TMI Blog1999 (9) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of the election petition. In the petition filed by the defeated candidate, in addition to the aforesaid ground of disqualification of the appellant, he also alleged that the appellant had indulged in corrupt practices within the meaning of Section 123 of the Representation of the People Act, 1951 [hereinafter referred to as the R.P.Act]. The High Court upheld the contention of the Election Petitioners that the appellant had incurred the disqualification under Article 191(1)(c) of the Constitution and declared his election to the Kerala Legislative Assembly as void. The High Court, however, decided against the Election Petitioner on the allegation of corrupt practices. Hence there are two sets of appeals - two by the returned candidate in regard to invalidation of his election to the Assembly and the other by Election Petitioner with regard to findings recorded as to corrupt practices. The principal issue to be decided in this case is whether the appellant is disqualified for being chosen as a member of the Legislative Assembly on the ground that he is an undischarged insolvent and whether his election could be declared to be void under Section 100 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss so as to defeat or delay repayment of debts due to the Kerala Financial Corporation. He claimed that he was in public life and was a member of the Kerala State Legislature for five years and thus his official as well as residential addresses were known to the Kerala Financial Corporation. It was also claimed that he has not incurred any disqualification in terms of Article 191(1)(c) of the Constitution and he has denied that he was an undischarged insolvent. In the connected petition, the allegations raised were identical and the pleadings in answer filed by the appellant were also similar. On the aspect as to the disqualification of the returned candidate, the High Court framed Issue Nos. 2-11. The High Court held that the appellant is partner of the firm and although he may have retired at the time of filing the nomination inasmuch as no public notice has been issued, he was liable jointly with all other partners for all the acts done while he was a partner. Thus he was a partner at the time of filing his nomination for the election to the Legislative Assembly in question. It was further noticed that the appellant continued to be liable for the debts due to the Kera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the date of the election, on the date of filing of the election petition and even on the date of his examination in court. A contention was raised on behalf of the appellant before the High Court that he has not been adjudged insolvent by any court under the Insolvency Act as applicable in the State of Kerala. So long as he is not adjudged insolvent the question of his being undischarged insolvent would not arise and thereby he could not be disqualified in terms of Article 191(1)(c) of the Constitution. In substance the contention is that the High Court could not in deciding an election petition hold that the appellant to be an undischarged insolvent for the purposes of Article 191(1)(c) of the Constitution. In answer to this contention, the High Court examined the scheme of different clauses in Article 191 of the Constitution. A person who is elected to a legislature cannot carry on his duties fearlessly without being subjected to Governmental pressure if such a person enters into a contract with the Government or holds an office which brings him remuneration and the Government has a voice in continuance of his contract or office and there is every likelihood of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the matter, we shall examine this aspect first. Before us it is urged on behalf of the appellant that the High Court could not, in deciding an election petition under the R.P.Act, examine the question whether the appellant is an undischarged insolvent or not. The learned counsel for the respondents supported the view taken by the High Court by relying upon the decision in Bhagwati Prasad Dixit Ghorewala vs. Rajeev Gandhi, 1985 All Weekly Cases 682. In State of Kerala, the Provincial Insolvency Act is applicable. Under Section 3 of the Insolvency Act, the District Court shall be the court having jurisdiction under the Act unless by a notification in the official gazette any court subordinate to the district court is invested with such jurisdiction and it shall have concurrent jurisdiction with the District court and a court of small causes shall be deemed to be subordinate to the district court for the purposes of this Section. Under Section 4 of the Insolvency Act, the court shall have full power to decide all questions whether of title or property or of any nature whatsoever, and whether involving matters of law or of fact, which may arise in any case of insolvency coming wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... insolvent be discharged or not and subject to what conditions, can be decided by the court constituted under that Act alone. It is only when exceptions are carved out as is done in the case of Section 2(8) of the Sale of Goods Act any other court or authority can decide such questions. Under Article 329(b) of the Constitution no election to a legislature shall be called in question except by an election petition presented to such authority and in such manner as may be provided by or made by the appropriate legislature. Under Section 80A of the R.P.Act, the forum for adjudication of an election petition is the High Court. The scope of this provision is considered by this Court in Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinhji Solanki Ors., AIR 1988 SC 915. In that decision, the question was whether an order made on interlocutory application in election petition could be the subject of a Letters Patent Appeal. It was observed in that decision that conferment of power under R.P.Act to try an election petition does not amount to enlargement of existing jurisdiction of the High Court. The jurisdiction exercisable under the R.P.Act is a special jurisdiction conferred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to insolvency could be adjudicated upon only by the court constituted under that Act. In such a situation, it would not be possible to hold that the High Court had, while dealing with an election petition, jurisdiction to decide a question as to whether a person is an undischarged insolvent or not. Admittedly, in this case, there is no such adjudication. Hence the High Court could not declare the appellant to be an undischarged insolvent. The contention put forward before the High Court is that disqualification contained in Article 191(1)(c) could be attracted only in a case where a person is adjudged as insolvent as per the Insolvency Act and in the absence of such adjudication it is not open to the High Court while trying an election petition to find that the returned candidate is an insolvent and he could be held to be disqualified. The learned Judge in the High Court got over this initial hurdle of the jurisdiction of the High Court to decide whether the appellant is an undischarged insolvent by giving that expression a meaning in ordinary parlance. To achieve this result, the learned Judge adopted strained and strange logic or reasoning to which we have referred to in the ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a person does not become so unless he has been adjudged insolvent and is not discharged by the court under the insolvency Acts. The expression undischarged insolvent has acquired a particular legal connotation and such expression cannot be used otherwise than in terms of the insolvency enactments. The learned Judge, in this context, referred to the statement made by Sir Alladi Krishnaswamy Ayyar in the course of the debates in the Constituent Assembly wherein he tried to impress upon the Assembly that similar words as contained in Section 73 of the Insolvency Act should be used and disqualification should be removed and cease to be effective if adjudication is annulled or if an insolvent obtains a discharge with certificate that it was caused by misfortune and not by mis-conduct. Reliance upon this part of the debate by the learned Judge, in our opinion, is misplaced. The reference made by Sir Alladi Krishnaswamy Ayyar is to reduce the rigour of the disqualification in the event the adjudication is annulled or if an insolvent obtains a discharge with the certificate that it was caused by misfortune and not by mis-conduct. Merely because the suggestion made by Sir Alladi KrishnasSw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt, that is, as long as he has not discharged his debts he is an undischarged insolvent. Redundancy and tautology cannot be attributed to the Legislature. When the Legislature has used the expression undischarged insolvent that expression must be given its full meaning. A person on being adjudged insolvent remains so unless discharged in terms of the provisions of Section 41 of the Insolvency Act, either absolutely or conditionally, or in the absence of annulment as contained in Section 35 of the Insolvency Act. In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has used an expression which has acquired a technical meaning and such expression is used ordinarily in the context of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to have used such expression in a particular sense as is understood when used in the similar context. If an expression has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a word. Such an expression must be given its legal sense and no other. In this context, we may refer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... squarely closed and the distance from him where he stood to the place where the loading took place was 50 yards. He asked K. Krishnankutty as to what was happening and that it was he who told him that it was liquor for distribution in the Neyyattinkara constituency. So far as G. Suresh (P.W. 15) is concerned, his evidence is to the effect that liquor was taken to various areas for distribution. He saw bottles being loaded in a car and he approached the panshopwala and asked him and two or three persons present there as to where these bottles were being taken to and they told him that they were being taken to Neyyathinkara and those people standing there also told him that the liquor was being taken for distribution in Neyyattinkara constituency to further the prospects of the appellant. He noted the number of the car. In the absence of examination of K. Krishnankutty the evidence adduced is vague and not clear and definite much less reliable and, therefore, the High Court rightly held that there is no acceptable evidence which can bring the case against the appellant within the expression of bribery under Section 123 of the R.P. Act. The other acts of undue influence or that the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
