SUCHETA KRIPALANI versus SHRI S.S. DULAT, I.C.S., CHAIRMAN OF THE TRIBUNAL, DELHI AND OTHERS.

450

SUPREME COURT REPORTS

[1955]

1955

Stpttmbr 6

SUCHETA KRIPALANI ti.

SHRI S. S. ELECTION

DULAT, I.C.S., CHAIRMAN OF THE TRIBUNAL, DELHI AND OTHERS.

[VIVIAN BosE, BHAGWATI,

JAGANNADHADAS, B. P.

SINHA and JAFER IMAM JJ.]

Election Dispute-Election petition by unsuccessful rival-A/le gations of r12ajo1· co"upt practices and falsity in the return of election expenses against the returned candidate-Return of election expenses found defective and returned candidate disqualified by the Election Commission-Removal of such disqualification on lodging of fresh re turn-furisdiction of Election Tribuna/_:_If competent inquire into identical allegations of falsity against the second return-Repre· sentation of the People Act (XL/II of 1951), s. 143-The Representa· tion of the People (Conduct of Elections and Election Petitions) Rules, 1951, rule 114(4), (5) and (6).

to

The provisions of the Representation of the People Act and the Rules framed thereunder assign distinct and different jurisdictions to the Election Commission and an Election Tribunal so far as a Re.turn of election expenses is concerned.

Where there are allegations of major corrupt practices and a Tribunal constituted is in lawful seisin Of the dispute, s. 143 of the Act gives it the sole jurisdiction and makes it incumbent on it to in quire into the falsity of any particulars mentioned the return where such falsity is alleged and brought into issue and is reason ably connected with the major corrupt practices.

in

What the Election Commission has to do under Rule 114( 4) is to satisfy itself that the return is in the prescribed form. It is no part of its function to inquire into the correctness of any particulars mentioned therein. That question can only arise when some one raises a dispute and brings the matter into issue.

Consequently, in a case where, as in the present, the Election Commission removed the disqualification it had imposed on the re turned candidate for lodging a defective return of election expenses on the lodging of a fresh return; Held, that the decision of the Elec tion Commission removing the disqualification attaching to the first the Tribunal from inquiring into the return in no way precluded falsity of the particulars in the second return although they were identical with those challenged in the first return;

that the removal of the disqualification only meant that the accepted return was the only valid return, being the first to be cor rect in form, and the Tribunal had only that return before it.

---------------

2 S.C.R. SUPREME COURT REPORTS

451

. suC11efa- Kri'p~lani ·v. Sh~i S.S.- Duiat~ I.C.S., Chairman Of the Eiection Tribunal~ Delhi ·and others

CIVIL APPELLATE JURISDICTION: Civil Appeal No.

139 of 1955.

-

Appeal under Articles 132and 133 of the Constitu tion of India against the Judgment and Order dated the 23rd December 1953 of the High Court of Judi cature for the State of Prinjab,in Civil \Vrit Applica- tion No. 24 of 1953.L_____ •

·;- 0 • . ~: 1-tl N. 0. Chatterjee·, (R. S. N!irula, with him) for the · a:s. Pathak and Veda Vyds',-(Ganpat :R~i, ~ith

appellant.

. . ·

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-. . .

·.

"·.

.

.

; .

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.

'

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•

-

·

them), for respondent No. 5

· "" . - ~- ·- ..

· i955. Septe~ber, 6.' The ·Judgment _of the

Court was delivered by • ,. · · ·,

BosE J.-· The proceedings that have given rise fo this appeal arise out of an·eJection petition liefore the Election Tribunal; Delhi.

. · .. ' ·

. ·

'

The appellant Shrimati Sucheta·Kripalani together with the contesting respondent Shrimati Manmohirii Sahgal and others were candidates for· election to the House of the People from the Parliamentary ,Con- . stituency of New Delhi. The polling took place on - 14th January, 1952, and when the' votes.were counted on 18th January, 1952; it was foun·d that the appel lant had secured the largest number of votes an_d that the contesting respondent 1\Ianmohlni came next; The appellant '.was accordingly notified as the returned candidate on 24th January, 1952. . On 6th ~larch, 1952, ·the appellant filed her return of election expenses. This was found to· be defective, and on .17th April, 1952, tlie Election· Commission published a notification in the Gazette of India dis-· qualifying the appellant under Rule·ll4(5) of the Re presentation of the People (Conduct of Electio_ns and Election Petitioris) Rules, 1951, ori the ground that she had · ·

· · '•-" • · : ·

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: "failed to lodge the rel urn' of election expenses in the manner required" and that she· had· thereby the disqualifications under clause (c) "incurred of section 7 and section 143 of the Representation of the People Act, 1951':, _

--

·

1955

Sru;hlta Jrripalairi •• Sht'i S. S. Dulal, J.C.S., Chairman of the El<di°" T ribunol, Ddhi and oth"s

Bose].

452

SUPREME COURT REPORTS

[1955]

this

In view of

the appellant submitted a fresh return with an explanation under Rule 114(6) on 30th April, 1952. the Commission This was accepted . by and on 7th May, 1952, it published a notification in the Gazette of India under Rule 114(7) stating that the disqualification had been removed.

It will be noticed

In the meanwhile, on 7th April, 1952,

the contest an election petition ing respondent Manmohini filed that the appellant's election be declared void praying and that she (the petitioner) be declared to have been that this was before duly elected. 17th April, 1952, the Election Com mission disqualified the appellant. The validity of the election was attacked on many grounds. A num ber of major corrupt practices were alleged and the appellant had filed on 6th March, return which 1952, of her election expenses' was challenged as a minor corrupt practice on two grounds :

the date on which

the

(1) that the return was false in material particulars and (2) that it was not in accordance with the rules and so was no return at all in the eye of the law. Particulars of the instances the return was in which challenged as false were then set out.

The appellant filed her written statement

on 7th October, 1952. after she had put in her second return and after Election Commission had removed due to the first return. Her reply was as follows :

in reply It will be noticed that this was the the disqualification

(I) That as

the disqualification with

respect to the return of her election expenses had been removed by the Election Commission under section 144 of the Representation of the People Act, 1951, this question could not be reopened;

an

election

(2) That a minor corrupt practice which cannot not capable of vitiate materially affecting an election is wholly outside the scope of a proper election petition and so no cogni sance of. it can be taken by the Election Tribunal;

and which

is

(3) That only such matters can be put in issue as the the

arc necessary to decide whether the election of returned candidate fo liable to be set aside within meaning of section 100(2) of the Act.

1955·

Sue hi ta K ripalart v. Shri S. S. Dulat, I.C.S., Chairmart of lire Ek&tion Tribunal, Delhi and others

Bose].

2 S.C.R

SUPREME COURT REPORTS

453

The contesting respondent Manmohini filed a repli

cation on 15th October, 1952.

In it she said:- (1) that the Election Commission did hot

could not decide whether false still open. (This had dated 6th March, 1952.) ;

in material particulars and reference

and the return was or was not so the question was return to the first

(2) that in any event

"even the revised return is false in material parti to the original to the revised

culars and the objections with return also apply exactly with return".

regard regard

The broad propositions of law raised by points (2) and (3) in the appellant's written statement were also. denied. Then followed an item by item reply to the allegations made by the appellant in the list which she lisc to her written statement. That had appended return and was a reply to the particulars corrupt practices furnished by respon It is evident then that Manmohini deilt Manmohini. the same attacked grounds the same parti culars.

the first and furnished

false contesting

return on exactly

the as

second

the

of

returns as

in the eye

Now we have spoken of these

the first and the second. But counsel on both sides agreed be fore us that the first return was in fact no return at all of the law and that therefore the con testing respondent's real attack was on the second re turn which must be regarded as the only return wi1ich the law will recognise as a valid return. It was agreed that there cannot be two returns of expenses: either the one originally filed is amended or it is treated as a null In view of this it purports to be a return. ity so far as it is not necessary for us to express any agreement, the matter and we will concentrate our opinion on attention on what, for convenience, we will continue to call the second return.

The first point that now arises is whether the deci dis sion of the Election Commission to remove the qualification precludes an enquiry into the falsity of the second return simply the because the respondent Manmohini alleged

to the first

attaching

return

that

1955

llwhtla Kripal<uii v. Slwi S. S. Dulal, 1.c.s., Ch.airman of '"' Ellai.,. 1" ri/Junal Delhi and others

454

SUPREME COURT REPORTS

[1955]

is

are

exactly

of the falsity

the second and

the same as particulars before. Our answer to that is No. If the first return then the only re is no return in the eye of the law, that turn we are concerned with must be treated in the same way as it would have been if it had been the only return made. If there had been no other return and this return had been the grounds now raised, it is clear that challenged on the truth of the allegations made would have to be shut out enquired simply because second the allegations against to be exactly the same return .. happen the matter in the case of the first return. We of its falsity as are therefore of opinion that the jurisdiction of the Tribunal to enquire into these matters was not ousted on that account. Opr reasons for this are these.

into. That enquiry cannot be

the

in

Section 76 of the Act requires every candidate to in a particular form file a return of election expenses containing certain prescribed particulars. The form and particulars are set out in the Rules. Section 143 those prescribes if requirements. there is a "default" It also ensues:-

failure for It is disqualification.

in making the return.

This ensues

the penalty

to observe

"if such a return is found ........ upon

trial of an election petition under Part VI ........ to be false in any material particular".

the

the falsity of a return when in issue and

That places the matter beyond doubt. The trial of an election petition is conducted by an Election Tribu this section makes it incumbent on the Tribu nal and nal to enquire into that the allega is a matter raised and placed tions are reasonably connected with other allegations is about a major corrupt practice. that of the Election Com the Election Commission is mission. The duty of to decide under Rule 114(4) wh~ther any candi merely date has, among other things, to lodge

the return of election expenses .... m the manner required by the Act and these rules''. It is a question of form and not of substance. lf

The jurisdiction

the Tribunal

and not of

"failed

2 S.C.R.

SUPREME COURT REPORTS

455

the return is in proper form no question of falsity can If it is raised, arise unless somebody raises the issue. be made in some other document the allegations will by some other person and the charges so preferred will be enquired into by the Tribunal.

If the return

is not in proper form, disqualification ensues but the Election Commission is invested with the power to remove the disqualification under Rule If it does, the position becomes the same as 114(6). it would have been had the Election Commission decided that the form was proper in the first instance. falsity for That would still determination by the Tribunal in cases where the issue is properly raised.

the question of

leave

1955

Suto Kripalani

,,. Sltri S. S. Du/al, 1.c.s., C/iainun oftlwEUdittti T mllllal, Dllhi 4lld olhm

Bm].

allowed

to argue this

Mr. Chatterjee contended on behalf of

the appel lant that we were not concerned with the second return in this appeal and strongly protested against Mr. Pathak being point. But the main bone of contention almost that has been the election petition was filed, from the start. When there was only one return to attack. The second had not been put in. Later, when it was put in, the contest ing respondent, Manmohini, attacked both and the falsity appellant herself said that questions about the of the return could not be gone into because of the Election Commission's order removing the disqualifi cation. That argument applies as much to the second the as to the first return and raises an issue about respective jurisdictions the Election Commission of and the Election Tribunal on this point. The Tribu the appellant on this point and nal decided against held, as we do, the Election Commission was that not concerned with the issue of fact about the falsity of the return. then filed a petition the High Court and questioned under article 226 to the Tribunal's jurisdiction to enquire issue The High Court upheld the Tribunal's falsity. of the matter here decision and the appellant pursued both in her grounds of appeal and in her statement of the case. She cannot at this stage ask us to leave

The appellant

into

the

1955

Sueheta Kripalani Yo Slwi S. S. Dulat, l.C.S., Chairman °"' tht Election T ribMnal, Dtlhi and others

Bose J.

456

SUPREME COURT REPORTS

[1955)

the matter open so that she can come here again and re-agitate overrule this Mr. Chatterjee's objection.

question. We

accordingly

is

purely

require

the question

connected with

it could not materially affect

The next question argued was whether an Election corrupt practice Tribunal can enquire into a minor if it is of such a nature itself, that, standing by it could not have been made the basis of an election the . petition because result of the election. We need not go into that be cause academic in this case. the minor corrupt practice does The allegation about not stand by itself. There are also allegations about major corrupt practices which investigation and the minor corrupt practices alleged are reason them. Section 143 of the Act is ably to the question of the Tribunal's a complete answer jurisdiction on this point when it is properly seised of the trial of an election petition on other grounds. Whe ther it could be properly seised of such a trial if this if the minor corrupt had been the only allegation, or practice alleged was not reasonably connected with the other allegations about major corrupt practices, doe> not is proceeding on the the other matters the' Tribunal is bound under section 143, now that the issue has been raised, also to enquire into the return. With out such an enquiry it cannot reach the finding which section 143 contemplates. We need not look into the other sections which were touched upon in the argu ments and in the Courts below because section 143 is clear and confers a trial is properly in progress.

the question of the falsity of

therefore arise. As

jurisdiction when

the requisite

trial

There was some vagueness

The appellant has failed on every question of sub in two the basis of the enquiry on this point first the sub the same allegations are made issue of fact would in any event. The appel-

stance that she raised. the Election Tribunal's order about which of the returns formed but even return as the basis stance because exactly about the second return and the therefore have

that did not really affect

the Tribunal intended

to treat the

to be

tried

if

1955

Sw:lrda Kripalani v. Shri S. S. Dulat, I.C.S., Chairman 4 the Ekction T ribunaJ, Delhi and others

Bose].

1955

<;tpkmb1r 15

2S.C.R.

SUPREME COURT REPORTS

457

lant's whole enc!-eavour was enquiry and oust she has failed, dent' s costs throughout.

jurisdiction. so she will pay the contesting

to circumvent such an In that rcspon

the Tribunal's

The appeal fails and

is dismissed with costs all

through.

TIRATH SINGH ti. BACHITT AR SINGH AND OTHERS [S. R. DAs, ACTING C. J. and VENKATARAMA AYYAR J.]

Election Dispute-Election petition-Contents alleged to be vague and wanting in particulars-Mainu1inability-Naming of persons for disqualification-Recommendation for exemption from disqualifi cation-Notice-Jurisdiction of the Tribunal-The Representation of the People Act (XLIII of 1951), ss. 83, 99(1)(a) proviso.

Where the respondent in an election petition contended that the allegations in the election petition were vague and wanting in particulars, but did not call for any particulars which it was open to him to do and was not found to have been misled or in any way prejudiced in his defence, it \Vas not open to him to contend that the petition was liable to be dismissed for non-compliance with the provisions of s. 83 of the Act.

Clauses (a) and (b) of the proviso to s. 99 of the Representation of the People Act read together leave no scope for doubt that clause (a) contemplates notice only to such persons as were not parties to the election petition and it is, therefore, not obligatory on the Tribunal under cl. (a) to issue notices on such persons as were parties in order that it may name them for disqualification under sub-clause (ii) of s. 99(l)(a) of the Act. Clause (b) to the proviso obviously has the effect of excluding such persons as have already had the opportunity of cross-examining ·witnesses, calling evidence and of being heard, which the clause seeks to afford.

The Indian and the English Law on the matter arc substantially

the same.

Ke.rho Ram v. Hazura Singh, [1953] 8 Election Law Reports

320, overruled.

The jurisdiction that sub-clause

(ii) of s. 99(1)(a) of the Act confers on the Tribunal for making recommendation for exemption 11-83 S. C, India/59.