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

It relates to the election for the Akola constituency of the State Assembly of Madhya Pradesh which was held on 13-12-1951, and the result of which was notified in the Gazette on 4-4-1952. The two appellants are the electors of the said constituency. Respondent 1 was the successful candidate at the2, 3 and 4 were the other three candidates who, having been validly nominated went to the polls but were defeated. The appellants filed the election petition under S. 80, Representation of the People Act, 1951 (Act 43 of 1951) (hereinafter referred to as the Act) for setting aside the election on various allegations. The petition was filed on 19-4-1952, before the Election Commission at Delhi and was admittedly one day beyond the prescribedElection Commission admitted the petition after condoning the delay under the proviso to S. 85 of the Act and thereupon constituted a Tribunal for the trial of the petition at Akola by notifications dated 30-7-1952, and 22-9-1952. In due course respondent 1 appeared and filed his written statement on 6-10-1952 and the petitioners filed their reply thereto on 16-10-1952. With reference to these pleadings, the Tribunal was of the opinion that it was advisable to frame certain preliminary issues and to dispose of the same before entering on the trial of the case on itsnine preliminary issues were framed. These nine issues substantially cover the following questions: (1) Whether the election petition was presented by a properly authorised person. (2) Whether there was sufficient cause for presentation of the petition one day out of(3) Whether the petition was defective for nonjoinder of certain parties as(4) Whether the petition is defective for want of proper verification. (5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Sch. ATribunal found only the first of the above points in favour of the petitioners by a majority. But in respect of the other four points, it held against the petitioners unanimously. As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits. It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.2. Before dealing with the merits of the appeal, it may be mentioned that at an early stage of these proceedings before the Tribunal, an objection was taken to the composition of the Tribunal on the allegation that one of the members, Shri A. S. Athalye was not competent to be a member thereof on account of his alleged bias in favour ofThe bias was sought to be made out by showing that shortly before the election, Shri Athalye had written a letter to respondent 1 offering to assist him in his electionobjection being taken, the Tribunal stayed its hands for a preliminary decision of that question. Meanwhile, the petitioners took proceedings in the High Court far the quashing of the constitution of the Tribunal on the above ground by means of an application under Art. 226 of the Constitution. That application was dismissed after hearing both sides. Thereupon the petitioners moved this Court for special leave against the order of the High Court. But this Court declined to grant leave.Limitation : As stated above, the petition was filed on 19-4-1952, admittedly one day beyond time. On 28-4-1952, the petitioners filed also an application for condonation of delay setting out the reasons for the same. In paras. 3, 4 and 5 thereof the circumstances under which the delay is said to have occurred were set out asThe applicants were under the belief that notice under R.113 of the Rules framed under the above Act was published on 5-4-1952. in the Official Gazette of the State of Madhya Pradesh. They felt therefore that their petition was duly presented within 14 days as prescribed by R.119 Applicants, however learned that actually the notice under R. 113 was published in the Official Gazette of 4-4-1952. It therefore appears that there was delay of one day in the representation of the election petition . This delay occurred under the following circumstances.4. The application prepared their election petition on 17-4-1952. They sent the said petition with Shri P. B. Gole, Senior Advocate, Akola with a written authority to present the petition through any person of his choice at Nagpur on the 18th April. They also sent with Shri Gole Rs. 1,000 for being deposited in the Government Treasury at Nagpur as required by S. 117 of the Act and to obtain Treasury receipt for security of costs to be filed with the petition.The applicants were under the belief that an officer must have been appointed by the Election Commission under S. 81 of the Act to whom election petitions could be represented for the State of Madhya Pradesh at Nagpur. Accordingly Shri Gole left Akola for Nagpur by the 1 Down Nagpur Mail, reaching Nagpur at about 9-30 A.M. on 18-4-1952.Mr. Gole caused the deposit of Rs. 1,000 security for costs to be made in the Government Treasury at Nagpur through Mr. Sidhaye, Advocate, Nagpur, and obtained the necessary Government Treasury receipt on 18-4-1952. He then made enquiries about the officer who may have been appointed to receive the election petitions. He consulted R. S. Rangole, who was attached to the Election Office at Nagpur. On enquiries Shri Gole learnt that there was none at Nagpur, who was authorised to receive election petition under thethese circumstances Shri Gole booked a seat in the Night Plane for Delhi and flew to Delhi on the 18th and reached there on the morning on 19-4-1952. On 19th April Shri Gole caused the petition to be presented to the Secretary to the Electionexplanation thus furnished was accepted by the Election Commission as appears from the intimation to the petitioners by letter dated 30-7-1952. The Tribunal was of the opinion that notwithstanding the order of the Election Commission condoning the delay and admitting the petition, it was free to reconsider the question by virtue of the powers vested in it under S. 90 (4) of the Act. In this view it went into the merits of the explanation furnished and came to the conclusion that the petitioners were negligent and that the delay, even of one day, could not be condoned.It accordingly held that the petition was liable to be dismissed as barred by time.Joinder of Parties: The objection as to Joinder of parties arises as follows. Three persons by name Shri Sohoni, Shri Kulkarni, and Shri Kothkar were nominated as candidates at the election. Their nominations were found to be in order on scrutiny by the Returning Officer. But within the time allowed, these three withdrew from the elections under S. 37 of the Act. The petitioners while they impleaded as respondents the three unsuccessful candidates who went to the polls, did not implead these three persons.The view taken by the Tribunal was that these were also necessary parties and that their non-joinder rendered the petition liable for dismissal. In support of their view, the Tribunal relied upon S. 82 of the Act which is, as followspetitioner shall join as respondents to his petition all the candidates who were duly nominated at the election other than himself if he was so nominated.Verification: The view taken by the Tribunal on this question is based on S. 83 (1) of the Act which is as followselection 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 theCode of Civil Procedure, l908, for the verification ofrelevant provision in the Civil Procedure Code referred to herein is O. 6, R. 15, cls. (2) and (3), which are asThe person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."In the present case the verification of the petition as well as the schedule of particulars of corrupt practices are each signed by both the petitioners and there is now no dispute about it. The verification clause in the petition is as follows :"The above named applicants hereby affirm that the contents of the above petition are true to information received from the press reports and several other electors and believed by them to be true.Signed and verified at Akola onverification clause relating to the particulars of corrupt practices in Sch. A is as followsabovenamed applicants affirm that the contents in this schedule are true to information received and believed by us to be true.Signed and verified at Akola onthe view of the Tribunal there were two defects in these verifications. They do not refer to any numbered paragraphs nor do they bear the dates on which they were signed. In the view of the Tribunal the petition was liable to dismissal for non-compliance with the specific provision in the Act in this behalf. That the verification neither in the petition nor in the schedule of particulars bears any date is not disputed.Particulars of Corrupt Practices: The objection is based on S. 83(2) of the Act which is as followspetition 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 as 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 suchobjection is that the particulars of the instances furnished in Sch. A to the petition are all of them vague and not in compliance with the above provision. The list of particulars is as follows:" SCHEDULE "A"List of particulars of instances referred in the accompanying petition.That in the month of December,respondent 1 has been to the premises of Akola Shree Gurudwara, 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 this meeting respondent 1 canvassed for votes for himself and paid Rs. 201/-, 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 S. 123 Representation of the People Act.Similar instances of giving illegal gratifications for securing votes of respective groups are-(a) Donation to Hariharpeth Akhada ;(b) Payment to Panch-bungalow committtee of Bhangis of Old City.(c) Donation to Bhaji Bazar Association.(d) Distribution of blankets and saries and money to voters.2. At the instance of respondent 1 a meeting of workers in Berar Oil Industries - a concern of Birla, was called by its manager on the eve of the election and they were threatened to vote for respondent 1 on pain of losing their service or suffer pecuniary loss, in case they did not vote for respondent1. The poster of the rival candidate affixed on the post-office within the premises of the Berar Oil Industries was removed and stolen away.Respondent 1 caused groups and sections of castes and communities, such as Bohora, Lohars. Marwaries, Muslims, Rajasthanies, Bhangies, to issue appeals stating that resolutions were passed for voting for respondent 1, coercing the voters by threats etc., to vote for respondent 1 and openly canvassing on communal and caste lines and using undue influence.4. Issuing pamphlets and handbills without names of printer or publisher.At the time of counting votes in Polling Station No. 53, several folded bundles amounting to about 20 in number, of ballot papers were found in the ballot box of respondent 1, when it was opened for counting votes. This was noted by the Returning Officer. Each bundle consisted three or more than three ballot papers, folded together.Obviously each of the bundle of these ballot papers were put in the ballot box by one person, as the ballot papers put in the ballot box by different voters could not automatically fold themselves into a compact bundle in the ballot box. The ballot papers issued to voters were not put in the box by the voters themselves, but were illegally brought back by the voters and handed over to persons working for and on behalf of respondent 1 on payment of illegal gratification.These ballot papers thus collected were bundled together and put in the ballot box by persons working for and on behalf of respondent 1 by taking illegal gratifications. This was done on 31-12-1951, at Chandur by persons with the connivance of respondent 1.6. False personation of several dead voters and voters absent in Pakistan has taken place in Wards Nos. 12 and 15.7. Respondent 1 resorted to false propaganda. His man announced on loud speakers from place to place that rival candidate Dr. Joglekar was of the caste and party of Godse, the murderer of Mr. Gandhi and a vote for him was a vote for Gandhis murderer. Another false propaganda was that Dr. Joglekar was Mishras man, supported by Mishras money.Lectures for respondent 1 in public meetings, including respondent 1 have freely made these false defamatory and malicious statements against Dr. Joglekar, the rival candidate and thus prejudiced the prospects of Dr. Joglekars election. Personal character and conduct of Dr. Joglekar was also falsely attacked, thus prejudicing his prospects of election.Voters were carried in hired carts at many polling stations, particularly at Kapshi Polling Station. This was arranged by persons working for and on behalf of respondent 1 at his expense and connivance. A written objection for police enquiry was given at Kapshi and one in Rifle Range area.Respondent 1 spent lacs of rupees over his election transgressing the prescribed limit of Rs. 6,000/-. He has given a totally untrue return of election expenses. This is in contravention of law.Mohota Mills released workers and paid them for canvassing work for respondent 1 on polling day. Substitutes for these workers were engaged by the mills and they were also paid. This was done at the instance of respondent 1."

Reasoning:
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.