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Dwarkadas Balmukunda Salampuriya Vs. Vinaya Kumar - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 208 of 1957
Judge
Reported in(1958)60BOMLR462
AppellantDwarkadas Balmukunda Salampuriya
RespondentVinaya Kumar
DispositionApplication dismissed
Excerpt:
.....raised in the petition made by the applicant. the learned judge of the court below said that the evidence of this person as well as of bhikulal (a. it is open to the court to accept the evidence of a person even though he may have some interest in the litigation, if it is satisfied that his evidence is worthy of credence. shri phadke-however refers to rule 17 of the rules framed under section 176(2)(i) of the act and says that an act like this would fall within clause (a) of that rule. an election can, therefore, be declared void only if it is established that the act complained of falls within the definition of 'corrupt or illegal practices' as contained in the rules......dismissing the applicants' election petition challenging the election of the non-applicant.2. shri phadke who appears for the applicants contends that the non-applicant induced one of the candidates, shri hussain, for the election to the presidentship of the akola municipal committee to withdraw his candidature upon an assurance that he would appoint hussain as vice-president in case the non applicant was elected as president. shri phadke further says that an inducement of this kind amounts to bribery and falls within the definition of corrupt and illegal practices as contained in the rules framed under section 176(2)(i) of that act. he points out that the lower court has held that making an offer of the kind aliened cannot be regarded as bribery at all, and would, therefore, not.....
Judgment:

Mudholkar, J.

1. This is an application for revision under Section 20A(5) of the Central Provinces and Berar Municipalities Act, 1922, of an order of the. First Civil Judge, Class I, Akola dismissing the applicants' election petition challenging the election of the non-applicant.

2. Shri Phadke who appears for the applicants contends that the non-applicant induced one of the candidates, Shri Hussain, for the election to the presidentship of the Akola municipal committee to withdraw his candidature upon an assurance that he would appoint Hussain as vice-president in case the non applicant was elected as president. Shri Phadke further says that an inducement of this kind amounts to bribery and falls within the definition of corrupt and illegal practices as contained in the rules framed under Section 176(2)(i) of that Act. He points out that the lower Court has held that making an offer of the kind aliened cannot be regarded as bribery at all, and would, therefore, not fall within the aforesaid definition.

3. I am not in agreement with the lower Court on this point. However, there is the further fact that according to the lower Court no such offer has at all been established to have been made by the non-applicant to Hussain. In order to prove this allegation the applicant examined three persons as witnesses. Bhikulal Narayandas (A.W. 24), Bhikulal Rupramji (A.W. 25) and Kothal-kar (A.W. 1). It may be mentioned that the last named person was also a candidate for the presidentship, and that having been defeated, he made an application to the Court below for setting aside the election of the non-applicant on grounds more or less identical with those raised in the petition made by the applicant. The learned Judge of the Court below said that the evidence of this person as well as of Bhikulal (A.W. 25) was interested and, therefore, he has not placed any reliance upon their evidence.

4. The learned Judge, therefore considered the evidence of Bhikulal (A.W. 24) alone and after examining it in detail held that it was worthless.

5. Shri Phadke contends that the finding of the learned Judge though one of fact should not be regarded as binding in this revision because he has, in effect, not given any consideration to the evidence of two of the witnesses examined on behalf of the applicant. As I have already pointed out, the learned Judge did have in his mind the evidence given by those witnesses, but on the ground of their being interested witnesses he has chosen to discard it. It is open to a Judge to discard the evidence of any witness or witnesses on the ground that he or they are interested.

6. Shri Phadke then points out that the learned Judge has accepted the evidence of two witnesses examined on behalf of the non-applicant even though they were interested persons. All that can be said is that in the matter of dealing with evidence of witnesses a Court has wide discretion. It is open to the Court to accept the evidence of a person even though he may have some interest in the litigation, if it is satisfied that his evidence is worthy of credence. It is also open to a Court, as already stated, not to accept evidence of a witness on the ground that he has some interest in a party. Where a Court has thus rejected the evidence of some witnesses on the ground that they are interested, or has accepted the evidence of some witnesses even though they are interested, its finding cannot be permitted to be regarded as erroneous in law.

7. The next point argued by Shri Phadke was that the non-applicant having delivered a speech within 24 hours of the holding of the election contravened the provisions of Section 3 of the Madhya Pradesh Local Authorities (Electoral Offences) Act, 1952, (Act XI of 1952) and that for this reason his election should be declared void. A contravention of that section renders a person liable to a fine which may extend to Rs. 250. According to Shri Phadke, contravention of the provision of Section 3 would amount to an illegal practice and, therefore, the election should he set aside. What shall constitute corrupt and illegal practices has been denned in Rule 1 of the rules made under Section 176(2)(n) of the C.P. and Berar Municipalities Act. That definition is as follows:

The following shall be deemed to be corrupt and illegal practices:

(a) Bribery, undue influence and personation as defined in Sections 171B and 171C and 171D of Chapter IXA of the Indian Penal Code, I860

(b) the employment, or connivance at the employment, of any officer or servant of a municipal committee as an agent or for canvassing;

(c) the acting as an agent or canvassing by any officer or servant of a municipal committee.

It will be obvious from this that the contravention of the provisions of Section 3 of Act XI of 1952 is not deemed to be corrupt and illegal practices. Shri Phadke-however refers to Rule 17 of the rules framed under Section 176(2)(i) of the Act and says that an act like this would fall within Clause (a) of that rule. Clauses (a) and (b) of that rule run thus:

17. Save as hereinafter provided in this rule, if, in the opinion of the Judge-

(a) the election or selection of a candidate has been procured or induced or the result of the election or selection has been materially affected, by corrupt or illegal practice; or

any corrupt and illegal practice specified in the rules framed under Section 176, Sub-section (2), Clause (ii,), has been committed by an elected or selected candidate or his agent; or..

the election or selection of the candidate shall be void.

Now the expression corrupt and illegal practices as used in Clause (a) must be given the meaning which has been assigned to it in the definition just quoted. Shri Phadke however says that that will not be proper. He points out that whereas in Clause (b) there is a pointed reference to the definition of corrupt or illegal practice there is no such reference in Clause (a). It is no doubt true that in Clause (b) a specific reference is made to the definition while there is no such reference to it in Clause (a). It is possible that this is, if I may use the expression used by Hallifax A.J.C., a 'curiosity of drafting'. According to Shri Phadke that is not so. He says that the expression corrupt or illegal practice as occurring in Clause (a) was intended to cover all practices which are regarded as corrupt and illegal under the common law, and in this connection refers to pages 402 onwards of Parliamentary Elections and in particular to the case of Rex v. Vaughan (1769) 4 Burr. 2494 cited at page 414. In my opinion, in India there is no scope for importing the common law relating to an election for the reason that whereas elections and election offences were at a certain stage of the constitutional, development in England governed by the common law, that has never been the position in India. A right to be elected a representative or a right to 'elect a representative of a local body or a legislature is purely statutory. Again, in India the right to challenge an election is also a creation of a statute. That being the position, I do not think that it would be correct to import the meaning of corrupt and illegal practices given in the English common law. Apart from that Section 176(2)(ii) provides that the State Government shall provide by rules as to what shall constitute 'corrupt and illegal practices' rendering an election (or selection) void. Such rules have been made by the State Government. An election can, therefore, be declared void only if it is established that the act complained of falls within the definition of 'corrupt or illegal practices' as contained in the rules.

8. Shri Phadke then refers to my decision in Ghanshyam Das v. Supervising Officer Municipal Election Akola Miscellaneous Petition No. 213 of 1955 in which an objection to the election of the non-applicant was taken. While dismissing the petition T held that this particular ground could be raised in an election petition. Of course, the petitioners there were different from those who are applicants here before me. I must confess that upon a further consideration of the matter I am of opinion that the view there taken by me was not correct. In the result, therefore, I hold that there is no substance in the second contention raised by Shri Phadke.

9. Finally, Shri Phadke urged that the Deputy Commissioner, Akola, had fixed May 18, 1955, as the last day for the withdrawal of the nominations and fixed June 10, 1955, as the date of election and that in pursuance of this programme four cut of eleven candidates withdrew on May 18th. He then pointed out that under the rules framed under the Act, the last day for the withdrawal of nomination papers is 17 days prior to the date of election and on that basis the last day for the withdrawal of nomination paper here was May 23, 1955 ; one candidate actually sought to withdraw his nomination paper and was allowed by the Deputy Commissioner to do so on the 23rd. Shri Phadke says that if the four persons who withdrew their nomination papers on May 18th knew or had known that there was still time for them to consider till May 23, 1955, whether to withdraw from the election or not, some of them may not have withdrawn at all and this might have affected the entire election. Shri Phadke's argument is speculative. No one has said that he might have changed his mind had he known that the last date for the withdrawal of nomination papers was May 23, 1955. In the result, I am of opinion that there is no substance in this application. I accordingly dismiss it but make no order as to costs. The amount of security deposited by the applicants shall be refunded to them.


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