Giani Zail Singh vs Election Tribunal II and Others

A.N. Grover, J.—This is a petition under Article 226 of the Constitution which is directed against the order of the Election Tribunal II, Chandigarh, dated 28th August 1963 by which it allowed Respondent Kanwarani Jagdish Kaur to produce evidence in support of the allegations made by Fauza Singh whose petition is pending before the Tribunal challenging the election of the present Petitioner Giani Zail Singh to the Punjab Vidhan Sabha from the Faridkot constituency. Fauza Singh, one of the voters in the constituency, had filed a petition u/s 81 of the Representation of the People Act, 1951 (hereinafter to be referred to as the Act) : calling in question the election of the present Petitioner and for declaring his election void and further declaring that Respondent Kanwarani Jagdish Kaur had been duly elected to the said constituency.

Shri Chetan Dev was also impleaded as a Respondent as he was one of the contesting candidates. It is common ground {according to facts stated at the Bar by counsel for the parties) that before the Tribunal, Fauza Singh* had submitted a list of a large number of witnesses out of whom about fifty had been produced before 19th December, 1961. On that date he filed an application that Sepoy Murkhtiar Singh might be examined on commission aS he was on active duty in the NEFA area and his examination'' was material in view of the allegations contained in sub-paragraph (6) of paragraph 8 of the election petition. On 4th January 1963 Fauza Singh applied to the Tribunal that he had withdrawn the power of attorney which he had given'' in favour of Shri Shamsher Singh Bedi who had hitherto been conducting the case on his behalf and he had engaged a new counsel Shri Harbhag wan Singh. He further stated that he had no more witnesses to produce.

It appears that at that stage Respondent Kanwarani Jagdish Kaur mads a prayer to the Tribunal to allow her-to lead additional evidence in support of the allegations, contained in the election petition on the ground that Fauza Singh had started acting in collusion with the returned candidate. On objections having been raised to such a course being followed, arguments in the matter continued on various dates. On 27th March 1963 Fauza Single stated that he wanted to examine himself as a witness as also the Handwriting Expert Shri K.S. Puri. This was allowed by the Tribunal on 28th March, 1963. After the specimen signatures of Giani Zail Singh had been taken by Shri K.S. Puri and after he had filed a report in June 1963, Fauza Singh and his counsel made a prayer in August 1963 for production of another Expert. This was disallowed. On 28th August 1963 the Tribunal made the order which has been challenged.

The main argument of the learned Counsel for the Petitioner Giani Zail Singh is that the Respondents Kanwarani Jagdish Kaur could not be allowed to lead evidence to support the allegations made in the petition as it was for the Petitioner in the election petition to prove his case in any manner that he chooses to do it is contended that. Port VI of the Act containing Chapters I to V constitutes a self-contained code governing the trial of election petitions. My attention has been drawn to the various Sections of the Act commencing with Section 80 and ending with Section 119 for the purpose of showing that there is no provision under which Respondent Kanwarani Jagdish Kaur could ask the Tribunal to allow her to produce evidence in support of the allegations contained in the election petition.

It will be useful at this stage to briefly refer to these sections. Section 80 merely provides that no election shall be called in question except by an election petition presented in accordance with the provisions of Part VI. Section 81 deals with the presentation of petitions and Section 82, with the question of persons who are to be joined as parties to the petition and it is provided that a Petitioner shall join as Respondent to his petition:

(a) where the Petitioner, in addition to claiming a declaration that the election of all or any of the, returned candidates is void, claims a further declaration that he himself or any other candidate has been duly elected, all the contesting candidates other than the Petitioner, and where no such further declaration is claimed, all the returned candi- dates; and

(b) any other candidate against whom allegations of any corrupt practice are made in the petition.

Section 83 deals with the contents of the petition which is to contain a concise statement of the material "facts as also the full particulars of any corrupt practice that the Petitioner alleges etc. and which is to be signed by the Petitioner and verified by him. It is also to be accompanied by an affidavit in the prescribed form if the Petitioner alleges any corrupt practice. Section 84 says that a Petitioner may, in addition to claiming a declaration that the election of all or any of the returned candidates is void, claim a further declaration that he himself or any other candidate has been duly elected. Section 85 deals with a situation where the Election Commission can dismiss the petition for non-compliance with the provisions of Section 81 or Section 82 or Section 117. It is unnecessary to refer to Sections 86 to 89 which relate ''to the'' appointment of the Election Tribunal, place of trial etc.

Section 90, however, is of importance and it is necessary to set out the material parts of that section:

90 (1) Subject to the provisions of this Act and of any rules made thereunder, every election petition shall be tried by the Tribunal, as nearly as may be, in accordance with the procedure applicable under the Code of Civil Procedure, 1908 (5 of 1908), to the trial of suits:

Provided that the Tribunal shall have the discretion to refuse for reasons to be recorded in writing to examine any witness or witnesses if it is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Indian Evidence Act, 1872 (41 of 1872), shall, subject to the provisions of this Act, be deemed to apply In all respects to the trial of an election petition.

(3) The Tribunal shall dismiss an election petition which does not comply with the provisions of Section 81, or Section 82 notwithstanding that It has not been dismissed by the Election Commission u/s 85.

Explanation.--An order of the Tribunal dismissing an election petition under this Sub-section shall be deem-ed to be an order made under clause (a) of Section 98.

(4) Any candidate not already a Respondent shall, upon application made by him to the Tribunal within fourteen days from the date of commencement of the trial and subject to the provisions of Section 119, be entitled to be joined as a Respondent.

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(5) The Tribunal may, upon such terms as to costs and otherwise as it may deem fit, allow the particulars of any corrupt practice alleged in the petition to be amended or amplified in such manner as may in its opinion be necessary for ensuring a fair and effective trial of the petition, but shall not allow any amendment of the petition which will have the effect of introducing particulars of a corrupt practice, not previously alleged in the, petition.

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Section 91 relates to appearance before the Tribunal and Section 92 confers powers on the Tribunal of the same nature as are vested in a Court under the CPC when trying a suit in respect of the matters set out in the section. It further empowers the Tribunal to summon and examine ''suo motu'' any person whose evidence appears to be material. Section 93 is to the effect that no document shall be inadmissible in evidence at the trial on the ground that it is not duly stamped or registered. Section 94, lays down that no witness or other person shall be required to state for whom he has voted at an election. Section 95 relates to answering of criminating questions and certificate of indemnity and Section 96 to expenses of witnesses.

Section 97 deals with a situation, where in an election petition a declaration has been sought that any candidate other than the returned candidate has been duly elected; the returned candidate, or any other party can give evidence to prove that the election of such candidate would have been void if he had been the returned candidate and a petition had been presented calling In question his election. The returned candidate or such other party cannot give evidence unless within fourteen days from the date of the commencement of the trial he gives notice to the Tribunal of his intention to do so and has also given the security and further security refer- red to in Sections 117 and 118 respectively.

It is unnecessary to refer to, Sections 98 to 108. Section 109 provides for withdrawal of petitions after appointment of the Tribunal by means of an application. Section 110 says that if there are more Petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the Petitioners Sub-section (2) is important and deserves to be set out:

(2) No application for withdrawal shall be granted if in the opinion of the Election Commission or of the Tribunal, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed.

Section 111 relates to the report of withdrawal by the Tribunal to the Election Commission. Sections 112 to 116 provide for abatement of election petitions, out of these particular mention may be made to Sections 112 and 115. It is provided by them that an election petition shall abate only on the death of a sole Petitioner or of the survivor of several Petitioners. After a notice of abatement has been published in the Official Gazette, any person who might himself have been a Petitioner may, within fourteen days of such publication, apply to be substituted as Petitioner and upon compliance with the conditions of Section 117 as to security he shall be en titled to be so substituted and to continue the proceedings upon such terms as the Tribunal may think fit. There are similar provisions with regard to substitution in case of abatement by reason of the death of the sole Respondent (Sec. 116).

Finally reference may be made to Section 117 providing for deposit of security by the Petitioner and Section 118 for further security for costs during the pendency of the petition and Section 119 which is to the: effect that no person stall be entitled to be joined as a Respondent under Sub-section (4) of Section 90 unless he has given such security for costs as the Tribunal may direct.

Mr. C.L. Lakhanpal, the learned Counsel for the Petitioner, has submitted that according to the entire scheme of the provisions contained in Part VI of the Act, a right is conferred on the Petitioner to claim a declaration that the election of all or any of the returned candidates is void and, in addition, to claim a further declaration that he himself or any other candidate has been duly elected. The security for costs is also to be deposited by the Petitioner and not by the Respondent who has been made a party under the previsions contained in Section 82. Therefore, it is the Petitioner alone who is to prove his case and if he fails to do so, the petition has to be dismissed.

According to Mr. Lakhanpal, the Parliament has taken good care to provide for all eventualities like withdrawal of the election petition and its abatement. Special provisions have been made in this behalf keeping in view the well-known principle that an election petition is not a matter in which the only persons interested are the candidates who fought out the elections but the public are also substantially interested in it and it is a proceeding in which the constituency itself is the principal party concerned. The counsel argues that if the Parliament had any intention whatsoever of providing for a contingency where the Petitioner either due to collusion or otherwise with the returned candidate becomes slack or abstains from prosecuting the election petition in a proper manner, it would have made some provision in the Act. It is said that the Parliament was fully alive to what might happen if the election petition was sought to be withdrawn by the Petitioner or if it was to abate and that is why specific provisions were made to overcome the difficulties that would arise in those cases. The burden of the argument is that the Parliament has made no provision whatsoever for giving a right to a Respondent to virtually prosecute the petition once the Petitioner himself does not prosecute it with and real Even otherwise the Respondent has no right to lead evidence to support the allegations in the petition, al though he may be supporting the case of the Petitioner in its entirety. There would be a certain amount of force in these submissions if the provisions of the CPC or the Indian Evidence Act were not applicable to election petitions. The real point for determination, therefore, is to what extent the procedure prescribed by the Code would be applicable to an election petition which is being tried by the Tribunal in view of the provisions contained in Section 90, Sub-section (1) and (2) of the Act.

Mr. Lakhanpal has relied a great deal on the decision of their Lordships in Inamati Mallappa Basappa Vs. Desai Basavaraj Ayyappa and Others, in which the question was the extent to which the provisions of Order XXIII, Rule 1 of the Code could be made applicable to election petitions. There, the Appellant and Respondents 1 to 3 were the contesting candidates for election to the Mysore Legislative Assembly from the Dharwar constituency. The Appellant had been declared elected Respondent No. 1 presented an election petition wherein besides claiming a declaration that the election of the Appellant was void, he claimed a further declaration that he (Respondent No. 1) had been duly elected as he had secured the next highest number of'' valid votes Later on, Respondent No. 1 submitted before the Election Tribunal an application under Order XXIII, Rule 1 saying that ha wanted to abandon a part of his claim, namely.

that it be further declared that the Petitioner has been duly elected as the Petitioner has secured the next highest number of valid votes.

He wanted to confine his claim to have the election of Respondent No. 1 declared void.

The Tribunal held that by virtue of Section 90(1) under Order XXIII, Rule 1 of the Code Respondent No. 1 had a right to abandon a part of his claim. It was in that context that after, examining the relevant provisions, their Lordships observed that if the whole election petition once presented could nut be withdrawn, it would not be possible for the Petitioner to withdraw or abandon a part of his claim. The following observations at p. 704 deserve to be reproduced :

The effect of all these provisions really is to constitute a self-contained Code governing the trial of election petitions and it would appear that in spite of Section 90(1) of the Act, the provisions of Order 23 Rule 1 of the CPC would not be applicable to the trial of election petitions by the tribunals. If the withdrawal of a petition cannot be permitted and any person who might have been a Petitioner is entitled to continue the proceedings, on a parity of reasoning, the withdrawal of a part of the claim also could not be permitted without alloying another person who might have been a Petitioner an opportunity of proceeding with that part of the claim by substituting himself in place and stead of the Petitioner who withdraws or abandons the same.

Now, the distinguishing feature of this decision Is that in the Act itself in Part VI there are specific provisions which deal with the question of withdrawal and, therefore, if withdrawal of the petition or of any part of the claim in it is to ,be made that has to be regulated by the provisions contained therein. The position apparently was this that Order XXIII, Rule 1 could not be made applicable owing to the existence of a specific prevision governing the question of withdrawal of an election petition. Section 90(1) itself provides that the procedure applicable under the Code would govern the trial of election petitions "subject to the provisions of this Act". This decision cannot be pressed into service for contending (as has been done by Mr. Lakhanpal) that even though there may be no specific provision on a particular process or stage of the trial of the election petition in the Act itself, the procedure obtaining under the Code would not be applicable. Indeed, their Lordships in an earlier case, Harish Chandra Bajpai Vs. Triloki Singh, observed while deciding the scope of applicability of Order VI, Rule 17 of the Code to ejection petitions:

The last contention is based on the provision in Section 90(2) that the procedure prescribed in the CPC is to apply subject to the provisions of the Act and the rules. It is argued that Section 83(3) is a special provision relating to amendments, and that it must be construed as excluding Order 6, Rule 17. The result, according to the Appellants, is that if an amendment could not be ordered u/s 83(3), it could not be ordered under Order 6, Rule 17. This contention appears to us to be wholly untenable. The true scope of the limitation enacted in Section 90(2) on the application of the procedure under the CPC is that when the same subject-matter is covered both by a provision of the Act or the rules and also of the Code of Civil Procedure, and there is a conflict between them, the former is to prevail over the latter. This limitation cannot operate when the subject-matter of two provisions is not the same. Section 83(3) relates only to amendment of particulars, and when the amendment sought is one of particulars, that, Section will apply, to the exclusion of any rule of the CPC which might conflict with it, though it does not appear that there is any such rule.

Following the law as laid down in the above case, it has next to be decided whether under the Code a Defendant who supports the case of the Plaintiff can be allowed to lead evidence in respect of the case of the Plaintiff. The matter is not res integra and there are at least two decisions which may be referred to with advantage. As long ago as 1908 it was ruled by the Bombay High Court in Haji Bibi v. H.H. Sir Sultan Mahomed Khan ILR 32 Bom 599 , that the Plaintiff and such of the Defendants as support the Plaintiff''s case, wholly or in part, must address the Court and call their evidence in the first place, and then the other party, namely, the persons opposed to the Plaintiff''s case and that of the other Defendants must address the Court and call their evidence and that would be the legal and consistent manner of proceeding with the case. Harnam Singh J. in Nanak Chand Vs. Durga Pershad Brinja and Others, after referring to the provisions of Order XVIII, Rule 2 of the Code and the Bombay case and another case (In re Dukshina Mohun Roy ILR 29 Cal 32) observed:

That being the procedure prescribed by the Code, I have no doubt that when an issue of fact arises between the Plaintiff and one of the Defendants the other Defendants who support the Defendant''s case cannot be prevented from examining evidence on that issue.

On a parity of reasoning it is not possible to see how, a Respondent in an election petition who is sup-porting the case of the Petitioner can be debarred from leading evidence in support of the Petitioner''s case in the absence of any express or implied provision in the Act creating a bar to production of such evidence. My attention has been invited to a decision of the Election Tribunal, Patiala, in Lahri Singh v. Attar Singh 3 ELR 403 in which a similar point arose. The only question which the Tribunal was called upon to determine at that stage was about the right of a Respondent to lead evidence in support of the grounds on which the election of the re-turned candidate was being called in question by the Petitioner. The Election Tribunal gave certain reasons. for coming to the conclusion that he could do so which are very cogent and may be adverted to as they have been adopted by way of argument by the learned Counsel appearing for Kanwarani Jagdish Kaur:

The provisions in the Act as regards election petitions are made with the purpose of ensuring that elections should be free and fair and that any, which are not found to have been so, should be set aside.

The provisions in the Act about making all persons Respondents, who at any time, had concerned themselves with the election as candidates (old Section 82) is with the purpose of giving them a chance to have a say at the trial of the petition so that the Tribunal may be in a position, at the trial, to get all facts relating to the election from all possible sources besides the Petitioner and the returned candidate though only the returned candidate would be directly interested in opposing the petition.

The Tribunal is also given wide powers to collect all the necessary material in order that a fair and effectual trial of the petition may be had. It has power to even examine any person suo motu whose evidence appears to be material if the parties have failed to cite them.

The provisions in the Act show that the Tribunal is left free to'' get the material evidence from all available sources as may be indicated by the parties and is not restricted to only looking at such evidence as the Petitioner and the contesting Respondents i.e. the candidate successful at the election may choose to produce.

There is no provision In the Act debarring any Respondents other than the elected candidate from adducing evidence in support of the case and if the Civil'' Procedure Code gives to a party in his position the right to lead evidence and if that right will not be inconsistent with any provision of the Act, It should be available to the Respondent.

Such a right being reserved to a party joined as a Respondent may be inferred from the provisions in the Act relating to the procedure to be followed if the Petitioner is found to be contemplating a withdrawal of the petition or when the petition is found to abate on his) death. Any Respondent can, in such cases, claim to be substituted as a Petitioner. This ensures that the grounds urged against election of the successful candidate are not to be left uninvestigated by the mere un-willingness or inability of the Petitioner to prosecute the petition.

The Legislature could not have Intended to leave the Tribunal powerless in the matter of having a fair and effective trial of the petition in order to determine if the election had been fair and free or not, when it is alleged that the Petitioner, though not openly withdrawing the petition, is trying collusively to keep back the avail-able evidence for sustaining the grounds taken in the petition. To shut out reception of such evidence on the ground that it was being produced not by an unwilling Petitioner but by one of the Respondents would be tantamount to encouraging the Petitioner in his unhelpful attitude towards the Tribunal and in his attempt to present a fair and effectual trial of the election petition.

This decision of the Election Tribunal was relied upon a great deal in a subsequent decision of another Tribunal in Roop Chandra Sogani v. Rawat Mart Singh 5 ELR 327. There, the Petitioner had failed to appear on a date to which an election petition had been adjourned and it was held that the Tribunal was not bound to dismiss the petition summarily for default of appearance because the election petitions did not merely concerned the parties but affected the entire constituency. The Tribunal observed that it was not only proper but also necessary in the interest of justice that in a case where I the Petitioner showed slackness or deliberately wanted to defeat his petition, a Respondent who expressed a desire to support the petition, should be given full chance to, support it. From a careful reading of the Act the anxiety of the Legislature is clear that an election petition should not be defeated on account of the indifference and deliberate inaction of the Petitioner. These reasons which have been pressed by way of argument on behalf of Respondent Kanwarani Jagdish Kaur are weighty and cogent and cannot be brushed aside.

Mr. Lakhanpal has relied on a great deal on Ganpatsingh Vs. Brijmohanlal Sharma, where art election petition to which all the contesting candidates were joined as Respondents was dismissed u/s 90(3) and it was held that up to that stage it was only the Petitioner who had a right to challenge the order in appeal as he was a person who was adversely affected by the order and none of the Respondents could be said to be a person adversely affected. But in that very judgment it has been laid down that there are two stages, in which the trial before the Tribunal can be divided. The first stage is when the Tribunal exercises its power u/s 90(3) i.e., of summarily dismissing the election petition. The second stage is when a regular that takes place if the election petition is not dismissed in accordance with Section 90(3). The trend of the observations is that till the second stage is reached, a Respondent is not given the right to support or contest the election petition. This decision, therefore, does not support the argument of Mr. Lakhanpal and the view of the learned Judges impliedly was that if an election petition had survived the stage of Section 90(3) it would be open to a Respondent to support or contest the election petition.

Mr. Lakhanpal has finally urged that the Parliament could never intend that a Respondent should be given the right to lead evidence and support the case of the Petitioner when he is not required to furnish any security for costs and the whole burden is to fall on the Petitioner in the matter of costs if the petition is dismissed. In the present case the Tribunal has made an order directing the Respondent, Kanwarani Jagdish Kaur to furnish security but even if there is no provision to that effect, the Tribunal is empowered under the proviso to Section 90(1) to exercise proper discretion in the matter of "evidence. It can refuse for reasons to be recorded in writing to examine any witness or witnesses if it is of the opinion that their evidence is not material for the decision of the petition or that the party tendering such witnesses is doing so on frivolous grounds or with a view to delay the proceedings. The apprehension, therefore of Mr. Lakhanpal, that, a, Respondent may cite a very large number of witnesses to delay the proceedings or to add to the costs of the Petitioner whom he is supporting is not well founded. For all the reasons given above. I must hold that it is open to the Respondent, Kanwarani Jagdish Kaur, to lead evidence in the circumstances of this case, in support of the allegations contained in the election petition and there is no such error in. the order of the Tribunal as would justify interference.

Mr. Harbhagwan Singh, who appears for Fauza Singh, the Petitioner in the election petition, has not sought to support the argument of Mr. Lakhanpal and all that he says is that the Tribunal should be directed to dispose of the petition as expeditiously as possible and that it should exercise proper discretion under the proviso to Section 90(1) in the matter of production of the witnesses by Kanwarani Jagdish Kaur. I have no doubt that the Tribunal would keep these matters prominently in mind.

Before concluding the judgment it may be observed that I have dealt at length with the various points raised before me by the learned Counsel for the parties owing to the nature of the questions canvassed although the writ petition itself could be disposed of on the short ground that no case has been made out for interference under Art. 226 of the Constitution, in the present case there is no question of excess or absence of jurisdiction and the only other ground on which certiorari could be issued is of an error apparent on the face of the record. It is well settled that where two views are possible, one of which has been taken by the subordinate Tribunal and where long drawn process of reasoning is necessary to decide which view is correct, it is not a case of an error apparent on the face and the order cannot be quashed by certiorari vide Satyanarayan Laxminarayan Hegde and Others Vs. Millikarjun Bhavanappa Tirumale, That rule is fully applicable to the present case and the petition cannot succeed for that reason as'' well.

In the result, the petition is dismissed, but I make no order as to costs.