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PETITIONER: SUCHETA KRIPALANI

       Vs.

RESPONDENT: SHRI S. S. DULAT, I.C.S., CHAIRMAN OF THE ELECTION TRIBUNAL,

DATE OF JUDGMENT: 06/09/1955

BENCH: BOSE, VIVIAN BENCH: 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 unsuccess ful 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-Bepresentation 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 thereunder 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 lawful seisin 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

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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

JUDGMENT:   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  appel- lant  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

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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 cognisance 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

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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

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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  open so that she can come here  again  and  re- agitate   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 appel- 457 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.