINGH V. HARI SINGH [VOL. VI
dent No. 8 for the constituency in question was filled upby the President of the District Congress Committee,Jalore, Shri Madan Raj, R.W. 1.
(9) That it is admitted by the respondent No. 8 in hisevidence that he filed the nomination papers in this con-stituency after he received a letter to this effect from thePresident, District Congress Committee, Jalore, Shri MadanRaj, R.W. 1.
(10) That after the rejection of his nomination paper,the respondent No. 8, Shri Porwal, worked and canvassedfor the official congress candidate, the respondent No. 6.
(11) That the respondent No. 8 has remained satisfiedwith the rejection of his nomination paper and has notfiled any petition, though this fact by itself does not im-prove the case of the respondent No. 1 in any way.
In our opinion, therefore, the above facts, which havebeen proved beyond any doubt and which have not beenchallenged either on behalf of the petitioner or the respon-dent No. 8, conclusively rebut the presumption whichinitially arises in favour of the petitioner and we hold thatthe wrongful rejection of the respondent No. 8's nomina-tion paper has not materially affected the election of therespondent No. 1 from the Jalore "B" constituency. Weare also of the opinion that the above facts are quitesufficient to bring us to this conclusion, and that this caseis practically analogous with the case of Chander Nath v.Kunwar Jaswant Singh and Others^1) decided by us whichis referred to above. We may also observe here that inview of the facts established in this case, we cannot cometo a conclusion that on account of improper rejection ofthe respondent No. 8's nomination paper, the electorateof the Jalore "B" constituency has been deprived of theirvaluable right to cast their votes for respondent No. 8who in fact was never meant to contest the electionsfrom this constituency. We therefore decide this issueaccordingly.
Accordingly the findings on the above issues are asunder:—
Issue No. 1, first part in the affirmative.Issue No. 1, second part in the negative.
(1) 3 E.L.R. 147.
E.L.R.] JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH 495
Issue No. 2, in the negative.Issue No. 3.—The result of our findings on the above
issues is that the petitioner is not entitled to any reliefand the petition stands dismissed. There only remainsthe question of costs. Since both the petitioner and therespondent No. 1 have succeeded in part, in our opinionthe proper order shall be that each party shall bear hisown costs.
The petition is dismissed with no order as to costs.Petition dismissed.
[ELECTION TRIBUNAL, FAIZABAD.]
JAWAHAR SHANKAR PACHOLIv.
HIRDAY NARAIN SINGH AND OTHERS.D. N. ROY (Chairman), A. SANYAL and M. U. FARUQI
(Members).May 23, 1953.
Nomination of candidates—Special constituency of Legislative Council—Electoral roll number—Number in roll of Assembly constituency given innomination—'Validity of nomination—Postal ballot—'Attestation by personsigning election appeal—Validity of ballot—"Working for a candidate",meaning of—Illegal practice—Omission of printer's and publisher's namesin circulars by ignorance or oversight—Representation of the People Act,1951, ss. 6, 100(2)(a), 125(3), 140—Form of nomination, column 8—Con-stihition of India, art. 173.
In the case of an election for a special constituency of the LegislativeCouncil of a State (e.g., the Teachers' constituency) the serial number ofthe candidate to be given against column 8 of the form of nomination ishis serial number in any Assembly constituency of the State.
Under article 173 of the Constitution read with section 6 of theEepre-sentation of the People Act, 1951, a person can stand as a candidate for aconstituency of the Legislative Council irrespective of whether his nameappears or does not appear in the electoral roll of the constituency forwhich he stands if his name is included in the electoral roll of anyAssembly constituency of the State.
Attestation of a postal ballot by a person who has merely given con-sent to the inclusion of his name in an appeal in support of a particularcandidature would not invalidate the ballot paper; for, mere consent to theinclusion of on Vs name in such appeal would not amount to working fora candidate in or about the election .
496 JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH [VOL. VI
The omission of the name of the printer and publisher in printedcirculars having reference to an election, by ignorance or oversight withoutany ulterior motive, would not amount to an illegal practice under section125(3) of the Eepresentation of the People Act, 1951.
Under section 140 of the Act a candidate may be disqualified frommembership if he is found to be guilty of an illegal practice; but undersection 100(2)(a) his election cannot be set aside unless it is further provedthat the result of the election was materially affected by this illegal prac-tice. [The anomaly of the situation pointed out].
ELECTION PETITION NO. 8/331 OF 1952.
ORDER.
The petitioner and the respondents stood for electionfor membership of the U. P. Legislative Council from theU.P. East Teachers' constituency during the elections heldin the year 1952. The result of the election was declared onApril 29, 1952. Three members were to be elected fromthis constituency by means of the system of single trans-ferable vote. The first three respondents were declaredelected defeating the petitioner and respondents 4 to 10.
This election petition was filed before the ElectionCommission which appointed this tribunal for decision ofthe same.
The grounds on which the election is sought to beavoided were good many. The first allegation was thatall the nomination papers were improperly accepted bythe Returning Officer except one which was improperlyrejected. The second allegation was that the attestationslips containing signatures of the voters were attested bypersons who were not authorised to do so. It was allegedthat this irregularity made the election of respondents 1to 3 void. Third allegation was that election of respondent2 was void because the said respondent and his workersand agents published and circulated appeals containingfalse statements casting reflection on the character andconduct of the petitioner. Fourth allegation was that theelection of respondent 3 was void because he issued anappeal purporting to have been issued by 37 persons outof whom at least two never subscribed to the said appeal.Fifth allegation was that the election of respondent 1was void because he submitted false return of electionexpenses. Sixth allegation was that the election of respon-dents 1 to 3 was void because they issued circulars
E.L.R.] JAWAHAR SHANKAR V. HIRDAY NARAIK SINGH 497
having reference to the election which did not bearon their face the name and address of the printer andpublisher thereof. Seventh allegation was that respon-dent 5 was disqualified for future because he too,issued circulars without printer and publisher's name andalso because in his return of election expenses this respon-dent did not show costs of printing one appeal which isannexure P-3 attached to the petition. Eighth and lastallegation was that the result of the election was vitiatedbecause names of some of the electors were entered inelectoral roll more than once and such persons had votedmore than once.
Out of the ten respondents, only respondents 1 to 4,6, 8 and 9 filed written statements. Respondents 1 to 3alone contested the petition. They denied the allegationscontained in the petition and raised the plea of limitation.Respondent 1 added some counter allegations againstthe petitioner. The remaining answering respondentsadmitted the allegations contained in the petition butthey pleaded that their respective nomination papers wereproperly accepted. It may be noted that though thepetition contained some serious allegations against SriH. B. Malkani, respondent 5, in spite of proper service hedid not turn up nor did he file any written statement.
The pleadings of the parties gave rise to the followingissues.
ISSUES.
(1) Is the petition barred by limitation?(2) (a) Have the nomination papers of respondents
1 to 10 been improperly accepted for the reason givenin paragraph 10 (a) of the petition?
(b) Was respondent 5 disqualified to stand as acandidate from the Uttar Pradesh Teachers' (East) con-stituency on the ground that he was not an elector in thatconstituency?
(c) Has the result of the election been materiallyaffected by the improper acceptance of the nominationpapers?
(d) Whether one of the nomination papers of thepetitioner was improperly rejected by the ReturningOfficer? If so, with what effect?
498 JAWAHAR, SHANKAR V. HIRDAY NARAIN SINGH [VOL. VI
(3) (a) Were the persons mentioned in list 'A' of thepetition employed by, or on behalf of, or otherwise work-ing for any of the respondents in or about the election,within the meaning of notification marked A-2 in the peti-tion?
[Issues Nos. 3(b) to 7, not reportable. Omitted.](8) (a) Did respondents 1 to 3 commit an illegal
practice under section 125(3) of the Representation of thePeople Act, by issuing circular and notices, as mentionedin list D of the petition?
(b) If so, has the election of the returned candi-dates been procured or induced, or has the result of theelection been materially affected thereby?
(9) Did the persons mentioned in list E of the peti-tion cast votes several times over? Were any such votesimproperly received? Has the result of the election beenmaterially affected thereby?
(10) Whether the reliefs claimed are against theprovisions of section 84 of the Representation of the Peo-ple Act?
(11) To what relief, if any, is the petitioner entitled?Issue No. 1.—-Finding on this issue was given by us at
a preliminary stage. That finding with reasons forms partof this judgment as Annexure A.*
Issue No. 2 (a).—Admitted facts are that the lastdate for filing nomination papers was March 15, 1952.Scrutiny of the nomination papers by the ReturningOfficer took place on March 17, 1952. In all thirty nomi-nation papers were filed which are Exts. 40 to 69. Morethan one nomination papers were filed for some of thecandidates including the petitioner. There is a prescribedform of nomination paper which is given in Schedule II ofthe Representation of the People (Conduct of Elections andElection Petitions) Rules, 1951. It is based on rule 4 of thesaid rules. Blanks of these forms were filled in by thecandidates or their agents and were presented before theReturning Officer who, in this case, was Secretary of theLegislative Council. The form of nomination papers con-tains several columns. We are concerned in this case main-ly with column 8. Reference will also be made to other
* See 3 E.L.B. 397.
E.L.R.] JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH 499
columns at the proper place in order to elaborate ourreasonings. In column 8—to use the actual words giventherein—'Serial number of the candidate in the electoralroll of the constituency in which his name has beenincluded' is to be given.
It appears that the words 'the constituency in whichhis name has been included' were differently interpreted bythose who filed the nomination papers. Majority thoughtthat serial number in the electoral roll of the LegislativeAssembly was to be given in this column but some thoughtthat the serial number of the candidate in the electoralroll of the East Teachers' constituency, which was aspecial constituency for election to the Legislative Coun-cil, was to be given. In the nomination papers (Exs. 40to 65 and 67) the serial number of the candidate in theelectoral roll of the Legislative Assembly is given whereasin the nomination papers (Exs. 66, 68 and 69) the serialnumber of the candidate in the electoral roll of theTeachers' constituency is given. It appears that the peti-tioner or his workers were not certain about the correctinterpretation hence three nomination papers were filed onhis behalf. In two, serial number of the Assembly consti-tuency was given. In one, namely, nomination paper (Ex.66) serial number of the Teachers' constituency was given.Same was done in the nomination papers (Exs. 68 and69) relating to Onkar Shankar Vidyarthi, respondent 10.
The Returning Officer at the time of scrutiny acceptedall those nomination papers in which serial number of theAssembly constituency was given and he rejected theother three nomination papers. The result was that allthe nomination papers except three including two nomi-nation papers of the petitioner were accepted and threenomination papers including one of the petitioner (Ex. 66)were rejected.
The contention of the petitioner was that the Return-ing Officer wrongly accepted some and improperly rejectedother nomination papers. According to him this act of thesaid officer materially affected the result of the election and,therefore, the matter came within the mischief of section100 (l)(c) of the Representation of the People Act, 1951.According to contesting respondents all the nomination
500 JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH [VOL. VI
papers in which serial number of the Assembly constitu-ency was given were rightly accepted by the ReturningOfficer and those (Exs. 66, 68 and 69) in which serialnumber of the Teachers' constituency was given were pro-perly rejected.
For the decision of the controversy it is necessary tolook at the scheme and some provisions of the Constitu-tion and of the Acts passed by the Parliament under theauthority conferred on it by the Constitution.
Article 173 of the Constitution runs as follows:—"A person shall not be qualified to be chosen to fill
a seat in the Legislature of a State unless he—(a) is a citizen of India;(b) is, in the case of a seat in the Legislative As-
sembly, 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 beprescribed in that behalf by or under any law made byParliament".
A perusal of this article shows that under that articlethose who are citizens of India and are not less than30 years old are qualified for being chosen as members ofany Legislative Council of a State. The article furtherauthorises the Parliament to define other qualifications formembership. It may be noted that clause (c) of article 173enjoins prescribing by the Parliament of other qualifica-tions. It is, therefore, clear that the qualifications mustbe defined by Parliament in clear and unambiguous termsand not by implication and by drawing conclusions aftercomparison of different provisions of different enact-ments.
The Representation of the People Act, 1951, wasenacted to provide, inter alia, for the qualifications anddisqualifications for membership of the State Legislatureas is clear from its preamble. Part II of that Act is entitled'Qualifications and Disqualifications for Membership'.Chapter I of that Part deals with 'Qualifications forMembership of Parliament'. Chapter II deals with 'Qualifi-cations for membership of State Legislatures'. Section 5of that chapter is for 'Qualifications for membership of aLegislative Assembly' whereas section 6 defines 'Qualifica-
E.L.K.] JAWAHAB SHANKAR V. HIRDAY NARAIN SINGH 501
tions for membership of a Legislative Council'. Sub-sec-tion (1) of that section runs as follows:—
"A person shall not be qualified to be chosen to fill aseat in the Legislative Council of a State to be filled byelection unless he is an elector for any Assembly constitu-ency in that State".
Now, reading article 173 with section 6 aforesaid, itbecomes clear that for membership of the LegislativeCouncil of a State it is necessary that the candidate shouldbe a citizen of India, should not be less than 30 years ofage and his name must be included in the electoral rollof any Assembly constituency -of the State concerned. Itnecessarily follows that it is not at all necessary for acandidate of the East Teachers' constituency that hisname should be included in the electoral roll of that con-stituency. If the name of the candidate appears in theelectoral roll of any Assembly constituency, he canstand for membership irrespective of the fact whetherhis name appears or it does not appear in the elec-toral roll of the constituency for which he stands. Thelanguage used in column 8 of the form of nomination paperreferred to above is not at all in conflict with the view ex-pressed above. It clearly supports that view. The pointwill further become clear if the language of column 8 iscompared with the language of columns 10 and 14 whichare meant for proposer and seconder. The result, therefore,is that the Returning Officer was right in accepting thenomination papers (Exs. 40 to 65 and 67) and that hewas again right in rejecting the nomination papers (Exs.66, 68 and 69).
During the course of arguments the learned counsel forthe petitioner referred to articles 171 and 326 of the Con-stitution, to section 27 of the Representation of the PeopleAct, 1950, and to sections 32, 33, 35, 36(2) and 62 of theRepresentation of the People Act, 1951. But all these pro-visions relate to the qualifications of the electors. Theyhave got nothing to do with the qualifications for mem-bership. The point is so obvious that it is wholly unneces-sary to further dilate upon and elaborate this point.
In view of what is said above we do not entertainEL—64
502 JAWAHAE SHANKAR V. HIBDAY NAEAIN SINGH [VOL. VI
any manner of doubt about the conclusion to which wehave arrived. We are definite that the Returning Officerproperly accepted nomination papers (Exs. 40 to 65 and67) and that he rightly rejected the nomination papers(Exs. 66, 68 and 69). We decide part (a) of issue 2 ac-cordingly.
Issue 2(b).—Name of SriH.B. Malkani, respondent 5,does not appear in the electoral roll of either East orWest Teachers' constituency. His name, however, appearsin the electoral roll of the Assembly constituency. There-fore, in view of what is said above, nomination paper of SriMalkani was rightly accepted by the Returning Officer.Part (b) of issue 2 is consequently decided in the negative.
Issue 2(c).—Point raised in this part of the issue doesnot arise in view of the findings already recorded.
Issue 2(d).—This part of the issue is also decided inthe negative for the reasons given above.
Issue 3(a).—This issue is based on the allegationscontained in paragraph 11 of the petition. Voting in theconstituency in question was by postal ballot as providedin rule 69 of the Representation of the People (Conduct ofElections and Election Petitions) Rules, 1951. The ballotpapers are to be sent to electors by the Returning Officerby post (Rule 65). Rule 67 lays down the method of votingby an elector who is to obtain the attestation of his sig-natures on the postal ballot paper either by a magistrateto whom the elector is personally known or to whose satis-faction the elector has been identified or by such otherperson as may be notified in that behalf by the ElectionCommission. That attestation of signatures of voters inthe Teachers' constituency was to be made either by amagistrate or by such persons as may be specified by theElection Commission. Under authority conferred to it byrule 67 the Election Commission issued notification speci-fying the persons who could attest signatures of voters inthe Teachers' constituency. The petitioner has filed acopy of that notification along with the petition. It isreferred to therein as Ex. A-2. Heads of educational in-stitutions, inter alia, have been authorised to attest thesignatures but the Commission has imposed a restrictionby enjoining that
E.L.R.] JAWAHAR SHANKAR V. HIRUAY NARAIN SINGH 503
"No such person who is either a candidate at suchelection or a person employed by or on behalf of, or other-wise working for a candidate in or about the electionsshall be authorised to attest the signatures".
The petitioner has filed some printed leaflets and ap-peals purporting to have been signed by good many headsof institutions issued in support of the candidature of res-pondents 1 to 3 and 5. Copies of such appeals are filedwith the petition and are marked as A-3 to A-9. Some ofthe supposed signatories of those appeals have also at-tested signatures of some of the voters on the ballotpapers. Contention of the petitioner was that by issuingthe said appeals the signatories must be deemed to be work-ing for the candidate for whom they issued the appeals with-in the meaning of the nptification cited above and, there-fore, the contention proceeded, attestation of signatures ofelectors on ballot papers by them made the vote cast bysuch elector invalid under rule 92(c). There is no doubtabout the fact that some of the heads of institutions whopurport to have signed the appeals did attest signaturesof some of the electors on the ballot papers. Therefore, themain question for consideration in this connection is whe-ther by merely signing the appeals the signatories shouldbe held to be working for the candidate in whose favourthe appeals were issued. A further question that arises isas to whether those whose names appear in the appealsdid really sign them.
Following signature slips have been attested by thefollowing heads of institutions:—
Signature slips | By whom attested.
Ex. 1. Sri M.R. Kidwai, Principal, Gandhi Faiz-e-Am Degree College,Shahjahanpur.
Ex. 2. )
\ ... ... ... ... Sri B.C. Greenwold.Ex. 28. )Ex.30. ... Shri Jai Deo Singh, Principal, Y.D. College, Lakhimpur.
j Sri Shaukat Sultan, Principal, Shibli National College, Azamgarh.Ex. 71. ... Srimati K. Sabarwal, Principal, Mahila College, Lucknow.Ex. 70. J.J. Misra.Ex. 72. '•• Shri M.G. Misra, Principal, K.K. College, Lucknow.
Of the persons named above Sri Jai Deo Singh andSri Shaukat Sultan purport to be signatories of the appealEx. 18 (A-3 of the petition) which is in support of the
504 JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH [VOL. VI
candidature of respondent 1, Srimati Sabarwal, Sri J. J.Misra and Sri M. G. Misra of appeal Ex. 24 (A-6 of thepetition) in support of respondent 2 and Sri M. R. Kidwaiand Sri Greenwold of appeal Ex. 4 (A-4 of the petition)in support of respondent 3.
As pointed out above two points are to be consideredin this connection—first, whether those who purport to besignatories did really sign the appeals and, secondly,whether mere signing of the appeals amounts to workingfor a candidate within the meaning of the notificationreferred to in the petition.
[The Tribunal referred to the evidence on the firstpoint and found that in all probability signatures of somewere actually taken, while others consented to the inclu-sion of their names in the appeal.]
This brings us to the next point. It is to be seenwhether what the signatories did, brought the matterwithin the clutches of the notification referred to in thepetition. It may be noted in this connection that theactual notification of the Election Commission has notbeen produced before us. What is produced before us isthe notification issued by the Chief Electoral Officer, U.P.In paragraph 3 of that notification reference has beenmade to some notification of the Election Commission.Hence it cannot be said with certainty what the contentsof the last mentioned notification were. However, as thismatter was not raised at the bar we presume that such anotification was issued by the Election Commission.
The said paragraph 3 has been cited elsewhere in thisjudgment. It was conceded that the persons concernedcould not be said to have been 'employed by or on behalfof a candidate'. It is, therefore, to be seen if those personscan be said to be 'working for a candidate' because theyhad signed an appeal issued by some interested person insupport of the candidature of certain candidate. It hascome in evidence that one of the persons concerned,namely, Sri M. II. Kidwai, at least gave his consent onlyby way of courtesy. There is nothing in evidence in respectof other persons showing that there was any exercise oftheir own volition or individual judgment on the part ofthe signatories. It appears that they were asked to sign and
E.L.B.] JAWAHAB SHANKAE V. HIBDAY NABAIN SINGH 505
like Sri M. R. Kidwai they consented by way of courtesy.There is not an iota of evidence on record to show that thepersons concerned did anything, however insignificant thesame might be, in the way of supporting the candidatureof any person. Under the circumstances it is impossibleto hold that mere giving of consent to the inclusion oftheir names in the appeal can be construed to mean thatin doing so the persons concerned were working for anycandidate.
Therefore, in view of what is said above issue 3 (a) isdecided in the negative.
Issue 8 (a).—This issue is based on paragraph 14(a) of the petition as elaborated in list D thereof.
In elections good many circulars, letters and pamph-lets are printed, published and distributed in support ofdifferent candidates who stand for election. It has alwaysbeen necessary that the names of printers and publishersof such letters and circulars, etc., must appear on the same.In the past, omission of such names constituted a corruptpractice but the Representation of the People Act, 1951,classed it as an illegal practice under sub-section (3) ofsection 125 which lays down that
"The issuing of any circular, placard or posterhaving a reference to the election which does not bear onits face the name and address of the printer and publisherthereof" shall be deemed to be illegal practice for the pur-poses of the said Act.
In list D of the petition papers Dl to D7 (copiesfiled with the petition) have been referred to. These areappeals, etc. issued by or in support of the respondents1 to 3 and 5. All these papers are printed ones but donot bear the names of printers and publishers. Dl wasissued by respondent 1 and D4 by his agents, D2 and D3were issued by respondent 2 and D5 by respondent 3.These papers have been proved and Dl to D5 are Exs.23, 24, 25, 15 and 26 respectively.
There is no doubt about the fact that the name ofprinter and publisher does not appear on these papers.Evidence, however, was produced from the side of therespondents to show that the omission was purely acci-dental and not at all intentional,
506 JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH [VOL. VI
[The Tribunal referred to the evidence and continued.]On an examination and due consideration of the evi-
dence on the point, we are bound to record the finding offact to the effect that omission of printers' and publishers'names from papers Dl to D5 of the petition was purelyaccidental, that it was not intentional and lastly, that itwas not actuated by any ulterior motive.
A distinction, however, was drawn at the time ofarguments by the learned counsel appearing from the sideof petitioner between illegal practice and corrupt practice.It was argued that in the case of corrupt practice questionof motive comes in whereas in the case of illegal practice, ac-cording to the petitioner's learned counsel, motive playedno part. He argued that omission of printers' and pub-lishers' names was enough for bringing the case within theambit of sub-section (3) of section 125 of the Representa-tion of the People Act and that the question of ulteriormotive or bad faith was not at all to be gone into. There isno doubt that there is force in this argument but we, at thesame time, feel that such an interpretation as pressed fromthe side of the petitioner will make the provisions of lawtoo technical. Once it is found that the omission tookplace purely and wholly because of ignorance of the pro-visions of law without any ulterior motive, it appearsimpossible to hold the respondents guilty of the illegalpractice. If the respondents, because of the result ofignorance of law on the point, would have even uninten-tionally drawn any benefit from the omission to the detri-ment of the interest of the petitioner, our finding wouldcertainly have been different. However, under the circum-stances given above, we hold that no illegal practice with-in the meaning of sub-division (3) of section 125 was com-mitted by the respondents. We decide issue 8(a) in thenegative.
Issue 8(b).—In view of the above finding it is un-necessary to deal with this part of the issue.
But, even if it be granted that the illegal practice asalleged was committed by the respondents, it is to be seenas to what consequences would have followed.
This brings us to the provisions of section 100, therelevant part of sub-section (2) of which runs as follows :—
E.L.R.] JAWAHAR SHANKAR V. HIRDAY NARAIN SINGH 507
"If the Tribunal is of opinion that the election of areturned candidate has been procured or induced, or theresult of the election has been materially affected, by anycorrupt or illegal practice, the Tribunal shall declare theelection of the returned candidate to be void".
It is clear from the above cited provisions that anyillegality as defined in section 125(3) if committed in thecourse of election should be taken notice of by the tribunalonly when it is proved that the illegality helped in procur-ing or inducing success of the respondents 1 to 3 or thatthe result of the election was materially affected thereby.
We have held above in clear and unequivocal termsthat there is no evidence on the record nor was there anysuggestion made from the side of the petitioner provingor suggesting that the omission of printers' and publishers'names from papers D-l to D-5 directly or indirectly help-ed respondents 1 to 3 in securing their success. It wasalso not proved or suggested that the said omission in anyway affected the result of the election. Hence, even if itbe granted that the illegality was committed, we woulddecide this part of the issue in the negative.
Before closing our findings on issue 8 we may referto a point raised by the learned counsel for the petitionerduring arguments.
According to him, illegal practices are definedin section 125. Consequences of commission of illegalpractice are defined in section 100(2) (a) and also in sec-tion 140 of the Act. According to the first mentionedprovision election of that candidate would be declared voidwho committed illegal practice. But the same provisionlays down that the election could be avoided only when it isproved that the illegality helped in procuring or inducingsuccess or that the result of the election was materiallyaffected thereby. This means that if the condition afore-said is not proved, the election of the successful candidatewill not be avoided because of the illegality.
But no such condition attaches to the applicabilityof section 140. Under that section once it is found thatthe illegality was committed at the election the provisionsof section 140 must come into play and the elected candi-date who had committed illegality must be disqualifiedfrom membership for a specified period. Thus a case may
508 JAWAHAE SHANKAR V. HIRDAY NARAIN SINGH [VOL. VI
arise in which commission of illegality is proved but it isnot proved that the same helped in the success of thecandidate and in such a case the election of the successfulcandidate would not be avoided but at the same time hewould be disqualified from membership under section 140of the Act. This seems to create an anomalous situation.We are, however, not called upon to deal with this pointbecause of our finding that no illegality was committedin this case.
Issue 9.—Contention of the petitioner was thatthe electrol roll of the East Teachers' constituency waswrongly prepared because it contained repetition of thename of the same person more than once. It was allegedthat taking advantage of recurrence of their names someof the electors voted more than once.
First part of the allegation is true. The electoral rollof the East Teachers' constituency is on the record. Itshows that the name of some of the electors has been givenin the roll more than once. We suggest that the roll shouldbe corrected in order to remove this defect.
As regards the second point, there is no evidence toshow that any elector voted more than once.
Therefore first part of the issue is decided in thenegative.
Other parts of the issue do not arise.Issue 10.—As we are going to dismiss the petition,
consideration of the point raised by this issue is not calledfor.
Issue 11.—In view of our findings recorded above,we find that the petitioner is not entitled to any relief.
Before closing the judgment it may be pointed outthat one of the reliefs claimed by the petitioner wasagainst respondent 5. It was prayed that he should bedeclared disqualified. As pointed out above, respondent5 did not turn up. Hence naturally the case proceededagainst him ex parte. It is, however, to be noted that theallegations made by the petitioner against him have notbeen proved at all. Hence we find that the petitioner isnot entitled to any relief against that respondent as well.
The petition is dismissed with Rs. 100 as costs pay-able to respondents 1 to 3 in equal shares.
Petition dismissed.
ELECTION LAW REPORTSVOLUME VI
I N D E X
BALLOT PAPERS.
l.-^-Postal ballot—Attestation byperson signing election appeal—Validity of ballot—"Working for acandidate", meaning of.
JAWAHAB SHANKAE PACHOLI v.HIBDAT NABAIN SINGH ANDOTHEBS .. . 495
2.—All ballot papers not accountedfor—Whether election vitiated.See POLLING 1 . . . 197
CORRUPT PRACTICE.
1.—Appeal on the ground of religion—When amounts to corrupt prac-tice or undue influence—Generalprinciples—Use of "Panth" and"Panthic"—Appeal to vote forreligious symbols of Sikh Gurus—Propaganda against rival party—Statement that Congress is inter- •fering with religion — Undueinfluence—Limits of spiritual in-fluence—Election petition—Par-ties—Candidates who have with-drawn—Impleading after limitation—Conditions—Representation ofthe People Act, 1951, ss. 82, 85,100(2)(a), 10l(l)(a), 123(2), 124(5).SABDUL SINGH CAVEESHAB V.HUKAM SINGH AND OTHEBS
... 316
2.—Bribery—Customary hospitality—Entertainment befora holdingout as prospective candidate.
See DISQUALIFICATION OP CANDI-DATES 11 . . . 87
CORRUPT PRACTICE.—(Contd.)
3.—Bribery—False allegations ofbribery of officials.
See COBEUPT PEACTICE 6 . . . 28
4.—False personation—Necessity ofmens rea—Omission to file list ofparticulars—Maintainability ofpetition—Political leaders—Decla-ration of policy and undue influencedistinguished—Speeches by Minis-ters to support their party—Whe-ther permissible—False statementsabout rival party—Election ex-penses—Moneys paid to CongressOrganisation before nomination—' Prospective candidate" meaningof—Eepresentation of the PeopleAct, 1951, ss. 44, 83(2), 123(2), (3),(5)—Eepresentation of the PeopleEules, 1951, r. 111.
LINGE GOWDA V. SHIVANANJAPPA- . 288
5.—Procuring assistance of Govern-ment servants-—Getting signatureof Government servant as proposer—Eepresentation of the PeopleAct, 1951, s. 123(8).
SUBAIN SINGH V. WAETAM SINGHAND OTHEBS .. 99
6.—Procuring assistance of Govern-ment servants—Employee of CaneDevelopment Union and AdalatiPanches and Sarpanches, whetherGovernment servants—Appoint-ment as polling agents outsidetheir jurisdiction—False allega-tions of bribery of officials—Elec-tion petition—-Parties—Candidates
510 INDEX [VOL. VI
CORRUPT PRACTICE.—{Contd.)
who have withdrawn—Effect ofjoinder after limitation—Represen-tation of the People Act, 1951, ss.82, 100, 123(5) and (8)—UttarPradesh Sugar Factories ControlEules, 1948, r. 4-A—Uttar PradeshPanchayat Raj Rules, 1947, r.61-A.
MADAN PAL V. EAJDEO UPADHYAANDOTHEBS . . . 28
7.—Procuring assistance of Govern-ment servants—Mulchias, Sabha-patis and panches of Uttar Pradesh,whether Government servants—Acting as polling agent, whetheramounts to assisting.
See ELECTION PETITION 6 . . . 138
8.—Procuring assistance of Govern-ment servants—Extra depart-mental agents of post office, whe-ther Government servants.
See DISQUALIFICATION OP CANDI-DATES 1 .. 414
9.—Signature and verificationof List—List not signed and verified j—Maintainability of petition. |.See ELECTION PETITION 13 . . . 123 j
10.—Undue influence—Limits of Ispiritual influence. jSee CORRUPT PRACTICE 1 . . . 316 |
11.—Undue influence—Politicalleaders—Declaration of policy andundue influence distinguished—Speeches by Ministers to supporttheir party—Whether permissible—False statement about rivalparty.
See, CORBUPT PBACTICE 4 ... 288
DISQUALIFICATION OF CANDIDATES.1.—Applicability of rules to Part C
States—-Material date of qualifica-tion—Corrupt practice—Contractto supply goods—Whether contract ,subsists after delivery until pay- *
DISQUALIFICATION OF CANDIDATES—(Contd.)
ment is made—Procuring assist-ance of Government servants—Extra departmental agents of postoffice, whether Government ser-vants—Appointment as pollingagent—Subscribing as proposer orseconder—Whether assisting pro-spects of election—Representationof the People Act, 1951, ss. 7(d),123(8)—Government of Part CStates Act, 1951, ss. 7, 8, 17.SATTA DEV BUSHAHRI v. PADAMDEV AND OTHERS . . . 414
2.—Contract to supply goods—Whe-ther contract subsists after deliveryuntil payment is made.See DISQUALIFICATION OP CANDI-DATES 1 ••• 414
3.—Contract to supply goods—Lesseeof land under Collector.See DISQUALIFICATION OF CANDI-DATES 10 . . . 104
4.—Grounds of disqualification—Power of State Legislatures tocreate new grounds—Uttar PradeshPanchayat Raj Rules, r. 61-A(l)disqualifying panches—Validityand effect—Resignation of office ofsarpanch—Whether terminatesoffice of pnnch also—HonoraryMagistrates, whether disqualified—Constitution of India, arts. 173,191(1).
BENI MADHO RAI v. BHOLA ANDOTHERS .. . 308
5.—Material date of qualification.
See DISQUALIFICATION OF CANDI-DATES 1 . . . 414
6.—"Office of profit"—Assessor ofSessions Court—Election petition—Grounds not raised before Re-turning Officer—Constitution ofIndia, art. 19l(l)(a).
BALBIE SINGH r. ARJAN SINGHAND OTHERS .. . 341
E.L.B. INDEX 511
DISQUALIFICATION OF CANDIDATES.—(Contd.)
7.—"Office of profit"—Chairman ofMunicipality.See NOMINATION OF CANDIDATES 1
, . - 108.—"Office of profit"—Istimrardar—
Election petition—Practice—Whe-ther respondent can challenge elec-tion on grounds not raised by peti-tioner—Representation of thePeople Act, 1951, s. 7(f).MADAN SINGH v. KALYAN SINGHAND OTHERS . . . 405
9.—" Oitice of profit"—Istimrardar—Representation of the People Act,1951, s. 7 (f).GULABCHAND CHORDIA V, THAKUBNABAIN SINGH AND OTHEBS... 397
—"Office of profit"—Istimrardar.See NOMINATION OF CANDIDATESH
... 409
10.—"Office of profit'—Member ofLegislative Assembly drawing fix-ed salary—"Contract to supplygoods"—Lessee of land underCollector—Election agents—Law-yer engaged to appear before Re-
% turning Officer, whether agent—Representation of the People Act,1951. ss. 7(f), 123(7)—Rules of1951, r. 118—Uttar Pradesh LandUtilization Act, 1948, ss. 3, 4.BHOLANATH v. KBISHNA CHANDRAGUPTA AND OTHEBS (No. 2). . . 104
11.—"Office of profit"—Ruler gettingallowance as privy purse underAgreement of Merger—Director ofBank in which Government is inter-ested—Corrupt practice—Bribery—Customary hospitality—Enter-tainment before holding out as pro-spective candidate—Representationof the People Act, 1951, ss. 7(a), (e)and (f), 8(e), 123(1), 168—Constitu-tion of India, arts. 102, 191.DAULAT RAM V. MAHABAJA ANANDCHAND AND OTHERS .. . b7
ELECTION AGENTS.1.—Appointment of more than one
agent—Whether all nominationpapers void—Oral evidence as tofactum of appointment of agent—Admissibility.See NOMINATION OF CANDIDATES 4
... 2472.—Candidate appointing himself as
agent—Declaration in nominationpaper whether sufficient—Construc-tion of declaration—Name of an-other agent inserted without strik-ing off "myself" and "as my"—Whether two agents appointed—Validity of nomination.See NOMINATION OF CANDIDATES 4
... 2473.—Lawyer engaged to appear before
Returning Officer, whether agent.See DISQUALIFICATION OF CANDI-DATES 10 ••• 104
4.—Separate declaration of appoint-ment, whether necessary.
See ELECTION PETITION 6 . . . 138
ELECTION COMMISSION.1.—Jurisdiction of High Courts over.
See HIGH COUBTS 1. . . . 186
2.—Power to cure irregularities. 'See POLLING 1 . . . 197
ELECTION EXPENSES.1.—Moneys paid to Congress Orga-
nisation before nomination—"Pro-spective candidate", meaning of.See CORBUPT PBACT3CB 4 ... 288
ELECTION PETITION.1.—Amendment—Tribunal's power
to allow amendment—'"May","trial", meanings of—Joinder ofall reliefs mentioned in s. 84—Lega-lity—Right to abandon time-barredrelief—Representation of the Peo-ple Act, 1951, ss. 84, 90(4), 92—Representation of the People Rules,1951, r. 119(b).MAHADEO v. JWALAPEASADMlSHBA AND O'XHEES (H.C.) ... 1
512 INDEX [VOL. VI
ELECTION PETITION.—(Contd.)2.—Amendment—Power of Election
Tribunal to consider whether peti-tion complies with ss. 81, 83, or117 after admission by ElectionCommission—Power of Tribunal toreconsider—Improper verificationPower to allow amendment—Jointpetition—Maintainability—Parties—Candidates who have withdrawn—Whether necessary—Presenta-tion of petition—Authority inwriting—Authenticity—Burden ofproof—Representation of thePeople Act, 1951, ss. 81, 82, 83,90(4), 117.
BHIKAJI KBSHAO JOSHI v. BEIJLALNANDLAL BIYANI AND OTHBES(No. 2) ... 53
3.—Amendment—Tribunal's powerto allow amendments.See POLLING 1 . . . 197
4.—Authority to present petition—Authenticity—Burden of proof.See ELECTION PETITION 2 . . . 53
5.—Grounds not raised before Return-ing Officer.
See DISQUALIFICATION OP CANDI-DATES 6, 8 ... 341,405
6.—Joint petition—Security—Nomi-nation of candidates—Serial No.,age, etc., of wrong person given—Validity of nomination—Improperacceptance—Burden of proof thatresult of election has been mater-ially affected—Guiding principles—Distribution of wasted votes inproportion to other candidates—Legality — "Result of election","materially affected", meanings of—Corrupt practice—Procuring helpof Government servants—Mukhias,sabhapatis and punches of UttarPradesh, whether Governmentservants—Acting as polling agent,whether amounts to assisting—Election agent—Separate declara-tion of appointment, whethernecessary — Uttar Pradesh, Pan-chayat Raj Rules, r. 61-A—Validity
ELECTION PETITION.-(CoM*d.)—Representation of the PeopleAct, 1951, ss. 33(1), 33(3), 36(2) (d),100(1) (c), 123(8).
LEO CHAND ANDOTHEBSV. VASHISTNABAIN AND OTHEES . . . 1 3 8
7.—Joint petition—Maintainability.S«e ELECTION PETITION 2 . . . 53
8.—Limitation — Condonation byElection Commision—Tribunal'spower to reconsider.
See ELECTION PETITION 2 ..'. 53
—See also Nos. 10, 11, 13 infra9.—Parties—Candidates who have
withdrawn—Whether necessary.
See ELECTION PETITION 2 . . . 53
10.—Parties—Candidates who havewithdrawn—Effect of joinder afterlimitation.
See COEEUPT PEACTICE 6 ••• 28
11.—Parties—Candidates who havewithdrawn — Impleading afterlimitation—Conditions.
See COEEUPT PEACTICE 1 ... 316
12.—Parties—Candidates who havewithdrawn — Whether necessaryparties—Power to implead at alater 3tage—Power to amend plead-ings generally.
See HIGH COUETS 2 ••• 162
13.—Signature and verification—Petition typed on blank signedpapers—Validity—List of corruptpractices not signed and verified—Maintainability of petition—Elec-tion Tribunal—Power to allowamendment of verification—Limi-tation—Striking out allegations notsupported by verified list —Representation of the People Act,1951, ss. 80, 83(2) and (3), 85, 90(4)—Civil Procedure Code, 1908,O. IV, r. 1; O.VI, rr. 15,17.
RADHEY SHTAM SHABMA v.CHANDEA BHANU GUPTA ANDOTHEES -.-,. 123
INDEX 513
ELECTION PETITION.—{Gontd.)14.—Verification
cation—Powerment.See ELECTION PETITION 2
— Improper verifi-to allow amend-
53
15.—Withdrawal of petition—Guid-ing principles.See NOMINATION OF CANDIDATES 7
... 346ELECTION TRIBUNAL.1.—Power to allow amendment of
petition.See ELECTION PETITION 1, 11, 12,13, 14.
2.—Power of High Court to issuewrits against.See H I G H COUBTS 2. 162
3. —Whether court.See NOMINATION OP CANDIDA-
TES 11 ... 388
HIGH COURTS.1.—Jurisdiction to issue writ against
orders of Election Tribunal —"Election", meaning of—Scope ofart. 329(b)—Jurisdiction of HighCourt over Election Commission—Constitution of India, arts. 226,227, 329(b).
PvAMKEISHNA V. THAKUB DAOOS-ING (H. C.) ... 186
2.—Power to issue writ against orderof Election Tribunal—When writwill be issued—Guiding principles—Delay in applying for writ,effect of— Election petition—Parties — Candidates who havewithdrawn — Whether necessaryparties—Power to implead at alater stage—Power to amend plead-ings generally—Eepresentation ofthe People Act, 1951, ss. 82, 90(2),105—Constitution of India, arts.226, 227, 329(b).
EUKAM SINGH AND ANOTHER V.SARDUL SINGH AND OTHERS (H.C.)
... 162
NOMINATION OF CANDIDATES.1.—Age of candidate — Entry in
Electoral roll — How far final—Power of Beturning Officer andTribunal to ascertain real age—Disqualification of candidates—"(Mice of profit"—Chairman ofMunicipality — Representation ofthe People Eules, 1950, rr. 18,20—Eepresentation of the PeopleAct, 1951, ss. 7(d), 36(7).HAKIKATTJLLAH v. NATHU SINGHAND OTHERS. . . . 10
2.—Age of candidate—-Wrong entryin roll—Correction after nomi-nation and before scrutiny —Validity.
See NOMINATION OP CANDIDATES 6... 224
3.—Age of candidate—Entry in roll—Whether conclusive.See NOMINATION OP CANDIDATES 5
... 4704.—Appointment of election agent—
Omission to file Form V, effect of—Candidate appointing himself asagent—Declaration in nominationpaper, whether sufficient—Con-struction of declaration—Name ofanother agent inserted withoutstriking off "myself" and "as my"—Whether two agents appointed—Validity of nomination—Appoint-ment of more than one agent—Whether all nomination papersvoid—Oral evidence as to factumof appointment of agent—Admissi-bility — Eepresentation of thePeople Act, 1951, ss. 33(3), 40,Sch. II , Form V—Evidence Act,
t 1872, s. 91.
| DIN SINGH AND OTHEES V. KAPIL| DEO AND OTHEES . . . 247
1 5.—Electoral roll—Nomination filedfor 2 constituencies before sameEeturning Officer—Copy of elec-toral roll filed in one alone—Acceptance of one and rejection, ofthe other for non-production of copy
514 INDEX [VOL. VI
NOMINATION OF CANDIDATES.—(Gontd)
—Legality—Omission lo give partor sub-division of roll—Whetherfatal defect—Entry as to age—Whether conclusive — Improperrejection—Presumption that elec-tion is materially affected—Whe-ther irrebuttable—Eepresentation iof the-People-Act, 1951, ss. 33(5) |and (6), 36(7). !UGAM SINGH V. H A M SINGH ANDOTHERS . . . 470
6.—Electoral roll number — Eolldivided into parts—Omission tostate part of roll—Whether invali-dates nomination, where identity 'is not in doubt—Age of candidate——Wrong entry in roll—Correctionafter nomination and before iscrutiny—Validity — Eepresenta-tion of the People Act, 1951, ss. 33,36(4)—Form of nomination—Foot-note (6) — Eepresentation of the -,People Act, 1950, s. 25(b).EAM SINGH V. HAZAEI LAL ANDOTHERS . . . 2-24
7.—Electoral roll number—Failureto state zail or sub-division of roll—Whether fatal defect—Duty ofEeturning Officer to make summary jinquiry—Withdrawal of petition— IGuiding principles—Eepresentation !of the People Act, 1951, ss. 33(1), !36(4), 110—Form of nomination— 1Foot-note (6). |SHIV DAYAL and OTHERS «. TEG jEAM AND OTHERS . . . 346
8.—Electoral roll number— Omissionto state part of roll—Whetherfatal defect—Eepresentation of the jPeople Act, 1951, ss. 33(2) (d), (5), |(6), 36(4)—Form of nomination— jFoot-note (6). :
' AJAYAB SINGH AND ANOTHER V.KARNAIL SINGH AND OTHERS j
... 368 |9.—Electoral roll number—Special I
constituency of Legislative Council jin roll of Assembly .
NOMINATION OF CANDIDATES.—{Contcl.)
constituency given in nomination—-Validity of nomination — Postalballot—Attestation by person sign-ing election appeal—Validity ofballot—''Working for a candidate",meaning of—Illegal practice—Omission of printer 's and pub-lisher's names in circulars by ignor-ance or oversight—Eepresentationof the People Act, 1951, ss. 6,100(2) (a), 125(3), 140—Form ofnomination, column 8—Consti-tution of India, ar t . 173.
J A W A H A E SHANKAR P A C H O L I v.H I R D A Y N A R A I N S I N G H ANDO T H E R S . . . 495
10.—Electoral roll number—Serialnumber, age, etc., of wrong persongiven—Validity of nomination.
See E L E C T I O N P E T I T I O N 6 . . . 138
11.—Forged nomination paper— Pri-vate complaint forgery and usingforged document as genuine—Jurisdiction of magistrate to takecognizance—Complaint from Elec-tion Tribunal, whether necessary—Eeturning Officer and ElectionTribunal, whether "court"—Crimi-nal Procedure Code, s. 195—IndianPenal Code, ss. 465, 471.
SATYA D E V B U S H A H R I v. GHAN-SHIAM ... 388
12.—Improper acceptance—Burden ofproof that result of election has beenmaterially affected — Guidingprinciples—Distribution of wastedvotes in proportion to other candi-dates—Legality—"Eesult of elec-tion", "materially affected",meanings of.See E L E C T I O N P E T I T I O N 6 . . . 138
13.—Improper rejection—Presump-tion that election is materiallyaffected—Whether irrebuttable.
See NOMINATION OF CANDIDATES 5
... 470
E.L.R.] INDEX 515
NOMINATION OF CANDIDATES.—{Contd.)
14.—Proposer and seconder—Sameperson signing more than one nomi-nation paper as proposer Elec-tion agent—Candidate appointinghimself—Whether should write hisname — Representation of thePeople Act, 1951, ss. 7(d), 33(2),(3) and (7).B H A I E O K V. THAKXTTi G A N P A T H
SINGH AND OTHERS ... 409
15.—Several nominations—Duty ofReturning Officer to scrutinise allnomination papers.See POLLING. 1 .. . 197
POLLING.1.—Presiding Officer opening only one
booth instead of two as notified byReturning Officer —Validity ofelection—Consent of parties effectof—Power of Election Commissionto cure the irregularity—Election
] POLLING.—{Contd).
petition—Amendment of petition—Tribunal's power to allow amend-ments—Nomination paper—Dutyof Returning Officer to scrutiniseall nomination papers—Ballotpapers—All ballot papers notaccounted for—Whether electionvitiated—Representation of thePeople Act, 1951, ss. 25, 36(6), 37,90(2)—Representation of the PeopleRules, 1951, rr. 18(2), 19.NLHAEENDIT DUTT MAZITMDAR V.
, SUDHIR CHANDRA BHANDARI AND! OTHERS ... 197
RETURNING OFFICER.1.—Whether "court".
See NOMINATION OP CANDIDATES 1L
2.—-Duty to scrutinise all nominationpapers.See POLLING I. . . . 197
INDEX TO STATUTES.
CIVIL PROCEDURE CODE, 1908
Or.Or.Or.
IV, r.VI, r.VI, r.
1
1517
1 2 31 2 31 2 3
CONSTITUTION OFArts. 102
173191191191226227329
( 1 )(1) (a)
(b)
87, 104, 397308, 49587, 1043083 4 i162, 186162, 186162, 186
CRIMINAL PROCEDURE CODESec. 193 388
EVIDENCE ACT, 1872Sec. 91 247
GOVERNMENT OF PART C STATESACT, 1951
Sec. 7 414414
7817
INDIAN PENAL CODE
4M
Sec. 4654 7 i
388388
REPRESENTATION OF THE PEC
Sec. 25 (b)
ACT, 1950
2 2 4
REPRESENTATION OF THE PE(
Sec. 367(d)7 (e) anr2533(i)33 (2)33 (2) (c33 (3)33 (5)33(6)33(7)
ACT, 1951
2 2 4
495•87, 104, 414
(0 87, 104, 397, 405, 409197138, 346409
) 368138, 247. 409368, 470368, 470409
36 (2)(d) 13836(4)36(6)
I 36 (7)
224, 346, 36819710, 470
516 INDEX [VOL. VI
3740
448081828383(2)83(3)Q,048590 (2)90 (4)Q2
IOOTOO (l)100 (2)IOI (I)
IO5no117
123 (1)123(2)
123 (3)123(5)123 17)123 (8)124 (5)125 (3)140168
197247288123
5328, 53, 162, 316
53123, 288123
123, 316162, 1971. 53. 123I28
(e) 138(a) 316, 495(a) 316
162
346
53§7288, 31628828, 288X0428, 99, 138, 414316495495S7
Sch. IIForm V
247247
REPRESENTATION OF THE PEOPLE(PREPARATION OF ELECTORAL
ROLLS) RULES, 1950
Rule 1820
1010
REPRESENTATION OF THE PEOPLE(CONDUCT OF ELECTIONS ETC.)
RULES, 1951
Rule 18 (2)19in119 (l>)118
197197288
1104
U. P. LAND UTILIZATION ACT, 1948j Sec. 3 104
4 IO4U. P. PANCHAYAT RAJ RULES, 1947
Rule 61-A 28, 13861-A(1) 308
U P. SUGAR FACTORIES CONTROLRULES, 1948
Rule 4-A 28
ERRATA.For 7(d) read 7(f) in pp. 10, 104 (I.36), 397 and 405.
0.1)37.0: %• 1 7 7
I NO