1. The above appeal and petition arise out of an election petition filed by the contesting respondent G. Vasantha Pal (who will hereafter be referred to as the respondent) before the Election Commission, New Delhi. The respondent and three others including Dr. V. K. John, the appellant and the petitioner before us, were candidates for election to the Madras Legislative Council, from the Graduates Constituency. Dr. John and one Dr. A. Srinivasan were declared elected to the two vacancies in the constituency.
The respondent filed the election petition praving for the following three reliefs, viz, (a) declaring the election to be wholly void; (b) declaring the election of both the returned candidates as void; and (c) giving a finding that the first respondent (Dr. John) has been guilty of the corrupt practices specified in paragraphs 8, 9-a and 11 and illegal practice specified in paragraph 12 of the petition, and the second respondent (Dr. Srinivasan) has been guilty of the corrupt practices specified in paragraphs 8 and 11 of the petition. The illegal practice specified in paragraph 12 was that mentioned in Section 126(3) of the Representation of the People Act, 1951 (XLIII of 1951), hereinafter referred to as the "Act".
Particulars of the Illegal practice were given in schedule D to the petition. Briefly they were that Dr. John got printed and circulated, circulars having reference to his election which did not bear on their face the name of the printer. Some of the allegations in the petition fell within Section 100, Sub-section (1) of the Act and were relevant to the relief of declaration that the election was wholly void. Other allegations related to each of the returned candidates and fell within Section 100. Sub-section (2) of the Act.
2. The petition was strenuously contested by both the returned candidates. Though it was filed on the 21st July 1954. it was not finally disposed of till 13th April 1956 by an Election Tribunal at Madras constituted by the Election Commissioner. Dr. John and Dr. Srinivasan at the outset of the enquiry took out two applications praying that the tribunal may be pleased to direct the striking out of prayers (b) and (c) and to direct the striking out of paragraphs 5 to 7, the latter part of paragraph 8 and paragraphs 9 to 16 of the petition.
The main grounds on which these applications were taken out were: (1) that the petitioner (the respondent herein) was not entitled to claim more than one relief and (2) that the petition, in so far as It prayed-for the relief of having the election of the returned candidates set aside, was barred by time, as it had not been filed within the period of limitation prescribed by Rule 119 (a) of the Rules framed under the Act. The election tribunal rejected, both the petitions.
To quash the order of the tribunal rejecting these petitions, the returned candidates filed two writ petitions Nos. 119 and 723 of 1954. These petitions were heard and disposed of by Rajagopala Aiyangar J., who agreed with the election tribunal and dismissed them. There were two appeals from the decision of Rajagopala Aiyangar J. The Division Bench which heard the appeals, to which one of us was a party, agreed with Rajagopala Aiyangar J., that there was no substance in the first ground.
It was held that the petitioner could seek alternative reliefs specified in Section 84 of the Act. The Bench however took a view different from that taken by Rajagopala Aiyangar J., on the question of limitation and held that the petition both against Dr. John and Dr. Srinivasan, so far as relief (b) in paragraph 18 of the petition was concerned was out of time under Rule 119 (a). It was further held that the petition, in so far as it Seeks a declaration that the election is wholly void was in time. The following passage in the Judgment of the Division Bench (reported in John v. Vasanta Pai, 1955-2 Mad LJ 629 at p. 635: ( (S) AIR 1950 Mad 85 at p. 88) (A) sets out the result of the conclusion arrived at by the Bench:
"The result of our construction of Rule 119 is that the election petition is not maintainable against the respondents 1 and 2 so far as relief (b) in paragraph 18 is concerned. The Election Tribunal will, therefore, have no jurisdiction to proceed with the trial of the petition in respect of this relief. The fact that after listening to the parties they overruled the objection as to their Jurisdiction in this behalf does not make-any difference. If, as we have now found, the Tribunal was not competent to entertain the petition so far as that relief is concerned, the appropriate writ will, therefore, be a writ of prohibition prohibiting the Election Tribunal from proceeding with the trial of the election petition, so far as relief (b) in paragraph 18 of the petition Is concerned."
3. When the matter went back to the Election Tribunal for trial, apparently on objection taken by Dr. John and Dr. Srinivasan, the Tribunal framed the following issue:
"Whether in view of the writ of Prohibition in W. A. Nos. 25 and 26 of 1955, the petitioner can claim to rely on the grounds relating to the validity of the election of respondents 1 and 2 for the declaration sought in paragraph 18 (a) of the petition that the election is wholly void and for the finding sought in paragraph 18 (c) of the petition."
The Tribunal decided that the decision of the Division Bench did not preclude it from Investigating matters which were germane to prayers (a) and (c) merely because those matters also happened to be germane to prayer (b). It observed:
"In the above circumstances, and where the writ issued refers only to the relief and the appeals are otherwise dismissed, we arc afraid we will be reading too much into it if the contention of the respondents 1 and 2 be accepted and the prohibition extended by implication to the Tribunal's duty anger Section 99. This part of the issue to accordingly found in the affirmative for the election petitioner."
Contesting the soundness of this decision of the Tribunal, both Dr. John and Dr. Srinivasan filed petitions under Article 226 of the Constitution for the issue of a writ prohibition or other appropriate writ restraining the Election Tribunal from trying any issue or enquiring into any allegation which would be relevant only for the purpose of giving relief to the second respondent (the respondent herein) under paragraph 18 (b) of his election petition, which had been expressly. prohibited by the Division Bench.
These petitions came on before Balakrishna Aiyar J. The learned Judge dismissed the petitions. He was of opinion that the trial of an election petition included an enquiry into allegations of corrupt and illegal practices said to have been committed at the election and that it was not limited merely to ascertain whether the petitioner was. or was not, entitled to the relief he sought. Dealing with the allegation relating to the illegal practice said to have been committed by Dr. John in paragraph 12 of the petition, the learned Judge observed thus:
"Under Section 125(3) of the Act, the issue of any circular, placard, or poster having a reference to the election which does hot bear on its face the name and address of the printer and publisher thereof is an illegal practice. Now the omission of the name of the printer or publisher in a circular or placard or poster cannot possibly have any effect on the result of an election.
None-the-less, it is an Illegal practice and under Section 99 of the Act, the Tribunal is required. to give a finding on the matter if such a practice Is alleged. It would not, therefore, be right to say that the trial of an election petition must be confined to matters, an investigation of which is necessary to decide whether or not the petitioner is entitled to the relief he seeks." Against the said order of Balakrishna Aiyar J. dismissing his petition, Dr. John has filed W. A. No. 19 of 1956. As, however, there was no stay of the enquiry, the Election Tribunal proceeded with the petition and after elaborately dealing with the several, charges made in the petition found that the election petitioner was not entitled to the relief he sought in paragraph 18 (a) of the petition. But on issue 8, which related to the illegal practice, under Section 125(3) of the Act alleged against Dr. John, the Tribunal held against him.
The Tribunal found that Dr. John had issued circulars without the name and address of the printer appearing thereon and he was therefore guilty of the Illegal practice set out in Section 125(3) of the Act. The Tribunal therefore made the following order:
"From our finding on issue 8 it follows that the first respondent (Dr. John) has committed an illegal practice under Section 125(3) of the Act entailing the consequential statutory disqualifications and we record a finding to that effect."
The reference here is obviously to Section 140 of the Act which runs thus:
"140. Corrupt and illegal practices entailing disqualification:--
(1) The following corrupt or illegal practices relating to elections shall entail disqualification for membership of Parliament and of fie Legislature of every State, namely:
(a) Corrupt practices specified In Section 123 or S 124 and
(b) illegal practices specified in Section 125.
(2) The period of such disqualification, shall be six years in the case of & corrupt practice, and four years in the case of an Illegal practice, counting from the date on which the finding of the Election Tribunal as to such practice takes effect under this Act."
W. P. No. 478 of 1956 has been filed by Dr. John to have this part of the order quashed.
4. Mr. M. K. Nambiar, learned counsel for Dr. John, challenged the correctness of the finding of the Election Tribunal on the merits. As pointed out by the Supreme Court in Jamuna Prasad v. Lachhi Ram, (B), the finding of the Tribunal that a candidate
committed an illegal practice within the' meaning of Section 125(3) is a finding on a pure question of fact. But Mr. Nambiar contended that the finding was vitiated by an, error apparent on the face because the documents in question did not fall within the category of "Circular, placard or poster".
We see no substance in this contention. Obviously, none of the documents is a placard or poster. But it is clear to us that three of them are circulars. Mr. Nambiar relied upon decisions in which the corresponding provision in the Representation of the People Act in England was construed; but the words used in the English Statute are "any bill, placard or poster" and the decisions turned upon the Interpretation of the word 'bill'. In our statute that term is absent and instead we have the word "circular".
A document may be a circular but not necessarily a bill, placard or poster. (Vide the cases cited in note (i) at page 203 of Halsbury's Laws of England, 3rd Edn. Vol. 14; also note (1) at page 204 of the same book which mentions the case of Alcott v. Emden, 1904-68 J. P. 434 (C), in which It was held that a Circular headed with the complainant's name and the words "shall he be our new Mayor" and sent to the complainant, the town clerk and four Councillors was held to be a bill.)
We are unable to derive any assistance from the two decisions in the Cockermouth Division case, 5 O'M and H 155 and the Borough of Oxford case, 7 O'M and H 49. which turned upon the meaning of the word "bill".
5. According to the meaning given in the Concise Oxford Dictionary, "circular" is something addressed to a circle of persons and the meaning of "circular letter" or "circular" is given as notice, advertisement etc. reproduced for distribution. Obviously, the material letters were such circular letters printed for distribution among the voters. We therefore accent the finding of fact that the petitioner, Dr. John, was guilty of the Illegal practice mentioned in Section 125(3) of the Act.
6. Mr. Namblar's next and more serious contention was that the Election tribunal had no Jurisdiction, to give a finding on issue 8 relating to the said illegal practice. His argument was that as the Division Bench of this court has prohibited the trial of the petition in so far as it pertained to prayer (b) in paragraph 18 of the petition, the Tribunal would have no jurisdiction to enquire into any allegation which was material and relevant only to that relief and which had nothing whatever to do with the other relief. vis, a declaration that the election was wholly void.
This contention was pressed upon Balskrishna Aiyar J. who found that there was something to be said for this point of view, but it seemed to him it was not the whole of the matter, because an election petition differed fundamentally from an ordinary civil suit. The public were substantially interested in an election petition in seeing that all elections are fair and free and not vitiated by corrupt or illegal practices. It was on this view that he refused to issue a writ of prohibition preventing the tribunal from enquiring into the allegation of this illegal practice. Mr. Nambiar contended that this view was wrong.
7. Mr. T. Krishna Rao, learned counsel for the respondent, maintained that it was correct and was supported by the provisions of the Act and the general policy underlying enquiries into the validity of elections. His contention was that the allegations in an election petition need have no reference to the particular relief claimed and once there was an allegation of the commission of any corrupt or illegal practice, the tribunal was bound to enquire into it and give its finding thereon though such a finding may be thoroughly irrelevant and immaterial having regard to the relief claimed. According to him, all that the writ of prohibition issued by the Division Bench prevented was the relief (b) in paragraph 18 of the petition being given to the petitioner. He referred us to Section 83(1) end (3), Section 85 and Section 90(4), apart from Section 99 of the Act, in support of his contention. ' Support was also sought by him from observations in certain decisions of the Supreme Court.
8. Section 83, Sub-sections (1) and (2) of the Act run thus;
"83. Contents of petition: (1) An election petition shall contain a concise statement of the material facts on which the petitioner relies and shall be signed by the petitioner and verified in the manner' laid down in the Code of Civil Procedure 1908 (Act V of 1908) for the verification of pleadings.
(2) The petition shall be accompanied by a list signed and verified in like manner setting forth full particulars of any corrupt or illegal practice which the petitioner alleges, including a full a statement as possible as to the names of the parties alleged to have committed such corrupt or illegal practice and the date and place of the commission of each such practice."
9. The argument of Mr. T. Krishna Rao, which apparently found favour with Balakrishna Aiyar J. was that Sub-section (2) stood apart from Sub-section (1) and in addition to the material facts, a concise statement of which had to be furnished, the petition might contain allegations of any corrupt or illegal practice not necessarily related to the relief claimed by the petitioner. In our opinion this construction is not sound. Sub-section (1) uses the general expression "material facts" which would include not merely corrupt or illegal practices, but also allegations of improper reception or refusal of votes and any non-compliance with the provisions of the Constitution or of the Act or of any rules made under the Act and any mistake in the use of any prescribed form.
The facts which the election petition should contain are facts on which the petitioner relies presumably to enable him to obtain the specific relief which he claims. All that Sub-section (2) says is that if and when a corrupt or Illegal practice is alleged certain particulars have to be furnished. That sub-section should not be construed to justify the Inclusion of any corrupt or illegal practice which may have no relation whatever to the relief claimed by the petitioner.
To give an obvious instance, a petitioner files an election petition praying that the election of one of three returned candidates may be declared void; can it be contended with success that the petition can contain allegations of corrupt or illegal practices committed by the other two candidates? In our opinion, certainly not. Section 83, Sub-sections (1) and (2) correspond to Order VI, Rules 2 and 4 of the Code of Civil Procedure which are in the following terms:
"2. Every pleading shall contain and contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved, and shall, when necessary, be divided into paragraphs, numbered consecutively, dates, sums and numbers shall be expressed in figures.
4. In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, wilful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forma aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading." We may add that Sub-section (3) of Section 83 corresponds to Rule 5 of Order VI of the Code. It appears to us to be against all principles of judicial procedure that a petitioner should be permitted to Include In his petition, allegations which are thoroughly irrelevant to the relief claimed by him. Mr. Krishna Rao referred us also to Section 85 and Section 90 Sub-section 4 of the Act, but they do not carry him any further than Section 83.
10. Reliance was placed by counsel on both sides in connection with this point on the observations in the decision of the Supreme Court in Sucheta Krioalanl v. S. S. Dulat, (D). In that case an election petition was filed by one M. praying that the election of one S be declared void and that she (M) be declared to have been duly elected. The validity of the election was attacked on many grounds. A number of major corrupt practices-were alleged and further a minor corrupt practice, viz, making a false return of election expenses, was also alleged.
It was contended on behalf of the returned candidate S that the minor corrupt practice, which could not vitiate the election as it was not capable of materially affecting the election, was wholly outside the scope of a proper election petition and so no cognisance of it can be taken by the election tribunal. This contention was repelled by the Supreme Court. Bose J. who delivered the judgment of the court said:
"The next question argued was whether an election tribunal can enquire into minor corrupt practice if it is of such a nature that, standing by itself, it could not have been made the basis of an election petition because it could not materially affect the result of the election. We need not go Into that because the question, is purely academic in this case. The allegations about the minor corrupt practice does not stand by itself. There are also allegations about major corrupt practices which require investigation and the minor corrupt practices alleged are reasonably connected with them.
Section 143 of the Act is a complete answer to the question of the tribunal's jurisdiction on this point when it is properly seized of the trial of an election petition on other grounds. Whether It could be properly seized of such a trial if this had been the only allegation, or if the minor corrupt practice alleged was not reasonably connected with the other allegations about major corrupt practices, does not therefore arise. As the trial is proceeding on the other matters the Tribunal is bound under Section 143, now that the issue has been raised, also to enquire into the question of the falsity of the return."
In our opinion, these observations do not support the contention of Mr. Krishna Rao. If this contention is right -- and that wag what was upheld by the Supreme Court -- then it was unnecessary to say that the minor corrupt practice alleged did not stand by itself and that it was reasonably connected with major practices which had been alleged.
It must not also be overlooked that the election petition in that case was concerned with the validity of the election of a particular candidate and the charge of illegal practice was made against that candidate and one of the grounds on which the election of a returned candidate can be set aside is that the election has been procured or induced, or the result of the election has been materially affected, by any corrupt or illegal practice.
11. There is another decision of the Supreme Court from which the learned Judge, Balakrishna Aiyar J, quoted certain observations viz. Raj Krushna Bose v. Binod Kanungo, (E). That again was a case in which an election petition was filed challenging the election of a particular candidate on a number of grounds. One of the grounds was that the returned candidate was guilty of a major corrupt practice mentioned in Clause (8) of Section 123, viz, obtaining assistance for the furtherance of the prospects of the candidate's election from a Government servant.
In addition to this, there, were other charges of corruption, illegal practices, undue influence and bribery. The Tribunal gave its finding only' on the issue relating to the corrupt practice mentioned in Section 124, Clause (8) of the Act but did not give its finding on any of the other issues relating to the various charges levelled against the returned candidates. The Supreme Court held that the tribunal's construction of Clause 8 of Section 123 was wrong and set aside Its order and remitted the case with a direction that the Tribunal should give its findings on all the issues raised. In doing so, their lordships expressed their disapproval of the omission of the Tribunal to deal with fill the Issues thus; -
"We wish to record our disapproval of the way in which this Tribunal shirked its work end; tried to take a short cut. It is essential that these Tribunals should do their work in full. They are ad hoc bodies to which remands cannot easily be made as in ordinary courts of law. Their duty under Section 99 is: 'Where any charge is made in the petition of any corrupt or Illegal practice having been committed at the election' to record; 'a finding whether any corrupt or Illegal practice has, or has not, been proved to have been committed....and the nature of that corrupt or illegal practice.' Also, 'to give the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice.' Their duty does not end by declaring an election to be void or not, because Section 99 provides that in addition to that: 'at the time of making an order under Section 98 the Tribunal shall also make an order, etc......' A number Of allegations were made in the petition about corruption and illegal practices, undue Influence and bribery. It was the duty of the Tribunal not only to enquire Into those allegations, as it did, but also to complete the enquiry by recording findings about those allegations and either condemn or clear the candidates of the charges made."
These observations cannot be understood as Justifying the inclusion of allegations of corrupt and Illegal practices which have no material bearing on the relief sought. It must be borne In mind that the above observations were made in a case in Which the other charges made were made against the returned candidate whose election was challenged. Balakrishna Aiyar J., in dealing with the question now under discussion gave an instance by way of analogy. He said:
"Suppose a person were prosecuted for breach of trust and for falsification of accounts. Let us further suppose that by reason of an order made in revision the enquiry into the falsification is prohibited. If we were to hold that by reason of such an order, the evidence which may have a bearing on the falsification charge cannot be investigated in order to ascertain whether there has been criminal breach of trust or not, manifest injustice may result."
We are in agreement with the above. Applying the principle of which this is an illustration to the present case, the only conclusion possible is that the commission of the illegal practice mentioned in Section 125(3) cannot be investigated because such investigation is not necessary in order to ascertain whether the election should be declared wholly void on any of the three grounds on which only such a declaration can be made under Section 100, Sub-section (1).
The learned Judge went on to say:
''There are indications in the statute Itself to show that the trial of an election petition includes an enquiry into allegations of corrupt and Illegal practices said to have been committed at the election 'and that it is not limited merely to ascertain whether the petitioner is, or is not, entitled to the relief he seeks.' -
If this dictum of the learned Judge implies' that when an election petition filed against A to set aside his election contains allegations of corrupt or illegal practices committed by other candidates B and C, then the Election Tribunal should enquire into such allegations which are totally irrelevant to the relief claimed, we must express our dissent.
12. A feeble attempt was made by Mr. Krishna Rao to persuade us to hold that the Illegal practice alleged was relevant to the relief contained in paragraph 18(a) of the petition because one of the circulars could be used as evidence of the charge that Dr. John carried on a propaganda against the respondent that he was a communist. There is no substance In this contention. What may be relevant is the particular circular as a piece of evidence and not the illegal practice itself which consists in the absence of the name and address of the printer on the circular. Indeed, even if the circular had contained the name of the printer, and therefore no illegal practice had been committed, nevertheless, the circular, might be used as evidence in support of the charge' of propaganda.
13. We hold that the Election Tribunal had no jurisdiction to enquire into the charge of the Illegal practice mentioned in Section 125(3) of the Act made against Dr. John. We therefore allow W. P. No. 478 of 1956 and quash that portion of the order of the Election Tribunal which relates to this charge covered by issue 8 and the finding 'that Dr. John had committed an illegal practice under Section 125(3) of the Act entailing the consequential statutory disqualifications. The order for coats made under Section 99(1)(b) of the Act is also quashed. There will be no order as to costs to the petition before us.
14. Mr. Nambar also contended in the alter-native that even accepting the finding of the Election Tribunal that Dr. John was guilty of the Illegal practice mentioned in Section 125(3) of the Act, that finding will not entail any disqualification because of a subsequent amendment of the Representation of the People Act, 1981 by the Re-presentation of the People (Second Amendment) Act, 1058. This amending Act received the assent of the President on the 6th June 1956 and came into force on the 28th August 1956. Section 66 of this Act substituted a new Chapter for Chapters I and n in Part VII of the principal Act.
By this substitution, Chapter II of Part VII of the principal Act has been completely omitted and it is in this Chapter II that Section 125 dealing with illegal practices occurs, The result, is, from the date of the coming into force of the Representation of the People (Second 'Amendment) Act, 1958, no Election Petition" can include a charge of the commission of an illegal practice. The most material section, however, of the Amending Act,. is Section 12. It runs thus:
"72. Insertion of new Section 140-A. -- (1) In part VIII of the principal Act, in Chapter 1, after Section 140,. the following section shall be inserted,viz.
'140--A. Removal, or reduction of period, o disqualifications: The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter or reduce the period of any such disqualification.'
(2) It is hereby declared that any disqualification for membership entailed by any act which has ceased to be a corrupt or illegal practice under the principal Act as amended by this Act shall stand removed."
Sub-section (2) obviously applies to the present case. The finding of the Election Tribunal entailed the disqualification under Section 140 of the principal Act. But the Act as amended, has omitted that illegal practice. Prima facie, the effect of Sub-section (2) is that such disqualification stands removed from the date on which the amending Act came into force.
15. Mr. Nambiar contended that Section 72 was a declaratory enactment and that it was retroactive, evidently implying that Dr. John must be deemed to have never been disqualified. On the other hand Mr. Krishna Rao contended that the effect of Section 72 (2) of the Amending Act can only be to remove the disqualification from the date when the amending Act came into force, but that the disqualification would exist from the date of the order of the Election Tribunal till the date of the coming into force of the Amending Act.
In the view we have taken that the Election Tribunal had no jurisdiction to enquire into the charge under Section 125(3) of the Act and the consequential order we have made quashing the finding of the Election Tribunal on this point. It is not necessary for us to decide the question as to the effect of Section 72 of the Amending Act.
16. Nor is it necessary for us to discuss the effect of Section 84 of the Amending Act which excludes the application of the Amending Act to pending elections and pending election petitions, save as otherwise provided in that Act.
17. Writ App. No. 19 of 1956 must be, and is hereby, dismissed on the ground that the appellant sought for a writ of prohibition to which he will not be entitled as the election tribunal has completed the enquiry. This dismissal however docs not mean that we agree with alt that is contained in the order of Balakrishna Aiyar J., against which the appeal has been filed. Actually, in dealing with W. P. No; 478 of 1958, we have expressed our dissent from one part of the learned Judge's judgment. The order for costs passed against the appellant will be set aside but there will be no order as to costs in the appeal.