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Ganpat Sahai Vs. Rama Shanker and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtAllahabad High Court
Decided On
Case NumberCivil Misc. Writ No. 19 of 1957
Judge
Reported inAIR1957All729
ActsConstitution of India - Article 226; Court-fees Act, 1870; Uttar Pradesh Court-fees (Amendment) Act, 1933 - Sections 2 - Schedule - Article 22; Uttar Pradesh Municipalities Act, 1916 - Sections 25 and 28; ;Uttar Pradesh Municipalities (Amendment) Act, 1951 - Sections 49
AppellantGanpat Sahai
RespondentRama Shanker and ors.
Appellant AdvocateV.P. Misra, ;K.D. Pandey and ;P.N. Duda, Advs.
Respondent AdvocateS.C. Khare, Adv.
DispositionPetition dismissed
Excerpt:
.....- article 226 of constitution of india - deficiency in court fees on election petition - election tribunal had no jurisdiction to give time and make good the deficiency - writ application to set aside decision of election tribunal - court-fees paid was sufficiently stamped. - - an additional court-fee was demand-ed from the opposite party and time was granted by the tribunal to the opposite party to make good the deficiency in the court-fee. it is now contended by the counsel for the petitioner before us that the tribunal was not competent to grant time to the opposite party to make good the deficiency and as the petition when it was presented, to the state government was deficiently stamped there was no proper petition which could be referred to the tribunal for decision...........sultanpur. in the general election held on the 26th of october, 1953. rama shanker, advocate, opposite party no. 1 was the only rival candidate. after the petitioner had been duly declared elected the opposite party filed an election petition challenging the election of the petitioner which was duly referred to the district judge of faizabad for disposal as the election tribunal for the said municipal election. the petitioner filed a reply to the election petition filed by the opposite party. a number of issues were framed by the tribunal. the tribunal by its order dated 20th of december, 1956, allowed the petition, set aside the election of the present petitioner and declared the respondent as duly elected. the decision of the tribunal in favour of the opposite party was based on.....
Judgment:

Mehrotra, J.

1. The petitioner was declared elected as the President of the Municipal Board, Sultanpur. in the general election held on the 26th of October, 1953. Rama Shanker, advocate, opposite party No. 1 was the only rival candidate. After the petitioner had been duly declared elected the opposite party filed an election petition challenging the election of the petitioner which was duly referred to the District Judge of Faizabad for disposal as the election tribunal for the said Municipal election.

The petitioner filed a reply to the election petition filed by the opposite party. A number of issues were framed by the tribunal. The tribunal by its order dated 20th of December, 1956, allowed the petition, set aside the election of the present petitioner and declared the respondent as duly elected. The decision of the tribunal in favour of the opposite party was based on its findings on three main issues, issues Nos. 2, 4(a)and 5(a). The present petition has been filed Under Article 226 of the Constitution for a writ of certiorari quashing the order of the election tri--bunal.

2. The three issues on which the tribunal gave its findings against the present petitioner are as follows:

2:

Whether it was given out in the course of election campaign by the respondent or with his connivance and at his instance by his supporters, workers and agents that the State Government would provide the Municipality of Sultanpur with a sum of about Rs. 5 Sacs for construction of water works and installation of electricity in Sultahpur City which would be a material advantage to the voters as alleged in sub-paras (a), (b), (c) and (d) of the election petition. If so, did it constitute an inducement amounting, to a corrupt practice within the meaning of Section 28 of the U. P. Municipalities Act. Its effect?' Issue No. 4(a):

'Whether a number of Kasai, Chamar, Dhobi and Mehtar voters were treated with wine, tea and other refreshments by the respondent or with his connivance and at his instance, by his supporters, workers and agents alleged in sub-para (f) of para 8 of the election petition. If so, did it constitute an inducement amounting to corrupt practice within the meaning of Section 28 of the U. P. Municipalities Act. Its effect?' Issue No. 5(a): 'Did Rahim Bux and others, the supporters end workers of the respondent in Majorganj II Ward VI, make attempts to procure the giving of votes in the names of voters who were not the persons giving such votes as detailed in sub-para (h) of para 8 of the election petition. If so, did it constitute a corrupt practice within the meaning of Section 28 of the Municipalities Act, Its effect?'

3. The counsel for the petitioner argued on issue No. 2 alone and rightly contended that if we are not in agreement with his contentions regarding issue No. 2, it will not be necessary for him to contend that the findings on other issues are incorrect. If the decision of the tribunal is upheld on any one of these three issues it is enough to dismiss the petition. Two main points, however; were urged by the counsel for the petitioner. One of these points is -in the nature of a preliminary objection to the maintainability of the petition before the tribunal and the second one is regarding the relief of declaration granted to the opposite party.

This petition was originally filed on a court-fee stamp of Re. 1/-. An objection was raised by the present petitioner that the court-fee paid by the opposite party was insufficient. The tribunal decided that issue in favour of the present petitioner. An additional court-fee was demand-ed from the opposite party and time was granted by the tribunal to the opposite party to make good the deficiency in the court-fee. Within the time allowed by the tribunal the additional court-fee was paid.

It is now contended by the counsel for the petitioner before us that the tribunal was not competent to grant time to the opposite party to make good the deficiency and as the petition when it was presented, to the State Government was deficiently stamped there was no proper petition which could be referred to the tribunal for decision. The decision, therefore, was withoutjurisdiction and must be quashed by this Court. In this connection it was also contended, by the petitioner that the tribunal having held that the petition was insufficiently stamped and that decision having become final, as the opposite party did not object to that decision, it is not now open to him to urge before this Court that the court-fee paid was sufficient. In our opinion there is no substance in this, contention.

The petitioner has come to this Court under Article 226 of the Constitution. He has claimed a writ of certiorari and has impugned the order of the tribunal as being without jurisdiction on the ground that the petition which was presented to the State Government was no petition in the eve of law inasmuch, as the court-fee was not , sufficiently paid. It is therefore open to the respondent to contend that the petition which was presented to the State Government was a proper petition and was not deficiently stamped. The decision of the tribunal being in his favour, it was not necessary for him to have come up to this Court against the decision of the tribunal on one issue regarding the amount of court-fee paid.

It is therefore necessary to examine whether the petition as was presented to the State Government was properly stamped or not. Reliance was placed by the petitioner on Article 22 of Schedule II of the U. P. Court-fees Act, 1870, which provides that the election petition questioning the election of any person (a) as a member of a local board other than a notified or town area committee, (b),. as a member of a notified or town area committee shall be stamped with court-fee of Rs. 125/- and Rs. 15/-. Relying upon I this Article it was urged that the court-fee payable was Rs. 125/-. Reliance was placed on Section 49 of the U. P. Municipalities Act which provides that the President of a Board, if he is not already a member of the Board. shall be ex officio member of the Board. Article 22 was added to I the U. P. Court-fees Act by Section 2 of the U. P. Court-fees (Amendment) Act, 1933.

The direct election of the Chairman was introduced in the year 1951 but the Court-fees Act was not amended thereafter. The petitioner contends that as the President by virtue of Section 49 of the Municipalities Act becomes an ex officio member of the Board, when by a petition his election as President is challenged it is questioning the election of a member of a local board. In our opinion the contention is not sound. It may be that as soon as the President is elected he becomes an ex officio member of the Board but the petition which was filed was not a petition questioning the election of any person as a member of a local board. It was a petition questioning the election of the present petitioner as the President of the Municipal Board. Article 22, in our opinion, does not therefore apply to the petition filed by the opposite party in the present case.

In the view which we take it is not necessary to examine the argument of the parties as regards the applicability of Section 6 of the Court fees Act and also the question whether the tribunal had power under Section 149 of the Civil Procedure Code to extend time for the payment of court-fee. The petitioner has contended that Section 6 applied to the present case and the State Government could not receive the petition as it was is sufficiently stamped. The opposite party's counsel had however contended that Section 6 creates a bar to the filing of any document or record in any Court of justice or to the receipt of such a document by any public officer. There is no bar to the receipt of such a document by theState Government. It was also urged by the respondent that Section 149, Civil Procedure Code appliedto the present proceedings and the tribunal hadjurisdiction to extend time.

4. The next point urged by the counsel for the petitioner is that the tribunal' lias acted with, out jurisdiction in declaring the respondent as duly elected in place of the present petitioner. Section 25 of the Municipalities Act provides as follows:

'(1) If the election tribunal, after making such enquiry as it deems necessary, finds in respect of any person whose election is called in question by a petition, that his election was valid, it shall dismiss the petition as against such person and may award costs at its discretion.

(2) If the election tribunal finds that the election of any person was invalid or that the nomination paper of the petitioner was improperly rejected, it shall either-

(a) declare a casual vacancy to have been created, or

(b) declare another candidate to have been duly elected whichever course appears, in the particular circumstances of the case, the more appropriate, and in either case may award costs at its discretion.'

(5) This section gives power to the tribunal to declare another candidate to have been duly elected if, in the particular circumstances of the case, it appears more appropriate to the tribunal. It cannot therefore be contended that the tribunal had no power in this case to grant a relief declaring the respondent as duly elected. Such an exercise of power can be interfered with by this Court only if we come to the conclusion that in the exercise of the power the tribunal had travelled beyond the ambit of the section or that it had been influenced by considerations whichare extraneous to the provisions of this section. Whether the circumstances were sufficient forthe tribunal to grant the relief or not is not amatter which can be examined by this Court inthe exercise of its power under Article 226 of theConstitution. In the order the tribunal haspointed out the following three circumstanceswhich the tribunal considered appropriate forgranting a declaration that the opposite partybe elected:

1. The result of the election for the presidentship of the board was declared on the 27th October, 1953, which was notified some time in November, 1953. Under Section 10-A of the U. P. Municipalities (Amendment) Act, 1954, the term of every board is to Be four years. Under Section 46 of the said Act the term of office of a President elected in a casual vacancy shall commence from the declaration of his election under the Act and shall be the remainder of the term of the board. The unexpired term of the board is now less than one year.

2. The petitioner and the respondent were the only candidates for the presidentship of the board. The petitioner lost the election admittedly only by 51 votes.

3. The provisions relating to the election of a president in a casual vacancy are contained in Section 44-A of the U. P. Municipalities Act, 1916, as substituted by U. P. Act 7 of 1949 which provides that if a casual vacancy occurs in the office of the President owing to his death, resignation or removal fresh election of the President shall be held in the manner prescribed under Sub-section (2) of Section 43, unless the remaining period of the President is less than one year in which case theBoard shall elect its president in such manner as may be prescribed.

6. The tribunal was therefore of opinion that as the unexpired term of the Board wouldnow be less than one year no direct election will take place and consequently the electorates who expressed their choice in favour of the opposite party will now be deprived of their right to express their choice in favour or against the opposite party. The tribunal further held that as the difference between the votes of the rival candidate was only of 51 votes this was also a circumstance which was appropriate for the grant of the relief, it was on these considerations that the tribunal granted a declaration in favour of the respondent, it cannot therefore be said that the tribunal did not apply its mind to the provisions of Section 25.

7. It was however, contended by the counsel for the petitioner that the mere fact that in this case the opposite party cannot go to the electorate cannot be regarded as a circumstance of this case. That is a circumstance which is common to all the petitions disposed of after the amendment of the Municipalities Act had come into force. The fact that this circumstance may be common to many of the petitions which may have been disposed of after the amendment of the Municipalities Act is no ground to reject the contention of the respondent that it is the finding of the tribunal 'that it is a circumstance of this case as well. The additional circumstance which was considered by the tribunal was that the difference of the votes in the present case was only 51. In our opinion it cannot be said that the tribunal has gone beyond the provisions of Section 25 or has been influenced by extraneous considerations in granting the relief to the opposite party.

8. Coming now to the merits of the case, three points have been urged by the counsel for the petitioner as regards the finding of the tribunal on issue No. 2. The allegation on which the present issue No. 2 was framed is contained in paragraph 3 (a) of the petition before the tribunal and is as follows;

'That as soon as the Congress party set up the respondent as a candidate for Presidentship on 22-3-53 it was given out by him and on his behalf by publications of hand-bills and reports in newspapers e.g., the Leader, the Bharat etc., and by means of large scale canvassing that if. he (Sri Ganpat Sahai) was returned, and the respondent was ejected, the Government would provide Rs. 5 lakhs to the Municipality for the construction of water-works and electricity and a campaign was conducted by respondent and on his behalf that material advantage would accrae to the voters, as a result of the success of the respondent, and thereby an inducement was made to voters to vote in favour of the respondent and to refrain from voting in favour of the petitioner, by recourse to fraud and intentional misrepresentation, as no such promise was ever extended by the State Government to provide any money to the Board, in the event of the success of the respondent.'

The allegation was clearly to the effect that a misrepresentation was made on behalf of the present petitioner that a promise had been held out by the State Government that in the event of the success of the petitioner in the election the Government will grant a sum of Rs. 5 lakhs to the Board for its improvement. This propaganda was characterised by the petitioner as a misrepresentation amounting to corrupt practice within the meaning of Section 28 of the Municipalities Act.

According to the opposite party this propaganda was intensified after the speech made by the Chief Minister Pt. Govind Ballabh Pant some time in Sultanpur, although the Chief Minister himself on being questioned subsequently stated that he had never said in his speech that the Government had held out a promise to pay Rs. 5 lakhs to the Board for its improvement in case the present petitioner was elected. The respondent) had alleged that no promise had ever been held out by the State Government and the propaganda was baseless and was consequently a misrepresentation made by the petitioner through his workers. In the written statement which was filed contesting this it was stated as follows:

'Para 8(a) denied. The respondent never gave out, nor were any hand-bills and reports published on his behalf in any newspapers or by means of large scale canvassing that if he were relumed, the Government would provide Rs. 5 lakhs to the Municipality for the construction of water works and electricity. The allegation about the practice of fraud and intentional misrepresentation is a pure concoction of the petitioner's brain.''

In the additional pleas, paragraph 13, it is stated as follows:

'That the petitioner as also Sarvashri Binda Prasad and Ram Saran Saxena had made applications by depositing Rs. 100/- each to the U. P. Congress Parliamentary Board for being adopted as Congress candidates for Presidentship of the Municipal Board, Sultanpur, but their appications were not granted, and instead, the respondent was called upon by Shri Muzaflar Husain to contest the election of President on Congres Party ticket although he (the respondent) had never applied nor had any desire to contest the Municipal elections. The respondent expressed his unwillingness to enter the contest on the ground that he had been the Chairman of the Municipal Board, that he had no desire to be a Chairman again, that the Municipality of Sultanpur was in a rotten condition, that there were no water works or electricity, that it was financially bankrupt, and that even if he succeeded in the election he would not be able to effect any improvement in the existing conditions.Shri Muzaffar Husain, however, told the respondent that the Government had extensive schemes of the Municipal improvement of various places in, contemplation not connected with the forthcoming election in any manner and that that consideration should not stand in the way of the respondent giving his consent to contest the Presidential election of the Sultanpur Municipality on Congress ticket. The respondent in deference to the wishes of Shri Muzaffar Husain consented to contest the election. This was with the sole object of doing some service to his native town in the working out of the Government plan of Municipal improvements.'

9. In substance, therefore, the plea taken by the petitioner regarding this matter was that the petitioner himself or through his workers never made the propaganda which he is alleged to have done and the only circumstance which influenced him to accept the candidature was the wishes of Sri Muzaffar Husain. The petitioner had pointed out to Sri Muzaffar Husain that it was not possible for him to improve the condition of the Municipal Board and on that the only circumstance which was pointed out to himby Sri Muzaffar Husain was that the Government had numerous schemes of improvement of the Municipal Boards and the petitioner therefore should not be dejected and should not think that there were no chances of his improving the condition of the Municipal Board.

It has nowhere been said in the written statement that was considered by the petitioner as a promise on behalf of the State that in case the petitioner was elected the State would give a sum of Rs. 5 lakhs to the petitioner. On the contrary, by putting forward a counter version of the assurance the petitioner has in effect denied the existence of any such promise. Section 28 of the Municipalities Act provides as follows:

'A person shall be deemed to have committed a corrupt practice who, directly or indirectly, by himself or by any other person-

(i) induces, or attempts to induce, by fraud, intentional misrepresentation, coercion or threat of injury any voter to give or to refrain from giving a vote in favour of any candidate.'

The argument of the petitioner is that the facts which have been found by the tribunal do not amount to an intentional misrepresentation, the burden of which lay on the opposite party, and it was for him to have positively proved the fact that there was no such assurance given by the State Government.

The tribunal, according to the petitioner, misdirected itself inasmuch as it has arrived at the finding that there was no such assurance from the mere circumstance that the petitioner had himself denied the existence of any such assurance. The burden of proof has thus been wrongly placed on the petitioner. In our opinion there is no substance in this contention. The tribunal after considering the entire evidence and the circumstances of the case came to the following finding:

'It therefore follows that the propaganda was totally unfounded, was based on misrepresentation which was undoubtedly deliberate. It is thus evident that the respondent himself and through his workers and supporters induced the voters to cast their votes in his favour by intentionally misrepresenting to them that the Government would advance rupees five lacs to the Municipality of Sultanpur in case he was successful in the election for the President of the Board for providing their town with water-works and electricity.'

There was therefore a finding of the tribunal that there was a deliberate false propaganda made on behalf of the petitioner. The petitioner had denied any such propaganda having been done by him or on his behalf. He had on the contrary asserted that he had contradicted this propaganda. As regards the contradiction the finding of the tribunal is that it was only an eye-wash, it was never intended to wash off the effect of the propaganda from the public mind. The contradiction according' to the tribunal was in a halting manner and there is no evidence that wide publicity was given to the contradiction.

If a candidate is found to have made deliberate misrepresentation and if towards the close of the election campaign he even comes out with a vague contradiction, that by itself cannot be considered as sufficient circumstance to rebut the evidence by which the fact is established that the propaganda was intentional and deliberate. Reliance was placed on the following observationmade by the tribunal:

'The very fact that the propaganda was contradicted by the respondent and others presupposes its existence. All the aforesaid leads to the irresistible conclusion that the alleged propaganda was made by the respondent, his supporters and workers in the city of Sultanpur during his election 'campaign.'

We have carefully examined the order of the tribunal and we are clearly of opinion that there is no force in the contention of the petitioner that the finding is based on no evidence or that the tribunal has approached the question from an illegal standpoint. The fact that there was no promise held out by the State Government was a negative fact and even if the burden lay on the opposite party to establish that negative fact it could only be determined from certain circumstances proved in the case. No direct evidence could be given by the opposite party of this negative fact and nothing has been pointed out in the judgment of the tribunal which could convince us that the findings arrived at by the tribunal were based on circumstances from which a prudent man could not have come to those conclusions.

10. It was then urged by the counsel for the petitioner that he was entitled on the proved facts of the case to protection of Rule 8 of the Rules regarding election petitions against the President printed at page 283 of the Municipal Manual. Rule 8 provides that:

'The Court shall not declare an election of any person invalid on the ground of corrupt practices where it finds that-

(a) the corrupt practice mentioned in petition were committed contrary to the orders, and without the sanction or connivance of the candidate or his election agent;

(b) the candidate and his election agent took all reasonable means for preventing the commission of corrupt practices at the election;

(c) the corrupt practices mentioned in the petition were all of trivial and limited character or took the form of customary hospitality which did not affect the result of the election.'

11. In the first place it does not appear from the order of the tribunal that the petitioner ever claimed the benefit of Rule 8. This is in the nature of an exception and it provides a limitation on the discretionary power of the Court to grant a declaration in favour of the petitioner. The exception, therefore, had to be pleaded and proved by the present petitioner. It was contended that the petitioner by contradicting the propaganda really prevented the commission of corrupt practices at the election.

This plea was taken by the petitioner in denial of the fact that any such propaganda was done directly or, indirectly by the petitioner. It was not with a view to establish the circumstances which under Rule 8 disentitled the Court to declare the election of any person invalid. Moreover, we are of opinion that by this halting contradiction, it cannot be inferred that all reasonable means were adopted by the petitioner for preventing the commission of corrupt practices.

The corrupt practice had already taken place when the propaganda had been done extensively and towards the end even if it be accepted that any such contradiction was issued by the petitioner, it cannot be said that by that he tookreasonable steps to prevent the commission of the corrupt practice. It can also be not regarded as a corrupt practice of a trivial and limited character. We are therefore of opinion that the decision of the tribunal can neither be regarded as without jurisdiction nor there appears to be any manifest error in the order so as to justify the relief of certiorari in favour of the petitioner.

12. A short point was also urged by the petitioner that the tribunal only found in affirmative issue No. 2 and the issue as framed does not challenge the election on the ground of misrepresentation but it is based on the assumption that the allegations made out a case Of bribery against the present petitioner. I have already set out the issue, and the petitioner emphasised the fact that the issue refers only to the allegations made in sub-paras (a), (b), (c) and (d) of paragraph 8 of the petition and further that it set out the circumstance that the promise by the State Government would be a material advantage to the voters.

In Our opinion the interpretation which the petitioner asks us to put on this issue is not correct. What the issue really means is that the propaganda which was carried on by the workers of the petitioner was to the effect that the State Government would provide the 'Municipality of Sultanpur with a sum of Rs. 5 lakhs for construction of water-works and installation of electricity which would be a material advantage to the voters as set out in sub-paras (a), (b), (c) and (d) of paragraph 8 of the election petition. This assertion that Rs. 5 lakhs would result in the material advantage was a part of the propaganda, and whether that propaganda amounted to an intentional misrepresentation and a consequent inducement to the voters to vote is asserted in the latter part of the issue.

13. In the result, therefore, there is no forcein this petition and it is rejected with costs.


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