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SUPREME COURT OF INDIA
J.C. SHAH, K.S. HEGDE AND A.N. GROVER, JJ.
D. P. Mishra, Appellant
Versus
Kamal Narayan Sharma and another, Respondents.
Civil Appeal No. 1738 of 1969, D/- 13-3-1970.
(2) Limitation Act, 1963 - Ss. 4, 12 & 29 (2) - provisions of sections 4 & 12 apply to appeals under section 116-A of the Representation of the People Act, 1951.
The judgment of the Election Tribunal was delivered on December 28, 1966. A certified copy of the judgment of the Tribunal was supplied to the appellant on April 27, 1967. The High Court was closed for summer recess between May 7, 1967 and June 30, 1967 and the memorandum of appeal was lodged on July 1, 1967.
Held: There is no provision in the Representation of the People Act, 1951, which excludes the application of section 4 of the Limitation Act. Computing the time taken for supplying the certified copies, the period of limitation expired during the summer recess, and the memorandum of appeal was lodged in the Court on July 1, 1967. By virtue of section 29 (2) of the Limitation Act, sections 4 and 12 thereof apply. As the appeal was filed on the date on which the Court reopened after the recess it would he regarded as within time as the period of limitation, taking into account the time requisite for obtaining a certified copy, had expired during the course of the recess. (1964) 6 SCR 129 relied on. 1970 JLJ 342 confirmed. [Paras 4 to 7
(3) Representation of the People Act, 1951 - Ss. 123, 83 & 100 - election petition alleging corrupt practice - mode of proof - benefit of doubt.
In an election petition a corrupt practice may be proved only by evidence which establishes the case beyond reasonable doubt. But in giving benefit of doubt the Court has to reach a judicial conclusion it cannot vacilate. [Para 15
(4) Representation of the People Act, 1951 - Ss.83 (3) & 90 (5) - amendment in election petitions - when may be allowed.
The Tribunal had no power to allow any amendment of the petition so as to supply or introduce particulars of a corrupt practice not alleged in the petition. But the particulars of the corrupt practice alleged in the petition may in appropriate cases be permitted to be introduced by amendment. 1970 JLJ 342 confirmed. [Para 17
(5) Representation of the People Act, 1951 - Ss.77 & 78 - account of the expenditure by a candidate and the filing of the account - account required to be maintained not produced - presumption.
Section 77 of the Act requires the candidate at an election to keep a correct account of all expenditure. Section 78 enjoins a duty upon the candidate to file a true copy of the account kept by him. Where a candidate against whom an election petition is filed, does not produce the accounts from which the statement of election expenses under section 78 is filed, presumption may be drawn against him. [Paras 21 & 32
(6) Representation of the People Act, 1951 - Ss. 123 (6), 100 (1) (b) & 77 - expenditure exceeding permitted limit - is a corrupt practice - election is void.
Where a candidate spends an amount exceeding permissible under section 77 of the Act, he is guilty of a corrupt practice under section 123 (6) of the Act and his election is void under section 100 (1) (b) of the Act. [Para 34
(7) Representation of the People Act, 1951 - S.77 - money deposited with the Congress Committee for party ticket - ticket given - date of expenditure is not the date when the money was deposited but when the ticket was given.
The candidate deposited Rs. 500/- with the Congress Committee for obtaining the party ticket. This amount was refundable if the party ticket was not granted. Though the amount was deposited before the notification for election, the party ticket was granted after the notification.
Held: The expenditure is incurred on the date when the party ticket was granted and not on the date the deposit was made, Thus it was incurred within the period prescribed by section 77 of the Act and was liable to be included in the statement of expenditure incurred for the purpose of the election 1970 JLJ 395 confirmed. (Paras 28 & 29
(8) Representation of the People Act, 1951 - S.99 - naming of the person found to be guilty of corrupt practice - It is the duty of the Court - Court has no discretion not to name him.
Under section 99 of the Act the Court has no discretion in the matter, if the Court was of the view that any person who is proved at the trial to have been guilty of any corrupt practice, not to name that person.
The duty under the Act is cast upon the Court and on the ground that the party has not applied for a notice, the Court could not avoid the obligation imposed by statute to take proceeding under section 99 against the person proved at the trial to have been guilty of corrupt practice and to name him. [Para 37
The limitation period under the Limitation Act, 1963, for suits based on fraud or mistake commences from the date of the plaintiff's knowledge of such fraud or mistake, as provided under Section 17(1). This "date of knowledge" is determined objectively, when facts constituting the fraud or mistake come to the plaintiff's notice, either actually or constructively. (!) (!) (!)
Where the right to sue accrues upon knowledge of certain facts (e.g., under Article 113 for residual suits), the period runs from the date the plaintiff has notice of the cause of action. (!) (!)
Acknowledgment of liability under Section 18 extends or restarts the limitation period from the date of such acknowledgment, provided it is in writing and signed. (!) (!)
Judgment
SHAH, J.: At an election held in June 1963 for electing a member from the Kasdol Constituency in the State of Madhya Pradesh, D. P. Mishra who stood as a candidate on the Congress ticket was declared elected. The rival candidate Kamal Narayan Sharma filed a petition for setting aside the election of Mishra on the ground that the latter was guilty of corrupt practices in that he offered to bribe Sharma, by offering through his agent Dr. Ausaf Hussain to pay him a sum of Rupees 50,000/- as inducement for withdrawing from the contest and thereby committed a corrupt practice defined in S. 123 (1) of the Representation of the People Act, 1951; that Mishra published on April 12, 1963, April 26, 1963 and May 4, 1963 in a Hindi newspaper Mahakoshal edited, published and printed by Shyamacharan Shukla (who was engaged as an authorised agent by Mishra to conduct election campaign on his behalf) statements of facts which were false and which they believed to be false or did not believe to be true, in relation to personal character and conduct of Sharma and in relation to his candidature, such statements being reasonably calculated to prejudice the prospects of Sharma s election and thereby committed corrupt practice defined in S. 123 (4) of the Representation of the People Act, 1951; that Mishra through his agents and workers hired or procured on payment or otherwise motor-vehicles and bullock-carts for conveying electors to the polling stations in the constituency and thereby committed a corrupt practice defined in section 123 (5) of the Representation of the People Act, 1951; and that he incurred and authorised, in contravention of S. 77 of the Representation of the People Act, 1951, expenditure in excess of the amount prescribed, and thereby committed a corrupt practice as defined in S. 123 (6) of the Representation of the People Act, 1951. Mishra denied the allegations in support of the plea of corrupt practices alleged to be committed by him. The Election Tribunal substantially negatived the allegations of corrupt practices and by order dated December 28, 1966 dismissed the petition.
2. In appeal under S. 116A of the Representation of the People Act, 1951, against the order passed by the Tribunal, the High Court of Madhya Pradesh set aside the order and declared that the election of Mishra was void under S. 100 (1) (b) of the Representation of the People Act, 1951, for, it was proved that Mishra had incurred or authorised expenditure of an amount of Rs. 7, 249-72 which was in excess of the permissible limit, and the expenditure being in contravention of S. 77 of the Act, Mishra was guilty of a corrupt practice within the meaning of S. 123 (6) of the Act. Against the order passed by the High Court, this appeal has been preferred with special leave.
3. Counsel for Mishra contended that (1) the appeal to the High Court was barred by the law of limitation and accordingly the High Court had no power to entertain and decide the appeal; (2) the High Court was not justified in allowing the particulars of the corrupt practices set up in the petition to be modified and to allow the petition to be amended at the stage of the hearing of the appeal and in recording evidence in support of the fresh corrupt practices so set up; and (3) that the evidence does not justify the finding the finding that any corrupt practice was committed by Mishra as found by the High Court.
4. The judgment of the Election Tribunal was delivered on December 28, 1966. A certified copy of the judgment of the Tribunal was supplied to the appellant Sharma on April 27, 1967. The High Court was closed for the summer recess between May 7, 1967 and June 30, 1967 and the memorandum of appeal was lodged in the office of the Registrar of the High Court on July 1, 1967. Section 116A of the Representation of the People Act, as it then stood, provided, insofar as it is relevant:
(1) An appeal shall lie from every order made by a Tribunal under Section 98 or section 99 t
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