Bhikaji Keshao Joshi & ANR Vs.
Brijlal Nandlal Biyani & Ors  INSC 35 (2 May 1955)
MUKHERJEE, BIJAN KR. (CJ) BOSE, VIVIAN
AIYYAR, T.L. VENKATARAMA IMAM, SYED JAFFER
CITATION: 1955 AIR 610 1955 SCR (2) 428
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 practicesDuty of Tribunal to inquire
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 corrupt
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
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 (  1 S.C.R. 140)
and Jagan Nath v. Joswant ( S.C.R. 892), followed, 430
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 September1952. 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 preliminary
issues were framed. These nine issues substantially 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
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
"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
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,
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 consulted 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
The view taken by the Tribunal was that these
were also necessary parties and that their non-joinder rendered the petition
liable for (1)  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
(3) A.I.R. 1954 Patna 225.
(2) A.I.R. 1953 All. 633.
(4)  S.C.R. 892.
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
"(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
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
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 paragraphs 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 not and 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 information.
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 56 440 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
There can be no doubt that almost all the
instances hereinabove set out are extremely vague and lack sufficient particulars.
Learned counsel for the appellants 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
(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
(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 mean443 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
"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
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 444 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
"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 445 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 to 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 noncompliance, 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 Commission 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 irresponsible
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
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., undertaken
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
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
disqualification, 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