Case: Bhikaji Keshao Joshi And Another Vs. Brijlal Nandlal Biyani And Others

nominations papers but that they were summarily overruled by the Returning Officer without any enquiry and that accordingly the objections to the disqualification have been raised in the application. The objections are as follows :"6. The material facts in support of the grounds are as follows:(a) The election of candidate for the Madhya Pradesh State Assembly in the single member Akola Constituency was announced to be held on 31-12-195l. Nominations were to be filed on or before 15-11-1951, and scrutiny of nomination was due on 17-ll-1951. At this time of scrutiny objection was taken to the nomination paper of respondent 1 on several grounds but the material grounds were that respondent 1 was disqualified for being chosen as and for being a Member of Madhya Pradesh State Assembly under Chapter III, S. 7(d), Representation of the People Act, 1951. (Act 43 of 1951).That respondent 1 is disqualified to fill the seat under the Act, because he is the Managing Agent or Managing Director of Rajasthan Printing, and Litho Works - private limited company under the Indian Companies Act. He has, as a shareholder and director, interest, in contracts for supply of goods, viz., stationery, paper and printing materials, etc., to the State Government of Madhya Pradesh.He has also interest in contracts for the execution of works or performance of services, such as printing, etc., undertaken by the State Government of Madhya Pradesh. Respondent 1 gets a share by way of commission on sales effected by the Limited Company. He has, therefore, by himself interest in the contracts of the company with the State Government of Madhya Pradesh.(b) Respondent 1 is a partner in the firm Berar General Agency. The said firm has entered into a contract for the performance of cloth distribution on behalf of the State Government to retailers and holds a licence for the same. Respondent 1, therefore, has interest by himself in the said contract for the performance of services undertaken by the Government.(c) Respondent 1 is the proprietor of the monthly Journal "Prawaha" and a by weekly paper "Matru-bhumi These publications print Government advertisements on contract basis. Respondent 1 has, therefore, interest in the said contract for the performance of services undertaken by the State Government, Madhya Pradesh. The income derived from these contracts by respondent 1 are noted in the private accounts of respondent 1 and their details are shown in the profit and loss statements filed with income-tax return of respondent 1 for the relevant year and current year.The sales and other details of the Matrubhumi" concern are noted in the private accounts of respondent 1.These objections were summarily overruled by the Returning Officer, without any inquiry or any reason."These allegations, if made out with such further details as may be necessary, might well prove serious and bring about the setting aside of the election of the returned candidate. Respondent 1 in answer to these allegations states as follows:"It is denied that there was any improper acceptance of the nomination paper of respondent 1 and in particular it is denied that any of the allegations made in paras 6 (a), (b) and (c) of the petition constitute in law a disqualification of S. 7, Representation of the People Act. Without prejudice to this it is submitted that respondent 1 was not suffering from any of these dis-qualifications in fact on the date of the submission of the nomination paper."Having regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates. it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition . However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry. But before doing so and in view of the delay and other circumstances that have already happened, we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged output practices set out in Sch, A excepting the one covered by para 1 of item 1, i.e., as follows :" That in the month of December, 1951, respondent 1 had been to the premises of Akola Shree Gurdwara, where the Local Sikh Community had assembled to listen to the recitation of the holy book Granth Saheb on the 7th day of the death of daughter of one Sardar Suratsingh. At the meeting respondent 1 canvassed for votes for himself and paid Rs. 20l, apparently as donation to the Gurudwara, but really as gift for inducing the Sikh Community in the Akola constituency in general and the Sikhs assembled in particular to induce them to vote for himself at the ensuing election. Respondent 1 was guilty of bribery within the meaning of that term in Section 123, Representation of the People Act" The case will, therefore, go back for enquiry and trial with reference only to (1) the allegations in paras 6(a), (b) and (c) of the application for setting aside the election, and (2) the allegations in para 1 of item 1, in Sch. A attached to the application as set out above."10. The Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule. It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.

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

Explanation:
1[ds]Learned counsel for the appellants attempted to attack the validity of the decision of the Tribunal now under appeal on the same ground. But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened. On the other side, the learned Attorney-General for respondent 1 attempted to reopen before us the question as to whether the petition was presented to the Election Commission by an authorised person, which as stated above, was found against him by a majority of the Tribunal.The ground on which he attempted to reopen this question was that the finding was based on a wrong view as to the burden of proof.We were not prepared, however, to permit this finding of fact to be reopened in this appeal on special leave, irrespective of the question whether the burden of proof was rightly laid on the petitioners.was open to a Tribunal to reconsider the matter by virtue of S. 90(4) of the Act, is now covered by the decision of this Court reported in - Dinabandhu Sahu v. Jadumoni Mangaraj AIR 1954 SC 411   (A). It was therein held that it was not open to the Tribunal to reconsider the matter in such a case.The conclusion of the tribunal, therefore, on this point cannot belearned Attorney-General attempted to argue that the decision of this Court referred to above was obiter as regards the legal point and required furtherconsideration.But we were not prepared to permits that question to reopened. We were also not satisfied that there was any adequate reason for the Tribunal to interfere with the view taken by the Election Commission condoning the delay of one day on the explanation furnished to it. This explanation has not been found, even by the Tribunal , to bewe were called upon to settle this controversy, we would prefer to base the decision not on any meticulous construction of the phrase "at the election" but on a comprehensive consideration of the relevant provisions of the Act and of the rules framed thereunder and of the purpose, if any of the requirement under S. 82 as to the joinder of parties other than the returned candidate.We are, however, relieved from this since it has been decided in AIR 1954 SC 210   (E) that evenif any of the necessary parties other than the returned candidate has not been impleaded, the petition is not liable to be dismissed in limine on that sole ground but that it is a matter to be taken into consideration at the appropriate stage with reference to the final result of the case.In view of this ruling the decision of the Tribunal on this point also cannot beis to be noticed that a verified pleading is different from an affidavit which, by virtue of O. 19, R. 3, is specifically required to be confined to such facts as the deponent is able of his own knowledge to prove (except on interlocutory applications, on which statements of his belief may be admitted, provided that the grounds thereof are stated).But there is not - and in the nature of things here cannot be - any such limitation for pleadings. Hence it became necessary in the verification of a pleading to demarcate clearly between the two.The allegations in the petition in this case purport to he based only on information. Since the verification clauses refer to the entirety of the petition and the attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a defect.The verifications are accordingly defective only as, regards the requirement of the datesthere may be cases where the date of the pleading and the verification may be relevant and important, it would be a wrong exercise of discretionary power to dismiss an application on the sole ground of absence of date of verification. In such a case the applicants should normally be called upon to remove the lacuna by adding a supplementary verification indicating the date of the original verification and the reason for the earliercan be no doubt that almost all the instances hereinabove set out are extremely vague and lack sufficientview of the specific objection taken in the written statement and the opportunities which the petitioners had for amending the petition which the above orders disclose, there is considerable force in the contention of the learned Attorney-General that the petitioners, for some reasons best known to themselves, have come forward with a some what irresponsible petition and thatwhile the Court has undoubtedly the power to permit amendment of the schedule of corrupt practices by permitting the furnishing of better particulars as regards the items therein specified, there was no duty cast upon the Tribunal to direct suo motu the furnishing of betterundoubtedly the Tribunal has, in our opinion, taken all too narrow a view of their function in dealing with the various alleged defects in the petition and in treating them as sufficient dismissal, the petitioners are not absolved from their duty to comply, of their own accord, with the requirements of S. 83(2) of the Act and to remove the defects when opportunity was available.They cannot take shelter behind the fact that neither the Tribunal nor respondent 1 has, in terms , called upon them to furnish better particulars.The position, therefore, on the question of compliance or otherwise of the requirements of S. 83 of the Act is that (1) the verifications in the petition and schedule are defective inasmuch as the dates thereof are not specified, and (2) the schedule of particulars consists of a number of items of which only one at best could have been taken up for inquiry by the Tribunal. But all the rest were not only extremely vague but no amendment was applied for nor was an opportunity for amendment of pleadings in general, open on two occasions, availedthere is considerable force in this argument, we think that in a case of this kind the Tribunal when dealing with the matter in the early stages should not have dismissed the application. It should have exercised its powers and called for better particulars, on non-compliance therewith, it should have ordered a striking out of such of the charges which remained vague and called upon the petitioners to substantiate the allegations in respect of those which were reasonably specific.We are, therefore, of the opinion that, the order of the tribunal dismissing the petition outright was clearly erroneous. Notwithstanding this opinion we would, in the normal course, not have felt called upon to interfere in this case under Art. 136 after this lapse of time and at the instance of persons like the appellants before us who are mere voters having no direct personal interest in the result of the election.regard to the nature of the alleged disqualification, which is substantially to the effect that the returned candidate had interest in contracts with the Government at the relevant dates. it was very necessary that the matters should have been cleared up in the enquiry before the Election Tribunal.It is not in the interest of purity of elections that such allegations of disqualification should be completely ignored without enquiry and it appears rather surprising that the Tribunal should have ignored them and exercised its power to dismiss the petition . However reluctant we might be to interfere in a matter like this after the lapse of three years and four months and with only an year and eight months before the general elections, we feel constrained to send this matter back for due enquiry. But before doing so and in view of the delay and other circumstances that have already happened, we, in exercise of the powers which the Tribunal in the normal course might itself have exercised, direct the striking out of all the items of alleged output practices set out in Sch, A excepting the one covered by para 1 of itemThe Election Commissioner will now reconstitute an appropriate Tribunal for the purpose. The Tribunal when constituted and before proceeding to trial will call upon the petitioners to rectify the lacuna as to dates in the verification clauses in the petition and the schedule. It is to be hoped that the fresh proceedings before the Tribunal will be disposed of at a very early date.