TMI Blog1958 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the appellant had secured the largest number of votes he was declared duly elected. Soon thereafter Mrs. Prasanni, respondent 1, filed an election petition in which she alleged that the appellant had committed several corrupt practices and claimed a declaration that his election was void. The appellant denied all the allegations made by respondent 1. The election tribunal first framed six preliminary issues and after they were decided, it -raised twenty-nine issues on the merits. The tribunal was not satisfied with the evidence adduced by respondent I to prove her allegations in respect of the corrupt practices committed by the appellant and so it recorded findings against respondent 1 on all the issues in regard to the said corrupt practices. Respondent I had also challenged the validity of the appellant's election on the ground that the returning officer had improperly rejected the nomination paper of Jai Bhagawan. This point was upheld. by the election tribunal with the result that the appellant's election was declared to be void. The appellant then preferred an appeal to the Punjab High Court. He urged before the High Court that the election tribunal was in erro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presented to it shall have the same powers, jurisdiction and authority and follow the same procedure with respect to the said appeal as if it were an appeal from an original decree passed by a civil court situated within the local limits of its civil appellate jurisdiction. The result of this provision is to assimilate the election proceedings coming before the High Court in appeal to civil proceedings as contemplated by Art. 133 of the Constitution and so, according to him, it was not only open to the appellant but it was obligatory on him to make an application for leave to the Punjab High Court under the said article. That is why the time occupied by the said proceedings in the Punjab High Court must be excluded in deciding the question of limitation. We do not propose to deal with the merits of these contentions. It is not seriously disputed by Mr. Doabia that parties aggrieved by orders passed by High Courts in appeals under s. 116A of the Act generally apply for leave under Art. 133 and in fact such applications are entertained and considered on the merits by them. It is true that Mr. Doabia's argument is that this practice is erroneous and that Art. 133 has no applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assistance of Puran Singh by appointing him as his polling agent ? Going back to s. 123, explanation (2) to the said section provides that for the purpose of cl. (7) a person shall be' deemed to assist in the furtherance of the prospects of a candidate for election if he acts as an election agent or polling agent or a counting agent of that candidate . In other words, the effect of explanation (2) is that once it is shown that Puran Singh had acted as polling agent of the appellant, it would follow that the appellant had committed a corrupt practice under s. 123(7)(c). But it is important to bear in mind that before such a conclusion is drawn the provisions of s. 46 of the Act must be taken into account. Section 46 authorises a contesting candidate to appoint in the prescribed manner such number of agents and relief agents as may be prescribed to act as polling agents of such candidate at each polling station provided under s. 25 or at the place fixed under subs. (1) of s. 29 for the poll. There can be no doubt that, when explanation (2) to s. 123 refers to a person acting as a polling agent of a candidate, it contemplates the action of the polling agent who is duly appo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing booth. Respondent 1 had examined herself in support of this plea and Banwari Lal whom she examined supported her in that behalf. The tribunal was not impressed by the evidence of these two witnesses; and it has given reasons for not accepting their evidence as true or reliable. It is unnecessary to emphasize that, in dealing with an appeal under s. 116A of the Act, High Courts should normally attach importance to the findings of fact recorded by the tribunal when the said findings rest solely on the appreciation of oral evidence. The judgment of the High Court does not show that the High Court definitely accepted the evidence of the two witnesses as reliable; in dealing with the question the High Court has referred to this evidence without expressly stating whether the evidence was accepted or not; but it may be assumed that the High Court was disposed to accept that evidence. In this connection, we would like to add that it is difficult to understand why the High Court did not accept the criticism made by the tribunal against these two witnesses. If we consider the verifications made by respondent I in regard to the material allegations on this point both in her petition and i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he thought that Jagtu was the polling agent of the appellant. If the attention of the High Court had been drawn to the unchallenged statement of Jhandu on this point, it would probably not have drawn the inference that Jangi Ram's evidence supports the case of respondent I about the appointment of Puran Singh as the appellant's polling agent. The next' circumstance on which reliance has been placed in the judgment of the High Court is that Puran Singh has signed the prescribed form appointing him as the polling agent and he must have presented it to the returning officer. The prescribed form requires that a candidate appointing his polling agent and the polling agent himself should sign the first part of the form. Then the polling agent is required to take the form to the returning officer, sign in token of his agreeing to work as a polling agent before the said officer and present it to him. The High Court has found that Puran Singh must have signed the form and presented it as required by law. Puran Singh was examined by respondent 1; but when he gave evidence, he was allowed to be treated as hostile and cross-examined by her counsel. Puran Singh denied that he had a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant had specifically denied that he had appointed Puran Singh as his polling agent and when he stepped into the witness box he stated on oath that he had not signed any form in that behalf. Under these circumstances, it was clearly necessary for respondent I to examine competent witnesses to prove the appellant's signature on the form. It is true that the appellant's signature on the form appears to have been overwritten, but it is only the expert who could have stated whether the overwriting in question made it impossible to compare the said signature with the admitted signatures of the appellant. It appears that after the whole of the evidence was recorded, respondent woke up to this infirmity in her case and applied to the tribunal for permission to examine an expert in that behalf. This application was made on February 6, 1958; and the only explanation given for the delay in making it was that it was after the appellant denied his signature on oath that respondent I realized the need for examining an expert. The tribunal rejected this application and we think rightly. In its order the tribunal has pointed out that respondent I had been given an opportunity to examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be ignored. It is only if the court is satisfied that the circumstantial evidence irresistibly leads to the inference that the appellant must have signed the form that the court can legitimately reach such a conclusion. In our opinion, it is impossible to accede to Mr. Doabia's argument that the facts hold proved in the High Court inevitably lead to its final conclusion that the appellant had in fact signed the form. It is clear that in reaching this conclusion the High Court did not properly appreciate the fact that there was no legal evidence on the point and that the other facts found by it cannot even reasonably support the case for respondent 1. We must accordingly reverse the finding of the, High Court and hold that respondent I has failed to prove that the appellant had committed a corrupt practice under s. 123(7)(c) of the Act. This finding, however, does not finally dispose of the appeal because Mr. Doabia contends that the High Court was in error in reversing the tribunal's conclusion that the nomination paper of Jai Bhagawan had been improperly rejected. Mr. Aggarwal, however, argues that it is not open to respondent I to challenge the correctness of the findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against the said finding, and the delay made in filing the same can be condoned. As in the case of the preliminary objection raised by respondent 1 against the appellant on the ground of limitation, so in the case of the objection raised by the appellant against respondent I in this matter, we would proceed on the basis that we have condoned the delay made by respondent 1 in preferring her petition to this Court for leave to challenge the finding of the High Court that the nomination form of Jai Bhagawan had been properly rejected. That is why we have allowed Mr. Doabia to argue this point before us. We may add that the two points of law raised by the respective objections of both the parties may have to be considered by a larger Bench on a suitable occasion. On the merits, Mr. Doabia's case is that the returning officer was not justified in rejecting Jai Bhagawan's nomination under s. 36(2)(b) of the Act. The facts on which this contention is raised are no longer in dispute. Mr. Jai Bhagawan who presented his nomination paper to the returning officer on January 29, 1956, was admittedly not an elector in the constituency of Rajaund in the District of Karnal. It is alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stituency, a copy of the electoral roll of that constituency or the relevant part thereof or a certified copy of the relevant entry of such roll shall, unless it is filed along with the nomination paper, be produced before the returning officer at the time of the scrutiny. It is thus clear that when the stage of scrutiny is reached the returning officer has to be satisfied that the candidate is an elector of a different constituency and for that purpose the statute has provided the mode of proof Section 36, sub-s. (7) lays down that the certified copies which are required to be produced under s. 33 (5) shall be conclusive evidence of the fact that the person referred to in the relevant entry is an elector of that constituency. In other words, the scheme of the Act appears to be that where a candidate is an elector of a different constituency he has to prove that fact in the manner prescribed and the production of the prescribed copy has to be taken as conclusive evidence of the said fact. This requirement had not been complied with by Jai Bhagawan and the returning officer thought that the said non-compliance with the provisions of s. 33(5) justified him in rejecting the nomination ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idate to produce the prescribed evidence and provides a penalty for his failure to do so. In such a case it is difficult to appreciate the relevance or validity of the argument that the requirement of s. 33(5) is not mandatory but is directory, because the statute itself has made it clear that the failure to comply with the said requirement leads to the rejection of the nomination paper. Whenever the statute requires a parti- cular act to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence it would be difficult to accept the argument that the failure to comply with the said requirement should lead to any other consequence. It is, however, urged that the statute itself makes a distinction between defects which are of a substantial character and those which are not of a substantial character. This argument is based upon the provisions of s. 36(4) of the Act which provides that the returning officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character . The failure to produce the requisite copy, it is urged, may amount to a defect but it is not a defec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected by the returning officer. Mr. Doabia, however, contends that the view taken by the High Court is purely technical and does not take into account the substance of the matter. This approach, it is said, is inconsistent with the decision of this Court in Pratap Singh v. Shri Krishna Gupta ([1955] 1 S.C.R. 481, 488.). It is true that in this case Bose J. has disapproved of the tendency of the courts towards technicalities and has observed that it is the substance that counts and must take precedence over mere form . But in order to appreciate the scope and effect of these observations, it would be necessary to bear in mind the relevant facts and the nature of the point raised before the court for decision in this case. The question raised was whether the failure of the candidate to mention his occupation as required by r. 9(1)(i) rendered his nomination paper invalid and it was answered by the court in the negative. The question arose under the provisions of the C. P. and Berar Municipalities Act 11 of 1922. It is significant that the decision of this Court rested principally on the provisions of s. 23 of the said Act according to which Anything done or any proceedings ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
