Sagara Singh vs Chajju Ram

J.N. Bhat, J.—In the J and K Assembly elections held in 1962 the following persons stood for election to the legislative Assembly from the

Samba constituency:

Sagara Singh, Appellant

Dhian Singh

Des Raj

Vir Chand

Durgadas

Mangat Ram

Ram Das

Shanta Bharati

Fateh Mohe

and Chajju Ram, Respondent,

These persons were validly nominated, but cr. 5-2-62, the date of scrutiny held by the returning officer Th. Sher Singh Tahsildar the nomination

papers of Desraj, Vir Chand, Durgadas and Mangat Ram were rejected and the nomination papers of Ors. were accepted, Poll in the constituency

took place on 24-2-62 and the counting was hold on 27-2-62. The Appellant before us was declared as the properly returned candidate to this

constituency. Against this declaration of the Appellant as the properly returned candidate from this constituency an election petition was presented

by the Respondent to the Election Commission. A Notification No. 82/4/J and K/62 dated 25th May 1962 was Issued by the Election

Commission appointing Shri Mohan Kishen Tikoo Addl. District and Sessions Judge Jammu for the trial of the petition. This gentleman was

transferred from this job and consequently he resigned from this office also. Subsequently Anr. Notification No. 82/4/J and K/62 dated 16th July

1962 was Issued by the Election Commission wherein it was stated:

x x x x x x x x x x

And whereas the said Shri Mohan Krishan Tikoo has resigned from the membership of the said Tribunal and a vacancy has accordingly occurred

in the office of the Member of the Tribunal;

Now, therefore, in exercise of the powers conferred by Sub-section (4) of Section 94 of the J and K Representation of the People Act, 1957, the

Election Commission hereby appoints Shri Hari Krishan Sharma, Addl. District and Sessions Judge Jammu to fill the said vacancy.

So, according to this Notification Mr. Hari Krishan Sharma the then Addl. District and Sessions Judge was appointed as the Election Tribunal in

the vacancy caused by the resignation of Mr. Mohan Krishan Tikoo. When Mr. Hari Krishan Sharma became the District and Sessions Judge

Jammu, by means of a letter from the Secretary Election Commission No. 82/2/J and K/62/68980 dated 28-12-1962 Mr. Hari Krishan Sharma

was to continue to exercise the powers of the Election Tribunal to hear this petition.

The main ground taken in the1 election petition was that the nomination papers of Desraj, Vir Chand, Durgadas and Mangat Ram had been

improperly rejected by the returning officer and therefore the election of the Appellant as the properly returned candidate from the Samba

Constituency was void. The Respondent in the petition, that is the Appellant before us, put in his written objections to the petition wherein amongst

other things he took the following pleas:

The petition was not in accordance with law.

All the necessary parties had not been joined in the election petition.

The application was not presented in accordance with law.

The Petitioner was not a voter.

The Election Tribunal was not properly constituted.

The security deposit had not been paid in accordance with law,

and 7. The signatures and the verification of the Petitioner were not in accordance with law.

3a. Primarily on 10-10-62 nine issues were framed and subsequently on 29-1-63 two more issues were added, thus making the total number of

issues 11. There is some over-lapping of issues. For instance issue No. 2 reads as under:

Whether the Election Tribunal is not properly constituted and thus not competent to hear the petition? OPR

Issue No. 10 in other words repeats the same subject and it reads as under:

Whether the present Tribunal is not properly constituted according to law and hence it has got no jurisdiction to try this petition? OPR

Issue No. 11 is:

Whether the Tribunal is not competent to go into the matter whether the appointment of the Tribunal is according to law? OPP

Before the Tribunal the Petitioner produced the following witnesses, Durga Das, Dilwar Singh, Des Raj, Dhyan Singh, Ram Nath and appeared

as his own witness.

The Appellant before us produced Sher Singh, Rajindra Nath, Balwant Singh and Rup Chand.

5a. The tribunal decided issues 1 to 6 by means of its order dated 9-11-62 in favour of the Petitioner. The rest of the issues were decided by the

Tribunal by means of its final order dated 6-2-64. After recording its findings on different issues, the Tribunal came to the conclusion that the (sic)

das and Mangatram had been wrongly rejected; the Tribunal was properly constituted; the petition was properly presented; the security deposit

was also paid in accordance with law; the petition was properly signed and verified, and that the Petitioner was competent to file the election

petition. It, therefore, set aside the election of the Appellant, basing its decision on the; improper rejection of the nomination papers of Vir Chand,

Durgadas and Mangat Ram. Against this order of the Tribunal the Appellant has come up in appeal to this Court.

We have heard the arguments of the learned, counsel for the parties and given the matter our careful consideration. The learned Counsel before,

us did not canvass the findings on all the issues, but he confined his arguments to a few matters only to try to show that the order of the Tribunal

was wrong, and the ejection, petition should have been dismissed.

We might say that about the finding on the merits of the petition, the learned Counsel had not much to say. In fact the case of the Respondent

was that the nomination papers of some of the candidates namely, Desraj, Virchand, Durgadas and Mangatram had been wrongly rejected. Mr.

Sharma conceded that the nomination papers of at least Mangat Ram had been wrongly rejected by the resuming officer. The legal position

therefore is that even if the other nomination papers had been properly rejected and even this one had been wrongly rejected it would result in

setting aside the election as a whole under the provisions of Section 108(1)(c) of the Representation of the People Act. The legal consequence

therefore is that if the other contentions of Mr. Sharma about incidental matters such as the signature, verification, omission of parentage of the

Respondent in the copies of the petition and the constitution and the competence of the Tribunal are not held to be sufficient for the dismissal of the

election petition, the Appellant has no case, to fall back upon.

Mr. Sharma's first attack was that the election petition as presented in the, Tribunal did not bear he father's name of the Petitioner Chhajju Ram.

The verification under the petition described Chajju Ram as son of one Labu Ram. He further contended that the parentage of the Petitioner in the

original election petition had been entered some time after the institution of the petition which would invalidate it. So far as the correction of the

name of the Petitioner's father in the verification is concerned, that was done long after under the orders of the Tribunal on 22-10-63. In support of

his argument the learned Counsel referred to a copy of the election petition supplied to him as well as the election petition as was printed in the

gazette. In both the copies the parentage of the Petitioner is left blank.

In the first place it is not correct that the parentage of the Petitioner in the original election petition was; entered some time after its presentation,

before the Election Tribunal. The original petition has the name of the father of the Petitioner in ink whereas the rest of the petition is typed. The

signatures of the Petitioner both on the petition and the verification are in the same ink and hand as the name of the Petitioner's father in the title of

the petition. In the Election Tribunal, the Petitioner-Respondent and his Advocate had filed an affidavit explaining how the name of the father of the

Petitioner had not been got typed at the time of the original typing presented an affidavit to explain this irregularity. From these facts the Tribunal

has rightly concluded that the father's name of the Petitioner was inserted in the petition before it was presented to the Election Commission. The

father's name of the Petitioner remained uncorrected in the verification due to an oversight or we should say haste on the part of the Petitioner and

his legal adviser. Mr. Sharma's suggestion that by an under-hand means the Petitioner has been able to insert the name of his father is falsified by

the fact that the earliest notification which was issued on 25-5-62 mentions the parentage of the Petitioner as Bhimsen. The same has been re

seated in the subsequent notification of 16-7-62 and the letter of 28-12-63.

It may be remarked here that the application, was presented to the Under-Secretary Election Commission on 12th April 1962. Therefore the

argument of Mr. Sharma that the petition, when presented did not have, the father's name of the Petitioner, is not correct. It (sic) that the Petitioner

was in, hot haste to present the petition and due to haste on his or his adviser's part he did not make the necessary additions to the copies of the

petition. We have not been shown any authority by Mr. Sharma that the absence of the father's name in the copy of the election petition would

merit its dismissal nor do we think that this can be held to be a sufficient ground for the rejection of an election petition. We might say that in the

circumstances of this case even if the father's name of the Petitioner were not at all mentioned in the petition, that would not invalidate it for the

following reasons.

The identity of the Petitioner is not seriously denied, nor are his signatures on the petition, the verification, the power of attorney and the letter

of authority. Furthermore, the Petitioner's identity has been fully proved and established by the statement of Dilawar Singh, Election Naib-Tehsildar

who presented the electoral rolls of Guda Salathian Ex. PI Halqa Patwar Sangar, where the Petitioner has been entered as elector No. 1550. The

two Dhian Singhs produced by the Petitioner prove the identity, of the Petitioner. The Petitioner himself has categorically stated that he is elector

No. 1550 of village Goda Salathian Halqa Patwar Sangar. The Appellant's witness Rupchand also admits that the Petitioner is a voter in Goda

Salathian and was one of the candidates at this election. When the identity or the signatures of the Petitioner are not denied and when it has not

been proved or alleged that the election petition was not signed by the Petitioner, the omission of the father's name in the petition would not at all

make any material difference.

The second ground of contention raised by Mr. Sharma was about the verification of the petition. Mr. Sharma stated in the first place that the

verification contained the name of the father of the Petitioner as Labu Ram instead of Bhimsen, and secondly the verification was not strictly

according to law in terms of Order 6, Rule 15(2) of the CPC which lays down that the ""person verifying shall specify, by reference to the

numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be

true,"" Mr. Sharma's contention was that the Petitioner did not indicate which paragraphs of the petition he verified of his own knowledge and which

of the paragraphs he verified upon the information received (sic).

The learned Counsel appearing for the dent tried to meet this contention of the Appellant's learned Counsel by stating that the averments in the

petition were all factual which were true to the know ledge of the Petitioner and there was no paragraph pertaining to information received by him.

Although we are not satisfied with this reply of the learned Counsel for the Respondent, yet we feel that the petition cannot be dismissed on this

ground. We have been referred to Rajit Ram v. Katesar Nath ILR 18 All 396 at p. 398 and Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal

Biyani and Others, . In the former ruling held ""A plaint filed b three Joint Plaintiffs was verified by each in the form: ""The contents of the petition of

plaint are true to the best of my knowledge and belief."" It was held that this form of verification, though not free from ambiguity, was in substantial

compliance with the provisions of Section 52 of the Code of Civil Procedure"" (now Order 6, Rule 15(2)

Even in the Supreme Court authority (S) Bhikaji Keshao Joshi and Another Vs. Brijlal Nandlal Biyani and Others, it has been held that

where- the allegations in the petition purport to be based only on information and the verification clauses refer to the entirety of the petition and the

attached schedule, absence of enumeration of the various paragraphs therein as having been based on information cannot be considered to be a

defect.

So, on a perusal of these authorities and taking the spirit of Order 6, Rule 15 into consideration, we feel that the failure of the Petitioner to state

which paragraph he verified on his personal knowledge and which he verified upon information received by him will not invalidate the petition

resulting in its dismissal.

Mr. Sharma pointed out that the copies of the election petition had not been attested by the Petitioner under his own signatures to be the true

copies of the petition. Therefore, according to him, under the provisions of Section 98(3) of the Representation of the People Act the Tribunal had

to dismiss the election petition because it did not comply with the provisions of Section 90(3)...notwithstanding that it had not been dismissed by

the Election Commissioner u/s 90.

It is admitted in this case that the copies of the election petition have not been attested by the Petitioner under his own signatures to be the true

copies of the petition as required by the Sub-section. In the first place this plea was never taken in the written statement or in the grounds of appeal

by the Appellant and therefore does not deserve any consideration. Nonetheless the omission to do so would not entail dismissal of an election

petition, it is by way of caution and to avoid a subsequent change of front that the Petitioner is required to attest the copies as true copies of the

petition. The emphasis in our opinion should not be on the term attestation but on the substance, i.e., the copies must be true copies of the petition.

That position is conceded in this case and it is admitted that the copies were true except that the name of the father of the Petitioner was not given

therein. So far as the omission of the father's name is concerned, we have disposed of that contention also.

This matter has been the subject of discussion in some authorities. Reference may in this connection be made to the (sic) of India D/- 12-10-

1963 Pt. 11 Section 3(ii)' Ordinance 3646 at p. 3653 - Eknarain Lal Das v. Bhupendra Narain Mandal (Election Petn. No. 177 of 1962, D/- 9-

9-1963, Ele. Tribunal-Pat.), wherein the facts were:

The objection on this issue as already stated is that the copy of the election petition which was served on the Respondent No. 1 by the Election

Commission u/s 86 of the Representation of the People Act, 1951, did not contain any attestation by the Petitioner, as required by Section 81(3)

of the Act. The copy was filed in the Tribunal on 5th Oct. 1962, and the Respondent No. 1 has given evidence that he received this copy from the

Election Commission. The copy which is marked F does not bear any attestation that it was a true copy of the petition.

On these facts it was held that there was no such non-compliance with the provisions of the Representation of the People Act as would entail a

dismissal of the petition.

Similarly in the Gazette of India, D/- 24-8-1963 Part II Section 3(ii), page 2708. Dr. Anup Singh Vs. Abdul Ghani and Others, , it was held

that

the Parliament could not possibly have intended summary dismissal of an election petition upon the basis of such hyper-technical omission. This

rather extreme example shows that this particular requirement in this provision is not mandatory but is directory and substantial compliance of it, as

in this case, will meet the object of the provision.

This contention also, therefore, cannot help the Appellant.

The next attack of Mr. Sharma was about the constitution and the power of the Tribunal to hear the petition. His argument was that under the

Representation of the People Act, 1957, an election Tribunal could be constituted in the following manner:

The Election Commissioner had to obtain from the High Court a list of persons:

a) Who are or have been District Judges in the State and b) Who are or have been Subordinate Judges in the State for a period of at least seven

years.

* * * * * * * *

According to Mr. Sharma the two notifications of 25th May and 16th July 1962 issued by the Election Commissioner did not at all state whether

these formalities had been gone into by him and whether the appointments of Messrs. Mohan Krishan Tikoo and Hari Krishan Sharma were made

from the list of District or subordinate Judges as supplied by the High Court, as required under the Section. The expression 'District Judge' in this

section includes an Addl. District Judge. When his attention was in-invited to illust. (e) of Section 114 of the Evidence Act which reads ""that the

court may presume that judicial and official acts have been regularly performed,"" his rejoinder was that u/s 4 of the Evidence Act two kinds of

presumptions would be drawn. In certain cases the legislature used the word 'may presume' and in Ors. 'shall presume'. Where 'may presume' has

been used, according to Mr. Sharma, it only raises a presumption which must be supported by evidence.

In tire case of 'shall presume' Mr. Sharma admitted that in order to dispel this presumption the facts in the particular case had to be disproved. In

this case, according to Mr. Sharma, the words used are only 'may produced by the Respondent to strengthen this presumption. Here, there has

been some sort of misunderstanding, in the mind of Mr. Sharma because even Section 4 of the Evidence Act lays down: ""Whenever it is provided

by this Act that the Court, may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it...

So, under the first part of this section the Court has to regard such facts as proved unless they are disproved. In this case it would be

obligatory for the Appellant to show that the presumption u/s 114(e), illustration of the Evidence Act was not justified and was not correct by

adducing some sort of evidence or proof in support of his contention. There is no material brought on the record by the Appellant to indicate any

such thing. On the other hand the Election Commissioner would be deemed to have kept all the formalities of law in view before passing an order

appointing an Election Tribunal under the Representation, of the People Act.

This point is further covered by authority. Sangramsingh Vs. Election Tribunal, Kotah, lays down that there is a presumption that an

appointment made by the Election Commr. is valid u/s 114, illust. (e) of the Evidence Act and a court may presume that judicial acts have been

regularly performed.

The first part of this argument is therefore without force. The second argument enunciated by Mr. Sharma was that the Tribunal should have

further inquired whether it was properly constituted and whether it had jurisdiction to hear the petition. In this connection it has been argued by Mr.

Sharma that when a question of jurisdiction or competence of a court is raised in a civil suit, the court has to inquire into the matter. We might say

that the constitution of a Tribunal is somewhat different from that of an ordinary civil court. In Narasimha Rao v. Tellakula Jalaiah 11 Ele. LR 321 it

has been held that the scope of a Tribunal is very much limited than the extraordinary powers of a civil court. This, observation of the Election

Tribunal in that case is based on very sound authority, of the decisions of the Privy Council and other High Courts. For instance the Privy-Council

in Shell Co. Australia v. Federal Commr. of Taxation (1931) AC 275, held:

The authorities are clear to show that there are Tribunals with many of the trappings of a court, which nevertheless are not courts in the strict sense

of exercising judicial powers. In that connection it may be useful to enumerate some negative propositions on this subject (1) a Tribunal is not

necessarily a court in this strict sense because it gives a final decision; (2) nor because it hears witnesses on oath; (3) nor because two or more

contending parties appear before it between whom it has to decide; (4) nor because it gives decisions which affect the rights of subjects (5) nor

because there is an appeal to a court; (6) nor because it is a body to which a matter is referred by Anr. body.

Similarly in a Full Bench decision the East Punjab High Court in Pitman's Shorthand Academy v. B. Lilaram and Sons AIR 1950 E P 181

(FB) held:

It may be stated at the outset that there is nothing unlawful, irregular or indeed unusual in the legislature judicial nature and the, mere fact that the

business entrusted to such a person may involve the consideration and decision of juristic rights would not give the appointed, person the status of

a civil court. In all the countries of the world, the necessity arises of appointing some authority who may be called upon to perform duties which

may be partly judicial and partly executive, it may be impracticable or inadvisable to entrust business of this type to courts of law and though such

persons will be expected to perform their duties honestly, justly and may even have to decide disputes of a civil nature between various parties,

they will not thereby assume the character of a civil court.

24A. In Sitaram Hirachand Birla Vs. Yograjsing Shankarsing Parihar and Others, it has been held:

Once an election petition is referred to an Election Tribunal, the duty of the Election Tribunal is to dispose of it according to law. It is not open to

the Election Tribunal to challenge the competence of the Election Commission to appoint the Tribunal or to refer the election petition to it for trial.

To almost the same effect are the observations in Biman Chandra Bose Vs. Dr. H.C. Mukherjee, Governor and Others, .

Therefore this contention of Mr. Sharma also does not hold water and must be rejected.

No other point was pressed by Mr. Sharma before us. The result is that we find no force in this appeal.

Before parting with this case, we might add that it is due to the ignorance or negligence of the returning officer. Th. Sher Singh that all this

trouble has been created. If he had not improperly rejected the nomination paper of Mangat Ram and if his election had been properly contested

whosoever may have been elected, so much time and money of the parties would not have been wasted. Secondly, we feel that the Respondent

has been very negligent in drafting and presenting his election petition which has given rise to considerable controversy before the Tribunal and

before us. Therefore while dismissing this appeal, we order that the parties shall bear their own costs throughout.

Wazir, C.J.

I agree.