Case: Tirath Singh Vs. Bachittar Singh And Others

1935, and Art. 311 of the Constitution.They are exceptional cases, and do not furnish any safe or useful guidance in the interpretation of S. 99.9. The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.10. The fallacy in this argument is in thinking that notice to a person is requisite for making a recommendation under S. 99 (1)(a)(ii). S. 99 (1)(a)(ii) deals with two distinct matters naming person who are proved to have been guilty of corrupt and illegal practices, and recommending whether there should be any exemption in respect of the dis-qualifications mentioned in Ss.141 to 143 and the proviso, properly construed, requires notice only in the former case and not the latter.It will be noticed that while in cases falling within Ss. 139 and 140 the disqualification is automatic and immutable, in cases falling within Ss. 141 to 143 the Election Commission has power to grant exemption under S. 144 of the Act. It is to guide the Commission in exercising its powers under S. 144, that the Tribunal is directed in S. 99 (1)(a)(ii) to make any recommendations with reference thereto. The jurisdiction of the Tribunal in respect of this matter is purely advisory.There is nothing to prevent the Commission from taking up the question of exemption under S.144 suo motu, even though the Tribunal has made no recommendation. Indeed, there is nothing to prevent the person adversely affected from applying directly to the Commission for exemption. While, therefore, there is compelling reason why a person should have an opportunity of showing cause before he is named, there is none such when the question is one of recommendation. As we construe the proviso, it confers no right on any person, party or stranger, to be heard on the question whether he should be recommended for exemption from the dis-qualifications under Ss. 141 to 143.The provision for exemption in S. 99(1) (a)(d) therefore does not lend any support to the contention of the appellant that notice should be given to parties to the petition under the proviso before they are named.11. Reliance was also placed by the appellant on the decision of the Election Tribunal Kesho Ram v. Hazura Singh, 8 Election L.R. 320 (B), wherein it was held by a majority that notice under the proviso to S. 99 should be given to the parties to the petition also. For the reason given above, we do not agree with the decision of the majority.12.Our conclusion is that while the persons to be named under section 99(1)(a) (ii) would include both parties to the petition as well as non-parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice should issue under the proviso will depend on whether the person had an opportunity to cross-examine witnesses who had given evidence against him and to adduce his own evidence.This conclusion is in accord with the law in England.Under S. 140 sub-cl. (1) Representation of the People Act, 1949, an election Court has to state in its report the names of all persons who are found guilty of corrupt and illegal practice but "in the case of some one who is not a party to the petition nor a candidate on behalf of whom the seat or office is claimed by the petition", the Court has to issue notice to him give him an opportunity of being heard by himself, and calling evidence in his defence.It was suggested for the appellant that the law as enacted in S. 99 makes a deliberate departure from that under S. 140 (1) of the English Act. The difference in the wording between the two sections is due to the difference in the arrangement of the topics of the two statutes, and there is no reason to hold that with reference to the substance of the matter, there was any intention to depart from the English law on the subject; nor is there any reason therefor.13. In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]3. (1) On the first question, the complaint of the appellant is that in the election petition the allegations relating to bribery were vague and wanting in particulars and that the petition should accordingly have been dismissed under Ss. 83 and 85 of the Act; that the charge that was sought to be proved it the hearing was at variance with the charge as alleged in the petition, and that the Tribunal had erred in giving a finding of bribery on the basis not of the allegations in the petition but of the evidence adduced at the trial.It is contended for the appellant that in the petition there was no mention of the bargain on which the finding of bribery by the Tribunal was based, that the charge in the petition related only to the order dated 7-12-1951, and that accordingly it was not open to the petitioner to travel beyond the petition and adduce evidence in proof of a bargain which had not been pleaded. This is to put too technical and narrow a construction on the averments. The charge in the petition was not merely that the appellant had passed the order dated 7-12-1951 but that he had passed it with a view to induce the sweepers to vote for him.That clearly raised the question as to the circumstances under which the order came to be passed, whether it was in the course of official routine as the appellant pleaded, or under circumstances which were calculated to influence thethe circumstances, the complaint that the evidence and the finding as to the bargain went beyond the pleadings and should be ignored appears to be without any substance. It may be that the allegations in the petition are not as full as they might have been; but if the "appellant was really embarrassed by the vagueness of the charge it was open to him to have called for particulars; but he did not do so. At the trial, the petitioner first adduced evidence, and his witnesses spoke to the bargain in November, 1951.It is stated on behalf of the appellant that he objected to the reception of the evidence on the question of bargain, as it was not pleaded. But this is denied by the petitioner in his affidavit filed in the High Court dated 3-12-1953. Even apart from this, the witnesses on behalf of the petitioner gave evidence on his point on the 8th and l1th November, 15th and 16th December, 1952 and on the 2nd February, 1953. Then the appellant entered on his defence. On 26-2-1951 he examined R.W. 4, a member of the small Town Committee, to rebut the evidence on the side of the petitioner, and himself went into the box and deposed to the circumstances under which the order came to be passed.Having regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced by the alleged defect in the pleadings. The contention that is urged for him is that the petition should have been dismissed under section 83 for want of particulars. This was rightly rejected by the High Court as without force, and we are in agreement with it.6. It is next contended that there is no evidence or finding that the sweepers were entitled to vote in the Constituency, or that the appellant was a candidate as defined in S. 79 (2) at the time when the bargain was made. But the allegation in the petition is clear that the order dated 7-12-1951 was made with a view "to induce the sweepers to vote for the appellant". The reply of the appellant to this was that the order was made in the course of official routine and "not to induce the sweepers to vote" for him. Far from there being any specific denial that the sweepers were electors, the reply of the appellant proceeds on the basis that they were entitled towas argued by the learned Attorney General that the giving to a party to a proceeding a second opportunity to be heard was not unknown to law, and he cited the instance of an accused in a warrant case being given a further opportunity to recall and cross-examine prosecution witnesses after charge is framed, and of a civil servant being given an opportunity under Art. 311 to show cause against the action proposed to be taken against him. In a warrant case, the accused is not bound to cross-examine the prosecution witnesses before charge is framed, and in the case of civil servants, the decision that they are entitled, to a second opportunity was based on the peculiar language of Ss. 240 (2), (3) Government of India Act, 1935, and Art. 311 of the Constitution.The appellant also sought support for his contention that notice should be given under the proviso even to persons who are parties to the election petition, in the provision in S. 99 (l)(a)(ii) that the Tribunal might make such recommendations as it thinks proper for exemption of any persons from any dis-qualifications which may have been incurred under Ss. 141 to 143. The argument is that the dis-qualifications mentioned in S. 143 could only be with reference to candidates, as they relate to default in filing return of election expenses or in filing false returns, that before the Tribunal could take action under this provision it would have to give notice to the persons affected thereby who must necessarily be parties to the petition, and that if the proviso applies when action is to be taken. under S. 143, there is no reason why it should not apply when action is to be taken under the other sections of the Act as well.In the present case, the appellant was a party to the petition, and it was his election that was being questioned therein. He had ample opportunity of being heard, and was, in fact, heard, and therefore there was no need to issue a notice to him under the proviso to Section 99 before recording a finding under Section 99 (1) (a) (1). Further, even if we agree with the contention of the appellant that notice under the proviso should be given to a party to the petition, seeing thatthe reliefs which could be claimed in the election petition under S. 84 are those mentioned in S. 96, and that action under S. 9(1)(a) h to be taken at the time when the order under S.98 a pronounced, there is no insuperable difficulty in treating the notice to the party in the election petition as notice for purposes of the proviso to S. 99(1)(a) as well.This reasoning will not apply to persons who are not parties to the petition, and a notice to them will be necessary under the proviso, before they are named.