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PETITIONER: JUMUNA PRASAD MUKHARIYA AND OTHERS.

       Vs.

RESPONDENT: LACHHI RAM AND OTHERS.

DATE OF JUDGMENT: 28/09/1954

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN MAHAJAN, MEHAR CHAND (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM

CITATION:  1954 AIR  686            1955 SCR  608  CITATOR INFO :  D          1955 SC 756  (6)  D          1965 SC 183  (26)  RF         1975 SC 349  (29)  RF         1975 SC2299  (140)  R          1980 SC 354  (5)  RF         1990 SC1023  (12)  C          1991 SC2001  (5)

ACT:      Constitution of India, Art. 19(1) (a)-Representation of the  People  Act  (XLIII of 1951). ss.  123(5)  and  124(5)- Whether ultra vires the Constitution.

HEADNOTE:     Held,   that   sections  123(5)  and   124(5)   of   the Representation  of  the People Act (XLIII of 1951)  are  not ultra vires article 19(1) (a) of the Constitution.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 156 of 1954.  Appeals  by  Special Leave against the Judgment  and  Order dated  the  24th December, 1953, of the  Election  Tribunal, Gwalior,  Madhya  Bharat, in Election Petition  No.  263  of 1952.    N.C.  Chatterjee, (S. K. Kapur and Ganpat Rai, with  him) for the appellants.    C.K. Daphtary, Solicitor-General for India (S.  P. Varma, with him) for the respondents Nos.  I and 5.    C.K.  Daphtary, Solicitor-General for India (C.  P.  Lal, with him) for respondent No. 4.   1954.   September  28.   The Judgment of,  the  Court  was delivered by     BOSE  J.-This  is  an  appeal from  a  decision  of  the Election  Tribunal  of Gwalior in which the  petitioner,  an elector, sought to set aside the elections of the appellants (respondents  1  and  2  to  the  petition)  who  were   the successful candidates.  The constituency is Bhilsa, a double

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member constituency in Madhya Bharat.  The petitioner  seems to  have  been  fighting  on  behalf  of  the  6th  and  7th respondents  to the petition because one of his  prayers  is that they be declared to have been duly elected in place ’of the  appellants  (respondents  1  and  2).   The  petitioner succeeded and the Tribunal declared the elections of the two appellants to be void and further declared that the 6th  and 7th respondents had boon duly elected, 609    We  will first consider that part of the  decision  which declares the election of the two appellants to be void.     The  Tribunal  finds,  among  other  things,  that  the’ appellant No. 1 (1st respondent) published certain pamphlets which  contain statements listed as (a), (b), (c), (e),  (f) and  (g)  by the Tribunal.  The Tribunal  holds  that  these statements  are  false  and  that  the  1st  appellant  (1st respondent) did not believe them to be true.  It also  holds that these statements reflect on the personal character  and conduct of the 6th respondent and are reasonably  calculated to prejudice his prospects in the election.  These  findings were  contested and the learned counsel for  the  appellants contended  that the attack was on the public  and  political character of the 6th respondent and was a legitimate attack. We  do  not  intend to examine this as  a  Court  of  appeal because this is a special appeal and all we are concerned to see  is  whether a Tribunal of reasonable and  unbiased  men could judicially reach such a conclusion.  We have had  some of these pamphlets read out to us and we are of opinion that the  conclusion of the Tribunal is one which judicial  minds could  reasonably reach.  We decline to examine  the  matter further  in special appeal.  Under the law the  decision  of the Tribunal is meant to be final.  That does not take  away our  jurisdiction but we will only interfere when  there  is some  glaring  error  which has resulted  in  a  substantial miscarriage  of justice.  On those findings a major  corrupt practice  on the part of the 1st respondent  (1st  appellant here)  under  section 123(5) of the  Representation  of  the People Act, 1951, is established.      The next finding concerns the 2nd respondent (appellant No. 2).  The Tribunal finds that he made a systematic appeal to Chamhar voters to vote for him on the basis of his caste. There  is  evidence to support this finding.   The  leaflets marked N and 0 place that beyond doubt.  This constitutes  a minor corrupt practice under section 124(5) of the Act.      Both  these  provisions,  namely  sections  123(5)  and 124(5),  were challenged as ultra vires article 19(1)(a)  of the Constitution, It was contended that article 245(1) 78 610 prohibits the making of laws which violate the  Constitution and  that the impugned sections interfere with  a  citizen’s fundamental right to freedom of speech.  There is nothing in this  contention.   These  laws  do  not  stop  a  man  from speaking.   They merely prescribe conditions which  must  be observed  if  he wants to enter Parliament.   The  right  to stand as a candidate and contest an election is not a common law right.  It is a special right created by statute and can only  be  exercised  on  the conditions  laid  down  by  the statute.  The Fundamental Rights Chapter has no bearing on a right like this created by statute.  The appellants have  no fundamental right to be elected members of Parliament.   If. they want that they must observe the rules.  If they  prefer to exercise their right of free speech outside these  rules, the impugned sections do not stop them.  We hold that  these sections are intra vires.

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    In addition to these findings, the Tribunal found  that both the appellants committed an illegal practice within the meaning of section 125(3) in that they issued a leaflet  and a poster which did not have the name of the printer on them. This is a pure question of fact.      The  result of committing any corrupt practice is  that the  election  of  the  candidate  is  void  under   section 100(2)(b).  It is not necessary to prove that the result  of the election was materially affected thereby because  clause (b) is an alternative that stands by itself.  All that  need be proved is that a corrupt practice has been committed, and that  the Tribunal finds to be the fact.  The  Tribunal  was accordingly justified in declaring the election of the first appellant to be void.     In addition to this the Tribunal found that the  corrupt practice committed by the second appellant respondent No. 2) also  materially affected the result of the election.   This was  challenged  but we need not go into  that  because  the finding that the second appellant committed a minor  corrupt practice  and also an illegal practice is clear and  so  his case falls under clause (a)   of sub-section (2) of  section 100.    Sub-section  (2)(a),  so  far as  it  is  material  here, runs........................ if the Tribunal is of opinion-                             611     (a)that  the election of a returned candidate  has  been procured  or induced or the result of the election has  been materially affected, by any corrupt or -illegal practice the  Tribunal  shall declare the election  of  the  returned candidate to be void."     The Tribunal finds as a fact that the second appellant’s election  was  procured  by a corrupt  practice.   His  case therefore  falls within the first of the three  alternatives envisaged  by clause (a), so it is not necessary to  enquire whether  it also falls under the third.  We hold  that  this election  was  also  rightly  declared  to  be  void.   That disposes  of the first and second appellants (respondents  1 and 2).     We  now  turn to respondents 6 and 7  to  the  petition. They are the 4th and 5th respondents before us, Ramsahai and Sunnu  La].   The Tribunal, acting under  section  101  (b), declared  them to be duly elected.  Here, we are of  opinion that  the Tribunal was wrong.  Before this can be  done,  it must be proved that    " but for the votes obtained by the returned candidate by corrupt  or  illegal practices......  such  other  candidate would have obtained a majority of the valid votes.  "     The Constituency was a double member constituency.   The following  stood for the General Constituency  and  obtained the votes shown against them:      Jamuna Prasad Mukhariya (Respt. No. 1)   13,669      Keshav Shastri (Respt. No. 3)              1,999      V. N. Sheode (Respt. No. 4)               1,350      Ram Sabai (Respt. No. 6)                 12,750      The Tribunal says that the difference invotes between respondents I and 6 is 919.  We presume that this is meant to show that the voting between them was close.   From that the Tribunal jumps to the following conclusion: "  Considering the scandalous nature of the false  statement regarding respondent No. 6 and the mode 612 of  systematic  appeal  on  the  basis  of  caste  made   by respondent  No. 2 we have no doubt in our  minds  that...... respondent  No. 1 got more votes simply because  of  corrupt practices and if these. corrupt practices had not been there

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respondent No. 6 undoubtedly would have obtained a  majority of valid votes."     This,  in our opinion, is pure speculation and is not  a conclusion which any reasonable mind could judicially  reach on the data set out above.  There is nothing to show why the majority of the 1st respondent’s voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents.     An exactly similar process of reasoning was followed  in the  case of the 7th respondent.  He was a  Scheduled  Caste candidate and the voting there was as follows: Chaturbhuj Jatav (Respt.  No. 2)              12,452 Hira Khusla Chamar (Respt. 5)                   601 Sunnulal                      (Respt. 7)     10,889     Here, again, there is no basis for concluding that those who voted for the 2nd respondent would, if they had not done so, have preferred the 7th respondent to the 5th.     We set aside this part of the order.     The  result  is that the appeal fails in so  far  as  it attacks  the Tribunal’s declaration voiding the election  of the  two  appellants but succeeds against that part  of  the order  which  declares the 6th and 7th respondents  to  have been  elected.  In the circumstances there will be no  order about costs in either Court.                              Order accordingly.                             613