Tirath Singh vs Bachittar Singh and Others

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Civil Appeal No. 21 of 1955

Decision Date: 15 September 1955

Coram: Venkatarama Ayyar

In this case the Supreme Court of India heard a dispute arising from an election petition filed by the respondent against the petitioner, Tirath Singh. The petition challenged the election of the petitioner to the Legislative Assembly of the State of PEPSU from the Dhuri constituency. The judgment was delivered on 15 September 1955 by a bench consisting of Justice Ayyar and Justice T.L. Venkatarama, with Justice Das and Justice Sudhi Ranjan joining. The case is reported as 1955 AIR 830 and 1955 SCR (2) 457. The dispute involved allegations that the contents of the election petition were vague and lacking in particulars, and it raised questions about the maintainability of the petition, the naming of persons for disqualification, the recommendation for exemption from disqualification, the requirement of notice, and the jurisdiction of the election tribunal under the Representation of the People Act 1951, sections 83 and 99(1)(a) proviso. The Court held that when the respondent contended that the petition was vague but did not itself request further particulars, and when the respondent was not misled or prejudiced, the respondent could not argue that the petition should be dismissed for non-compliance with section 83. The Court explained that clauses (a) and (b) of the proviso to section 99 read together make clear that notice is required only to persons who are not parties to the petition, and therefore the tribunal is not obliged to issue notice to parties for the purpose of naming them for disqualification under sub-clause (ii) of section 99(1)(a). Clause (b) excludes persons who have already had the opportunity to cross-examine, call evidence and be heard, which the clause intends to protect. The Court observed that Indian and English law on this point are substantially the same and overruled the earlier decision in Kesho Ram v. Hazura Singh. The jurisdiction conferred by sub-clause (ii) of section 99(1)(a) to make a recommendation for exemption from disqualifications under sections 141 to 143 is purely advisory; if the tribunal omits to make such a recommendation, aggrieved parties may approach the Election Commission, which has power under section 144 to act suo motu. No person, whether a party or a stranger, has a right to be heard by the tribunal on the question of exemption, and consequently no notice requirement arises in that respect. Even assuming that notice were required to a party, the notice of the election petition itself would satisfy the proviso. The judgment was issued in Civil Appeal No. 21 of 1955, an appeal under Article 133(1)(c) of the Constitution against the judgment and order dated 12 January 1954 of the PEPSU High Court in Civil Miscellaneous No. 182 of 1953. Counsel for the petitioner included the Attorney-General of India and other counsel representing the petitioner.

The case was argued before the Court on 15 September 1955, with counsel Naunit Lal, assisted by others, appearing for the appellant, while the respondents did not appear. The judgment was delivered by Justice Venkatarama Ayyar. The appellant had been a candidate for election to the Legislative Assembly of the State of PEPSU from the Dhuri Constituency and, having secured the largest number of votes, had been declared duly elected. The first respondent, who was one of the electors in that constituency, filed an election petition seeking to set aside the election on two grounds: first, that the nomination of one Mali Singh had been wrongly rejected by the returning officer; and second, that the appellant was guilty of the corrupt practice of bribery. The Tribunal examined the petition, held that both grounds were made out, and consequently set aside the appellant’s election. It further recorded a finding under section 99(1)(a) of the Representation of the People Act No. XLIII of 1951 that the appellant had been proved to have committed the corrupt practice of bribery as defined in section 123(1) of that Act. The appellant thereafter filed, in the High Court of Patiala and East Punjab States Union, an application under Article 227 challenging the Tribunal’s finding of bribery, while leaving unchallenged the order setting aside his election. By an order dated 12 January 1954 the High Court affirmed the Tribunal’s findings and dismissed the application, and by an order dated 7 June 1954 it granted a certificate of appeal to this Court under Article 133(1)(c). Thus the present appeal arose before the Supreme Court. On behalf of the appellant, the learned Attorney-General advanced two contentions: first, that the finding of bribery had been reached in disregard of the mandatory provisions of section 83 and was open to other legal objections; and second, that the finding recorded under section 99 was invalid because no notice had been given to the appellant and no enquiry had been held as required by the proviso to that section. The second point had not been raised in the Article 227 application and was introduced at the hearing in the High Court, but the learned Judges declined to consider it. Concerning the first contention, the appellant argued that the allegations of bribery in the election petition were vague and lacking in particulars, and therefore the petition should have been dismissed under sections 83 and 85 of the Act. He further contended that the charge sought to be proved at the hearing differed from the charge alleged in the petition, and that the Tribunal erred by basing its finding on evidence adduced at trial rather than on the allegations contained in the petition. The petition alleged that the sweepers of the Small Town Committee, Dhuri, each received a “good work allowance” of Rs 5 per month for three months during the election days, solely because they happened to be voters in the constituency, as shown by a letter dated 7 December 1951, and that this allowance was intended to induce the sweepers to vote for respondent No 1, contravening the applicable rules.

According to the election petition, the sweepers of the Small Town Committee in Dhuri were each given a “good work allowance” of five rupees per month for a period of three months, and the allowance was granted only during the election days because the sweepers happened to be voters in that constituency, as alleged in letter number ST/1(4)/52/20702 dated 7 December 1951. The petition further claimed that the allowance was paid in order to induce the sweepers to vote for respondent No 1 and that the allowance was contrary to the applicable Rules. The appellant responded to this charge by stating that the sweepers had written to him requesting a raise in their pay and had also cited the pay rates of employees of other Small Town and Municipal Committees. The appellant said that this written representation was forwarded to the Secretariat, that the Secretariat examined the request on its merits and issued legal orders, and that similar concessions had been given to employees of various Small Town and Municipal Committees in PEPSU both before and after the present case. The appellant further asserted that the concession was a routine official act and was not intended to induce the sweepers to vote for respondent No 1. On the basis of these averments, the court framed Issue 5, which asked whether the sweepers of the Small Town Committee, Dhuri, were granted the good work allowance of five rupees per month for three months only during the election days in order to induce them to vote for respondent No 1.

At the trial, the petitioner examined the Darogba of the Small Town Committee, identified as prosecution witness 28, and also examined five sweepers, identified as prosecution witnesses 12, 13, 14, 39 and 40. The sweepers testified that in November 1951 the appellant had visited Dhuri, inquired about the number of sweepers employed by the Committee, and offered to raise their pay if they would vote for him. The sweepers said they subsequently held a meeting, considered the appellant’s suggestion, and decided to vote for him provided their pay was increased. The record noted that at that time the appellant was serving as Minister for Health and was responsible for Local Administration. On 28 November 1951 the appellant issued an order, in response to a memorial from the sweepers, increasing their pay by five rupees per month. The Department objected to that order, and the appellant then issued a modified order dated 7 December 1951, granting a “good work allowance” for a period of three months, namely from December 1951 to February 1952. The Tribunal accepted the petitioner’s evidence that the appellant had offered to raise the sweepers’ salary in 1951, held that the December 7 order was the result of the bargain reached in November 1951, and concluded that the charge of bribery was established. The appellant contested this finding, arguing that the petition did not mention any bargain, that the charge in the petition referred only to the order dated 7 December 1951, and therefore the petitioner was not entitled to introduce evidence of a bargain that had not been pleaded.

In this matter the Court rejected the attempt to give a overly technical and narrow meaning to the allegations in the petition. The petition did not simply allege that the respondent had issued the order dated 7-12-1951; it further asserted that the order was issued with the purpose of inducing the sweepers to vote for him. Accordingly the Court had to examine the circumstances under which the order was made, to determine whether it was part of ordinary official procedure, as the respondent claimed, or whether it was deliberately designed to influence the electorate. Issue 5 of the case left no doubt on this point, because it expressly asked whether the allowance “for three months only during the election days … was intended to induce them (the sweepers) to vote for the respondent No I.” The suggestion that the evidence concerning a bargain and the Tribunal’s finding went beyond the pleadings therefore lacked any merit. Even if the petition could have been more detailed, the respondent could have asked for further particulars, but he chose not to do so. At trial the petitioner was the first to present evidence, and his witnesses described a bargain reached in November 1951. The respondent alleged that the evidence on the bargain was inadmissible because it was not pleaded, a claim denied by the petitioner in an affidavit filed on 3-12-1953. Moreover, the petitioner’s witnesses testified on 8 and 11 November, 15 and 16 December 1952, and on 2 February 1953. After this the respondent entered his defence; on 26-2-1951 he examined R.W. 4, a member of the Small Town Committee, to rebut the petitioner’s evidence and also gave a statement describing the circumstances of the order. Considering these facts, the Court found no basis for saying that the respondent was misled or prejudiced by any alleged defect in the pleadings.

The respondent further contended that the petition should have been dismissed under section 83 for lacking particulars. The High Court had already rejected that submission, and the present Court agreed with that decision. The respondent also argued that there was no evidence that the sweepers were entitled to vote in the constituency, nor that the respondent qualified as a candidate under section 79(2) at the time the alleged bargain was made. The petition, however, clearly stated that the order of 7-12-1951 was issued “to induce the sweepers to vote for the appellant.” The respondent’s reply was that the order was part of routine administration and not intended to influence the sweepers’ votes, implicitly assuming that the sweepers were eligible voters. That assumption was never contested before the Tribunal, and the evidence of P.W. 12, who testified that he was a voter, supports it. Consequently, the contention regarding the sweepers’ voting rights was overruled. Similarly, the claim that there was no proof the appellant was a candidate at the time of the bargain was not raised before the Tribunal; the witnesses examined on the petitioner’s side were accepted, and they indicated that the appellant would be a prospective candidate as defined in section 79(b) of the Act. For these reasons the finding that the appellant was guilty of bribery could not be successfully attacked.

In response to the allegation that the order dated 7-12-1951 had been issued for the purpose of inducing the sweepers to vote for the appellant, the appellant asserted that the order was a matter of ordinary official routine and was not intended to secure any votes. He did not deny that the sweepers were qualified electors; rather, his reply was premised on the position that they were indeed entitled to vote. The objection that the sweepers might not have been electors was never raised before the Tribunal, and the High Court observed that the witness identified as PW 12 had testified that he himself was a voter. Consequently, the objection concerning the electorate status of the sweepers was required to be overruled. Similarly, the appellant’s claim that there was no proof he was a candidate at the time of the alleged bargain lacked substance. This point, too, had not been raised before the Tribunal. The Tribunal had, on the basis of the testimony of the witnesses examined on the petitioner’s side, accepted that the appellant would qualify as a prospective candidate under section 79(b) of the Act. Accordingly, the Tribunal’s finding that the appellant was guilty of bribery could not be challenged on the ground that he was not a candidate or that the sweepers were not electors.

The appellant further contended that the Tribunal’s order, which recorded a finding that the appellant had committed the corrupt practice specified in section 123(1), was defective because he had not been given notice as required by the proviso to section 99 and had been denied an opportunity to show cause. Section 99 stipulates: “(1) At the time of making an order under section 98 the Tribunal shall also make an order (a) whether any charge is made in the petition of any corrupt or illegal practice having been committed at the election, recording— (i) a finding whether any corrupt or illegal practice has or has not been proved to have been committed by, or with the connivance of, any candidate or his agent at the election, and the nature of that corrupt or illegal practice; and (ii) the names of all persons, if any, who have been proved at the trial to have been guilty of any corrupt or illegal practice and the nature of that practice, together with any such recommendations as the Tribunal may think proper to make for the exemption of any persons from any disqualifications which they may have incurred in this connection under sections 141 to 143. Provided that no person shall be named in the order under sub-clause (ii) of clause (a) unless (a) he has been given notice to appear before the Tribunal and to show cause why he should not be so named; and (b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the Tribunal, and has given evidence against him, of calling evidence in his defence and of being heard.” The issue for determination was whether the Tribunal was obligated to issue such notice to the parties to the election petition before recording a finding under section 99(1)(a). The appellant maintained that, pursuant to section 99(1), the requirement of notice applied to him as a party to the petition.

In this case the Court observed that the election Tribunal was required by section 99(1)(a) to record the names of every person who was proved to have committed a corrupt or illegal practice. That requirement, the Court said, covered both the parties to the election petition and any persons who were not parties. The proviso to that provision, the Court explained, mandated that notice be given to all persons who were to be named under subsection 99(1)(a)(ii). Consequently, the appellant was entitled to receive fresh notice in accordance with the proviso.

The appellant argued that a plain-language, grammatical reading of the statute left no doubt that parties to the petition were also entitled to notice under the proviso. The Court, however, referred to the well-established rule of statutory interpretation that permits a construction which avoids a manifest contradiction, inconvenience, absurdity, hardship or injustice that the legislature did not intend. The Court cited the authority “Maxwell’s Interpretation of Statutes, 10th Edition, page 229” for that principle. Applying that rule, the Court read the proviso together with clause (b) that follows it and, in the context of the whole section, concluded that despite the broad wording, the proviso was intended to provide notice only to persons who were not parties to the petition.

The purpose of giving notice, the Court said, was clearly to afford the person an opportunity to be heard before a finding under section 99(1)(a)(i) that he had engaged in a corrupt or illegal practice was recorded. This purpose was evident from clause (b) of the proviso, which required that the person receiving notice be allowed to cross-examine any witness who had already been examined and who had given evidence against him, to call his own evidence and to be heard. The Court linked this requirement to the rule of natural justice that no one should be condemned without a chance to be heard. Accordingly, the Court held that notice should be given to individuals who had not previously enjoyed such an opportunity, for example witnesses and possibly agents of the parties, as noted in Nyalchand Virchand v. Election Tribunal(1). The Court stressed that this did not extend to the parties themselves, who had already participated fully in the trial and presented their case.

The Court further explained that when an election petition is based on an allegation of corrupt practice by a candidate, that allegation becomes the subject of the inquiry. If, after the trial, the Tribunal concludes that the charge is proved, the Tribunal must, under section 100(2)(b), declare the election void and issue an order to that effect under section 98.

Section 99(1) provides that a finding of corrupt practice under clause 99(1)(a)(i) or the naming of a person under clause 99(1)(a)(ii) must be made at the same time as an order under section 98. The appellant contended that, if this provision were given effect, the Tribunal would be required, even after a full trial on the charges set out in the petition, to first serve notice of any finding it intends to make on those charges to the parties and then to conduct a fresh trial of the very matters that had already been tried. Such a consequence would be extraordinary, and the Court found no rational basis or justification for it.

The appellant’s counsel argued that granting a party a second opportunity to be heard was not unknown to law. He cited, as examples, the situation in a warrant case where an accused may be permitted to recall and cross-examine prosecution witnesses after the charge has been framed, and the circumstance of a civil servant who may be given a chance under Article 311 of the Constitution to show cause against a proposed adverse action. In the warrant-case scenario, the accused is not obliged to cross-examine witnesses before a charge is framed, and the entitlement of civil servants to a second opportunity was derived from the specific language of sections 240(2) and 240(3) of the Government of India Act, 1935, together with Article 311. The counsel acknowledged that these instances are exceptional cases and do not provide reliable guidance for interpreting section 99.

The appellant also sought to extend the requirement of notice under the proviso to persons who are parties to the election petition. He relied on the language of section 99(1)(a)(ii), which authorises the Tribunal to make recommendations it deems appropriate for exempting any persons from disqualifications that may have arisen under sections 141 to 143. The argument advanced was that the disqualifications mentioned in section 143 relate only to candidates, concerning defaults in filing election-expense returns or filing false returns, and that before the Tribunal could act under this provision it must serve notice to the affected persons, who are necessarily parties to the petition. Consequently, if the proviso applies to action under section 143, it should also apply to action under the other sections of the Act. The Court identified a flaw in this reasoning: it incorrectly assumes that notice to a person is required for the Tribunal to make a recommendation under section 99(1)(a)(ii). In fact, section 99(1)(a)(ii) addresses two separate matters—naming persons who have been proved guilty of corrupt practice and recommending whether any exemption from the disqualifications specified in sections 141 to 143 should be made.

The provision in section 99(1)(a)(ii) requires the Tribunal to name persons who have been found guilty of corrupt or illegal practices and to recommend whether any exemption should be granted from the disqualifications listed in sections 141 to 143. The proviso that follows this provision, when properly interpreted, mandates notice only in the situation where persons are named because they have been proved guilty, and not when the Tribunal is merely making a recommendation. It is important to note that in matters governed by sections 139 and 140 the disqualification takes effect automatically and cannot be altered, whereas in matters falling under sections 141 to 143 the Election Commission possesses the authority to grant an exemption under section 144 of the Act. The purpose of directing the Tribunal, in accordance with section 99(1)(a)(ii), to make recommendations is to assist the Commission in exercising the powers conferred by section 144. The Tribunal’s jurisdiction in this respect is purely advisory; there is no bar to the Commission deciding on an exemption on its own initiative, even if the Tribunal has not made any recommendation. Likewise, a person who suffers an adverse consequence may approach the Commission directly for an exemption. Consequently, while there is a compelling reason for a person to be given a chance to show cause before being named as guilty, such a requirement does not arise when the Tribunal’s role is limited to making a recommendation. The Court therefore construed the proviso as not granting any right to any person, whether a party or a stranger, to be heard on the issue of whether he should be recommended for exemption from the disqualifications in sections 141 to 143. Accordingly, the exemption provision in section 99(1)(a)(ii) does not support the appellant’s argument that notice must be given to the parties to the petition before they are named. The appellant also relied on the decision in Kesho Ram v. Hazura Singh, where a majority held that notice under the proviso to section 99 should be provided to the parties to the petition. For the reasons set out above, the Court did not agree with that majority view. The Court concluded that although the persons to be named under section 99(1)(a)(ii) may include both petition parties and non-parties, the proviso applies only to those who had no opportunity to participate in the trial. Hence, the requirement of notice under the proviso depends on whether the person had a chance to cross-examine the witnesses who testified against him and to present his own evidence. This conclusion aligns with the law of England. Under section 140(1) of the Representation of the People Act, 1949, an election Court must record in its report the names of all persons found guilty of corrupt or illegal practice, but “in the case of someone who is not a party to the petition nor a candidate on whose behalf the seat or office is claimed by the petition,” the Court must issue notice to that person, afford him an opportunity to be heard, and allow him to call evidence in his defence.

In this matter the Court referred to the decision reported in (1953) 8 Election Law Reports 320, noting that the appellant had the opportunity to be heard personally and to adduce evidence in his own defence. The appellant had argued that the provisions of section 99, as enacted, intentionally diverged from the provisions of section 140(1) of the English Act. The Court observed that the variation in wording between the two sections resulted merely from the different organisational schemes of the two statutes and that there was no indication, either from the substance of the provisions or from legislative intent, that Parliament sought to depart from the English rule; consequently, no reason existed to infer such a departure. Turning to the facts of the present case, the Court found that the appellant was a party to the election petition and that the election in which he was a candidate was the subject of the challenge. The appellant had been afforded ample opportunity to present his case, and he was in fact heard by the tribunal; therefore, the Court concluded that there was no requirement to serve a notice to him under the proviso to section 99 before arriving at a finding under section 99(1)(a)(ii). Even assuming, for argument’s sake, that notice under the proviso should be issued to a party to the petition, the Court noted that the remedies available under section 84 are those enumerated in section 98, and that the action contemplated by section 99(1)(a) is taken at the moment when an order under section 98 is pronounced. Accordingly, the Court held that the notice already served to the party in the election petition could be treated as satisfying the notice requirement of the proviso to section 99(1)(a). The Court clarified that this line of reasoning did not extend to individuals who were not parties to the petition; for such persons, a separate notice under the proviso remained necessary before they could be named. In the final analysis, the Court determined that every contention raised in support of the appeal failed and consequently dismissed the appeal. As the respondent did not appear to oppose the appeal, the Court ordered that no costs would be awarded.