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SUPREME COURT OF INDIA
15th September 1955
S.R. DAS, ACTG. C.J.I. AND VENKATARAMA AYYAR J.
Tirath Singh, Appellant
Versus
Bachittar Singh and others, Respondents.
Civil Appeal No. 21 of 1955.
Advocates appeared
Mr. M. C. Setalvad, Attorney-General of India Mr. Veda Vyas and Mr. Jagannath Kaushal, Sr. Advocates, (Mr. Naunit Lal, Advocate, with them) for Appellant.
Election petition-Contents thereof alleged to be vague and wanting in particulars-Whether petition maintainable.
The appellant having secured the largest number of votes was declared duly elected to the Legislative Assembly of the State of Pepsu. The first respondent who was one of the electors in the constituency filed a petition for setting aside the election on the grounds, inter alia, (1) that the nomination of one M had been wrongly rejected by the returning officer, and (2) that the appellant was guilty of corrupt practice of bribery. The Tribunal found that both these grounds were made out, and accordingly set aside the election. It further recorded a finding in terms of section 99 (2) (a) of the Representation of the People Act, 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 Pepsu an application under Article 227 attacking the finding of the Tribunal that he was guilty of bribery. The High Court upheld the findings of the Tribunal and dismissed the application.
In appeal before the Supreme Court, two contentions were raised on behalf of the appellant: (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.
Held: (1) The object of giving notice to a person under the proviso to section 99 (1) of the Representation of the People Act, 1951, 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 cross-examining 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 proviso. It cannot refer to parties to the petition who have had every opportunity of taking part in the trial and presenting their case.
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.1
(2) The jurisdiction that sub-clause (ii) of section 99 (1) (a) of the Act confers on the Tribunal for making recommendation for exemption 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.
(3) 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.
Judgement
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 appellant 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 S. 99(1)(a), Representation of the People Act 43 of 1951 that the appellant was proved to have committed the corrupt practice of bribery as mentioned in S. 123(1) of the Act. The Appellant thereupon filed in the High Court of Patiala and East Punjab States Union an application under Art. 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 Art, 133(1)(c). That is how the appeal comes before us.
2. On behalf of the appellant, the learned Attorney-General raised two contentions: (1) The findings that the appellant was guilty of bribery was reached in disregard of the mandatory provisions of S. 83, and that it was besides open to other legal objections; and (2) the findings 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 S. 99. This point was not taken in the application under Art. 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.
3. (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 Ss. 83 and 85 of the Act; that the charge that was sought to be proved it 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 7-12-1951. All this was done to induce these sweepers to vote for the respondent No. 1. The allowance was against the Rules." 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 Committee 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 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 Respondent 1?"
4. At the trial, the petitioner examined the Darogha of the Small Town Committee (P.W. 28),
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