1. It will be necessary for a proper consideration of the arguments advanced in the case to set out in some detail the facts and circumstances which have led up to, and relevant for the disposal of this petition.
The petitioner and the respondents were duly nominated candidates for election to the Mysore State Legislative Assembly from the Tarikere Constituency at the general elections held in this State on 4-1-1952. Respondents 5 to 9 withdrew their candidature within the prescribed time and as a result only the petitioner and respondents 1 to 4 contested the elections. In the elections the petitioner secured 8093 votes as against 8059, 6239, 1644 and 1152 votes obtained by respondents 1 to 4 respectively. The Returning Officer thereupon declared the petitioner as the successful candidate in the election and the said declaration was published in the Mysore Gazette on 11-2-1952 as per the provisions of Section 67, Representation of the People Act, 1951.
The petitioner lodged his election expenses with the necessary declaration with the Returning Officer and the same was published in the Mysore Gazette on 31-3-1952. The petitioner was sworn in as a Member of the Legislative Assembly and thereafter began to discharge his duties as such member.
2. The 1st respondent preferred an election petition to the Election Commission for obtaining a declaration that the election of the petitioner was void and that he himself had been duly elected. It will be pertinent at this stage to mention that in this petition the 1st respondent did not seek for a declaration that the election was wholly void. The said petition was received by the Election Commission on 14-4-1952 and came up for hearing before the Election Tribunal on 25-10-1952.
The 1st Respondent then filed an application under Order 6 Rule 17 C. P. C. before the Election Tribunal for the amendment of the election petition presented by him to the Election Commission in the following manner:
'1. That in the body of his petition, averment have been made (in particular, the aver-merits made in paras 5 and 6 of the petition) to the effect that there has been a violation of the fundamental requirements of the Election Law such that the election itself has been vitiated.
'2. In the prayer para of the petition the petitioner has prayed that the election of the 1st respondent be declared void and as a further relief the petitioner be declared to be duly elected candidate at the election.
'3. In view of the averments made in paras 5 and 6 alternative prayer that the election itself is rendered void is necessary and by inadvertence it is omitted in the prayer para of the petition.
In order to clarify matters, the tribunal may be pleased to permit the petitioner to amend the prayer portion in the following manner, the same being substituted for the present prayer:
'He prays that the election itself be declared void and further prays that if the election itself cannot be declared void and set aside for the violation of the fundamental requirements of the election law, the election of the first respondent be declared void and set aside, the petitioner being declared only elected candidate at the said election'.
The application for amendment was opposed ay the petitioner on the ground that the Tribunal had no jurisdiction to entertain an application such as the one made before it but the Tribunal overruled the objections and directed the amendment to be made.
3. The Tribunal, on the averments in the pleadings, framed as many as 27 issues and, after recording the evidence adduced and hearing the arguments advanced for the parties, pronounced their order on 15-1-1953. The Tribunal in their order unanimously found Issues 2, 3, 4, 7, 8, 9, 10 and 13 in favour of the petitioner but on Issues 1, 5, 6. 11, 12 and 14 they were divided, the majority finding these issues against the petitioner.
It will be useful and even necessary to note down the said issues. They are:
(1) Has there been infringement of the rules relating to the time of commencement of poll by reason of the fact that polling at Booth No. 1 for Ajjampur fixed at Ajjampur to take place at 8 A. M. did not really commence until about half an hour later as alleged in para 4 of the petition?
(5) Did the 1st respondent (Petitioner before us) hire and procure a motor bus which was a service bus running between Tarikere and Hiriyur, belonging to one Ahmed Jan, as alleged in para 1 of the list of particulars and thereby commit the corrupt practice referred to in it?
(6) Did the 1st respondent (petitioner before us) take the assistance of a number of Government servants to further the prospects of his election as alleged in para 2 of the list of particulars? (II) Is the return of election expenses lodged by the 1st respondent (petitioner before us) false in material particulars & has the 1st respondent (petitioner) omitted to include in the return of election Expenses, expenses incurred by him in connection with the election which would easily exceed the sanctioned limit of Rs. 5,000/- as per particulars stated in para 1 of the list of particulars.
(12) Has the election of the 1st respondent (petitioner) been procured and induced by the said corrupt practices with the result that the election has been materially affected?
(14) Would the petitioner (1st respondent) have obtained a majority of votes had it not been for the aforesaid corrupt and illegal practices on the part of the first respondent?
The majority of the members of the Tribunal consisting of Sri. B. R. Ramalingaiah and Sri Mir Iqbal Hussain, on the strength of their findings on these issues, declared the election of the petitioner void and the 1st respondent duly elected while the learned District Judge Sri C. V. Chan-nappa, who was the other Member of the Tribunal, came to a different conclusion and dismissed the petition of the 1st respondent.
The present petition has been filed under Article 226 of the Constitution for the issue of a writ of certiorari or such other writ or direction or order as this Court may deem fit in the circumstances of the case to quash the proceedings of the Election Tribunal.
The petitioner in support of his prayer has urged the following grounds:
(1) The Tribunal had no jurisdiction or at least exceeded its jurisdiction in permitting the 1st respondent to amend his election petition after it was forwarded to the Election Tribunal by the Election Commission.
(2) The petition, both when presented to the Election Commission and when the 1st respondent applied for its amendment, was barred by the law of Limitation. Tile Election Tribunal therefore clearly exceeded its jurisdiction.
(3) The Election Tribunal exceeded its jurisdiction in setting aside the election on the ground that the polling commenced in Municipal Booth No. 776/16, 25 minutes after the time prescribed therefor.
(4) The Tribunal exceeded its jurisdiction and acted perversely in setting aside the election of the petitioner without a clear and definite finding that the 1st respondent had in fact received the majority of the valid votes cast in the election or that but for the votes obtained by the returned-candidate by corrupt and illegal practices the 1st respondent would have obtained a majority of the valid votes.
(5) The findings of the Tribunal that the petitioner committed corrupt practices had been without jurisdiction and even otherwise on mere -speculations and conjectures relating to matters which were not put into issue and therefore perverse. Its findings on these matters therefore amount to errors of jurisdiction and errors apparent on the face of the record.
(6) The finding of the Tribunal that the petitioner lodged a false return of election expenses before the Returning Officer is also without jurisdiction and based on averments which were not put into issue and therefore perverse.
4 The 1st respondent, who was the only respondent that contested this petition, filed no counter-affidavit traversing the contentions of the petitioner.
5. The learned Counsel for respondent 1 relied upon the provisions of Article 329(b) and contended that this petition for the issue of a writ under Article 226 of the Constitution is not maintainable.Article 329(b) reads --
'Notwithstanding anything in this Constitution ...... ............ .............
(b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature'.
6. The contention is that the phrase 'notwithstanding anything in this Constitution' excludes the applicability of the provisions of Article 226 in any manner whatsoever if they in any way call in question any election and that therefore this petition should be dismissed 'in limine'. I am unable to accept this contention for the words seen in Article 329(b) make it quite clear that they can apply only to the limited purpose of calling in question the election to either House of Parliament or to the House of the State Legislature. It can have no application to or bearing on the proceedings after the completion of the elections and a perusal of the words used in Section 74, Representation of the People Act, viz., --.... there shall be notified by the 'appropriateauthority in the Official Gazette, as soon as may be after the date or the last of the dates fixed 'for the completion of the said elections' the names of the members elected for the various Assembly constituencies at the said elections ......'
make it clear that elections are completed before the Election Tribunal is set up. Article 329(b) does not specifically or expressly refer to the proceedings of the Election Tribunal which, as already pointed out, came into being only after the completion of the elections.
The powers conferred on courts by Article 226 are very extensive; there is no proviso to limit its jurisdiction such as the proviso to Article 227 which excludes the superintendence of the High Courts over tribunals relating to Armed Forces. The prayer of the petitioner is for the issue of a writ for quashing the proceedings of the Election Tribunal and not for calling in question the election to the Legislature, the latter of which alone is dealt with under Article 329(b). The issue of a writ as prayed for by the petitioner may and will result in certain consequences just as an adjudication of a successful candidate in an election as an insolvent may and will produce the same or similar consequences. It does not however follow that because of the effect on the result of the elections, the petition for the issue of a writ or the adjudication of the successful candidate as an insolvent, can strictly be said to be petitions which call in question an election to a Legislature.
The view that the provisions of Article 329 should or should not be deemed to be a bar for the issue of a writ has been the subject matter of consideration in several reported decisions viz.. - 'Jamnaprasad Mukhariya v. Lachhiram Ratan-Mal' : AIR1953Mad197 , -- 'Jagdish Chandra v. Prakash Narain' AIR 1953 Vind. P. 51 (B); -- 'Shankar Nanasaheb v. Returning Officer, Kolaba District' : AIR1952Bom277 (C); ' -- 'Hukam Singh v. Sardul Singh' AIR 1953 Pepsu 133 (D); and -- 'Hamirkha Alarkha Hasan v. Returning Officer, Jamnagar' AIR 1954 Sau 1 (E). (Vide also -- 'Shea Kumar v. V. G. Oak' : AIR1953All633 (F). These decisions are clearly opposed to the view put forward on behalf of the respondent.
The learned counsel for the respondent laid special stress on a decision reported in -- 'Ram-krishna v. Daoosing' AIR 1953 Nag 357 (G), inwhich, it is laid down that the High Court has no Jurisdiction to issue writs in a proceeding, like the one before us because of the provisions of Article 329 Clause (b). This decision fully supports the view advanced by the learned counsel for the 1st respondent and as such merits and demands a detailed consideration.
Reference has been made in paragraph 12 of the judgment to cases which lay down the proposition that the process of election begins with, the filing of nomination papers and ends with:, the declaration of the result. Among the many cases referred to in that paragraph, the judgment of the Supreme Court reported in -- 'H. P. Ponnuswami v. The Returning Officer, Namakkal'. : 1SCR218 (H), is one. The same decision has been referred to again in paragraph 14 of the judgment to support the view that the word 'election' cannot be understood in a restricted sense as was done by Mudholkar J., in an unreported decision of the same Court. This judgment of Fazl Ali J., which is also reported ir. -- : 1SCR218 (H)', seems to me to make it clear that an election is completed before it is attacked by means of an election petition. At page 68 the learned Judge observes as follows:
'The question now arises whether the law of election in this country contemplates that there should be two attacks on matters connected with election proceedings, one, while they are going on by involving the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), & another, alter they have been completed by means of an election petition'.
Again at page 69 the learned Judge observes as follows :
'That being so, I think it will be a fair inference from the provisions of the Representation of the People Act to state that the Act provides for only one remedy, that remedy being by the election petition to be presented after the election is over and there is no remedy provided at any intermediate stage.'
The view of the Supreme Court therefore is that an election becomes complete before it is assailed. This pronouncement of the Supreme Court which must be regarded as authoritative, precludes, in my opinion, a consideration of the question whether an election can or cannot be said to be over after the declaration of the result under Section 74, Representation of the People Act.
Again in paragraph 20 of the judgment the view has been expressed that under Section 105, Representation of the People Act an Election Commission must be deemed to adopt the order of the Election Tribunal and in para 22 of the judgment which is the only part of it actually dealing with, the meaning of the word 'Election', the learned Judges expressed the view that an election becomes complete only when the Election Tribunal officially declared the result of the election and that an election continues until such declaration is made.
The learned Judges in paras 23 and 24 of the judgment point out that the object underlying Article 329(b) of the Constitution was to forbid a rival procedure for the decision of an election, dispute and in paragraph 25 of the judgment it is stated that an Election Tribunal is nothing, more than an amanuensis of the Election Commission and therefore its order when adopted' by the Election Commission becomes conclusiveand incapable of being quashed by a writ of the High Court as pointed out by the SupremeCourt in -- 'Election Commission, India v. Saka Venkata Rao' : 4SCR1144 (I).
7. It is thus clear that while the High Court has addressed itself to consider the meaning or the word 'election' which had been clearly interpreted by Fazl All J., the two principal reasons which influenced their decision that an election continues until the Election Tribunal pronounces its order under Section 98, Representation of the People Act were:
(a) That in the view of the High Court an Election Commission adopts the order of the Election Tribunal which is only an amanuensis of the Election Commission; and
(b) that the Election Tribunal when it makes an order under Section 93 of the Representation of the People Act finally declares the result of an election.
I find it difficult to accept or agree with either of the two reasons.
In the first place the Election Commission (under Section 86(1), Representation of the People Act only appoints the Election Tribunal and under Section 106 of the Election Commission only forwards copies of the orders of the Election Tribunal to the authorities specified in that section and also causes the publication of the order in the Gazette. Nowhere does the Act state that an Election Commission adopts the order of the Election Tribunal or that the Election Tribunal is only an amanuensis of the Election Commission.
On the contrary, the scheme of Chapter 3 of the Act indicates that the order of the Election Tribunal continues to be only its order at every stage and does not become transformed into an order of the Election Commission. This seems to follow from a perusal of the following sections of the Representation of the People Act:
(a) Under Section 86, the Election Commission appoints the Election Tribunal;
(b) Under Section 86 the place of the trial is selected by the Election Commission, but the Tribunal has the discretion to sit at any other place in the State;
(c) Section 90 prescribes the procedure to beadopted by the Tribunal; (d) Section 91 provides for the appearance ofa party by a pleader;
(e) Section 92 enumerates the powers of the Tribunal;
(f) Sections 93 94 and 95 lay down special rules of evidence;
(g) Section 87 provides for a recriminatory case at the instance oi a returned candidate;
(h) Sections 98 and 99 mention the orders which a Tribunal could make at the conclusion of the trial;
(i) Section 102 prescribed the procedure to be adopted in case of equality of votes;
(j) Section 103 provides for the communication of the orders of the Tribunal to Election Commission. and for the transmission of the records of the case to the District Judge;
(k) Section 104 provides that in the event of a difference of opinion among the members of the Tribunal the opinion of the majority should prevail;
(l) Section 105 declares every order of the Tribunal to be final and conclusive; and
(m) Finally Section 107 provides that an order of the Tribunal shall not take effect until it is published in the Gazette of India under Section 106.
It is therefore clear that the Election Tribunal is the exclusive authority appointed for the decision of the dispute and for making an order on the election petition. The provisions of 8s. 105 and 107 of the Act, which do not appear to have received adequate consideration, show that the order which is final and conclusive and the order which takes effect after the publication in the Gazette of' India is the order of the Tribunal and not the order of the Election Commission.
8. The second reason advanced for holding that an election continues until the Tribunal makes its final order also seems to me unacceptable for the following reasons :
(a) The attention of the Judges does not appear to have been drawn to the words 'after the date or the last of the date fixed for the 'completion' of the said election' appearing in Section 74 of the Representation of the People Act. It has also not been pointed to them that the word 'elected' is used in the past tense when providing for the notification in the official Gazette of the results of the election.
(b) Likewise the importance of the word 'After the elections held in pursuance of the 'notifications' occurring in Section 71 72 73 74 and 75 of the Act does not seem to have been pointed out to them.
(c) Similarly attention of the Court does not seem to have been drawn to the fact that Part 5 of the Act deals with the conduct of the elections and Part 6 deals only with disputes regarding elections.
(d) Attention does not appear to have been drawn to the importance of the phraseology of Article 324 of the Constitution, which shows that an election is something different from a dispute or doubt arising out of or in connection with an election.
(e) No attention seems to have been invited to the fact that an Election Tribunal does not conduct an election and that when it makes an order under Section 98 its order does not declare the result of an election, but only decides a dispute arising out of it. This becomes clear when one examines the result that follows when the entire election is declared void; in such an event a re-election has to be ordered and no one can suggest that when the Tribunal declares an election void under Section 100(1), Representation of the People Act it finally declares the result of an election.
9. It therefore appears to me that the decision, with great respect to the Judges who decided the same, runs counter to the observations in the judgment of Fazl Ali J. and also to the provisions of the Representation of the People Act and the Constitution.
10. The learned counsel for respondent 1 next relied upon the provisions of Rule 105 of the Representation of the People Act in support of his proposition that this petition is not maintainable. That section reads :
'Every order of the Tribunal made under this Act shall be final and conclusive.'
The argument or the learned counsel is that because of the words in the section -- 'Every order of the Tribunal made under this Act shall be final and conclusive' it follows that the jurisdiction of the Courts to issue writs is ousted. I am unable to accept this view.
It cannot be disputed that the provisions of the Constitution must prevail over the provisions of the Representation of the People Act. Further, it was admitted by the counsel for the parties that in a similar matter special leave to Appeal under the provisions of Article 136 of the Constitution has been granted by the Supreme Court. The grant of special leave to appear under Article 136 of the Constitution seems to negative the contention of the learned counsel for the respondent that the provisions of Article 329(b) of the Constitution and Section 105 of the Representation of the People Act bar the application for relief under Article 226 of the Constitution.
11. The learned counsel for the respondent urged that the Election Commission is a necessary party to the petition and The failure to implead the Commission is fatal to the case of the petitioner. His argument is that no purpose would be served by the issue of a writ when the Election Commission is not before the Court and have had no chance of putting forth their pleas for the consideration of this court.
He next argued on the strength of the case reported in : 4SCR1144 (I) that even if the Election Commission had been made a party no writ could be issued to the Election Commission.
He submitted that the Election Tribunal has become functus office and as such no writ could be issued to the Tribunal.
I am unable to accept any of these contentions. The decision referred to by the learned counsel 'Saka Venkatarao's case (I)', does not appear to me to be apposite for that was a case where a writ was sought against the Election Commission to prevent the Governor from performing the duties enjoined on him under Article 192(2) of the Constitution which reads as follows :
'192(2)-- Before giving any decision on any question whether a member of a House of the Legislature of a State has become subject to any of the disqualifications mentioned in clause (1) of Article 191, the Governor shall obtain the opinion of the Election Commission and shall act according to such opinion.'
The duty is enjoined on the Governor to obtain the opinion of the Election Commission and the Election Commission in furnishing its opinion to the Governor cannot be deemed to be doing any act or performing any duty or functioning within the jurisdiction of the Madras High Court. The facts in that case are entirely different and have no bearing or similarity to the facts of the case before us. The Election Commission in the case before us has to perform certain duties within the jurisdiction of this Court, such as for instance the publication of the order of ths Election Tribunal in the Mysore Gazette. This point has besides been covered by a decision of this Court in -- 'Bangalore Woollen, Cotton and Silk Mills Co. Ltd. v. Labour Appellate Tribunal of India' AIR 1953 Mys 59 (J).
The contention that the Election Tribunal has become functus officio and that as such it cannot be made a party, even if accepted, does not in my opinion in any way affect the effectiveness of a writ that may be issued to quash the proceedings of the Election Tribunal. The recordof the proceedings of the Election Tribunal are lodged before the District Judge of the Division in which the election has taken place and are at present before this Court. There does not appear to be any specific provision in the Representation of the People Act to support the view that the Election Tribunal becomes functus officio after the pronouncement of the order. Apart from these considerations, it is noticed that the Election Commission, who had been intimated about the notice of the petition, has not chosen to appear before the Court. The attitude of the Election Commission is -- which apparently appears to be correct -- that it has no interest either to oppose or support the petition.
12. It will be appropriate at this stage to consider the law bearing on the issue of the writ of certiorari.
The learned counsel for respondent 1 submitted that a writ of certiorari is an exceptionally rare writ and should not be invoked lightly. He submitted that a writ of certiorari should not be issued unless there is a total want of jurisdiction in a Tribunal and that want of jurisdiction must be apparent on the face of the record.
He argued that an Election Tribunal is specially created for disposal of all disputes relating to elections and that the High Court should not; in a case like the one before us interfere by means of a writ and quash the proceedings of the Tribunal. He urged that the Election Tribunal was set up for the sole purpose of deter- mining the dispute that had arisen in the election and that as such it cannot by any means be contended that the Election Tribunal had no jurisdiction to determine the disputes that had admittedly arisen between the parties.
In support of this view he referred to the decisions of the Supreme Court as also of some other Courts prior to those decisions.
It was, on the other hand, contended by the learned counsel for the petitioner that the writ of certiorari is by no means so rare and so exceptional, as contended by the learned counsel for the 1st respondent and this court could and Should interfere, to set aside the proceedings of the Election Tribunal if the said Tribunal has Had no jurisdiction to decide any question or exceeded its jurisdiction in deciding any question and also to relieve grave injustice consequent on an error of law or fact apparent on the face of the record.
The law relating to the issue of writ of certiorari can be culled out from the four decisions of the Supreme Court referred to below and it seems to me unnecessary to traverse beyond the decisions of the Supreme Court and to refer to decisions of courts which are subordinate to the said court or to the decisions of the English courts.
The decisions of the Supreme Court, which are brought to my notice relating to the law on the subject are -- (1) -- 'Province of Bombay v. Khushaldas Section Advani' : 1SCR621 (K); (2) -- 'Rai Brij Raj Krishna v. Section K. Shaw & Bros.' : 2SCR145 (L); (3) -- 'G. Veerappa Pillai v. Ram an and Raman Ltd.' : 1SCR583 (M); and (4) -- 'D. N. Banerji v. P. B. Mukherjee' : 4SCR302 (N).
It was held in the first decision referred to above that absence of jurisdiction or excess of jurisdiction would justify the issue of a writ This decision was followed in a decision of our court reported in -- 'J. T. Gopslakrishnan v. H. Section Raja Iyengar' AIR 1953 Mys 8 (O).Justice Fazl All in the second case referred to the observation of Sir James Colville in paragraph 6 of his judgment, via.,
'Accordingly, the authorities .... establish that an adjudication by a Judge having jurisdiction over the subject-matter is, 'if no defects appear on the face of it', to be taken as conclusive of the facts stated therein; and that the Court of Queen's Bench will not on certiorari quash such an adjudication on the ground that any such fact, however essential, has been erroneously found,'
and pointed out that a defect in the impugned order would also Justify the issue of a writ.
The Supreme Court in the third case went a step further and held that the writ could be issued not only when the Tribunal had acted without jurisdiction or in excess of jurisdiction but also when its decision was wrong and contained errors apparent on the face of the record and also when it violated rules of natural justice.
It was indicated In the fourth case that a flagrant violation of law would justify the issue of a writ.
It therefore follows that, apart from questions of jurisdiction, a writ of certiorari can also be issued where a Tribunal has committed mistakes apparent on the face of the record or committed flagrant violation of law. This view is also in consonance with the principles enunciated in English Courts in the following cases, viz. (1) -- 'Rex v. Board of Education', 1910-2 KB 165 at p. 178 (P); (2) -- 'Res v. Northumberland Compensation Appeal Tribunal Ex parte Shaw', 1951-1 KB 711 (Q); and (3) -- 'R. V. Northumberland Compensation Appeal Tribunal Ex parts Shaw' 1952-1 All ER 122 (R).
13. The petitioner's contentions in support of his prayer for the issue of a writ may now be considered. The first contention of the learned counsel for the petitioner is that the Tribunal had no jurisdiction to amend the petition sent to it by the Election Commission. His argument is that the provisions of the Code of Civil Procedure as such and in toto are not made applicable to the proceedings before Election Tribunals and that the Election Tribunal acted without jurisdiction in invoking the provisions of Order 6, Rule 17, to amend the petition sent to it by the Election Commission.
A perusal of the provisions of the Representation of the People Act shows that several provisions of the Code of Civil Procedure have been specifically and expressly embodied in the same.
Section 83(1) relates to the contents of the election petition and lays down that the signing and the verification of election petitions should be done in the manner prescribed in the Civil P. C. of 1903 for the verification of pleadings.
Section 90, relates to the procedure to be followed by the Tribunal in the trial of the election petition. It lays down that the Election Tribunal should try the petition as nearly as may be in accordance with the procedure laid down in the Civil P. C. of 1908 and proceeds to mention the way in which witnesses are to be summoned, etc.
Section 92 relates to the powers of the Tribunal and lays down a limitation to the powers vested in a court under the Civil Procedure Code of 1908 when trying a suit in respect of the following viz.--
(a) discovery and inspection;
(b) enforcing the attendance of witnesses, and requiring the deposit of their expenses;
(c) compelling the production of documents;
(d) examining witnesses on oath; (e) granting adjournments;
(f) reception of evidence taken on affidavits; and
(g) issuing commission for the examination of witnesses, and may summon and examine suo motu any person whose evidence appears to it to be material; and shall be deemed to be a civil court within the meaning of Sections 430 and 482, Criminal P. C., 1898.
The Legislature has thus by implication made it clear that all provisions of the Civil P. C. do not apply to the proceedings before the Election Tribunal. This position will become even more clear if Section 109 which provides for the withdrawal of election petitions and Sections 112 to 116 which deal with the abatement of the election petitions and the substitution of legal representatives of the parties are perused. The Civil P. C. has also provisions relating to abatement, withdrawal and substitution of legal representatives of the parties; but those provisions of the Civil F. C. as such have not been specifically referred to or embodied in the Representation of the People Act, This appears to be very significant. The Legislature has also made it clear what provisions of the Civil P. C. will apply and those provisions have, as already pointed out, been specifically embodied in the Representation of the People Act.
The failure to so embody Order 6 and the rules thereunder and in particular Rule 17 seems to make it clear that the Legislature did not intend the Election Tribunal to make use of the said provision to amend the petition sent to it for disposal by the Election Commission.
This view receives corroboration from Section 83(3) which specifically gives powers to the Election Tribunal 'to allow the particulars included in the said list amended or order such further or better particulars in regard to any matter referred to therein' required to be furnished by the petitioner under Section 83(2). The Legislature which thought it fit to specifically empower the Election Tribunal to amend the list required to be furnished by Section 83(2) would not, and could not be deemed to, have forgotten to specifically empower the Election Tribunal to amend the election petition itself, if actually it intended to, so empower the Election Tribunal. It would, if that was the intention, have referred to and embodied Order 6, Rule 17, Civil P. C. in the Representation of the People Act. The amendment by the Election Tribunal of the election petition sent to it by the Election Commission must therefore be held to be an amendment made without jurisdiction.
The learned counsel for the 1st respondent cited two cases in support of the contention that the Election Tribunal had the power to permit the amendment to the election petition. The first of them is reported in - 'Sitaram Hira chand v. Yograj Singh' : AIR1953Bom293 (St. In this case the Tribunal permitted the verification of the election petition and also the addition of a party. The Bombay High Court was obviously not invited to consider the effects of Section 83(3) under which the only amendment permitted is the amendment of the particulars including the list attached to the election petition.
The second case reported in -- 'A. Section Subbarajv. M. Muthiah' : AIR1954Mad336 (T) does nothelp the respondent because Venkatarama IyerJ., who decided that case, clearly says that thamatter was not free from difficulty and that hewould not decide it. It must be mentioned that even in this case the amendment related only to the verification of the petition.
14. It was urged that if the application for amendment had been rejected and is considered as rejected, the decision of the Tribunal would be, and must on that account be deemed to be, good inasmuch as the amendment related only to the reliefs claimed and not to the substance of the petition. I am unable to accept this view because when the prayer portion in the original petition was substituted as per the amendment, the original petition sent by the Election Commission to the Election Tribunal can no longer be said to be before the Election Tribunal, The mere fact that the new prayer includes the old prayer does not make the amended petition, which the Election Tribunal heard and disposed of, the original petition sent to it by the Election Commission.
15. It was next urged that the Election Tribunal had no jurisdiction to enlarge the time prescribed for the presentation of the Election Petition. Rule 119 of the Representation of the People Act prescribes the period within which an election petition should be presented, viz. :
'not later than 14 days from the date of publication of the notice in the official Gazette under rule 113 that the return of election expenses of such candidate and the declaration made in respect thereof have been lodged with the Returning Officer,'
It is not disputed that the return of election expenses were published in the Mysore Gazette on 31-3-1952 and that the Election Petition reach-en the Election Commission on 14-4-1952, that is to say, after the expiry of the time prescribed for the purpose. This petition was received by the Election Tribunal on 16-7-1952 and the amendment was made on 25-10-1952. There could therefore be no doubt that the amendment of the petition was made long after the time prescribed for the filing of the election petition.
It was contended for the respondent that the presentation of the petition to the Election Commission was not time barred and even if it was time barred the delay must be deemed to have been condoned by the Election Commission when the petition was despatched to the Election Tribunal by the Election Commission. The records do not show any order of the Election Commission extending the period of limitation and condoning the delay in the presentation of the petition. The argument of the learned counsel for the respondent that the forwarding of the petition by itself amounts to condonation of the delay is at best only an inference which is open to very serious doubt and therefore cannot be accepted.
It was argued that the words in Section 9, which relate to the commencement and termination of time, and in Section 10. which relate to the computation of time, of the General Clauses Act make it clear that the presentation of the petition was within time. The relevant words in the rules of the Representation of the People Act relating to the time when an election petition has to by presented have already been extracted above, via. -- 'not later than 14 days', while the relevant words in Section 9 of the General Clauses Act are --'from' and 'to' and in Section 10 the words are 'within the prescribed time'.
The words in Rule 119 of the Representation of the People Act being entirely different from the words found in Sections 9 and 10, it follows that the provisions of Sections 9 and 10 of the General ClausesAct can have no application to the computation) of time for the presentation of an election petition.
This apart, the fact remains that the amendment of the petition was admittedly long after the period of limitation was over and is therefore clearly out of time. The Election Tribunal has not been shown to have the power to extend the period of limitation and must therefore be held to have acted without jurisdiction when, by amending the petition, it enlarged the period prescribed for the presentation of the Election Petition.
16. The learned counsel for the petitioner submitted that the Election Tribunal acted in excess of its jurisdiction in dealing with the allegations of corrupt practice said to have been indulged in by the petitioner.
The three corrupt practices actually found to have been committed by the returned candidate are :
(a) that the petitioner hired and procured a motor bus belonging to one Ahmed Jan as alleged in para 1 of the list of particulars;
(b) that the petitioner took the assistance of a Patel to further the prospects of his election as alleged in part 2 of the annexure; and
(c) that the return of election expenses lodged by the petitioner omitted to include many items of expenditure incurred by him.
17. In regard to corrupt practice (a), the actual allegation made by the 1st respondent is in para 8(a) of his election petition and in part I of the annexure. The allegation is that the petitioner hired and procured a motor bus belonging to one Ahmed Jan for transporting voters to the booths. The allegation made in para 1 of the annexure is that the petitioner 'hired' a bus belonging to one Ahmed Jan for conveying voters from Gowrapur to Sollapur. The issue framed was whether the 1st respondent 'hired and procured' a bus belonging to Ahmed Jan.
In dealing with these matters the Election Tribunal said on page 38 in para. 23' (g) as follows :
'There is no direct evidence on the side of the petitioner to prove that the first respondent hired the said bus for the said purpose'.
Having said that, the Tribunal in clause (b) of that para said as follows at page 40.
'For all these reasons we are led to the conviction that the said Ahmed Jan was acting on the election day as the first respondent's agent and hence the first respondent must be deemed to have procured the bus for the purpose through his agent, the said Ahmed Jan and hence he is liable for this corrupt practice.'
18. In clause (i) of that para at page 40 the Tribunal said as follows :
'Even if the said Ahmed Jan was not an agent ..... the 1st respondent has connived atthese acts of the said Ahmed Jan.'
19. On page 41 in clause (j) of that para, the Tribunal said that sixty passengers were conveyed in the bus of Ahmed Jan and that
'it is reasonable to presume that all these persons must have voted in favour of the first respondent in whom as shown above the said Ahmed Jan was virtually his canvassing agent was interested.'
In that clause of the order the Tribunal concludes as follows, at page 42 :
'If the said Ahmed Jan had not conveyed them in his bus they would not have voted at ail.'
and again on the same page (page 42)--
'In the result on the 5th issue we hold that the 1st respondent did procure the said H. I. H. service bus through Ahmad Jan, his agent, for conveying his voters to and from the polling station at Sollapur as per para 1 of the list of particulars and thereby committed the major corrupt practice referred to in sub-section 6 of Section 125.'
20. The actual corrupt practice alleged by the 1st respondent was the hiring or procuring ef the. bus by the candidate himself. The Tribunal held that the hiring was not established. It then went into the question of a connivance on the part of the petitioner and ultimately made a finding that the bus was procured through Ahmed Jan, his agent. It is undisputed that the petitioner had declared himself his agent. No one alleged that Ahmed Jan was the petitioner's agent and no question of connivance was pleaded.
21. The next corrupt practice relates to issue (6) and to the assistance alleged to have been taken by the petitioner from a Patel for furthering the prospects of his election. This matter is discussed by the Tribunal in para. 24 of its order. The 1st respondent alleged that the petitioner took the assistance of two Government servants. The Tribunal found in clause (b) para 24 of its order that there is no evidence that the service of the officer of the Bhadravathi Iron and Steel Works was taken by the petitioner. But in clause (c) of para 24 it held that he did take assistance of the Patel for furthering the prospects of his election.
The allegations relating to this matter are contained in para. 8(b) of the Election Petition and in para 2 of the annexure. Para 8(b) states that the petitioner took the assistance of Patel Parameswarappa to further the prospects of his election, the particulars of which were stated to have been set out in para 2 of the Annexure.
22. It will be seen from the Annexure that all that has been said about Parameswarappa is that-
(a) he accompanied the petitioner and actively canvassed for votes in several villages;
(b) that he openly canvassed at one polling centre on the polling day;
(c) that he went and sat in the car together with the 1st respondent in a procession held after the election; and
(d) that he gave a dinner to the petitioner.
Allegations (c) and (d) relate to matters which took place after the election, and allegations (a) and (b), even if believed, only establish that Parameswarappa actively canvassed for the petitioner. There is no allegation in para 2 of the Annexure that the petitioner took any assistance from Parameswarappa. The 6th Issue therefore relates to a matter which is not alleged in the annexure.
23. In paragraph 24 (e) (ii), page 44, the Tribunal states as follows :
'We shall first refer to the evidence .... P. W. 30 has not even been cross-examined.'
This shows that Parameswarappa was a member of the K. M. P. Party and did some canvassing for it. This does not amount to the petitioner obtaining his assistance. In para 24(c) (iii) the Tribunal refers to the evidence of P. W. 54 tothe effect that after doing election propaganda on behalf of the petitioner Parameswarappa was moving about in the petitioner's car and distributing hand bills. This allegation is not made either in the petition or in the annexure. The other evidence discussed by the Tribunal relates to matters not alleged in the petition. The finding on this matter is therefore an error apparent on the face of the record.
24. The next corrupt practice alleged against; the petitioner is covered by the 11th issue. The allegations in the petition relating to it are contained in para 8(g) of the petition and para 7 of the annexure.
25 The actual corrupt practice alleged consists of--
(a) the omission to mention the petrol expenses for the canvassing tours;
(b) the omission to include the hiring charges in respect of seven vans said to have been hired by the petitioner; and
(c) the omission to show the dinner expenses and the expenses incurred in the hotel.
26. In para 30 of its order the Tribunal found that a sum of Rs. 1566-11-0 had been omitted from his return of expenses. This sum relates to 6 items set out in page 69. Items 3 to 6 are not alleged in the petition or in the annexure. Part of Item 3 relates to voters. In regard to the hiring of 7 vans the Tribunal has not recorded a finding that any such hiring has been proved. It only refers to seven cars lent to him by his friends and it is held that the money value of the use of such cars including the cost of new types said to have been purchased for some of them and the repairing charges in respect of another should have been shown in the return of expenses. (See pages 53-62, para 29 clause (d) sub-clauses (1 to vii) ).
27. Then with regard to petrol expenses it is not denied he has shown a sum of Rs. 1083-3-0.
The Tribunal has adopted a novel procedure for reaching the conclusion that some petrol expenses are omitted from the return. On page 63 in para 29 (8), the Tribunal points out that between 11-11-51 and 4-1-52 a sum of Rs. 3279-14-0 has been paid to the petrol bunk at Tarikare by the petitioner. The Tribunal makes an arbitrary calculation for making allocations of this sum of money and comes to the conclusion that a sum of Rs. 3250/- has been omitted from the return of expenses/relating to the purchase of petrol. The finding is based on no evidence and rests only on mere speculations, more so because the petitioner, it is admitted, is a merchant who must perforce use cars for the conduct of his trade.
28. In regard to the hotel expenses as pointed out already the allegation is made in the following words:
'The 1st respondent has also not shown the dinner expenses and the expenses incurred in the hotel.'
The discussion relating to this matter is contained at pages 64, 65 and 66 in clause (f) of para 29 of the order. In sub-clause of this clause the Tribunal refers to certain expenses incurred by one Harulappa in the Hotel of P. W. 19 and considers the payments made by and on behalf of Harulappa as the expenses incurred by the petitioner. This Harulapa was himself a candidate.
29. The next item of expenditure referred to by the Tribunal relates to the food supplied to the voters in the hotel of P. W. 38 (vide bottom of page 65). There is no allegation in the election petition that any voters had been entertained by the petitioner. In sub-clause (ID of this para the Tribunal again refers to the Hotel expenses of certain voters. This cannot come within the return.
30. It will be clear from the foregoing that the Election Tribunal acted without jurisdiction in --
1. (a) amending the election petition sent to it by the Election Commission,
(b) hearing and disposing of the amended petition,
(c) extending the period of limitation for thepresentation of the election petition;
2. Acted in excess of its jurisdiction in --
(a) going into mid deciding Questions not definitely pleaded and specifically put into issue, particularly allegations regarding corrupt practices,
(b) setting aside the application of the petitioner without giving a definite finding that the 1st respondent has, as a matter of fact, obtained more valid votes than the petitioner or without the requisite materials for giving a finding that but for the corrupt practices indulged in by the petitioner, the 1st respondent would have secured more valid votes than the petitioner.
3. Committed errors apparent on the face of the record --
(a) in holding that the commencement of polling at Booth No. 1, Ajjampur deprived the 1st respondent of the votes which he might have secured,
(b) that the petitioner obtained the services of a Government servant to further the prospects of his election, and
(c) that the petitioner lodged false return of expenses.
There can be no doubt that these findings which led to the setting aside of the election of the petitioner have caused grave and manifest injustice to the petitioner.
31. We accordingly issue a Writ of Certiorad under Article 226 of the Constitution and quash the proceedings and the order dated 15-1-1653 of the Election Tribunal. The costs of this petition will be paid by the 1st Respondent. Advocate's fee Rs. 200/- only.
32. Writ of Certiorari issued.