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

- **Citation:** [1955] 2 S.C.R. 457
- **Court:** Supreme Court of India
- **Decided:** 1954-01-12
- **Case number:** Civil Appeal No. 21 of 1955
- **Bench:** S. R. DAs, Acting C. J, Venkatarama Ayyar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sw-lrda-kripalani-v-shri-s-s-dulat-i-c-s-chairman-4-the-ekction-t-ribunaj-delhi-1501
- **Pages:** 12

## Headnote

Election Dispute-Election petition-Contents alleged to be vague
and wanting in
particulars-Mainu1inability-Naming of
persons
for disqualification-Recommendation for exemption from disqualification-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.
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
1955
Tit-at/a SU.gh
...
Baehittar Singh
and ol/urs
458
SUPREME COURT REPORTS
[1955]
from disqualifications mentioned in ss. 141 to 143 is purely advisory.
Where it omits to do so, aggrieved parties have access to the Election
Commission which under s. 144 has the power to act suo motu. No
person, be he a party or a stranger, has a right to be heard by the
Tribunal on the question of such exemption and, therefore, no question of any service of notice under the proviso in this regard
can
arise.
Even supposing that the proviso requires notice on a party to
the dection petition, the noti.:e to him of the election petition itself
can be treated as a notice under the proviso.
C1VIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 21 of 1955.
Appeal under Article 133(1) (c) of the Constitution
of India against the Judgment and Order dated the
12th January
1954 of the Pepsu High Court in Civil
Misc. No. 182 of 1953.
M. C. Setalvad, Attorney-General of India, Veda
Vyas and /agannath Kaushal, (Natmit Lal, with them),
for the appellant.
The respondents did not appear.
1955.
September 15.
The Judgment
of
the
Court was delivered by
VENKATARAMA
AYYAR J.-The appellant
was 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 was
declared duly elected.
The first respondent who is
one of the electors in the Constituency filed the petition out of which the present appeal arises, for setting
aside the election on the grounds, . inter alia,
(1) that
the nomination of one
Mali Singh had been wrongly
rejected by the returning officer, and (2) that the appellant was guilty of the corrupt practice of bribery.
The Tribunal held that both these grounds were made
out, and accordingly set aside the election. It further
recorded a finding in terms of section 99(1) (a) of the
Representation of
the People Act No. XLIII of
1951
that the appellant was proved to have committed the
corrupt practice
of bribery
as mentioned
in
section
123(1) of the Act. The Appellant thereupon filed in
the High Court of Patiala and East
Punjab
States
2 S.C.R.
SUPREME COURT REPORTS
459
Union an applicat

## Text

2S.C.R.
SUPREME COURT REPORTS
457
lant's whole enc!-eavour was to circumvent such an
enquiry and oust the Tribunal's jurisdiction.
In that
she has failed,
so she will pay the contesting rcspondent' s costs throughout.
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 disqualification-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.
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
1955
Tit-at/a SU.gh
...
Baehittar Singh
and ol/urs
458
SUPREME COURT REPORTS
[1955]
from disqualifications mentioned in ss. 141 to 143 is purely advisory.
Where it omits to do so, aggrieved parties have access to the Election
Commission which under s. 144 has the power to act suo motu. No
person, be he a party or a stranger, has a right to be heard by the
Tribunal on the question of such exemption and, therefore, no question of any service of notice under the proviso in this regard
can
arise.
Even supposing that the proviso requires notice on a party to
the dection petition, the noti.:e to him of the election petition itself
can be treated as a notice under the proviso.
C1VIL
APPELLATE
JuRISDICTION :
Civil
Appeal
No. 21 of 1955.
Appeal under Article 133(1) (c) of the Constitution
of India against the Judgment and Order dated the
12th January
1954 of the Pepsu High Court in Civil
Misc. No. 182 of 1953.
M. C. Setalvad, Attorney-General of India, Veda
Vyas and /agannath Kaushal, (Natmit Lal, with them),
for the appellant.
The respondents did not appear.
1955.
September 15.
The Judgment
of
the
Court was delivered by
VENKATARAMA
AYYAR J.-The appellant
was 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 was
declared duly elected.
The first respondent who is
one of the electors in the Constituency filed the petition out of which the present appeal arises, for setting
aside the election on the grounds, . inter alia,
(1) that
the nomination of one
Mali Singh had been wrongly
rejected by the returning officer, and (2) that the appellant was guilty of the corrupt practice of bribery.
The Tribunal held that both these grounds were made
out, and accordingly set aside the election. It further
recorded a finding in terms of section 99(1) (a) of the
Representation of
the People Act No. XLIII of
1951
that the appellant was proved to have committed the
corrupt practice
of bribery
as mentioned
in
section
123(1) of the Act. The Appellant thereupon filed in
the High Court of Patiala and East
Punjab
States
2 S.C.R.
SUPREME COURT REPORTS
459
Union an application under Article 227 attacking the
finding of the Tribunal that he was guilty of bribery.
The order
of the Tribunal in so far as it set aside his
election was not challenged.
By ~der dated
12-1-1954
the High Court upheld the findings of the Tribunal,
and dismissed the application, and by order dated
7-6-1954 granted a certificate for appeal to this Court
under Article 133(1)(c).
That is how the appeal
.comes before us.
On behalf of the appellant, the learned AttorneyGeneral raised two contentions : ( 1) The finding that
the appellant was guilty of bribery
was
reached in
disregard of the mandatory provisions of section 83,
and that it was besides open to other legal objections;
and (2) the finding recorded under section 99 of the
Act was bad, because no notice was given to the
appellant, and no enquiry held as required by the proviso to section 99.
This point was not taken in
the
application under Article 227, and was sought to be
raised at the time of the argument in the High Court ;
but the leo.rned Judges declined to entertain it.
( 1) On the first question, the
complaint
of
the
appellant is that in the election
petit;:.~n the allegations relating to bribery were ·:ague and wanting in
particulars, and that the petition should accordingly
have been dismissed under sections 83 and 85 of the
Act; that the charge that was sought to be proved at
the hearing was at variance with the charge as alleged
in the petition, and that the Tribun:\l had erred in
giving a finding of bribery on the basis not of the
allegations in
the petition but
of the evidence addur'!d
at the trial.
The allegations in the petition relating
to this charge are as follows:
"The sweepers of Small Town Committee, Dhuri
were each granted good work allowance at Rs. 5 p.m.
for three
months only
during Election days,
simply
because they
happened
to be voters in the said Constituency,
vide letter No. ST/1(4)/52/20702 dated
7th
December,
1951.
All this was done to induce these
sweepers to vote for the respondent No. 1. The allowance was against the Rules".
1955
Tirath Singh
v.
Baehitlar Singh
and ollurs
Vmkatarama
AyJar J.
1955
Tirath Singh
v.
Bacbiuar Singh
and olhen
460
SUPREME COURT REPORTS
The
reply
follows:
of the appellant to this charge
[1955]
was as
"The sweepers of Small . Town Committee
represented to me in writing that their pays should be increased, and they also quoted the pays that the employees of other Small
Town Committees
and Municipal
Committees
were
getting.
The representation
was forwarded
to
the Secretariat.
The Secretariat
examined
it on merits, passed legal orders. Such concessions were also shown to other employees of the
various Small Tmvn Committees
and Municipal Committees
in
Pepsu
before and after this case. This
was an official
act
done in the routine and not to
induce the sweepers
to vote
for respondent No. 1".
On these averments,
the following issue was framed:
"5. Whether the sweepers
of Small Town Committee,
Dhuri, were granted good work allowance at
Rs. 5 p.m. for three months only during the election
days in order to induce them to vote for the Respondent No. 1 ?"
At the trial,
the petitioner examined the Darogha
of
the Small
Town Committee (P. W. 28), and five
sweepers, P. W s. 12, 13, 14, 39 and 40, and their evidence
was that sometime in November 1951 the appellant came
to Dhuri, enquired about the number of
sweepers in the service of the Committee, and offered
to raise their pay if they would vote for him, that the
sweepers
thereupon
held
a meeting
and considered
the suggestion of the appellant, and
then decided to
vote for him, if the pay was increased. It must be
stated
that
the
appellant
was
then Minister for
Health,
and
was in charge of Local Administration.
On 28-11-1951 he passed an order on a memorial sent
by the sweepers
that their pay would be increased by
Rs. 5 per mensem. Objection to the order was· taken
by the
Department,
and
thereupon,
the
appellant
passed the modified order dated 7-12-1951 granting
good work allowance for a period
of three months
from December 1951
to February 1952. The Tribunal
accepted the evidence
on
the side of the petitioner
that
the appellant
offered to
increase the salary of
the sweepers in 1951,
and held that the order dated
2 S.C.R.
SUPREME COURT REPORTS
461
7-12-1951,
granting good work allowance for the election period was the outcome
of the bargain come to
in November 1951,
and that
the charge of bribery
had been established.
It is contended for the appellant that in the petition there was no mention of the bargain on which
the finding of bribery by the Tribunal was based, that
the charge in the petition related only to the order
dated 7-12-1951, and that accordingly it was not open
to the petitioner
to travel beyond the petition and
adduce evidence in proof of a bargain which had not
been pleaded.
This
is to put too
technical
and
narrow
a construction
on the averments. The charge
in
the petition was not merely that the appellant had
passed the order dated 7-12-1951
but that he had
passed it with a view to induce the sweepers to . vote
for him.
That clearly raised
the question as to the
circumstances under which
the
order came to
be
passed, whether
it was in the course of official routine
as
the
appellant
pleaded,
or
under
circumstances
which were calculated to influence
the
voters.
Issue
5 put the matter beyond doubt, when it pointedly
raised the question
whether
the grant was "for three
months only during the election days in order to
induce them (the sweepers) to vote for the respondent No. l". Under the circumstances, the compiaint
that the evidence and the finding as to the bargain
went beyond the pleadings and should be ignored
appears to be without any substance.
It may
be
that the allegations in the petition are not as full as
they might have been; but if the appellant was really
embarrassed by the vagueness of the charge, it was
open to him to have called for particulars; but he did
not do so.
At the trial, the petitioner first adduced
evidence, and his witnesses spoke to the bargain in
November, 1951.
It is stated on behalf of the appellant that he objected to the reception
of the evidence
on the question of bargain, as it was
not pleaded.
But this is denied by the petitioner in his affidavit
filed in the High Court dated 3-12-1953.
Even apart
from this, the witnesses on behalf of the petitioner
gave evidence on this point on the 8th and
11th
1955
T irath Singh
v.
Bachittar Singh
and others
Venkatarama
AJ!)'arJ.
1955
Tirath Singh
v.
Baehittar Singh
alfd others
462
SUPREME COURT REPORTS
[1955)
November, 15th and 16th December, 1952, and on the
2nd February, 1953.
Then the appellant entered on
his defence.
On 26-2.1951 he examined R.W. 4, a
member of the Small Town Committee, to rebut the
evidence on the side of the petitioner, and himself
went
into the box and deposed to the circumstances.
under which the order came to be passed.
Having
regard to the above facts, there is and can be no complaint that the appellant was misled, or was prejudiced
by the alleged defect in the pleadings.
The
contention that is urged for him Is that the petition
should have been dismissed under section 83 for wan:
of particulars. This was rightly rejected by the High
Court as without force, and we are in agreement with
it.
' It is next contended that there is no evidence or
finding that the sweepers were entitled to vote in the
Constituency, or that the appellant was a candidate
as defined in section 79(2) at the time when the bargain was made.
But the allegation in the petition is
clear that the order dated 7-12-1951
was made with
a view "to induce the sweepers to vote for the appellant".
The reply of the appellant to this was that
the order was made in the course of official routine
and "not to induce the sweepers to . vote" for him.
Far from there being any specific denial that
the
sweepers were electors, the r{!ply of the appellant proceeds on the basis that they were entitled to vote.
This objection was not raised before the Tribunal,
and, as pointed out by the High Court, P. W. 12 does
say in his evidence that he is a voter.
This contention must accordingly be overruled.
Nor is there
any substance in the contention that there is no proof
that the appellant was a candidate at the time of the
bargain.
This again is an objection
which was not
taken before
the Tribunal, and on the evidence of the
witnesses examined on the side of, the petitioner which
was accepted by the Tribunal, the appellant would be
a prospective candidate as aefined in section 79(b) of
the Act.
The finding
that the appellant is guilty of
bribery
is therefore
not open to attack.
(2) It is next contended that the order of the
2S.C.R.
SUPREME COURT REPORTS
463
Tribunal in .so far as it recorded a finding that' the appellant had committeed the corrupt practice specified
in section 123(1) is bad, as no notice was given to him
as required by the proviso to section 99 and no opportunity to show cause against
it.
Section 99 runs
as follows:
"99. (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 ilames 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 point for detision is whether it was obligatory on
the part of the Tribunal to issue notice under the
above proviso
to parties to the election petition before
recording a finding
under
section 99(1)(a). The contention of the ~ppellant is that under section 99(1)(a)
the Tribunal has to record the names of all persons
1955
Tirath Singh
v.
Bachittar Sin~h
end others
Y tnkatarama
AJyar J.
SUPREME COURT REPORTS
[1955]
who are
proved
to
have been guilty . of corrupt or
illegal practice,
that that would include both
parties
to the petition
as well as non-parties, that the proviso requires
that notice should be given to all persons
who are
to be named under
section 99(1) (a), subclause (ii),
and
that
the
appellant was accordingly
entitled
to
fresh
notice under
the proviso.
It is
argued that
if the language of the enactment is interpreted in its
literal
and
grammatical sense, there
could be no escape from the conclusion that parties to
the petition are also entitled
to notice under rhe proviso.
But it is a rule of interpretation well-established
that, "Where
the language of a statute, in its ordinary
meaning and grammatical construction,
leads
to
a
manifest
contradiction of the apparent purpose of the
enactment,
or to some inconvenience or
absurdity,
hardship or injustice, presumably not intended, a construction may
be put upon
it which
modifies the
meaning of the words, and even the structure of the
sentence".
(Maxwell's
Interpretation
of
Statutes,
10th Edition, page 229).
Reading the proviso along
with clause (b) thereto, and construing it in its set·
ting in the section, we are of opinion that notwithstanding the wideness of the language used,
the proviso contemplates notice only to persons
who are not
parties to the petition.
The object of giving notice to a person under the
proviso is obviously to give him an opportunity to be
heard before a finding is given under section 99(l)(a)
(i) that he has committed a corrupt or illegal practice.
This clearly appears
from clause (b) of the
proviso, which
enacts that the person to whom notice
is to be given
should have an
opportunity of
crossexamining witnesses
who had been examined before
and
given evidence against
him, of calling
his own
evidence and of being heard.
This is in accordance
with the rule of natural justice which requires that no
one should be
condemned
without
being given
an
opportunity
to
be
heard.
The reason of the rule,
therefore,
requir~s that notice
should be given to persons who had had no previous opportunity in respect
of the matters mentioned in sub-clause (b) to the pro-
2 S.C.R.
SUPREME COURT REPORTS
465
viso. Such for example would be witnesses and possibly
agents of the parties,
as observed
in Nyalchand Virchand v. Election Tribuna/( 1), though it is i10t necessary to decide that point, but it cannot refer to parties to the petition who have had every opportunity of
taking
part
in
the trial
and presenting their case.
Where an election petition is founded on a charge of
corrupt practice
on
the part of the candidate, that
becomes the subject-matter of enquiry in the petition
itself.
If at
the trial the Tribunal came to the conclusion that the charge had been proved, then it has
to hold under section 100(2) (b) that
the election is
void,
and pass an order to that effect
under section
98(d). Section 99(1) enacts that the finding of corrupt
practice under section 99(1)(a)(i) or naming a person
under section 99(1) (a)(ii) should be at the time of
making an order under section 98.
If the contention
of the appellant is to be accepted, then the result will
be that
even
though there
was a full trial of the
charges set out in the petition, if
the Tribunal is disposed to
hold them proved it has first to give notice
of the finding which it proposes to give, to the parties,
and hold a fresh trial of
the very matters that had
been already
tried.
That is an extraordinary
result,
for which
it is difficult to discover any reason or
justification. It was argued
by the learned Attorney.
General
that
the giving
to a party to a proceeding a
second opportunity to be heard was not unknown to
law,
and he cited
the instance of an accused in a
warrant case being given
a further
opportunity
to
recall and
cross-examine
prosecution
witnesses
after
charge is framed, and of a civil servant
being given
an opportunity under article 311 to show cause against
the action
proposed to be taken against him. In a
warrant case, the
accused is not
bound to cross-
<:xamine
the
prosecution
witnesses
before
charge
is framed,
and
in
the case
of civil servants,
the
decision
that
they arc entitled to a second opportunity
was based
on the peculiar language of sections
240(2) and (3) of the Government of India Act, 1235,
and
Article
311
of
the Constitution.
They arc
(I) [1953] 8 Electiou Law Reporta 417, 421.
1955
Tiralh Singh
v.
Baehillar Singh
and others
V enkatarama
AY.)'ar ].
1955
Tirath Singh
v.
Bachiltar Singh
and othtr1
V1nkatarama
.dy)'ar ].
466
SUPREME COURT REPORTS
[19551
exceptional
cases,
and
do not
furnish
any safe or
useful guidance in the interpretation of section 99.
The appellant also sought support for
his
contention
that
notice
should be given under the proviso
even to persons who are parties
to the election petition,
in
the provision in section 99(l)(a)(ii) that the
Tribunal might
make
such
recommendations as it
thinks proper
for exemption of any persons from any
disqualifications which
may have been incurred under
sections 141 to 143.
The
argument is
that the disqualifications mentioned
in section 143 could only be
with reference to candidates, as they relate to default
in filing return
of election expenses or in filing false
returns, that before
the Tribunal
could take action
under
this provision it would have to give notice to
the persons affected thereby who must necessarily
be
parties to the petition, and that if the proviso applies
when action is to be taken under section 143, there is
no reason
why it should not apply when action is to
be taken under
the
other sections of the Act as well.
The fallacy
m
this argument is in thinking that
notice to
a person
is requisite for making a recommendation under section 9(1) (a) (ii)·
Section 99(1)
(a)(ii) deals with two distinct matters-naming persons who are
proved to have been guilty of corrupt
and
illegal
practices, and recommending
whether
there
should be any exemption in respect of the disqualifications mentioned in sections 141 to 143,
and
the proviso,
properly
construed, requires notice only
in the former case and not the latter. It will be noticed
that while in cases falling within sections 139 and 140
the disqualification
is
automatic
and immutable,
in
cases
falling
within
sections 141
to 143 the Election
Commission has power to grant exemption under section 144 of the Act.
It is to guide the Commission
in exercising its powers under section 144, that the
Tribunal is directed in section 99(l)(a)(ii) to make
any recommendations
with
reference
thereto.
The
jurisdiction of the Tribunal in respect of this matter
is purely advisory.
There is nothing to prevent the
Commission
from taking up the question of exemption
under
section .144 suo motu, even though the
2S.C.R.
SUPREME COURT REPORTS
f67
Tribunal
has
made
no
recommendation.
Indeed,
there . is
nothing to prevent the
person adversely
affected from applying directly to the Commission for
exemption.
While, therefore,
there
is
compelling
reason
why a person should have an opportunity of
showing cause before he is named there is none such
when the question is
one of recommendation.
As
we construe the proviso,
it confers no right on any
person,
party or stranger, to be heard on the question
whether he should
be recommended for
exemption
from the disqualifications ·under
section 141 to 143.
The
provision for exemption in section 99 (l)(a)(ii)
therefore does not lend any support to the contention
of the appellant that notice should be given to parties
to the petition
under
the proviso before they
are
named.
Reliance was also
placed by the appellant on thedecision of
the Election
Tribunal in Kesho Ram v.
Hazura Singh(1), wherein it was held by a majority
that notice under the proviso to section 99 should be
given to the parties to the petition also. For the reasons given above, we do not agree with the decision
of the majority.
Our conclusion
is
that while
the persons to bcnamed under section 99(1) (a)(ii) would include both
parties to the petition as well as non-parties, the proviso thereto applies only to persons who had no opportunity of taking part in the trial, and that, therefore, whether notice
should issue under the proviso
will depend on whether the person had an opportunity
to cross-examine
witnesses
who had
given evidence
against him and to adduce
his own evidence.
This
conclusion
is
in accord with the law
in England.
Under section 140,
sub-clause (1) of the Representation of the People Act,
1949, an election Court has to
state in its report
the names
of all persons who are
found guilty
of corrupt and illegal practice but "in
the case of some one who is not a party to the petition nor a candidate
on behalf of whom the ·seat or
office is claimed
by the
petition",
the court has to
issue notice to him, give him an opportunity of being
(I) [19,53] 8 Election Law Reports 320.
1955
Tirath Singh·
v.
Baehittar Singf,
and ot/wt
Venkatarama
AyyarJ.
1955
Tiralh Singh
v.
IJaehiltarSmgh
ondolhm
468
SUPREME COURT REPORTS
[1955]
heard by himself, and calling evidence in his defence.
It was suggested for the appellant
that the law
as
enacted in section 99
makes a
deliberate departure
from that under section 140( l) of the English Act.
The
difference in
the wording between the two sections is due to the difference in the arrangement
of
the topics
of the two statutes, and there is no reason
to hold
that
with reference to the substance of the
matter, there was
any intention to depart from the
English law on
the subject; nor is there any reason
therefor.
In the present case, the appellant was a party to
the petition, and it was his election that was being
questioned therein.
He had
ample opportunity
of
being heard, and was,
in fact,
heard, and therefore
there was no need to issue a notice to him under the
proviso to section 99 before
recording a finding under
section 99(1)(a) (ii). Further, even if we agree with
the contention of the appellant that notice under the
proviso should be given to a party to the
petition,
seeing that the reliefs which could be claimed in the
election petition under
section 84 are those mentioned
in section 98, and that action under section 99(1) (a) is
to be taken at the time when the order under section
98 is pronounced, there is no insuperable difficulty
in
treating the notice to the party in the election petition
as notice for purposes of the proviso to section 99( l) (a)
as well.
This reasoning will not apply to persons who
are not parties to the petition, and a notice to them
will be necessary
under
the proviso,
before they are
named.
In the result, all the contentions urged in support of
the appeal fail, which
must accordingly be rejected.
As the respondent has not appeared to
contest
the
appeal, there will be no order as to costs.