JUMUNA PRASAD MUKHARIYA AND OTHERS versus LACHHI RAM AND OTHERS.

•9~4 Sept1mb<r 28.

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608

SUPREME COURT REPORTS

[1955]

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JUMUNA PRASAD MUKHARIYA AND OTHERS.

ti. LACHHI RAM AND OTHERS. [MEHR CHAND MAHAJAN C. J., MuKHEllJEA, s. R. DAS, VIVIAN BosE and GHULAM HASAN JJ.] the Constitution of India, Art. 19(1) (a)-Rep1·esentatio11 of People Act (XLI/l of 1951), ss. 123(5) and 124(5)-Whether ultr< vircs the Constitutiop. .

Held, that sections 123(5) and 124(5) of the Representation of the People Act (XLllI of 1951) arc not ultra vi1·es article 19(1) (a) of the Constitution.

CIVIL

APPELLATE

Ju1tISDICTION : Civil Appeal

No. 156 of 1954.

Appeals by Special Leave against

the Judgment and Order dated the 24th December, 1953, of the Elec· tion Tribunal, Gwalior, :tl'ladhya Bharat, in Election Petition No. 263 of 1952. N. C. Chatterjee,

(S. K. 'Kapur and Ganpat Rat~

with him) for tho;, appellants.

C. K. Daphtary, Solicitor-General

for India

(S. P.

Varma, with him) for the respondents Nos. 1 and 5.

C. K. Daphtary, Solicitor-General Lal, with him) for respondent No. 4.

for India ( C. P.

1954. September 28. The Judgment of the Court

was delivered by

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BosE J .-This

to set aside

the elections of

(respondents 1 and 2 to

the successful candidates. The constituency

from a· decision of the is an appeal in which the petitioner, Election Tribunal of Gwalior the an ekctor, sought the petition) who appellants is were in Madhya Bhilsa, a double member fighting Bharat. The petitioner seems to the petition on behalf of the 6th and 7th respondents is that they be declared to because one of his prayers have been duly elected in place of the appellants (respondents 1 and 2). The petitioner succeeded and the Tribunal d~clared the elections of the two appel to be void and further declared that the 6th and lants 7th respondents had been duly elected.

constituency to have been

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SUPREME COURT REPORTS

We will first consider that part of the decision which

1954

Jumna Prasci MukhariJa and oth11s

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Lachhi Ram and Othll's.

111111.

declares the election of the two appellants

to be void.

' 6th

published

them to be reflect on

The Tribunal finds, among other things, that the appellant No. 1 (1st respondent) certain pamphlets which contain statements listed as (a), (b ), (c), (e), (£)and (g) by the Tribunal. The Tribunal holds the 1st appel that these statements are false and that true. lant (1st respondent) did not believe It also holds the these statements that personal character and conduct of the 6th respondent and are reasonably calculated to prejudice his prospects the in the election. These findings were contested and the learned counsel for the appellants contended that the attack was on the public and political character of respondent and was a legitimate attack. We do not intend to examine this as a Court of appeal because this is a special appeal and all we are concerned to see is whether a Tribunal of reasonable and unbiased men reach such a conclusion. We have had could judicially read out to us and we are of some of these pamphlets is one opinion the Tribunal which judicial minds could reach. We in special appeal. decline to examine the matter further is meant law the decision of the Tribunal Under the to be final. That does not take away our jurisdiction but we will only interfere when there is some glaring error which has resulted in a substantial miscarriage of justice. On those findings a major, corrupt practice on the part of the 1st respondent (1st appellant here) under section 123(5) of the Representation of the People

the conclusion of

reasonably

that

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, Act, 19'il, is established.

The next finding concerns the 2nd respondent (appel that he made a syste lant No. 2). The Tribunal finds matic appeal to Chamhar voters to vote for him on the basis of his caste. There is evidence to suppon this leaflets marked N and 0 place . that finding. The beyond doubt. corrupt practice under section 124(5) of the Act.

This constitutes a minor

Both these provisions, namely sections 123(5) and 124(5), were challenged as ultra vires article 19(1)(a) of It was contended that article 245(1) the Constitution.

1954

Ju.mun• Pr•s•d Mukhariy• 11na Others

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I.achhiRam llnd OJhtr.r.

61se J.

610

SUPREME COURT REPORTS

[1955]

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It

like

is a special

they must observe

in this contention. These

the making of laws which violate the Consti prohibits tution and that interfere with a the impugned sections citizen's fundamental right to freedom of speech. There laws do not stop is nothing a man from speaking. They merely prescribe conditions which must be observed if he wants to enter Parliament. to stand as a candidate and contest an elec The right right tion is not a common law right. created hy statute and can only be exercised on the laid down by the statute. The frundamental conditions Rights Chapter has no bearing on a right this created by statute. The appellants have no fundament- If al right If they they want prefer ruks, hold that these sections are intra vires. to

to exercise the impugned sections do not stop them. We

to be elected members of Parliament. that

the their right of free speech outside these >

The result of committing any corrupt practice

the Tribunal found that both the appellants committed an illegal practice within the meaning of section 125(3) in that they issued a leaflet and a poster which did not have the name of the printer on

is a pure question of fact. is is void under section that the election of the candidate 100(2) (b ). result of the election was materially affected thereby because clause (b) is an alternative that stands by itself. All that need be proved is that a corrupt practice has been committed, and that the Tribunal finds to be the fact. The Tribunal was accordingly justified in declar ing the election of the first appellant to be void.

is not necessary to prove that the

these findings,

them. This

In addition

rules.

It

to

this

In addition

the Tribunal found that

the the second appellant corrupt practice committed by (respondent No. 2) also materially affected result of the election. This was challenged but we need not go into that because the finding that the second appel lant committed a minor corrupt practice and also an illegal practice is clear and w his case falls under clause (a) of sub-section (2) of section 100.

the

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Sub-section (2) (a), so far as it is material here, runs "f h T "b , ..... , ............... 1 t e n una 1s o opm10n-

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SUPREME COURT REPORTS

611

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(a) that

the election of a returned candidate has been procured or induced or the result of the election has been materially affected, by any corrupt or illegal practice

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1954

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Jumuna Prasad Muk\ariya and Others v. LAchhi Ram ana: Others.

Bose].

The Tribunal finds as a fact

that the second appel lant's election was procured by a corrupt practice. His case therefore falls within the first of the three alterna tives envisaged by clause (a), so it is not necessary to enquire whether it also falls under third. We hold that this election was also rightly declared to be void. second appellants That disposes of first (respondents 1 and 2).

and

the

the

are

the 4th and 5th

We now turn to respondents 6 and 7 to

the petition. respondents 'before us, They Ramsahai and Sunnu Lal. The Tribunal, acting under section 101 (b), declared them to be duly elected. Here, we a_re of opinion that the Tribun~l was wrong. Before this can be done, it must be proved that returned the votes obtained by candidate by corrupt or illegal practices .... such other candidate would have obtained a majority of the valid votes."

"but for

the

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The Constituency was a double member .constituency. for the General Constituency and

The following stood obtained the votes shown against them :

Jamuna Prasad Mukhariya (Respt. No. 1) Keshav Shastri (Respt. No. 3) V. N. Sheode (Respt. No. 4) Ram Sahai (Respt. No. 6)

13,669 1,999 1,350 12,750 the difference m votes that between respondents 1 and 6 is 919. We presume that this is meant them was close. From that the Tribunal jumps to the follow ing conclusion :

The Tribunal says

the voting between

to show

that

"Considering the scandalous nature of statement regarding respondent No. 6 and

the false the mode

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SUPREME COURT REPORTS

[1955]

1954

Jumuna Prasad Mukhariya and Others v. Lac~hi Ram and Ot,'1ers.

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of systematic appeal on the basis of caste made by respondent No. 2 we have no doubt in our minds that .... respondent No. 1 .......... got more votes simply because of. ..... corrupt practices and if these corrupt practices had not been there respondent No. 6 ....... . undoubtedly would have obtained a majority of valid votes."

This, in our opinion,

is pure speculation and

is not a conclusion which any reasonable mind could judicially reach on the data set out above. There is nothing to respondent's voters show why the majority of the would have preferred the 6th ignored the 3rd and 4th respondents.

respondent and

!st

An exactly similar process of reasoning was followed in the case of the 7th respondent. He was a Scheduled Caste candidate and the voting there was as follows :

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Chaturbhuj Jatav (Respt. No. 2) Hira Khusla Chamar (Respt. 5) Sunnulal Here, again,

12,452 601 10,889 is no basis for concluding that those who voted for the 2nd respondent would, if they had not done so, have preferred the 7th respondent to the 5th.

(Respt. 7)

there

We set aside this part of the order. The result is that the appeal fails

the Tribunal's declaration voiding

attacks of the' two appellants but succeeds against the order which declares have been elected. no order about costs in either Court .

it the election that part of tl1e 6th and 7th respondents to there will be

In the circumstances

in so far as

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Order accordingly.

GJPN-$5-87 S, C, Jndiaf59-27·1l·61-l,OOO