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Mohan Singh Laxman Singhji Rajput Vs. Bhawarlal Nahta and ors. - Court Judgment

LegalCrystal Citation
SubjectElection
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. Petn. No. 244 of 1962
Judge
Reported inAIR1963MP140; 1963MPLJ498
ActsConstitution of India - Article 226; Representation of the People Act, 1951 - Sections 90(3)
AppellantMohan Singh Laxman Singhji Rajput
RespondentBhawarlal Nahta and ors.
Appellant AdvocateY.S. Dharmadhikari, Adv.
Respondent AdvocateK.A. Chitaley, ;Bhashawat and ;V.S. Dabir, Advs.
DispositionPetition dismissed
Cases Referred and Badri Narain v. Kamdeo Prasad
Excerpt:
.....in the decision reported in bhikaji keshao joshi v. 6. quite apart from the pronouncement made by the supreme court in air 1959 sc 422 (supra), this is clearly not a case in which the decision of the election tribunal can be quashed on the ground of there being errors of law apparent on the face of the record......article 226 of the constitution for the issue of a writ of certiorari for quashing an order of the election tribunal, ratlam, rejecting the petitioner's application asking for dismissal of the election petition filed by the respondent no. 1, bhawarlal nahta, as required by section 90(3) of the representation of the people act, 1951. (hereinafter referred to as the act), on the ground that the said respondent had failed to join one himmatsingh as a respondent to his petition.2. the relevant facts are these. the petitioner was duly elected to the madhya pradesh state legislative assembly at the last general election held in february, 1962, from sitaman constituency, in mandsaur district. the respondents nos. 1 to 3, one himmat singh and other persons were also duly nominated for election.....
Judgment:

Dixit, C.J.

1. This is an application under Article 226 of the Constitution for the issue of a writ of certiorari for quashing an order of the Election Tribunal, Ratlam, rejecting the petitioner's application asking for dismissal of the election petition filed by the respondent No. 1, Bhawarlal Nahta, as required by Section 90(3) of the Representation of the People Act, 1951. (hereinafter referred to as the Act), on the ground that the said respondent had failed to join one Himmatsingh as a respondent to his petition.

2. The relevant facts are these. The petitioner was duly elected to the Madhya Pradesh State Legislative Assembly at the last general election held in February, 1962, from Sitaman constituency, in Mandsaur district. The respondents Nos. 1 to 3, one Himmat Singh and other persons were also duly nominated for election in that constituency. Himmat Singh later on withdrew his candidature. After the petitioner was declared to be elected, the first respondent, who was defeated in the election, filed an election petition impleading the petitioner and the respondents Nos. 2 and 3 as party respondents to that petition and praying that the election of the petitioner be declared void and that he himself be declared duly elected, and, further, the petitioner be declared disqualified for having committed certain corrupt practices. The election petition contains inter alia the following averment --

'That on 2oth January. 1962, respondent No. 1 offered at Nahargarh to Shri Himmat Singh an independent candidate to help in procuring a job for him in Dalauda Sugar Factory or elsewhere to withdraw his candidature from the Election. That as a consequence of this offer of illegal gratification Shri Himmat Singh withdrew his candidature from Sitamau Constituency (Assembly).'

It must be noted that in the affidavit (annex. B to the return), which the respondent No. 1 filedin support of the allegations of corrupt practices made in the petition and the particulars thereof, the said respondent stated --

'That the statements made in paragraph II-A, B, D, E, F, G, H, I, J, K, L and M of the said petition about the commission of the corrupt practice of offer of illegal gratification ..... are trueto my information.'

This affidavit says nothing as to whether the allegations, if any, about the receipt of, or agreement to receive any, gratification are true to his information. After the framing of the issues in the trial of the petition, the applicant moved the Tribunal for the dismissal of the petition under Section 90 (3) of the Act contending that an allegation of corrupt practice had been made in the petition against Himmat Singh and, that, therefore, he should have been made a party to the petition as required by Section 82(b) and as that had not been done, there was no compliance with the provisions of Section 82 and so the petition had to be dismissed under Section 90 (3). The Tribunal rejected this contention of the petitioner taking the view that the allegation that the petitioner offered to help Himmat Singh in procuring a job for him if he were to withdraw his candidature did not amount to an allegation of any corrupt practice at all as denned under Section 123(r)(b) of the Act

The Tribunal also observed that there was no allegation in the petition whether Himmat Singh received 'the reward' or agreed to receive 'the reward' promised by the petitioner and that it was possible that Himmat Singh withdrew his candidature out of sheer disgust at the offer made by the petitioner. Relying on the decision of the Bombay High Court in Baburao Tatyaji Bhosle v. Madhao Shrihari Aney, 22 Ele LR 321 : (AIR 1961 Bom 29), the Tribunal expressed the view that a candidate who had withdrawn his candidature under Section 37 after filing his nomination was 'any other candidate' within the meaning of Section 82(b) and therefore he must be made a party to an election petition if allegations of any corrupt practices are made against him in the election petition. As the Tribunal found that there was no allegation of any corrupt practice against Himmatsingh, the petitioner's objection was ultimately overruled.

3. It was argued by Shri Dharmadhikari, learned counsel for the petitioner, that under the Explanation to Section 123(1)(b) gratifications were not restricted to pecuniary gratifications or gratifications estimable in money but also included all forms of employment for reward and acceptance or receipt of any gratification or agreement to receive any gratification was also a corrupt practice under Section 123(1) of the Act as amended in 1958; that a mere offer of help to secure employment or a promise to secure some post or situation amounted to a corrupt practice; that the allegation made by the respondent No. 1 that the petitioner offered to help Himmatsingh in procuring a job for him in Dalauda Sugar Factory or elsewhere if he were to withdraw his candidature was an allegation of corrupt practice against Himmatsingh; and that, therefore, Himmatsingh wan a necessary party to the election petition as required by Section 82(b).

It was said that on a true construction of Section 82(b) the words 'any other candidate' occur-ring therein included a candidate who had withdrawn his candidature under Section 37 after filing his nomination; that Section 90 (3) laid down in mandatory terms that the Tribunal shall dismiss an election petition' not complying with the provisions of Section 82; and that consequently the election petition filed by the respondent No. 1 should have been dismissed for non-joinder of Himmatsingh. In support of his contentions, learned counsel relied on 22 Ele LR 321 : AIR 1961 Bom 29 (supra), and Dera Ghazi Khan Hazrat Hafis Sadid-ud-din v. Khwaja Ghulam Murtaza, 1 IECD Vol. 1 p. 107. He also referred us to the English decision in Plymouth Case, (1853) 2 Pow R and D 238 noted in Parker's Election Agent and Returning Officer (6th Edn.,) at p. 285, to support his contention that a mere offer or promise to secure some post or' situation was a corrupt practice. Learned counsel did not dispute that in coming to the decision that it did, there was no illegal exercise of jurisdiction by the Tribunal. He, however, urged that there was an error of law apparent on the face of the record which should and could be corrected by us in proceedings under Article 226 of the Constitution.

Learned counsel invited us to exercise our jurisdiction under Article 226 and quash the order of the Tribunal on the authority of Kamaraja Nadar v. Kunju Thevar, AIR 1958 SC 687, Calcutta Discount Co., Ltd. v. I. T. Officer, AIR 1961 SC 372, and Shri Ambica Mills Co. v. S. B. Bhatt, AIR 1961 SC 970. It was said that if the election petition is liable to be dismissed for non-joinder under Section 90 (3) of the Act, then the order of the Tribunal should be quashed in order to save the petitioner from unnecessary harassment, trouble and expenses that would be involved in controverting the allegations made against him and in examination of witnesses.

4. In reply, Shri Chitale, learned counsel for the respondent No. 1, while contending that the allegation made against the petitioner that he offered to help Himmat Singh in finding a job for him was not an allegation of corrupt practice as defined in Section 123 (1) of the Act and that Himmat Singh having withdrawn his candidature under Section 37 of the Act could not be regarded as 'any other candidate' under Section 82(b), urged that this Court should not interfere with an interlocutory order passed by the Tribunal. Reliance was placed on the observations made by the Supreme Court in paragraph 18 of the judgment in Veluswami v. Raja Nainar, AIR 1959 SC 422. It was also said that only two witnesses remained to be examined on behalf of the respondent No. 1 and that the trial of the election petition was likely to be concluded within two to three weeks and that as the said respondent had made allegations of corrupt practices against the petitioner himself and having regard to the object of the provisions contained in Sections 99 and 140 of the Act, namely, to secure purity in election, it was essential that those allegations should be enquired into and findings thereof should be given by the Tribunal.

5. In his elaborate arguments, Shri Dharmadhikari learned counsel for the applicant, under everything that could be said in support of this petition, but none the less we are not persuaded tohold that it would be a proper exercise of discretion under Article 226 to interfere with the impugned order of the Tribunal. In AIR 1959 SC 422 (supra), the Supreme Court felt it necessary to consider the question of the propriety of interfering in writ petitions under Article 226 with interlocutory orders passed in the course of an enquiry before an Election Tribunal. The Supreme Court expressed its opinion thus --

'The jurisdiction of the High Court to issue writs against orders of the Tribunal is undoubted; but then it is well settled that where there is another remedy provided, the Court may properly exercise its discretion declining to interfere under Article 226. It should be remembered that under the election law as it stood prior to the amendment in 1956, election petitions were dismissed on preliminary grounds and the correctness of the decision was challenged in applications under Article 226 and in further appeals to this Court, with the result that by the time the matter was finally decided, the life of the Legislatures for which the election was held would have itself very nearly come to an end, thus rendering the proceedings infructuous, A signal example of a case of this kind is to be found in the decision reported in Bhikaji Keshao Joshi v. Brijlal Nandlal, 1955-2 SCR 428 : ( (S) AIR 1955 SC 610). It is to remedy this defect that the Legislature has now amended the law by providing a right of appeal against a decision of the Tribunal to the High Court under Section 116A, and its intention is obviously that proceedings before the Tribunal should go on with expedition and without interruption, and that any error in its decision should be set right in an appeal under that section. In this view, it would be a proper exercise of discretion under Article 226 to decline to interfere with interlocutory orders.'

These observations plainly show that it would not be proper at this stage to embark upon a determination of the questions raised in this petition. The decision of the Supreme Court in AIR 1958 SC 687 (supra) does not lend support to any such proposition that if the matter decided by an interlocutory order of the Tribunal is such as to affect the very root of the case, then the High Court should exercise its powers under Article 226 or that the High Court should do so if the reversal of the interlocutory order is necessary for preventing extraordinary inconvenience harassment and expense to the parties. The observations made in paragraph 41 of the judgment in AIR 1958 SC 687 (supra), were in connection with the course adopted by the Election Tribunal, Ranchi, and the Patna High Court in refusing to entertain a preliminary objection under Section 90 (3) of the Act for the dismissal of the election petition and in postponing decision thereon on the view that the objection could be decided at the time of the hearing of the election petition itself. Here, the Tribunal entertained the preliminary objection and also decided it.

It is true that in Kamraj Nadar's case, AIR 1958 SC 687 (supra) the Madras Election Tribunal's decisions on merits on objections under Section 90(3) of the Act were upheld by the Madras High Court in writ petitions filed under Article 226 and the orders passed by the High Court in those petitions were set aside by the Supreme Court and the election petitions were dismissed. But from this it does not follow that whenever a petition under Article 226 is filed assailing an order of the Election Tribunal deciding on merits an objection for the dismissal of the petition under Section 90 (3) of the Act, the High Court must consider the correctness of the decision of the Tribunal and decide whether the election petition does or does not comply with the provisions of Section 81 or Section 82 and dismiss the petition if there is no compliance. In Kamraj Nadar's case, AIR 1958 SC 687 the Supreme Court had no occasion to consider the propriety of interference by the High Court in a petition under Article 226 with an interlocutory order of the Election Tribunal deciding on merits the objections raised before it. This matter was considered only in AIR 1959 SC 422 (supra) and the view reproduced earlier was expressed.

6. Quite apart from the pronouncement made by the Supreme Court in AIR 1959 SC 422 (supra), this is clearly not a case in which the decision of the Election Tribunal can be quashed on the ground of there being errors of law apparent on the face of the record. Learned counsel for the petitioner did not say that there was any illegal exercise of jurisdiction on the part of the Election Tribunal in coming to the decision that it did. As to what is an error apparent on the face of the record has been explained in Satyanarayan v. Mallikarjun, AIR 1960 SC 137. In that case, it has been said:

'An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record.'

An alleged error which can be established only by lengthy and complicated arguments and which is not self-evident, is not, according to the decision of the Supreme Court in Satyanarayan's case, AIR 1960 SC 137 (supra), an error apparent on the face of the record. In the present case, the question whether the allegation of a mere offer to render help in securing a job is any offer of 'gratification' within the meaning of Explanation to Section 123(1)(b) and a 'form of employment for reward' is a debatable one. If an allegation of corrupt practice made in an election petition is not accompanied by an affidavit in the prescribed form,' in support of that allegation as required by the provisions of Section 83, then the further point that would arise for consideration is whether such an unsupported allegation can attract Section 82(b) of the Act. Equally debatable is the question whether a person withdrawing his candidature under Section 37 of the Act is 'any other candidate' for the purpose of Section 82(b). Indeed on the latter question there are conflicting opinions. The Bombay High Court has taken the view in AIR 1961 Bom 29 that a candidate who has withdrawn his candidature under Section 37 after filling his nomination does not cease to be a candidate and, therefore, so far as Section 82(b) is concerned, must be made a party to the election petition if allegations of corrupt practices are made against him in the election petition. On the other hand, it has been held in Kapil-deo v. Suraj Narayan, AIR 1959 Pat 250 and Badri Narain v. Kamdeo Prasad, AIR 1961 Pat41 that the words 'any other candidate' used in Section 82(b) do not include candidates who withdrawtheir candidature under Section 37 of the Act.

Both these questions are such on which there can conceivably be two opinions. Learned counsel for the petitioner also had to address lengthy and elaborate arguments to show that the decision of the Tribunal was erroneous. If, therefore, the Election Tribunal took one view in the exercise of its jurisdiction, it cannot be said that there is an error apparent on the face of the record. There is also another reason why we must decline to interfere with the Tribunal's order. It is this. The petitioner moved the Tribunal for the dismissal of the petition after the framing of the issues and thereafter the evidence tendered by the respondent No. 1 has been recorded. As stated by the learned counsel for the said respondent, only two witnesses remain to be examined on behalf of the respondent and the trial of the petition is expected to be concluded early.

7. For the foregoing reasons, our conclusion is that it will be a proper exercise of discretion under Article 226 to decline to interfere with the order passed by the Tribunal. The petitioner can raise the question of the dismissal of the petition under Section 90 (3) if and when he is required to file an appeal against the order that may be passed by the Tribunal under Section 98 disposing of the election petition. The result is that this petition is dismissed with costs of the respondent No. 1, Bhawarlal Nahta. Counsel's fee is fixed at Rs. 200/-. The outstanding amount of security deposit after deduction of costs shall be refunded to the petitioner.


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