Case: T. Nagappa Vs. T.C. Basappa &amp; Others

Nagappa, AIR 1954 SC 440 (A).3. The appellant has now come up to this Court by way of special appeal against the order of the Tribunal dated 15-l-1953, and has urged the following grounds :(1) The findings that the appellant had committed the corrupt practices mentioned in Ss. 123(6) and (8) and S. 124 (4) are not justified by the evidence;(2) The Tribunal was in error in declaring the first respondent herein duly elected; and(3) The Tribunal had acted illegally in recording a finding against the appellant that he had become disqualified under Ss. 140 and 143 without notice to him under the proviso to S. 99.4. As regards the first contention, this Court has repeatedly held that ordinarily it will not in special appeal review findings of fact recorded by an Election Tribunal if there is evidence on which they could be reached. The appellant is unable to say that there is no. evidence whatsoever in support of these findings, and we must therefore decline to interfere with them.5. (2) It is next contended that having found that the appellant was guilty of corrupt practices, the Tribunal should have stopped with declaring his election void, and should not have passed the further order under S. 101 (b) declaring the first respondent duly elected. What the Tribunal has done is this : It found that about 60 voters were transported by Ahmed Jan to the polling booth, that of them 47 were Muslim women who voted for the appellant, and that if their votes were struck out, the margin of difference between the appellant and the first respondent which was only 34 votes would disappear, and the first respondent would have secured the largest number of valid votes.This is in accordance with S. 101 (b) which enacts that if the, Tribunal is of opinion that but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes, it could declare him duly elected. It is argued for the appellant that it cannot be said with certainty that the 47 votes recorded by the Muslim women would not have been recorded in favour of the appellant if corrupt practice had not been committed, that it would be mere speculation to hold that they would not be, and that therefore there is no. legal basis for the finding that the first respondent got the majority of votes.6. In support of this contention, reliance is placed on the observations of this Court in Jamuna Prasad v. Lachhi Ram AIR 1954 SC 686 at p. 689 (B) that "there is nothing to show why the majority of the first respondents voters would have preferred the 6th respondent and ignored the 3rd and 4th respondents." There, the Court was considering the question, to which of the defeated candidates the votes obtained by the returned candidate by corrupt and illegal practices would have been given, and it held that it would be mere speculation to hold that they would have been given to the candidate next in the order of votes and not to the others, and as there was no. certainty about the number of the votes, there was no. basis on which the next candidate could be declared elected.But, in the present case, the finding is that in all, 60 votes were recorded by the electors who were transported by Ahmed Jan, and of them at least 47 were recorded for the returned candidate. There is also the further finding that the voters would not have come to the polling booth from their village which was at a long distance but for the facilities furnished by Ahmed Jan. Even if all these votes were recorded in favour of the defeated candidate other than the first respondent, the lead of the latter would remain unaffected. On these facts, therefore, the observations in AIR 1954 SC 686 (B) have no. application. The contention of the appellant, moreover, is not that these votes might have turned the scale in favour of any of the defeated candidates other than the first respondent but in favour of himself. This is contrary to what is provided in S. 101 (b) of the Act, and there is nothing in AIR 1954 SC 686 at p. 689 (B) to support it. We must also observe that this question is really concluded by the observation of this Court in AIR 1954 SC 440 (A) that,"If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latters majority by 34 votes would be completely wiped out and the petitioner (present lst respondent) would gain an undisputed majority".No other argument its urged in support of this contention, which must accordingly be rejected.7. (3) It was finally argued that the finding of the Tribunal that the appellant had become subject to the dis-qualifications mentioned in Ss. 140 and 143 was bad, because no. notice was given to him as required by the proviso to S. 99. We have held in Civil Appeal No. 21 of 1955 (SC) (C) that no. fresh notice under the proviso need be given to a party to the election petition in respect of the very charges which are the subject-matter of enquiry therein and as to which he already had notice.The corrupt practices which have been found to entail the disqualifications under Ss. 140 and 143 are the very matters which formed the subject-matter of the election petition, and as the appellant had already had ample opportunity to defend himself against those charges, there was no. need for a further notice to him under the proviso. We have also held in the said appeal that in making recommendations with reference to the disqualifications mentioned in Ss. 141 to 143, the Tribunal exercises an advisory jurisdiction, and the proviso has no. application to it. Following this decision, we must overrule this contention.

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

Explanation:
0[ds]4. As regards the first contention, this Court has repeatedly held that ordinarily it will not in special appeal review findings of fact recorded by an Election Tribunal if there is evidence on which they could be reached. The appellant is unable to say that there is no. evidence whatsoever in support of these findings, and we must therefore decline to interfere withthe Tribunal has done is this : It found that about 60 voters were transported by Ahmed Jan to the polling booth, that of them 47 were Muslim women who voted for the appellant, and that if their votes were struck out, the margin of difference between the appellant and the first respondent which was only 34 votes would disappear, and the first respondent would have secured the largest number of valid votes.This is in accordance with S. 101 (b) which enacts that if the, Tribunal is of opinion that but for the votes obtained by the returned candidate by corrupt or illegal practices, the petitioner would have obtained a majority of the valid votes, it could declare him dulyelected.But, in the present case, the finding is that in all, 60 votes were recorded by the electors who were transported by Ahmed Jan, and of them at least 47 were recorded for the returned candidate. There is also the further finding that the voters would not have come to the polling booth from their village which was at a long distance but for the facilities furnished by Ahmed Jan. Even if all these votes were recorded in favour of the defeated candidate other than the first respondent, the lead of the latter would remain unaffected. On these facts, therefore, the observations in AIR 1954 SC 686  (B) have no. application. The contention of the appellant, moreover, is not that these votes might have turned the scale in favour of any of the defeated candidates other than the first respondent but in favour of himself. This is contrary to what is provided in S. 101 (b) of the Act, and there is nothing in AIR 1954 SC 686  at p. 689 (B) to support it. We must also observe that this question is really concluded by the observation of this Court in AIR 1954 SC 440  (A) that,"If the votes of at least 40 or 50 of these persons be left out of account as being procured by corrupt practice of the first respondent, the latters majority by 34 votes would be completely wiped out and the petitioner (present lst respondent) would gain an undisputed majority".No other argument its urged in support of this contention, which must accordingly be rejected.7.(3) It was finally argued that the finding of the Tribunal that the appellant had become subject to thedisqualifications mentioned in Ss.140 and 143 was bad, because no. notice was given to him as required by the proviso to S.We have held in Civil Appeal No. 21 of 1955 (SC) (C) that no. fresh notice under the proviso need be given to a party to the election petition in respect of the very charges which are theof enquiry therein and as to which he already had notice.The corrupt practices which have been found to entail the disqualifications under Ss. 140 and 143 are the very matters which formed theof the election petition, and as the appellant had already had ample opportunity to defend himself against those charges, there was no. need for a further notice to him under the proviso. We have also held in the said appeal that in making recommendations with reference to thedisqualifications mentioned in Ss.141 to 143, the Tribunal exercises an advisory jurisdiction, and the proviso has no. application to it. Following this decision, we must overrule this contention.