BHIKAJI KESHAO JOSHI Vs. BRIJLAL NANDLAL BIYANI

JUDGEMENT

(1.) This is an appeal by special leave against the judgment and order of the Election Tribunal, Akola, Madhya Pradesh, dated 1-5-1953, dismissing the election petition filed by the appellants. It relates to the election for the Akola constituency of the State Assembly of Madhya Pradesh which was held on 13-12-1951, and the result of which was notified in the Gazette on 4-4-1952. The two appellants are the electors of the said constituency. Respondent 1 was the successful candidate at the election. Respondents 2, 3 and 4 were the other three candidates who, having been validly nominated went to the polls but were defeated. The appellants filed the election petition under S. 80, Representation of the People Act, 1951 (Act 43 of 1951) (hereinafter referred to as the Act) for setting aside the election on various allegations. The petition was filed on 19-4-1952, before the Election Commission at Delhi and was admittedly one day beyond the prescribed time. The Election Commission admitted the petition after condoning the delay under the proviso to S. 85 of the Act and thereupon constituted a Tribunal for the trial of the petition at Akola by notifications dated 30-7-1952, and 22-9-1952. In due course respondent 1 appeared and filed his written statement on 6-10-1952 and the petitioners filed their reply thereto on 16-10-1952. With reference to these pleadings, the Tribunal was of the opinion that it was advisable to frame certain preliminary issues and to dispose of the same before entering on the trial of the case on its merits. Accordingly, nine preliminary issues were framed. These nine issues substantially cover the following questions:(1) Whether the election petition was presented by a properly authorised person. (2) Whether there was sufficient cause for presentation of the petition one day out of time. (3) Whether the petition was defective for nonjoinder of certain parties as respondents. (4) Whether the petition is defective for want of proper verification. (5) Whether the petition was defective for vagueness of the particulars relating to the corrupt practices set out in Sch. A thereto. The Tribunal found only the first of the above points in favour of the petitioners by a majority. But in respect of the other four points, it held against the petitioners unanimously. As a result of the adverse findings on these four points, the petition was dismissed without any trial on the merits. It is against this dismissal that the appellants have now come up to this Court on obtaining special leave.

(2.) Before dealing with the merits of the appeal, it may be mentioned that at an early stage of these proceedings before the Tribunal, an objection was taken to the composition of the Tribunal on the allegation that one of the members, Shri A. S. Athalye was not competent to be a member thereof on account of his alleged bias in favour of respondent 1. The bias was sought to be made out by showing that shortly before the election, Shri Athalye had written a letter to respondent 1 offering to assist him in his election campaign. On objection being taken, the Tribunal stayed its hands for a preliminary decision of that question. Meanwhile, the petitioners took proceedings in the High Court far the quashing of the constitution of the Tribunal on the above ground by means of an application under Art. 226 of the Constitution. That application was dismissed after hearing both sides. Thereupon the petitioners moved this Court for special leave against the order of the High Court. But this Court declined to grant leave. Learned counsel for the appellants attempted to attack the validity of the decision of the Tribunal now under appeal on the same ground. But this having been already determined against the petitioners in the previous proceedings, we declined to allow the matter to be reopened. On the other side, the learned Attorney-General for respondent 1 attempted to reopen before us the question as to whether the petition was presented to the Election Commission by an authorised person, which as stated above, was found against him by a majority of the Tribunal. The ground on which he attempted to reopen this question was that the finding was based on a wrong view as to the burden of proof. We were not prepared, however, to permit this finding of fact to be reopened in this appeal on special leave, irrespective of the question whether the burden of proof was rightly laid on the petitioners.

(3.) The only points, therefore, that have been argued before are whether the view taken by the Tribunal with reference to the following questions, viz. (1) limitation, (2) joinder of parties, (3) verification, and (4) specification of particulars of corrupt practices in Sch. A attached to the petition, is correct, and if so, whether the same entailed dismissal of the petition. The questions may be taken up one after the other.