PETITIONER: TIRATH SINGH Vs. RESPONDENT: BACHITTAR SINGH AND OTHERS. DATE OF JUDGMENT: 15/09/1955 BENCH: AIYYAR, T.L. VENKATARAMA BENCH: AIYYAR, T.L. VENKATARAMA DAS, SUDHI RANJAN CITATION: 1955 AIR 830 1955 SCR (2) 457 ACT: Election Dispute-Election petition - Contents alleged to be vague and wanting in particulars-Maintainability-Naming of persons for disqualification-Recommendationf or exemption from disqualification-Notice-Jurisdiction of the Tribunal- The Representation of the People Act (XLIII of 1951), ss. 83, 99(1)(a) proviso. HEADNOTE: Where the respondent in an election petition contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which it was open to him to do and was not found to have been misled or in any way prejudiced in his defence, it was not open to him to contend that the petition was liable to be dismissed for non-compliance with the provisions of s. 83 of the Act. Clauses (a) and (b) of the proviso to s. 99 of the Representation of the People Act read together leave no scope for doubt that clause (a) contemplates notice only to such persons as were not parties to the election petition and it is, therefore, not obligatory on the Tribunal under cl. (a) to issue notices on such persons as were parties in order that it may name them for disqualification under sub- clause (ii) of S. 99(1)(a) of the Act. Clause (b) to the proviso obviously has the effect of excluding such persons as have already had the opportunity of cross-examining witnesses, calling evidence and of being heard, which the clause seeks to afford. The Indian and the English Law on the matter are substantially the same. Kesho Ram v. Hazura Singh, [1953] 8 Election Law Reports 320, overruled. The jurisdiction that sub-clause (ii) of s. 99(1)(a) of the Act confers on the Tribunal for making recommendation for exemption 458 from disqualifications mentioned in ss. 141 to 143 is purely advisory. Where it omits to do so, aggrieved parties have access to the Election Commission which under s. 144 has the power to act suo motu. No person, be he a party or a stranger, has a right to be heard by the Tribunal on the question of such exemption and, therefore, no question of any service of notice under the proviso in this regard can arise. Even supposing that the proviso requires notice on a party to the election petition, the notice to him of the election petition itself can be treated as a notice under the proviso. JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 21 of
1955.
Appeal under Article 133(1)(c) of the Constitution of
India against the Judgment and Order dated the 12th January
1954 of the Pepsu High Court in Civil Misc. No. 182 of
1953.
M. C. Setalvad, Attorney-General of India, Veda Vyas and
Jagannath Kaushal, (Naunit Lal, with them),for the
appellant.
The respondents did not appear.
1955. September 15. The Judgment of the Court was
delivered by
VENKATARAMA AYYAR J.-The appellant was a candidate for
election to the Legislative Assembly of the State of PEPSU
from the Dhuri Constituency, and having secured the largest
number of votes was declared duly elected. The first
respondent who is one of the electors in the Constituency
filed the petition out of which the present appeal arises,
for setting aside the election on the grounds, inter alia,
(1) that the nomination of one Mali Singh had been wrongly
rejected by the returning officer, and (2) that the ap-
pellant was guilty of the corrupt practice of bribery. The
Tribunal held that both these grounds were made out, and
accordingly set aside the election. It further recorded a
finding in terms of section 99 (1) (a) of the Representation
of the People Act No. XLIII of 1951 that the appellant was
proved to have committed the corrupt practice of bribery as
mentioned in section 123(1) of the Act. The Appellant
thereupon filed in the High Court of Patiala and East Punjab
States
450
Union an application under Article 227 attacking the finding
of the Tribunal that he was guilty of bribery. The order of
the Tribunal in so far as it set aside his election was not
challenged. By order dated 12-1-1954 the High Court upheld
the findings of the Tribunal, and dismissed the application,
and by order dated 7-6-1954 granted a certificate for appeal
to this Court under Article 133(1)(c). That is how the
appeal comes before us.
On behalf of the appellant, the learned AttorneyGeneral
raised two contentions: (1) The finding that the appellant
was guilty of bribery was reached in disregard of the
mandatory provisions of section 83, and that it was besides
open to other legal objections; and (2) the finding recorded
under section 99 of the Act was bad, because no notice was
given to the appellant, and no enquiry held as required by
the proviso to section 99. This point was not taken in’ the
application under Article 227, and was sought to be raised
at the time of the argument in the High Court; but the
learned Judges declined to entertain it.
(1) On the first question, the complaint of the appellant
is that in the election petition the allegations relating to
bribery were vague and wanting in particulars, and that the
petition should accordingly have been dismissed under
sections 83 and 85 of the Act; that the charge that was
sought to be proved at the hearing was at variance with the
charge as alleged in the petition, and that the Tribunal had
erred in giving a finding of bribery on the basis not of the
allegations in the petition but of the evidence adduced at
the trial. The allegations in the petition relating to this
charge are as follows:
“The sweepers of Small Town Committee, Dhuri were each
granted good work allowance at Rs. 5 p.m. for three months
only during Election days, simply because they happened to
be voters in the said Constituency, vide letter No.
ST/1(4)/52/20702 dated 7th December, 1951. All this was
done to induce these sweepers to vote for the respondent No.
1, The allowance was against the Rules”,
460
The reply of the appellant to this charge was as
follows:
“The sweepers of Small Town Committee represented to me in
writing that their pays should be increased, and they also
quoted the pays that the employees of other Small Town
Committees and Municipal Committees were getting. The
representation was forwarded to the Secretariat. The
Secretariat examined it on merits, passed legal orders.
Such concessions were also shown to other employees of the
various Small Town Committees and Municipal Committees in
Pepsu before and after this case. This was an official act
done in the routine and not to induce the sweepers to vote
for respondent No. 1”.
On these averments, the following issue was framed:
“5. Whether the sweepers of Small Town Committee, Dhuri,
were granted good work allowance at Rs. 5 p.m. for three
months only during the election days in order to induce them
to vote for the Respondent No. 1?”
At the trial, the petitioner examined the Darogba of the
Small Town Committee (P.W. 28), and five sweepers, P.Ws. 12,
13, 14, 39 and 40, and their evidence was that sometime in
November 1951 the appellant came to Dhuri, enquired about
the number of sweepers in the service of the Committee, and
offered to raise their pay if they would vote for him, that
the sweepers thereupon held a meeting and considered the
suggestion of the appellant, and then decided to vote for
him, if the pay was increased. It must be stated that the
appellant was then Minister for Health, and was in charge of
Local Administration. On 28-11-1951 he passed an order on a
memorial sent by the sweepers that their pay would be
increased by Rs. 5 per mensem. Objection to the order was
taken by the Department, and thereupon, the appellant passed
the modified order dated 7-12-1951 granting good work
allowance for a period of three months from December 1951 to
February 1952. The Tribunal accepted the evidence on the
side of the petitioner that the appellant offered to
increase the salary of the sweepers in 1951, and held that
the order dated
461
7-12-1951, granting good work allowance for the election
period was the outcome of the bargain come to in November
1951, and that the charge of bribery had been established.
It is contended for the appellant that in the petition there
was no mention of the bargain on which the finding of
bribery by the Tribunal was based, that the charge in the
petition related only to the order dated 7-12-1951, and that
accordingly it was not open to the petitioner to travel
beyond the petition and adduce evidence in proof of a
bargain which had not been pleaded. This is to put too
technical and narrow a construction on the averments. The
charge in the petition was not merely that the appellant had
passed the order dated 7-12-1951 but that he had passed it
with a view to induce the sweepers to vote for him. That
clearly raised the question as to the circumstances under
which the order came to be passed, whether it was in the
course of official routine as the appellant pleaded, or
under circumstances which were calculated to influence the
voters. Issue 5 put the matter beyond doubt, when it
pointedly raised the question whether the grant was “for
three months only during the election days in order to
induce them (the sweepers) to vote for the respondent No.
I”. Under the circumstances, the complaint that the
evidence and the finding as to the bargain went beyond the
pleadings and should be ignored appears to be without any
substance. It may be that the allegations in the petition
are not as full as they might have been; but if the
appellant was really embarrassed by the vagueness of the
charge, it was open to him to have called for particulars;
but he did not do so. At the trial, the petitioner first
adduced evidence, and his witnesses spoke to the bargain in
November, 1951. It is stated on behalf of the appellant
that he objected to the reception of the evidence on the
question of bargain, as it was not pleaded. But this is
denied by the petitioner in his affidavit filed in the High
Court dated 3-12-1953. Even apart from this, the witnesses
on behalf of the petitioner gave evidence on this point on
the 8th and 11th
462
November, 15th and 16th December, 1952, and on the 2nd
February, 1953. Then the appellant entered on his defence.
On 26-2-1951 he examined R.W. 4, a member of the Small Town
Committee, to rebut the evidence on the side of the
petitioner, and himself went into the box and deposed to the
circumstances under which the order came to be passed.
Having regard to the above facts, there is and can be no
complaint that the appellant was misled, or was prejudiced
by the alleged defect in the pleadings. The contention that
is urged for him is that the petition should have been
dismissed under section 83 for want of particulars. This
was rightly rejected by the High Court as without force, and
we are in agreement with it.
It is next contended that there is no evidence or finding
that the sweepers were entitled to vote in the Constituency,
or that the appellant was a candidate as defined in section
79(2) at the time when the bargain was made. But the
allegation in the petition is clear that the order dated 7-
12-1951 was made with a view “to induce the sweepers to vote
for the appellant”. The reply of the appellant to this was
that the order was made in the course of official routine
and “not to induce the sweepers to vote” for him. Far from
there being any specific denial that the sweepers were
electors, the reply of the appellant proceeds on the basis
that they were entitle to vote. This objection was not
raised before the Tribunal, and, as pointed out by the High
Court, P.W. 12 does say in his evidence that he is a voter.
This contention must accordingly be overruled. Nor is there
any substance in the contention that there is no proof that
the appellant was a candidate at the time of ‘the bargain.
this again is an objection which was not taken before the
Tribunal, and on the evidence of the witnesses examined on
the side of the petitioner which was accepted by the
Tribunal, the appellant would be a prospective candidate as
defined in section 79(b) of the Act. The finding that the
appellant is guilty of bribery is therefore not open to
attack.
(2) It is next contended that the order of the
463
Tribunal in so far as it recorded a finding that the ap-
pellant had committed the corrupt practice specified in
section 123(1) is bad, as no notice was given to him as
required by the proviso to section 99 and no opportunity to
show cause against it. Section 99 runs as follows:
“99. (1) At the time of making an order under section 98
the Tribunal shall also make an order(a) whether any charge
is made in the petition of any corrupt or illegal practice
having been committed at the election, recording-
(i) a finding whether any corrupt or illegal practice has
or has not been proved to have been committed by, or with
the connivance of, any candidate or his agent at the
election, and the nature of that corrupt or illegal
practice; and
(ii) the names of all persons, if any, who have been proved
at the trial to have been guilty of any corrupt or illegal
practice and the nature of that practice, together with any
such recommendations as the Tribunal may think proper to
make for the exemption of any persons from any disq
ualifications which they may have incurred in this
connection under sections 141 to 143.
Provided that no person shall be named in the order under
sub-clause (ii) of clause (a) unless(a) he has been given
notice to appear before the Tribunal and to show cause why
he should not be so named; and
(b) if he appears in pursuance of the notice, he has been
given an opportunity of cross-examining any witness who has
already been examined by the Tribunal, and has given
evidence against him, of calling evidence in his defence and
of being heard The point for decision is whether it was
obligatory on the part of the Tribunal to issue notice under
the above proviso to parties to the election petition before
recording a finding under section 99(1)(a). The contention
of the appellant is that under section 99 (1) (a) the
Tribunal has to record the names of all persons
59
464
who are proved to have been guilty of corrupt or illegal
practice, that that would include both parties to the
petition as well as non-parties, that the proviso requires
that notice should be given to all persons who are to be
named under section 99 (1) (a), subclause (ii), and that the
appellant was accordingly entitled to fresh notice under the
proviso. It is argued that if the language of the enactment
is interpreted in its literal and grammatical sense, there
could be no escape from the conclusion that parties to the
petition are also entitled to notice under the proviso. But
it is a rule of interpretation wellestablished that, “Where
the language of a statute, in its ordinary meaning and
grammatical construction, leads to a manifest contradiction
of the apparent purpose of the enactment, or to some
inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the
structure of the sentence”. (Maxwell’s -Interpretation of
Statutes, 10th Edition, page 229). Reading the proviso
along with clause (b) thereto, and construing it in its set-
ting in the section, we are of opinion that notwithstanding
the wideness of the language used, the proviso contemplates
notice only to persons who are not parties to the petition.
The object of giving notice to a person under the proviso
is obviously to give him an opportunity to be heard before a
finding is given under section 99 (1) (a) (i) that he has
committed a corrupt or illegal practice. This clearly
appears from clause (b) of the proviso, which enacts that
the person to whom notice is to be given should have an
opportunity of crossexamining witnesses who had been
examined before and given evidence against him, of calling
his own evidence and of being heard. This is in accordance
with the rule of natural justice which requires that no one
should be condemned without being given an opportunity to be
heard. The reason of the rule, therefore, requires that
notice should be given to persons who had had no previous
opportunity in respect of the matters mentioned in sub-
clause (b) to the pro-
465
viso. Such for example would be witnesses, and possibly
agents of the parties, as observed in Nyalchand Virchand v.
Election Tribunal(1), though it is not necessary to decide
that point, but it cannot refer to parties to the petition
who have had every opportunity of taking part in the trial
and presenting their case. Where an election petition is
founded on a charge of corrupt practice on the part of the
candidate, that becomes the subject-matter of enquiry in the
petition itself., If at the trial the Tribunal came to the
conelusion that the charge had been proved, then it has to
hold under section 100(2) (b) that the election is void, and
pass an order to that effect under section 98 (d). Section
99 (1) enacts that the finding of corrupt practice under
section 99 (1) (a) (i) or naming a person under section 99
(1) (a) (ii) should be at the time of making an order under
section 98. If the contention of the appellant is to be
accepted, then the result will be that even though there was
a full trial of the charges set out in the petition, if the
Tribunal is disposed to bold them proved it has first to
give notice of the finding which it proposes to give, to the
parties, and hold a fresh trial of the very matters that had
been already tried. That is an extraordinary result, for
which it is difficult to discover any reason or
justification. It was argued by the learned Attorney-
“General that the giving to a party to a proceeding a second
opportunity to be heard was not unknown to law, and he cited
the instance of an accused in a warrant case being given a
further opportunity to recall and cross-examine prosecution
witnesses after charge is framed, and of a civil servant
being given an opportunity under Article 311 to show cause
against the action proposed to be taken against him. In a
warrant case, the accused is not bound to crossexamine the
prosecution witnesses before charge is framed, and in the
case of civil servants, the decision that they are entitled
to a second opportunity was based on the peculiar language
of sections 240(2) and (3) of the Government of India Act,
1935, and Article 311 of the Constitution. They are
(1) [1953] 8 Election Law Reports 417, 421,
466
exceptional cases, and do not furnish any safe or useful
guidance in the interpretation of section 99.
The appellant also sought support for his contention that
notice should be given under the proviso even to persons who
are parties to the election petition, in the provision in
section 99 (1) (a) (ii) that the Tribunal might make such
recommendations as it thinks proper for exemption of any
persons from any disqualifications which may have been
incurred under sections 141 to 143. The argument is that
the disqualifications mentioned in section 143 could only be
with reference to candidates, as they relate to default in
filing return of election expenses or in filing false
returns, that before the Tribunal could take action under
this provision it would have to give notice to the persons
affected thereby who must necessarily be parties to the
petition, and that if the proviso applies when action is to
be taken under section 143, there is no reason why it should
not apply when action is to be taken under the other
sections of the Act as well.
The fallacy in this argument is in thinking that notice to
a person is requisite for making a recommendation under
section 99(1) (a) (ii). Section 99(1) (a) (ii) deals with
two distinct matters-naming persons who are proved to have
been guilty of corrupt and illegal practices, and
recommending whether there should be any exemption in
respect of the disqualifications mentioned in sections 141
to 143, and the proviso, properly construed, requires notice
only in the former case and not the latter. It will be
noticed that while in cases falling within sections 139 and
140 the disqualification is automatic and immutable, in
cases falling within sections 141 to 143 the Election
Commission has power to grant exemption under section 144 of
the Act. It is to guide the Commission in exercising its
powers under section 144, that the Tribunal is directed in
section 99 (1) (a) (ii) to make any recommendations with
reference thereto. The jurisdiction of the Tribunal in
respect of this matter is purely advisory. There is nothing
to prevent the Commission from taking up the question of
exemption under section 144 suo motu, even though the
467
Tribunal has made no recommendation. Indeed, there is
nothing to prevent the person adversely affected from
applying directly to the Commission for exemption. While,
therefore, there is compelling reason why a person should
have an opportunity of showing cause before he is named,
there is none such when the question is one of
recommendation. As we construe the proviso, it confers no
right on any person, party or stranger, to be heard on the
question whether he should be recommended for exemption from
the disqualifications under sections 141 to 143. The
provision for exemption in section 99 (1) (a) (ii) therefore
does not lend any support to the contention of the appellant
that notice should be given to parties to the petition under
the proviso before they are named.
Reliance was also placed by the appellant on the decision
of the Election Tribunal in Kesho Ram v. Hazura Singh(1),
wherein it was held by a majority that notice under the
proviso to section 99 should be given to the parties to the
petition also. For the reasons given above, we do not agree
with the decision of the majority.
Our conclusion is that while the persons to be named under
section 99(1)(a)(ii) would include both parties to the
petition as well as non-parties, the proviso thereto applies
only to persons who had no opportunity of taking part in the
trial, and that, therefore, whether notice should issue
under the proviso will depend on whether the person had an
opportunity to cross-examine witnesses who had given
evidence against him and to adduce his own evidence. This
conclusion is in accord with the law in England. Under
section 140 sub-clause (1) of the Representation of the
People Act, 1949, an election Court has to state in its
report the names of all persons who are found guilty of
corrupt and illegal practice but “in the case of some one
who is not a party to the petition nor a candidate on behalf
of whom the seat or office is claimed by the petition”, the
court has to issue notice to him, give him an opportunity of
being
(1) (1953] 8 Election Law Reports 320.
468
heard by himself, and calling evidence in his defence. It
was sugested for the appellant that the law as enacted in
section 99 makes a deliberate departure from that under
section 140(1) of the English Act. The difference in the
wording between the two sections is due to the difference in
the arrangement of the topics of the two statutes, and there
is no reason to hold that with reference to the substance of
the matter, there was any intention to depart from the
English law on the subject; nor is there any reason
therefor.
In the present case, the appellant was a party to the
petition, and it was his election that was being questioned
therein. He had ample opportunity of being heard, and was,
in fact, heard, and therefore there was no need to issue a
notice to him under the proviso to section 99 before
recording a finding under section 99 (1) (a) (ii). Further,
even if we agree with the contention of the appellant that
notice under the proviso should be given to a party to the
petition, seeing that the reliefs which could be claimed in
the election petition under section 84 are those mentioned
in section 98, and that action under section 99 (1) (a) is
to be taken at the time when the order under section 98 is
pronounced, there is no insuperable difficulty in treating
the notice to the party in the election petition as notice
for purposes of the proviso to section 99(1) (a) as well.
This reasoning will not apply to persons who are not parties
to the petition, and a notice to them will, be necessary
under the proviso, before they axe named.
In the result, all the contentions urged in support of the
appeal fail, which must accordingly be rejected. As the
respondent has not appeared to contest the appeal, there
will be no order as to costs.
469