PETITIONER: BHIKAJI KESHAO JOSHI AND ANOTHER Vs. RESPONDENT: BRIJLAL NANDLAL BIYANI AND OTHERS. DATE OF JUDGMENT: 02/05/1955 BENCH: JAGANNADHADAS, B. BENCH: JAGANNADHADAS, B. MUKHERJEE, BIJAN KR. (CJ) BOSE, VIVIAN AIYYAR, T.L. VENKATARAMA IMAM, SYED JAFFER CITATION: 1955 AIR 610 1955 SCR (2) 428 ACT: Representation of the People Act (Act XLIII) 1951, proviso to Section 85-Section 90(4)-Reconsideration of question of limitation by Tribunal-Section 82-Non-compliance with Provisions-Omission to include a party in list of respondents-Defect whether fatal-Section 83(1)-Code of Civil Procedure, Order 6, rules 15(2) and (3)Effect of-Section 83(2)-"Full Particulars"-Duties of Tribunal when particulars filed are vague-Serious allegations of corrupt practices- Duty of Tribunal to inquire into. HEADNOTE: The appellants, two of the electors of the Akola Constituency of the Madhya Pradesh State Assembly, filed an Election Petition against Respondent No. 1, the successful candidate in the election held on December 13, 1951, and the three other respondents who having been validly nominated went to the polls but were defeated. The Election Petition, under Section 80 of the Representation of the People Act of 1951, was admittedly time-barred by one day. The Election Commission condoned the delay under the proviso to Section 85 of the Act and constituted a Tribunal for the trial of the petition. On pleadings of the parties, nine issues were framed by the Tribunal which are covered by the following questions: (1) Whether the election petition was presented by a properly authorised person. (2) Whether there was sufficient cause for presentation of the petition one day out of time. (3) Whether the petition was defective for non-joinder of certain parties as respondents. (4) Whether the petition was defective for want of proper verification. (5) Whether,the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Schedule A thereto. The Tribunal found only the first of the above points in favour of the petitioners by a majority. But in respect of the other four points, it held against the petitioners unanimously. As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits. It is against this dismissal that the appellants have now come up to this Court on obtaining special leave. When the delay in submitting an election petition is condoned 429 by the Election Commission in exercise of its power under the proviso to Section 85 of the Representation of the People Act (Act XLIII of 1951), it is not open to the Election Tribunal, under Section 90(4) of the Act, to reconsider the question of limitation. Even if, according to the requirement of Section 82 of the Representation of the People Act, any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limin on that sole ground; but it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case. Section 83(1) of the Act provides that an election petition has to be verified in the manner provided for verification of pleadings under the Code of Civil Procedure. Clauses (2) and (3) of rule 15 in Order VI of the Code lay down the procedure for verification of pleadings. Apart from those cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of the absence of the date of verification. In such a case the applicant should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earlier omission. The requirement of "full particulars" of corrupt practices in Section 83(2) of the Act, is one that has got to be complied with, with sufficient fullness and clarification, so as to enable the opposite party to meet the allegations against him fairly, and so as to prevent the enquiry from being turned into a rambling and roving inquisition. The primary responsibility for furnishing full particulars of alleged currupt practices and for filing a petition in full compliance with Section 83 (2) of the Act is that of the petitioners. If they fail to do so initially it is their duty and responsibility to remove the defects when opportunity is available. Tribunals, however, should not take an all too narrow view of their function in dealing with the various alleged defects in the petition and dismiss it on the ground of want of particulars. They should call for better particulars and if that order was not complied with strike out such of the charges as are vague. The petitioners also alleged that the returned candidate was disqualified to stand because he had interest in contracts with the Government. But the Tribunal ignored these allegations and without enquiring into their truth dismissed the petition on the ground that the allegations relating to the charge of corrupt practices were vague, Held that it was not in the interest of purity of elections that such allegations of disqualification should be ignored and that it was a matter which called for enquiry. Case remitted for enquiry with reference to the allegations that the returned candidate was disqualified and the charge of corrupt practice, which was held to be not vague. Dinabandhu v. Jadumoni ( [1955] 1 S.C.R. 140) and Jagan Nath v. Joswant ([1954] S.C.R. 892), followed, 430 JUDGMENT:
CIVIL APPELLATE, JURISDICTION: Civil Appeal No. 158 of
1954.
Veda Vyas, (S. K. Kapur and Ganpat Rai, with him), for the
appellants.
M. C. Setalvad, Attorney-General for India (.ill. N. Phadke
and Naunit Lal, with him), for respondent No. 1.
1955. May 2. The Judgment of the Court was delivered by
JAGANNADHADAS J.-This is an appeal by special leave against
the Judgment and order of the Election Tribunal, Akola,
Madhya Pradesh, dated the 1st May, 1953, dismissing the
election petition filed by the appellants. It relates to
the election for the Akola Constituency of the State
Assembly of Madhya Pradesh which was held on the 13th
December, 1951, and the result of which was notified in the
Gazette on the 4th April, 1952. The two appellants are the
electors of the said constituency. The first respondent was
the successful candidate at the election. Respondents, Nos.
2, 3 and 4 were the other three candidates who, having been
validly nominated went to the polls but were defeated. The
appellants filed the election Petition under section 80 of
the Representation of the People Act, 1951 (Act XLIII of
1951) (hereinafter referred to as the Act’ for setting aside
the election on various allegations. The petition was filed
on the 19th April, 1952, before the Election Commission at
Delhi and was admittedly one day beyond the prescribed time.
The Election Commission admitted the petition after
condoning the delay under the proviso to section 85 of the
Act and thereupon constituted a Tribunal for the trial of
the petition at Akola by notifications dated the 30th July,
1952, and 22nd September- 1952. In due course respondent
No. I appeared and filed his written statement on the 6th
October, 1952, and the petitioners filed their reply thereto
on the 16th October, 1952. With reference to these
pleadings, the Tribunal was of the opinion that it was
advisable to frame certain preliminary issues and to dispose
of the same before entering on the
431
trial of the case on its merits. Accordingly, nine pre-
liminary issues were framed. These nine issues sub-
stantiaily cover the following questions: (1) Whether the
election petition was presented by a properly authorised
person. (2) Whether there was sufficient cause for
presentation of the petition one day out of time. (3)
Whether the petition was defective for non-joinder of
certain parties as respondents. (4) Whether the petition is
defective for want of proper verification. (5) Whether the
petition was defective for vagueness of the particulars
relating to the corrupt practices set out in Schedule A
thereto. The Tribunal found only the first of the above
points in favour of the petitioners by a majority. But in
respect of the other four points, it held against the
petitioners unanimously. As a result of the adverse
findings on these four points, the petition was dismissed
without any trial on the merits. It is against this
dismissal that the appellants have now come up to this Court
on obtaining special leave.
Before dealing with the merits of the appeal, it may be
mentioned that at an early stage of these proceedings before
the Tribunal, an objection was taken to the composition of
the Tribunal on the allegation that one of the Members, Shri
A. S. Athalye was not competent to be a Member thereof on
account of his alleged bias in favour of the first
respondent. The bias was sought to be made out by showing
that shortly before the election, Shri Athalye had written a
letter to the 1st respondent offering to assist him in his
election campaign. On objection being taken, the Tribunal
stayed its hands for a preliminary decision of that
question. Meanwhile, the petitioners took proceedings in
the High Court for the quashing of the constitution of the
Tribunal on the above ground by means of an application
under article 226 of the Constitution. That application was
dismissed after hearing both sides. Thereupon the
petitioners moved this Court for special leave against the
order of the High Court. But this Court declined to grant
leave. Learned counsel for the appellants attempted to
55
432
attack the validity of the decision of the Tribunal now
under appeal on the same ground. But this having been
already determined against the petitioners in the previous
proceedings, we declined to allow the matter to be reopened.
On the other side, the learned Attorney-General for the 1st
respondent attempted to reopen before us the question as to
whether the petition was presented to the Election
Commission by an authorised person, which as stated above,
was found against him by a majority of the Tribunal. The
ground on which he attempted to reopen this question was
that the finding was based on a wrong view as to the burden
of proof. We were not prepared, however, to permit this
finding of fact to be reopened in this appeal on special
leave, irrespective of the question whether the burden of
proof was rightly laid on the petitioners.
The only points, therefore, that have been argued before us
are whether the view taken by the Tribunal with reference to
the following questions, viz. (1) limitation, (2) joinder of
parties, (3) verification, and (4) specification of
particulars of corrupt practices in Schedule A attached to
the petition, is correct, and if so, whether the same
entailed dismissal of the petition. The questions may be
taken up one after the other.
LIMITATION:As stated above, the petition was filed on the
19th April, 1952, admittedly one day beyond time. On the
28th April, 1952, the petitioners filed also an application
for condonation of delay setting out the reasons for the
same. In paragraphs 3, 4 and 5 thereof the circumstances
under which the delay is said to have occurred were set out
as follows:
“3. The applicants were under the belief that Notice
under Rule 113 of the Rules framed under the above Act was
published on 5th April, 1952, in the official Gazette of the
State of Madhya Pradesh. They felt therefore that their
petition was duly presented within 14 days as prescribed by
Rule 119. Applicants, however, learn that actually the
Notice under Rule 113 was published in the Official Gazette
of 4th April, 1952. It therefore appears that there was a
delay of
433
one day in the representation of the election petition.
This delay occurred under the following circumstances:-
4. The applicants prepared their election petition on the
17th April, 1952. They sent the said petition with Shri P.
B. Gole, Senior Advocate, Akola, with a written authority to
present the petition through any person of his choice at
Nagpur on the 18th April. They also sent with Shri Gole Rs.
1,000 for being deposited in the Government Treasury at
Nagpur as required by section 117 of the Act and to obtain
Treasury receipt for security of costs to be filed with the
petition. The applicants were under the belief that an
officer must have been appointed by the Election Commission
under section 81 of the Act to whom election petitions could
be represented for the State of Madhya Pradesh at Nagpur.
Accordingly Shri Gole left Akola for Nagpur by the 1 Down
Nagpur Mail, reaching Nagpur at about 9-30 A.M. on 18th
April, 1952.
5. Mr. Gole caused the deposit of Rs. 1,000 security
for costs to be made in the Government Treasury at Nagpur
through Mr. Sidhaye, Advocate, Nagpur, and obtained the
necessary Government Treasury receipt on the 18th April,
1952. He then made enquiries about the officer who may have
been appointed to receive the election petitions. He con-
sulted R. S. Rangole, who was attached to the Election
Office at Nagpur. On enquiries Shri Gole learnt that there
was none at Nagpur, who was authorised to receive election
petition under the Act. Under these circumstances Shri Gole
booked a seat in the Night Plane for Delhi and flew to Delhi
on the 18th and reached there on the morning on 19th April,
1952. On 19th April Shri Gole caused the petition to be
presented to the Secretary to the Election Commission”.
The explanation thus furnished was accepted by the Election
Commission as appears from the intimation to the petitioners
by letter dated the 30th July, 1952. The Tribunal was of
the opinion that notwithstanding the order of the Election
Commission condoning the delay and admitting the petition,
it was free to
434
reconsider the question by virtue of the powers vested in it
under section 90(4) of the Act. In this view it went into
the merits of the explanation furnished and came to the
conclusion that the petitioners were negligent and that the
delay, even of one day, could not be condoned. It
accordingly held that the petition was liable to be
dismissed as barred by time. Now, apart from the merits of
the sufficiency of the cause for delay, the question as to
whether, notwithstanding the condonation of the delay by the
Election Commission., it was open to a Tribunal to
reconsider the matter by virtue of section 90(4) of the Act,
is now covered by the decision of this Court reported in
Dinabandhu v. Jadumoni(1). It was therein held that it was
not open to the Tribunal to reconsider the matter in such a
case. The conclusion of the Tribunal, therefore, on this
point cannot be maintained. The learned Attorney-General
attempted to argue that the decision of this Court referred
to above was obiter as regards the legal point and required
further consideration. But we were not prepared to permit
that question to be reopened. We were also not satisfied
that there was any adequate reason for the Tribunal to
interfere with the view taken by the Election Commission
condoning the delay of one day on the explanation furnished
to it. This explanation has not been found, even by the
Tribunal, to be false.
JOINDER OF PARTIES: The objection as to joinder of parties
arises as follows. Three persons by name Shri Sohoni, Shri
Kulkarni, and Shri Kothkar were nominated as candidates at
the election. Their nominations were found to be in order
on scrutiny by the Returning Officer. But within the time
allowed, these three withdrew from the elections under
section 37 of the Act. The petitioners, while they
impleaded as respondents the three unsuccessful candidates
who went to the polls, did not implead these three persons.
The view taken by the Tribunal was that these were also
necessary parties and that their non-joinder rendered the
petition liable for
(1) [1955] 1 S.C.R. 140.
435
dismissal. In support of their view, the Tribunal relied
upon section 82 of the Act which is as follows:
“A petitioner shall join as respondents to his petition all
the candidates who were duly nominated at the election other
than himself if he was so nominated”.
It has been argued before us that this view is erroneous
and that persons who filed their nominations and who
withdrew from the contest within the prescribed time in
spite of their nominations having been found to be in order
on scrutiny by the Returning Officer, cannot be said to fall
within the category of “candidates duly nominated at the
election”. In support of this contention two decisions
Sitaram v. Yograjsing(1) and Sheo Kumar v. V. G. Oak(2) have
been cited. On the other side the case in Mohammad Umair v.
Ram Charan Singh(3) was brought to our notice in support of
the view taken by the Tribunal. These three decisions have
treated the decision of the question as depending on a
construction of the phrase “at the election” in section 82
of the Act. The Bombay and Allahabad cases hold that this
phrase confines the necessary parties under this section to
those who were candidates for the actual poll, while the
Patna High Court takes the view that the phrase “at the
election” has no such limiting significance. It appears to
us to be unnecessary and academic to go into this judicial
controversy having regard to the decision of this Court in
Jagan Nath v. Jaswant Singh(4). If we were called upon to
settle this controversy, we would prefer to base the
decision not on any meticulous construction of the phrase
“at the election” but on a comprehensive consideration of
the relevant provisions of the Act and of the rules framed
thereunder and of the purpose, if any, of the requirement
under section 82 as to the joinder of parties other than the
returned candidate. We are, however, relieved from this,
since it has been decided in Jagan Nath v. Jaswant Singh(4)
that even if any of the necessary parties other than the
returned candidate has not been
(1) A.I.R. 1953 Bombay 293.
(3) A.I.R. 1954 Patna 225.
(2) A.I.R. 1953 All. 633.
(4) [1954] S.C.R. 892.
436
impleaded, the petition is not liable to be dismissed in
limine on that sole ground but that it is a matter to be
taken into consideration at the appropriate stage with
reference to the final result of the case. In view of this
ruling the decision of the Tribunal on this point also
cannot be maintained.
VERIFICATION:The view taken by the Tribunal on this
question is based on section 83(1) of the Act which is as
follows:
“An election petition shall contain a concise statement of
the material facts on which the petitioner relies and shall
be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure, 1908, for the
verification of pleadings”.
The relevant provision in the Civil Procedure Code referred
to herein is Order VI, rule 15, clauses (2) and (3), which
are as follows:
“(2) The person verifying shall specify, by reference to
the numbered paragraphs of the pleading, what he verifies of
his own knowledge and what he verifies upon information
received and believed to be
true.
(3) The verification shall be signed by the person
making it and shall state the date on which and the place at
which it was signed”.
In the present case the verification of the petition as
well as the schedule of particulars of corrupt practices are
each signed by both the petitioners and there is now no
dispute about it. The verification clause in
the petition is as follows:
“The above-named applicants hereby affirm that the contents
of the above petition are true to information received from
the press reports and several other electors and believed by
them to be true.
Signed and verified at Akola on
The verification clause relating to the particulars of
corrupt practices in Schedule A is as follows:
“The above-named applicants affirm that the contents in
this schedule are true to information received and believed
by us to be true.
Signed and verified at Akolo, on
437
In the view of the Tribunal there were two defects in these
verifications. They do not refer to any numbered paragraphs
nor do they bear the dates on which they were signed. In
the view of the Tribunal the petition was liable to
dismissal for non-compliance with the specific provision in
the Act in this behalf. That the verification neither in
the petition nor in the schedule of particulars bears any
date is not disputed. But it is contended that the view
taken by the Tribunal in so far as it was of the opinion
that the verifications do not refer to any numbered para-
graphs is unsustainable. It is pointed out that the
statements in the verification were clearly meant to convey
that the various allegations in the petition and schedule
were, in their entirety, based on information and belief.
It is urged, therefore, that there was no scope and hence no
need to specify which were based on personal knowledge and
which upon information. We agree with this contention. It
is to be noticed that a verified pleading is different from
an affidavit which., by virtue of Order XIX, rule 3, is
specifically required to be confined to such facts as the
deponent is able of his own knowledge to prove (except on
interlocutory applications, on which statements of his
belief may be admitted, provided that the grounds thereof
are stated). But there is notand in the nature of things
there cannot be-any such limitation for pleadings. Hence it
became necessary in the verification of a pleading to
demarcate clearly between the two. The allegations in the
petition in this case purport to be based only on informa-
tion. Since the verification clauses refer to the entirety
of the petition and the attached schedule, absence of
enumeration of the various paragraphs therein as having been
based on information cannot be considered to be a defect.
The verifications are accordingly defective only as regards
the requirement of the dates thereof. The question is
whether the petition is liable to dismissal on this ground.
Though there may be cases where the date of the pleading and
the verification may be relevant and important, it would be
a wrong exercise of discretionary power to dismiss
438
an application on the sole ground of absence of date of
verification. In such a case the applicants should normally
be called upon to remove the lacuna by adding a
supplementary verification indicating the date of the
original verification and the reason for the earlier
omission.
PARTICULARS OF CORRUPT PRACTICES: The objection is based on
section 83(2) of the Act which is as follows:
“The petition shall be accompanied by a list signed and
-verified in like manner setting forth full particulars of
any corrupt or illegal practice which the petitioner
alleges, including as full a statement as possible as to the
names of the parties alleged to have committed such corrupt
or illegal practice and the date and place of the commission
of each such practice”.
The objection is that the particulars of the instances
furnished in Schedule A to the petition are all of them
vague and not in compliance with the above provision. The
list of particulars is as follows:
” SCHEDULE “A”.
List of particulars of instances referred in the
accompanying petition.
1. That in the month of December, 1951, respondent No. 1
has been to the premises of Akola Shree Gurudwara, where
the Local Sikh Community had assembled to listen to the
recitation of the holy book ‘Granth Saheb’ on the 7th day of
the death of daughter of one Sardar. Suratsingb. At this
meeting respondent No. 1 canvassed for votes for himself and
paid Rs. 201/-, apparently as donation to the Gurudwara, but
really as gift for inducing the Sikh Community in the Akola
Constituency in general and the Sikhs assembled in
particular to induce them to vote for himself at the ensuing
election. Respondent No. 1 was guilty of bribery within the
meaning of that term in section 123 of the Representation of
the People Act.’
Similar instances of giving illegal gratifications for
securing votes of respective groups are-
(a) Donation to Hkariharpeth Akhada;
439
(b) Payment to Panch-bungalow Committee of Bhangis of Old
City.
(c) Donation to Bhaji Bazar Association.
(d) Distribution of blankets and Saries and
money to voters.
2. At the instance of respondent No. I a meeting of workers
in Berar Oil Industries a concern of Birla, was called by
its manager on the eve of the election and they were
threatened to vote for respondent No. 1 on pain of losing
their service or suffer pecuniary loss, in case they did not
vote for respondent No. 1. The poster of the rival candidate
affixed on the post-office within the premises of the Berar
Oil Industries was removed and stolen away.
3. Respondent No. 1 caused groups and sections of castes
and communities, such as Bohara, Lohars, Marwaries, Muslims,
Rajasthanies, Bhangies, to issue appeals stating that
resolutions were passed for voting for respondent No. 1,
coercing the voters by threats, etc., to vote for respondent
No. 1 and openly canvassing on communal and caste lines and
using undue influence.
4. Issuing pamphlets and handbills without names of
printer or publisher.
5. At the time of counting votes in Polling Station No.
53, several folded bundles amounting to about 20 in number,
of ballot papers were found in the ballot box of respondent
No. 1, when it was opened for counting votes. This was
noted by the Returning Officer. Each bundle consisted three
or more than three ballot papers, folded together.
Obviously each of the bundle of these ballot papers were put
in the ballot box by one person, as the ballot papers put in
the ballot box by different voters could not automatically
fold themselves into a compact bundle in the ballot box.
The ballot papers issued to voters were not put in the box
by the voters themselves, but were illegally brought back by
the voters and handed over to persons working for and on
behalf of respondent No. I on payment of illegal
gratification. These ballot papers thus collected were
bundled together
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440
and put in the ballot box by persons working for and on
behalf of respondent No. 1 by taking illegal gratifications.
This was done on 31st December, 1951, at Chandur by persons
with the connivance of respondent No. 1.
6. False personation of several dead voters and
voters absent in Pakistan has taken place in Ward
No. 12 and 15.
7. The respondent No. 1 resorted to false propaganda. His
man announced on loud speakers from place to place that
rival candidate Dr. Joglekar was of the caste and party of
Godse, the murderer of M. Gandhi and a vote for him was a
vote for Gandhi’s Murderer. Another false propaganda was
that Dr. Joglekar was Mishra’s man, supported by Mishra’s
money. Lectures for respondent No. 1 in public
meetings, including respondent No. I have freely made these
false defamatory and malicious statements against Dr.
Joglekar, the rival candidate and thus prejudiced the
prospects of Dr. Joglekar’s election. Personal character
and conduct of Dr. Joglekar was also falsely attached, thus
prejudicing his prospects of election.
8. Voters were carried in hired carts at many polling
stations, particularly at Kapshi Polling Station. This was
arranged by persons working for and on behalf of respondent
No. I at his expense and connivance. A written objection
for police enquiry was given at Kapshi and one in Rifle
Range area.
9. Respondent No. 1 spent lacs of rupees over his election
transgressing the prescribed limit of Rs. 6,000. He has
given a totally untrue return of election expenses. This is
in contravention of law.
10. Mohota Mills released workers and paid them for
canvassing work for respondent No. 1 on polling day.
Substitutes for these workers were engaged by the mills and
they were also paid. This was done at the instance of
respondent No. I”.
There can be no doubt that almost all the instances herein-
above set out are extremely vague and lack sufficient
particulars. Learned counsel for the appel-
441
lants invited our attention to the fact that the Tribunal,
while considering the question of vagueness dealt only with
the instances of corrupt practices specified in paragraphs I
(a),I (b), I (c), I (d), 2, 4, 5, 6, 7 and 8 and not others.
He accordingly contended that, by implication, the Tribunal
was not prepared to hold that items mentioned in paragraphs
1, 3, 9 and 10 were vague. He urged that at least these
four items’ must be taken not to be vague and that there is
no reason why the petitioners should not have been called
upon to amend the schedule by furnishing better particulars
as to the rest. He further urged that, at any rate, they
were entitled to a trial in respect of those four items of
corrupt practices. We cannot agree with learned counsel for
the appellants that the items set out in paragraphs 3, 9 and
10 are not vague. There is no specification therein of the
requisite details which the Act in terms requires. Section
83(2) requires not only what may reasonably be considered
“full particulars” having regard to the nature of each
allegation, but enjoins in terms that the following
particulars should also be given. (1) Names of the parties
alleged to have committed the corrupt or illegal practice.
(2) The date of the commission of each such corrupt or
illegal practice. (3) The place of commission of each such
corrupt or illegal practice. There can be no reasonable
doubt that the -requirement of “full particulars” is one
that has got to be complied with, with sufficient fullness
and clarification so as to enable the opposite-party fairly
to meet them and that they must be such as not to turn the
enquiry before the Tribunal into a rambling and roving
inquisition. On a careful scrutiny of the list, in Schedule
A we are satisfied that none of the items except that which
is set out in paragraph I of item No. I can be said to
comply with the requirements of section 83(2). In this view
of the contents of Schedule A, the contention of the learned
counsel for the appellants is that even so the Tribunal
should have called upon the petitioners to furnish better
particulars as regards all the other items, by virtue of the
,powers conferred on it under section 83(3), and in the
442
alternative, it should have at least called upon them to
substantiate the allegation in paragraph 1 in item No. 1,
which was sufficiently specific and which, if made out,
might have resulted in the election being set aside. On the
question whether or not the Tribunal should have called upon
the petitioners to amend the schedule by furnishing better
particulars, the learned Attorney-General for the 1st
respondent has invited our attention to the objection taken
in the written statement as regards the vagueness of the
particulars and to the various orders made by the Tribunal
as appears from the order-sheet of the case. In the written
statement of the 1st respondent paragraph 9 is as follows:
“9. (a) It is, further, submitted that the petition ought
to be dismissed as it does not contain concise statement of
material facts on which the petitioners rely. Similarly the
list of particulars given in the schedule or in the petition
are not in compliance with section 83(2).
(b) Without prejudice to the generality of this
objection, it is further submitted that para V of petition
read with para VI(e) will show that the particulars given in
Schedule relate to corrupt and illegal practices alleged to
have been committed by respondent No. 1 and by his agents
and persons working on. -behalf of respondent No. I with his
connivance. Such particulars are bad in law. The
applicants are bound to state the names of the persons who
are alleged to have actually committed the corrupt or
illegal practice.
(c) Paras 1 and 2 of the petition allege that there
was no free election by reason of general bribery and undue
influence exercised by and on behalf of respondent No. 1.
Similarly the allegation in para 2 is that the coercion was
the result of manipulation by ,or at the instance of
respondent No. 1. Thus these allegations must be supported
by giving the necessary particulars regarding the names,
date and place of commission of corrupt or illegal practice
alleged. The allegations in paras 1 and 2 of the petition
are allegations of corrupt and illegal practice within the
mean-
443
ing of sections 123, 124 and 125 of the Act, and are not
allegations of a general character which do not implicate
the candidate personally.
(d) Further by way of example, para I of the schedule,
no names, date of the alleged practices are given. Same is
the case with the allegations in paras 2, 3, 4, 5, 6, 7, 8,
9 & 10.
(e) It is for the petitioners to satisfy the Election
Commission and the Tribunal that the particulars given are
according to law. This has not been done and the petition,
therefore, ought to be dismissed on this ground”.
Now the order-sheet of the proceedings before the Tribunal
discloses the following. By order dated the 16th October,
1952, the Tribunal decided that the case was in the first
instance to be taken up for decision on the preliminary
issues. Having so decided it passed the following order:
“We call upon the parties whether they want to add by way
of amendment to the pleadings on facts which they have
already made, as in some of the preliminary points the
question of fact is involved.
The respondents do not want to add to their pleadings on
facts in respect of the above preliminary issues. The
petitioners have made an application under Order VI, rule
16, Civil Procedure Code for striking out some portion in
paras 3-b and para 4-(d) (2) of the written statement of the
respondent No. 1″.
On the 17th January, 1953, the Tribunal passed the following
order:
“The respondent No. 1 prays for time to amend his written-
statement and to ask for particulars. In the interests of
justice the time is granted…….. The application for
amendment and for particulars to be filed five days before
the date of hearing and copies thereof be given to the
petitioners. The petitioners shall be ready with their
replies on the date of hearing”.
On the 27th January, 1953, the order is
“The petitioners have filed ‘their reply to the amendment
application of the respondent No. 1. The
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latter has amended his application, to which there was no
objection”.
On the 29th January, 1953, the order is
“The petitioners do not want to amend their pleadings in
view of the amendment of the written statement”.
In view of the specific objection taken in the written
statement and the opportunities which the petitioners had
for amending the petition which the above orders disclose,
there is considerable force in the contention of the learned
Attorney-General that the petitioners, for some reasons best
known to themselves, have come forward with a somewhat
irresponsible petition and that while the Court has
undoubtedly the power to permit amendment of the schedule of
corrupt practices by permitting the furnishing of better
particulars as regards the items therein specified, there
was no duty cast upon the Tribunal to direct suo motu the
furnishing of better particulars. It is true that the
petitioners in the reply that they filed to the written
statement of the 1st respondent and in answer to the
objection that the particulars as to the alleged corrupt
practices were vague, said as follows:
“The petitioners are prepared to give further particulars
if the Tribunal is pleased to permit under section 83(3) of
the Representation of the People Act,.
This reply was filed on the 16th October, 1952, which is
the very date on which the first of the above orders
extracted from the order-sheet was passed. It is also, true
that the order dated the 17th January, 1953, shows that the
respondent No. 1 at one stage, indicated an intention
himself to ask for particulars. But in a matter of this
kind the primary responsibility for furnishing full
particulars of the alleged corrupt practices and to file a
petition in full compliance with section 83(2) of the Act
was on the petitioners. While undoubtedly the Tribunal has,
in our opinion, taken all too narrow a view of their
function in dealing with the various alleged defects in the
petition and in treating them as sufficient for dismissal,
the petitioners are not absolved from their duty to
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comply, of their own accord, with the requirements of
section 83(2) of the Act and to remove the defects when
opportunity was available. They cannot take shelter behind
the fact that neither the Tribunal nor the respondent No. 1
has, in terms, called upon them to furnish better
particulars.
The position, therefore, on the question of compliance or
otherwise of the requirements of section 83 of the Act is
that (1) the verifications in the petition and schedule are
defective inasmuch as the dates thereof are not specified,
and (2) the schedule of particulars consists of a number of
items of which only one at best could have been taken up for
inquiry by the Tribunal. But all the rest were not only
extremely vague but no amendment was applied for nor was an
opportunity for amendment of pleadings in general, open on
two occasions, availed of. Learned counsel for the
appellants urges that however this may be, there was no
justification for the Tribunal dismissing the petition in
toto and that it was bound to have called upon the
petitioners to substantiate the first allegation by evidence
after striking out, if need be, the rest of the particulars,
under the powers vested in it under Order VI, rule 16, Civil
Procedure Code. On the other hand the learned Attorney-
General for the respondent No. 1 urges that in such a
situation it was open to the Tribunal to consider whether,
taking the petition as a whole and in its total effect,
there was substantial compliance with the requirements of
section 83. He contends that if, in exercise of its
judgment, it thought that there was substantial non-
compliance, notwithstanding that one out of the various
items may have been specific, it was not bound to exercise
its discretion in favour of the petitioners by ordering a
striking out of the various items and to direct the trial of
the petition to be confined to one single item which may be
in order. The learned Attorney-General argues that this
would be really making out for the petitioners a different
petition from what they brought up before the Election Com-
mission and that in this class of cases the Tribunal had the
right and the duty to exercise great strictness
446
in order that the machinery for setting aside elections
might not be abused for the purpose of maligning the
successful candidate by levelling vague and iriesponsible
charges against him. While there is considerable force in
this argument, we think that in a case of this kind the
Tribunal when dealing with the matter in the early stages
should not have dismissed the application. It should have
exercised its powers and called for better particulars. On
non-compliance therewith, it should have ordered a striking
out of such of the charges which remained vague and called
upon the petitioners to substantiate the allegations in
respect of those which were reasonably specific. We are,
therefore, of the opinion that the order of the tribunal in
dismissing the petition outright was clearly erroneous.
Notwithstanding this opinion we would, in the normal course,
not have felt called upon to interfere in this case under
article 136 after this lapse of time and at the instance of
persons like the appellants before us who are mere voters
having no direct personal interest in the result of the
election.
But there is one other circumstance in this case which we
have noticed and which we feel we ought not to overlook,
though in the course of the arguments the same was not
brought to our notice. Paragraphs 6(a), (b) and (c) of the
application for setting aside the election sets out certain
grounds of alleged disqualification of the returned
candidate to stand for the election. It is also stated
therein that objections in this behalf were taken at the
time of scrutiny of the nomination papers but that they were
summarily overruled by the Returning Officer without any
enquiry and that accordingly the objections to the
disqualification have been raised in the application. The
objections are as follows:
“6. The material facts in support of the grounds are as
follows:-
(a) The election of candidate for the Madhya Pradesh
State Assembly in the single member Akola Constituency was
announced to be held on 31-12-1951. Nominations were to be
filed on or before 15-11-1951,
447
and scrutiny of nomination was due on 17-11-1951. At this
time of scrutiny objection was taken to the nomination paper
of respondent No. 1 on several grounds but the material
grounds were that respondent No. 1 was disqualified for
being chosen as and for being a Member of Madhya Pradesh
State Assembly under Chapter III, section 7 (d) of the
Representation of the People Act, 1951 (Act XLIII of 1951).
That the respondent No. 1 is disqualified to fill the seat
under the Act., because he is the Managing Agent or Managing
Director of Rajasthan Printing and Litho Works -private
limited company under the Indian Companies Act. He has, as
a share-holder and director, interest, in contracts for
supply of goods, viz. stationery, paper and printing
materials, etc., to the State Government of Madhya Pradesh.
He has also interest in contracts for the execution of works
or performance of services, such as printing, etc., under-
taken by the State Government of Madhya Pradesh. The
respondent No. 1 gets a share by way of commission on sales
effected by the Limited Company. He has, therefore, by
himself interest in the contracts of the company with the
State Government of Madhya Pradesh.
(b)The respondent No. 1 is a partner in the firm Berar
‘General Agency. The said firm has entered into a contract
for the performance of cloth distribution on behalf of the
State Government to retailers and holds a licence for the
same. The respondent No. 1, therefore, has interest by
himself in the said contract for the performance of services
undertaken by the Government.
(c)The respondent No. 1 is the proprietor of the monthly
Journal “Prawaha” and a by-weekly paper “Matru-bhumi”.
These publications print Government advertisements on
contract basis. The respondent No. 1 has, therefore,
interest in the said contract for the performance of
services undertaken by the State Government Madhya Pradesh.
The income derived from these contracts by the respondent
No. 1 are noted in the private accounts of
57
448
the respondent No. 1 and their details are shown in the
profit and loss statements filed with income-tax return of
the respondent No. I for the relevant year and current year.
The sales and other details of the “Matru-bhumi” concern
are noted in the private accounts of the respondent No. 1.
These objections were summarily overruled by the Returning
Officer, without any inquiry or any reason”
These allegations, if made out with such further details
as may be necessary, might well prove serious and bring
about the setting aside of the election of the returned
candidate. The 1st respondent in answer to these
allegations states as follows:
“It is denied that there was any improper acceptance of
the nomination paper of respondent No. 1 and in particular
it is denied that any of the allegations made in paragraph
6(a), (b) & (c) of the petition constitute in law a
disqualifications of section 7 of the Representation of the
People Act. Without prejudice to this it is submitted that
the respondent No. 1 was not suffering from any of these
disqualifications in fact on the date of the submission of
the nomination paper”.
Having regard to the nature of the alleged disqualifi-
cation, which is substantially to the effect that the
returned candidate had interest in contracts with the
Government at the relevant dates, it was very necessary that
the matters should have been cleared up in the enquiry
before the Election Tribunal. It is not in the interest of
purity of elections that such allegations of
disqualification should be completely ignored without
enquiry and it appears rather surprising that the Tribunal
should have ignored them and exercised its power to dismiss
the petition. However reluctant we might be to interfere in
a matter like this after the lapse of three years and four
months and with only an year and eight months before the
general elections, we feel constrained to send this matter
back for due enquiry. But before doing so and in view of
the delay and other circumstances that have already
happened,
449
we, in exercise of the powers which the Tribunal in the
normal course might itself have exercised, direct the
striking out of all the items of alleged corrupt practices
set out in Schedule A excepting the one covered by paragraph
I of item 1, i.e., as follows:
“That in the month of December, 1951, respondent No. I had
been to the premises of Akola Shree Gurdwara, where the
Local Sikh Community had assembled to listen to the
recitation of the holy book ‘Granth Saheb’ on the 7th day of
the death of daughter of one Sardar Suratsingh. At this
meeting respondent No. 1 canvassed for votes for himself and
paid Rs. 201, apparently as donation to the Gurudwara, but
really as gift for inducing the Sikh Community in the Akola
constituency in general and the Sikhs assembled in
particular to induce them to vote for himself at the ensuing
election. Respondent No. I was guilty of bribery within the
meaning of that term in section 123 of the Representation of
the People Act”.
The case will, therefore, go back for enquiry and trial
with reference only to (1) the allegations in paragraphs
6(a), (b) and (c) of the application for setting aside the
election, and (2) the allegations in paragraph 1 of item 1,
in Schedule A attached to the application as set out above.
The Election Commissioner will now reconstitute an
appropriate Tribunal for the purpose. The Tribunal when
constituted and before proceeding to trial will call upon
the petitioners to rectify the lacuna as to dates in the
verification clauses in the petition and the schedule. It
is to be hoped that the fresh proceedings before the
Tribunal will be disposed of at a very early date. The
appeal is allowed as stated above but, in the circumstances,
without costs.
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