15 September 1955
Supreme Court


Case number: Appeal (civil) 21 of 1955






DATE OF JUDGMENT: 15/09/1955


CITATION:  1955 AIR  830            1955 SCR  (2) 457

ACT:   Election  Dispute-Election petition - Contents alleged  to be  vague and wanting in  particulars-Maintainability-Naming of persons for disqualification-Recommendationf or exemption from  disqualification-Notice-Jurisdiction of the  Tribunal- The  Representation of the People Act (XLIII of  1951),  ss. 83, 99(1)(a) proviso.

HEADNOTE:   Where  the  respondent in an election  petition  contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which  it  was open to him to do and was not found  to  have been misled or in any way prejudiced in his defence, it  was not  open to him to contend that the petition was liable  to be dismissed for non-compliance with the provisions of s. 83 of the Act. Clauses  (a)  and  (b)  of  the proviso  to  s.  99  of  the Representation  of  the People Act read  together  leave  no scope for doubt that clause (a) contemplates notice only  to such  persons as were not parties to the  election  petition and  it is, therefore, not obligatory on the Tribunal  under cl. (a) to issue notices on such persons as were parties  in order that it may name them for disqualification under  sub- clause  (ii) of S. 99(1)(a) of the Act.  Clause (b)  to  the proviso  obviously has the effect of excluding such  persons as  have  already  had the  opportunity  of  cross-examining witnesses,  calling evidence and of being heard,  which  the clause seeks to afford. The   Indian  and  the  English  Law  on  the   matter   are substantially the same.  Kesho  Ram v. Hazura Singh, [1953] 8 Election  Law  Reports 320, overruled.  The jurisdiction that sub-clause (ii) of s. 99(1)(a) of the Act  confers on the Tribunal for making  recommendation  for exemption 458 from disqualifications mentioned in ss. 141 to 143 is purely advisory.   Where it omits to do so, aggrieved parties  have access to the Election Commission which under s. 144 has the power  to  act  suo motu.  No person, be he  a  party  or  a stranger,  has  a right to be heard by the Tribunal  on  the



question  of such exemption and, therefore, no  question  of any  service of notice under the proviso in this regard  can arise.  Even supposing that the proviso requires notice on a  party to the election petition, the notice to him of the  election petition  itself  can  be  treated as  a  notice  under  the proviso.

JUDGMENT:    CIVIL  APPELLATE  JURISDICTION: Civil Appeal  No.  21  of 1955.  Appeal  under   Article 133(1)(c) of  the  Constitution  of India against the Judgment and Order dated the 12th  January 1954  of  the Pepsu High Court in Civil Misc.   No.  182  of 1953. M.   C.  Setalvad, Attorney-General of India, Veda Vyas  and Jagannath   Kaushal,   (Naunit  Lal,  with   them),for   the appellant.  The respondents did not appear. 1955.   September  15.   The  Judgment  of  the  Court   was delivered by VENKATARAMA  AYYAR  J.-The  appellant was  a  candidate  for election  to the Legislative Assembly of the State of  PEPSU from the Dhuri Constituency, and having secured the  largest number  of  votes  was declared  duly  elected.   The  first respondent  who is one of the electors in  the  Constituency filed  the petition out of which the present appeal  arises, for  setting aside the election on the grounds, inter  alia, (1)  that the nomination of one Mali Singh had been  wrongly rejected  by  the returning officer, and (2)  that  the  ap- pellant was guilty of the corrupt practice of bribery.   The Tribunal  held  that both these grounds were made  out,  and accordingly  set aside the election.  It further recorded  a finding in terms of section 99 (1) (a) of the Representation of  the People Act No. XLIII of 1951 that the appellant  was proved to have committed the corrupt practice of bribery  as mentioned  in  section  123(1) of the  Act.   The  Appellant thereupon filed in the High Court of Patiala and East Punjab States 450 Union an application under Article 227 attacking the finding of the Tribunal that he was guilty of bribery.  The order of the Tribunal in so far as it set aside his election was  not challenged.  By order dated 12-1-1954 the High Court  upheld the findings of the Tribunal, and dismissed the application, and by order dated 7-6-1954 granted a certificate for appeal to  this  Court under Article 133(1)(c).  That  is  how  the appeal comes before us.  On  behalf  of the appellant, the  learned  AttorneyGeneral raised  two contentions: (1) The finding that the  appellant was  guilty  of  bribery was reached  in  disregard  of  the mandatory provisions of section 83, and that it was  besides open to other legal objections; and (2) the finding recorded under  section 99 of the Act was bad, because no notice  was given  to the appellant, and no enquiry held as required  by the proviso to section 99.  This point was not taken in’ the application  under Article 227, and was sought to be  raised at  the  time  of the argument in the High  Court;  but  the learned Judges declined to entertain it. (1)  On  the first question, the complaint of the  appellant is that in the election petition the allegations relating to bribery were vague and wanting in particulars, and that  the petition  should  accordingly  have  been  dismissed   under



sections  83  and 85 of the Act; that the  charge  that  was sought to be proved at the hearing was at variance with  the charge as alleged in the petition, and that the Tribunal had erred in giving a finding of bribery on the basis not of the allegations  in the petition but of the evidence adduced  at the trial.  The allegations in the petition relating to this charge are as follows:  "The  sweepers  of Small Town Committee,  Dhuri  were  each granted  good work allowance at Rs. 5 p.m. for three  months only  during Election days, simply because they happened  to be  voters  in  the  said  Constituency,  vide  letter   No. ST/1(4)/52/20702  dated  7th December, 1951.  All  this  was done to induce these sweepers to vote for the respondent No. 1, The allowance was against the Rules", 460 The reply of the appellant to this charge was as follows:   "The sweepers of Small Town Committee represented to me in writing  that their pays should be increased, and they  also quoted  the  pays  that the employees of  other  Small  Town Committees  and  Municipal  Committees  were  getting.   The representation  was  forwarded  to  the  Secretariat.    The Secretariat  examined  it on merits,  passed  legal  orders. Such  concessions were also shown to other employees of  the various  Small Town Committees and Municipal  Committees  in Pepsu before and after this case.  This was an official  act done  in the routine and not to induce the sweepers to  vote for respondent No. 1". On these averments, the following issue was framed:  "5.  Whether the sweepers of Small Town  Committee,  Dhuri, were  granted  good work allowance at Rs. 5 p.m.  for  three months only during the election days in order to induce them to vote for the Respondent No. 1?"  At  the trial, the petitioner examined the Darogba  of  the Small Town Committee (P.W. 28), and five sweepers, P.Ws. 12, 13,  14, 39 and 40, and their evidence was that sometime  in November  1951 the appellant came to Dhuri,  enquired  about the number of sweepers in the service of the Committee,  and offered to raise their pay if they would vote for him,  that the  sweepers  thereupon held a meeting and  considered  the suggestion  of the appellant, and then decided to  vote  for him,  if the pay was increased.  It must be stated that  the appellant was then Minister for Health, and was in charge of Local Administration.  On 28-11-1951 he passed an order on a memorial  sent  by  the sweepers that  their  pay  would  be increased  by Rs. 5 per mensem.  Objection to the order  was taken by the Department, and thereupon, the appellant passed the  modified  order  dated  7-12-1951  granting  good  work allowance for a period of three months from December 1951 to February  1952.  The Tribunal accepted the evidence  on  the side  of  the  petitioner  that  the  appellant  offered  to increase  the salary of the sweepers in 1951, and held  that the order dated 461 7-12-1951,  granting  good work allowance for  the  election period  was the outcome of the bargain come to  in  November 1951, and that the charge of bribery had been established. It is contended for the appellant that in the petition there was  no  mention  of the bargain on  which  the  finding  of bribery  by the Tribunal was based, that the charge  in  the petition related only to the order dated 7-12-1951, and that accordingly  it  was not open to the  petitioner  to  travel beyond  the  petition  and adduce evidence  in  proof  of  a bargain  which  had not been pleaded.  This is  to  put  too technical  and narrow a construction on the averments.   The



charge in the petition was not merely that the appellant had passed  the order dated 7-12-1951 but that he had passed  it with  a view to induce the sweepers to vote for  him.   That clearly  raised the question as to the  circumstances  under which  the  order came to be passed, whether it was  in  the course  of  official routine as the  appellant  pleaded,  or under  circumstances which were calculated to influence  the voters.   Issue  5  put the matter  beyond  doubt,  when  it pointedly  raised  the question whether the grant  was  "for three  months  only  during the election days  in  order  to induce  them (the sweepers) to vote for the  respondent  No. I".   Under  the  circumstances,  the  complaint  that   the evidence  and the finding as to the bargain went beyond  the pleadings  and should be ignored appears to be  without  any substance.   It may be that the allegations in the  petition are  not  as  full  as they might  have  been;  but  if  the appellant  was  really embarrassed by the vagueness  of  the charge,  it was open to him to have called for  particulars; but  he did not do so.  At the trial, the  petitioner  first adduced evidence, and his witnesses spoke to the bargain  in November,  1951.   It is stated on behalf of  the  appellant that  he  objected to the reception of the evidence  on  the question  of  bargain, as it was not pleaded.  But  this  is denied by the petitioner in his affidavit filed in the  High Court dated 3-12-1953.  Even apart from this, the  witnesses on  behalf of the petitioner gave evidence on this point  on the 8th and 11th 462 November,  15th  and  16th December, 1952, and  on  the  2nd February, 1953.  Then the appellant entered on his  defence. On 26-2-1951 he examined R.W. 4, a member of the Small  Town Committee,  to  rebut  the  evidence  on  the  side  of  the petitioner, and himself went into the box and deposed to the circumstances  under  which  the order came  to  be  passed. Having  regard  to the above facts, there is and can  be  no complaint  that the appellant was misled, or was  prejudiced by the alleged defect in the pleadings.  The contention that is  urged  for  him is that the petition  should  have  been dismissed  under section 83 for want of  particulars.   This was rightly rejected by the High Court as without force, and we are in agreement with it. It  is next contended that there is no evidence  or  finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in  section 79(2)  at  the  time when the bargain  was  made.   But  the allegation in the petition is clear that the order dated  7- 12-1951 was made with a view "to induce the sweepers to vote for the appellant".  The reply of the appellant to this  was that  the order was made in the course of  official  routine and "not to induce the sweepers to vote" for him.  Far  from there  being  any  specific denial that  the  sweepers  were electors,  the reply of the appellant proceeds on the  basis that  they  were entitle to vote.  This  objection  was  not raised before the Tribunal, and, as pointed out by the  High Court, P.W. 12 does say in his evidence that he is a  voter. This contention must accordingly be overruled.  Nor is there any substance in the contention that there is no proof  that the  appellant was a candidate at the time of ’the  bargain. this  again is an objection which was not taken  before  the Tribunal,  and on the evidence of the witnesses examined  on the  side  of  the  petitioner which  was  accepted  by  the Tribunal, the appellant would be a prospective candidate  as defined  in section 79(b) of the Act.  The finding that  the appellant  is  guilty of bribery is therefore  not  open  to attack.



(2)  It is next contended that the order of the 463 Tribunal  in  so far as it recorded a finding that  the  ap- pellant  had  committed the corrupt  practice  specified  in section  123(1)  is bad, as no notice was given  to  him  as required by the proviso to section 99 and no opportunity  to show cause against it.  Section 99 runs as follows:   "99.  (1) At the time of making an order under section  98 the Tribunal shall also make an order(a) whether any  charge is  made in the petition of any corrupt or illegal  practice having been committed at the election, recording-  (i) a  finding whether any corrupt or illegal practice  has or  has not been proved to have been committed by,  or  with the  connivance  of,  any  candidate or  his  agent  at  the election,  and  the  nature  of  that  corrupt  or   illegal practice; and (ii) the names of all persons, if any, who have been  proved at  the trial to have been guilty of any corrupt or  illegal practice and the nature of that practice, together with  any such  recommendations  as the Tribunal may think  proper  to make  for  the  exemption  of  any  persons  from  any  disq ualifications   which  they  may  have  incurred   in   this connection under sections 141 to 143. Provided  that no person shall be named in the  order  under sub-clause  (ii) of clause (a) unless(a) he has  been  given notice  to appear before the Tribunal and to show cause  why he should not be so named; and (b)  if  he appears in pursuance of the notice, he has  been given an opportunity of cross-examining any witness who  has already  been  examined  by  the  Tribunal,  and  has  given evidence against him, of calling evidence in his defence and of  being  heard The point for decision is  whether  it  was obligatory on the part of the Tribunal to issue notice under the above proviso to parties to the election petition before recording a finding under section 99(1)(a).  The  contention of  the  appellant  is that under section  99  (1)  (a)  the Tribunal has to record the names of all persons 59 464 who  are  proved to have been guilty of corrupt  or  illegal practice,  that  that  would include  both  parties  to  the petition  as well as non-parties, that the proviso  requires that  notice  should be given to all persons who are  to  be named under section 99 (1) (a), subclause (ii), and that the appellant was accordingly entitled to fresh notice under the proviso.  It is argued that if the language of the enactment is  interpreted in its literal and grammatical sense,  there could  be no escape from the conclusion that parties to  the petition are also entitled to notice under the proviso.  But it is a rule of interpretation wellestablished that,  "Where the  language  of  a statute, in its  ordinary  meaning  and grammatical construction, leads to a manifest  contradiction of  the  apparent  purpose  of the  enactment,  or  to  some inconvenience   or   absurdity,   hardship   or   injustice, presumably  not intended, a construction may be put upon  it which  modifies  the  meaning of the  words,  and  even  the structure  of the sentence". (Maxwell’s  -Interpretation  of Statutes,  10th  Edition, page 229).   Reading  the  proviso along with clause (b) thereto, and construing it in its set- ting in the section, we are of opinion that  notwithstanding the wideness of the language used, the proviso  contemplates notice only to persons who are not parties to the petition.   The object of giving notice to a person under the  proviso is obviously to give him an opportunity to be heard before a finding  is given under section 99 (1) (a) (i) that  he  has



committed  a  corrupt  or illegal  practice.   This  clearly appears  from clause (b) of the proviso, which  enacts  that the  person  to whom notice is to be given  should  have  an opportunity   of  crossexamining  witnesses  who  had   been examined  before and given evidence against him, of  calling his own evidence and of being heard.  This is in  accordance with the rule of natural justice which requires that no  one should be condemned without being given an opportunity to be heard.   The  reason of the rule, therefore,  requires  that notice  should be given to persons who had had  no  previous opportunity  in  respect of the matters  mentioned  in  sub- clause (b) to the pro-                       465 viso.   Such  for example would be witnesses,  and  possibly agents of the parties, as observed in Nyalchand Virchand  v. Election  Tribunal(1), though it is not necessary to  decide that  point, but it cannot refer to parties to the  petition who  have had every opportunity of taking part in the  trial and  presenting their case.  Where an election  petition  is founded  on a charge of corrupt practice on the part of  the candidate, that becomes the subject-matter of enquiry in the petition  itself., If at the trial the Tribunal came to  the conelusion  that the charge had been proved, then it has  to hold under section 100(2) (b) that the election is void, and pass an order to that effect under section 98 (d).   Section 99  (1)  enacts that the finding of corrupt  practice  under section  99 (1) (a) (i) or naming a person under section  99 (1) (a) (ii) should be at the time of making an order  under section  98.   If the contention of the appellant is  to  be accepted, then the result will be that even though there was a full trial of the charges set out in the petition, if  the Tribunal  is  disposed to bold them proved it has  first  to give notice of the finding which it proposes to give, to the parties, and hold a fresh trial of the very matters that had been  already tried.  That is an extraordinary  result,  for which   it   is  difficult  to  discover   any   reason   or justification.   It  was  argued by  the  learned  Attorney- "General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the  instance of an accused in a warrant case being given  a further opportunity to recall and cross-examine  prosecution witnesses  after  charge is framed, and of a  civil  servant being  given an opportunity under Article 311 to show  cause against  the action proposed to be taken against him.  In  a warrant  case, the accused is not bound to crossexamine  the prosecution  witnesses before charge is framed, and  in  the case of civil servants, the decision that they are  entitled to  a second opportunity was based on the peculiar  language of  sections 240(2) and (3) of the Government of India  Act, 1935, and Article 311 of the Constitution.  They are (1)  [1953] 8 Election Law Reports 417, 421, 466 exceptional  cases,  and do not furnish any safe  or  useful guidance in the interpretation of section 99.  The  appellant also sought support for his contention  that notice should be given under the proviso even to persons who are  parties to the election petition, in the  provision  in section  99 (1) (a) (ii) that the Tribunal might  make  such recommendations  as  it thinks proper for exemption  of  any persons  from  any  disqualifications which  may  have  been incurred  under sections 141 to 143.  The argument  is  that the disqualifications mentioned in section 143 could only be with  reference to candidates, as they relate to default  in filing  return  of  election expenses  or  in  filing  false returns,  that before the Tribunal could take  action  under



this  provision it would have to give notice to the  persons affected  thereby  who must necessarily be  parties  to  the petition, and that if the proviso applies when action is  to be taken under section 143, there is no reason why it should not  apply  when  action  is to be  taken  under  the  other sections of the Act as well.  The fallacy in this argument is in thinking that notice  to a  person  is requisite for making  a  recommendation  under section  99(1) (a) (ii).  Section 99(1) (a) (ii) deals  with two  distinct matters-naming persons who are proved to  have been   guilty   of  corrupt  and  illegal   practices,   and recommending  whether  there  should  be  any  exemption  in respect  of the disqualifications mentioned in sections  141 to 143, and the proviso, properly construed, requires notice only  in  the former case and not the latter.   It  will  be noticed that while in cases falling within sections 139  and 140  the  disqualification is automatic  and  immutable,  in cases  falling  within  sections 141  to  143  the  Election Commission has power to grant exemption under section 144 of the  Act.  It is to guide the Commission in  exercising  its powers  under section 144, that the Tribunal is directed  in section  99  (1) (a) (ii) to make any  recommendations  with reference  thereto.   The jurisdiction of  the  Tribunal  in respect of this matter is purely advisory.  There is nothing to  prevent  the Commission from taking up the  question  of exemption under section 144 suo motu, even though the 467 Tribunal  has  made  no recommendation.   Indeed,  there  is nothing  to  prevent  the  person  adversely  affected  from applying  directly to the Commission for exemption.   While, therefore,  there is compelling reason why a  person  should have  an  opportunity of showing cause before he  is  named, there   is   none  such  when  the  question   is   one   of recommendation.   As we construe the proviso, it confers  no right  on any person, party or stranger, to be heard on  the question whether he should be recommended for exemption from the  disqualifications  under  sections  141  to  143.   The provision for exemption in section 99 (1) (a) (ii) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.  Reliance  was also placed by the appellant on the  decision of  the Election Tribunal in Kesho Ram v.  Hazura  Singh(1), wherein  it  was held by a majority that  notice  under  the proviso to section 99 should be given to the parties to  the petition also.  For the reasons given above, we do not agree with the decision of the majority.  Our conclusion is that while the persons to be named  under section  99(1)(a)(ii)  would  include both  parties  to  the petition as well as non-parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial,  and  that, therefore, whether  notice  should  issue under  the proviso will depend on whether the person had  an opportunity   to  cross-examine  witnesses  who  had   given evidence  against him and to adduce his own evidence.   This conclusion  is  in accord with the law  in  England.   Under section  140  sub-clause (1) of the  Representation  of  the People  Act,  1949, an election Court has to  state  in  its report  the  names of all persons who are  found  guilty  of corrupt  and illegal practice but "in the case of  some  one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition",  the court has to issue notice to him, give him an opportunity of being (1)  (1953] 8 Election Law Reports 320.



468 heard  by himself, and calling evidence in his defence.   It was  sugested for the appellant that the law as  enacted  in section  99  makes a deliberate departure  from  that  under section  140(1) of the English Act.  The difference  in  the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the  matter,  there  was any intention to  depart  from  the English  law  on  the  subject;  nor  is  there  any  reason therefor.  In  the  present  case, the appellant was a  party  to  the petition, and it was his election that was being  questioned therein.  He had ample opportunity of being heard, and  was, in  fact, heard, and therefore there was no need to issue  a notice  to  him  under  the proviso  to  section  99  before recording a finding under section 99 (1) (a) (ii).  Further, even  if we agree with the contention of the appellant  that notice  under the proviso should be given to a party to  the petition, seeing that the reliefs which could be claimed  in the  election petition under section 84 are those  mentioned in  section 98, and that action under section 99 (1) (a)  is to  be taken at the time when the order under section 98  is pronounced,  there is no insuperable difficulty in  treating the  notice to the party in the election petition as  notice for  purposes of the proviso to section 99(1) (a)  as  well. This reasoning will not apply to persons who are not parties to  the  petition, and a notice to them will,  be  necessary under the proviso, before they axe named.  In the result, all the contentions urged in support of  the appeal  fail,  which must accordingly be rejected.   As  the respondent  has  not appeared to contest the  appeal,  there will be no order as to costs. 469