Sucheta Kripalani Vs. Shri S. S.
Dulat, I.C.S [1955] INSC 36 (6 September 1955)
BOSE, VIVIAN BHAGWATI, NATWARLAL H.
JAGANNADHADAS, B.
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION: 1955 AIR 758 1955 SCR (2) 450
ACT:
Election Dispute-Election petition by
unsuccessful rival Allegations of major corrupt practices and falsity in the
return of election expenses against the returned candidate Return of election
expenses found defective and returned candidate disqualified by the Election
Commission-Removal of such disqualification on lodging of fresh return Jurisdiction
of Election Tribunal-If competent to inquire into identical allegations of
falsity against the second return-Representation of the People Act (XLIII of
1951), s. 143-The Representation of the People (Conduct of Elections and
Election Petitions) Rules, 1951, rule, 114(4), (5) and (6).
HEADNOTE:
The provisions of the Representation of the
People Act and the Rules framed there under assign distinct and different jurisdictions
to the Election Commission and an Election Tribunal so far as a Return of
election expenses is concerned.
Where there are allegations of major corrupt
practices and a Tribunal constituted is in law falsies in of the dispute, s. 143
of the Act gives it the sole jurisdiction and makes it incumbent on it to
inquire into the falsity of any particulars mentioned in the return where such
falsity is alleged and brought into issue and is reasonably connected with the
major corrupt practices.
What the Election Commission has to do under
Rule 114(4) is to satisfy itself that the return is in the prescribed form.
It is no part of its function to inquire into
the correctness of any particulars mentioned therein. That question can only
arise when some one raises a dispute and brings the matter into issue.
Consequently, in a case where, as in the
present, the Election Commission removed the disqualification it had imposed on
the returned candidate for lodging a defective return of election expenses on
the lodging of a fresh return; Held, that the decision of the Election
Commission removing the disqualification attaching to the first return in no
way precluded the Tribunal from inquiring into the falsity of the particulars
in the second return although they were identical with those challenged in the
first return;
that the removal of the disqualification only
meant that the accepted return was the only valid return, being the first to be
correct in form, and the Tribunal had only that return before it, 451
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 139 of 1955.
Appeal under Articles 132 and 133 of the
Constitution of India against the Judgment and Order dated the 23rd December
1953 of the High Court of Judicature for the State of Punjab in Civil Writ Application
No. 24 of 1953.
N.C. Chatterjee, (B. S. Narula, with him) for
the appellant.
G.S. Pathak and Veda Vyas, (Ganpat Rai, with
them), for respondent No. 5 1955. September 6. The Judgment of the Court was
delivered by BOSE J.-The proceedings that have given rise to this appeal arise
out of an election petition before the Election Tribunal, Delhi.
The appellant Shrimati Sucheta Kripalani
together with the contesting respondent Shrimati Manmohini Sahgal and others
were candidates for election to the House of the People from the Parliamentary
Constituency of New Delhi. The polling took place on 14th January, 1952, and
when the votes were counted on 18th January, 1952, it was found that the appellant
had secured the largest number of votes and that the contesting respondent
Manmohini came next. The appellant was accordingly notified as the returned
candidate on 24th January, 1952.
On 6th March, 1952, the appellant filed her
return of election expenses. This was found to be defective, and on 17th April,
1952, the Election Commission published a notification in the Gazette of India
disqualifying the appellant under Rule 114(5) of the Representation of the
People (Conduct of Elections and Election Petitions) Rules, 1951, on the ground
that she bad "failed to lodge the return of election expenses in the
manner required" and that she had thereby "incurred the
disqualifications under clause (c) of section 7 and section 143 of the
Representation of the People Act, 1951".
452 In view of this the appellant submitted a
fresh return with an explanation under Rule 114(6) on 30th April, 1952. This
was accepted by the Commission and on 7th May, 1952, it published a
notification in the Gazette of India under Rule 114(7) stating that the
disqualification had been removed.
In the meanwhile, on 7th April, 1952, the
contesting respondent Manmohini filed an election petition praying that the
appellant's election be declared void and that she (the petitioner) be declared
to have been duly elected. It will be noticed that this was before 17th April,
1952, the date on which the Election Commission disqualified the appellant.
The validity of the election was attacked on
many grounds.
A number of major corrupt practices were
alleged and the return which the appellant had filed on 6th March,1952, of her
election expenses was challenged as a minor corrupt practice on two grounds:
(1) that the return was false in material
particulars and (2) that it was not in accordance with the rules and so was no
return at all in the eye of the law. Particulars of the instances in which the
return was challenged as false were then set out.
The appellant filed her written statement in
reply on 7th October, 1952. It will be noticed that this was after she had put
in her second return and after the Election Commission had removed the
disqualification due to the first return. Her reply was as follows:
(1) That as the disqualification with respect
to the return of her election expenses had been removed by the Election
Commission under section 144 of the Representation of the People Act, 1951,
this question could not be reopened;
(2) That a minor corrupt practice which
cannot vitiate an election and which is not capable of materially affecting an
election is wholly outside the scope of a proper election petition and so no cognizance
of it can be taken by the Election Tribunal;
(3) That only such matters can be put in
issue as are necessary to decide whether the election of the returned candidate
is liable to be set aside within the meaning of section 100(2) of the Act, 453
The contesting respondent Manmohini filed a replication on 15th October, 1952.
In it she said:(1)that the Election Commission did not and could not decide
whether the return was or was not false in material particulars and so the question
was still open. (This had reference to the first return dated 6th March.,
1952.);
(2) that in any event "even the revised
return is false in material particulars and the objections with regard to the
original return also apply exactly with regard to the revised return".
The broad propositions of law raised by
points (2) and (3) in the appellant's written statement were also denied. Then
followed an item by item reply to the allegations made by the appellant in the
list which she had appended to her written statement. That list was a reply to
the particulars of false return and corrupt practices furnished by the
contesting respondent Manmohini. It is evident then that Manmohini attacked the
second return on exactly the same grounds as the first and, furnished the same
particulars.
Now we have spoken of these returns as the
first and the second. But counsel on both sides agreed before us that the first
return was in fact no return at all in the eye of the law and that therefore
the contesting respondent's real attack was on the second return which must be
regarded as the only return which the law will recognise as a valid return. It
was agreed that there cannot be two returns of expenses: either the one
originally filed is amended or it is treated as a nullity so far as it purports
to be a return. In view of this agreement, it is not necessary for us to
express any opinion on the matter and we will concentrate our attention on
what, for convenience, we will continue to call the second return.
The first point that now arises is whether
the decision of the Election Commission to remove the disqualification
attaching to the first return precludes an enquiry into the falsity of the
second return simply because the respondent Manmohini alleged that the 454 particulars
of the falsity are exactly the same as before.
Our answer to that is No. If the first return
is no return in the eye of the law, then the only return we are concerned with
is the second and that must be treated in the same way as it would have been if
it had been the only return made.
If there had been no other return and this
return had been challenged on the grounds now raised, it is clear that the
truth of the allegations made would have to be enquired into. That enquiry
cannot be shut out simply because the allegations against the second return
happen to be exactly the same in the matter of its falsity as in the case of
the first return. We are therefore of opinion that the jurisdiction of the
Tribunal to enquire into these matters was not ousted on that account. Our
reasons for this are these.
Section 76 of the Act requires every
candidate to file a return of election expenses in a particular form containing
certain prescribed particulars. The form and particulars are set out in the
Rules. Section 143 prescribes the penalty for failure to observe those
requirements. It is disqualification. This ensues if there is a
"default" in making the return. It also ensues:"if such a return
is found............ upon the trial of an election petition under Part
VI............ to be false in any material particular".
That places the matter beyond doubt. The
trial of an election petition is conducted by an Election Tribunal and this
section makes it incumbent on the Tribunal to enquire into the falsity of a
return when that is a matter raised and placed in issue and the allegations are
reasonably connected with other allegations about a major corrupt practice. The
jurisdiction is that of the Tribunal and not of the Election Commission. The
duty of the Election Commission is merely to decide under Rule 114(4) whether
any candidate has, among other things, "failed to lodge the return of
election expenses.... in the manner required by the Act and these rules".
It is a question of form and not of
substance. If 455 0 the return is in proper form no question of falsity can
arise unless somebody raises the issue. If it is raised, the allegations will
be made in some other document by some other person and the charges so
preferred will be enquired into by the Tribunal.
If the return is not in proper form,
disqualification ensues but the Election Commission is invested with the power
to remove the disqualification under Rule 114(6). If it does, the position
becomes the same as it would have been had the Election Commission decided that
the form was proper in the first instance. That would still leave the question
of falsity for determination by the Tribunal in cases where the issue is
properly raised.
Mr. Chatterjee contended on behalf of the
appellant that we were not concerned with the second return in this appeal and
0strongly protested against Mr. Pathak being allowed to argue this point. But
that has been the main bone of contention almost from the start. When the
election petition was filed, there was only one return to attack.
The second had not been put in. Later, when
it was put in, the contesting respondent, Manmohini, attacked, both and the
appellant herself said that questions about the falsity of the return could not
be gone into because of the Election Commission's order removing the
disqualification. That argument applies as much to the second as to the first
return and raises an issue about the respective jurisdictions of the Election
Commission and the Election Tribunal on this point. The Tribunal decided
against the appellant on this point and held, as we do, that the Election
Commission was not concerned with the issue of fact about the falsity of the
return. The appellant then filed a petition under article 226 to the High Court
and questioned the Tribunal's jurisdiction to enquire into the issue of
falsity. The High Court upheld the Tribunal's decision and the appellant
pursued the matter here both in her grounds of appeal and in her statement of
the case. She cannot at this stage ask us to leave 456 the matter opens so that
she can come here again and reagitate this question. We accordingly overrule
Mr. Chatterjee's objection.
The next question argued was whether an
Election Tribunal can enquire into a minor corrupt practice if it is of such a nature
that, standing by itself, it could not have been made the basis of an election
petition because it could not materially affect the result of the election. We
need not go into that because the question is purely academic in this case. The
allegation about the minor corrupt practice does not stand by itself. There are
also allegations about major corrupt practices which require investigation and
the minor corrupt practices alleged are reasonably connected with them. Section
143 of the Act is a complete answer to the question of the Tribunal's
jurisdiction on this point when it is properly seised of the trial of an
election petition on other grounds. Whether it could be properly seised of such
a trial if this had been the only allegation, or if the minor corrupt practice
alleged was not reasonably connected with the other allegations about major
corrupt practices, does not therefore arise. As the trial is proceeding on the
other matters the Tribunal is bound under section 143, now that the issue has
been raised, also to enquire into the question of the falsity of the return.
Without such an enquiry it cannot reach the finding which section 143
contemplates. We need not look into the other sections which were touched upon
in the arguments and in the Courts below because section 143 is clear and
confers the requisite jurisdiction when a trial is properly in progress.
The appellant has failed on every question of
substance that she raised. There was some vagueness in the Election Tribunal's
order about which of the two returns formed the basis of the enquiry on this
point but even if the Tribunal intended to treat the first return as the basis,
that did not really affect the substance because exactly the same allegations
are made about the second return and the issue of fact would therefore have to
be tried in any event. The appel457 lant's whole endeavour was to circumvent
such an enquiry and oust the Tribunal's jurisdiction. In that she has failed,
so she will pay the contesting respondent's costs throughout.
The appeal fails and is dismissed with costs
all through.
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