C VASANTHA PAI Vs. A SRINIVASAN

JUDGEMENT

(1.) THIS is an appeal against the judgment of Rajagopala Ayyangar, J. , in W. P. No. 476 of 1956. It arose out of an election petition No. 28 of 1954, filed by the appellant who appeared before us in person and argued the case only, to set aside the election to Madras Legislative Council of two members to fill two vacancies to be returned from the Madras Graduates Constituency. The elections were held in march 1954 and the result of the election published on 12th April 1954. The contesting respondents before us and another candidate were declared duly elected. The appellant before us was also a candidate at the election. The election petition had a chequered career and at several stages in the process of the proceedings this court was approached to exercise jurisdiction under Art. 226 of the Constitution. In the election petition the appellant prayed to declare the entire election to be wholly void, or in the alternative to declare the election of both the returned candidates as void. He also prayed for a finding that each of the two respondents had been guilty of certain corrupt practices. It is not necessary for the disposal of this appeal to narrate the several stages through which the election petition passed.

(2.) IT was held in W. A. Nos. 25 and 26 of 1955 that the election tribunal would not have jurisdiction to enquire so far as the relief that the election of the returned candidates was void because the election petition was barred by limitation so far as that relief was concerned. The Tribunal held that it had jurisdiction to deal with the allegations on which the third relief was sought. Against this decision of the tribunal both the respondent before us as well as the other candidate filed writ petitions to this court which were heard and disposed of Balakrishna Aiyar, J. The learned Judge took the view that though the election petition might be barred so far as the relief relating to the returned candidates was concerned, the tribunal would have jurisdiction to go on with the election petition so far as the third relief was concerned. He therefore dismissed the petitions filed for the issue of writ of prohibition against the election tribunal. Against this decision of Balakrishna Aiyar, J. , the respondent before us did not file any appeal but the other candidate filed an appeal. (W. A. No. 19 of 1956 ). A division Bench of this court to which again one of us was a party, differed from the view taken by Balakrishna Aiyar, J. It was held that the tribunal would have no jurisdiction to proceed with the enquiry even as regards the third relief contained in paragraph 18 (c) of the election petition. The tribunal eventually proceeded with the enquiry so far as relief (c) was concerned in respect of the respondent before us and held that he was guilty of corrupt practice set out in S. 123 (7) of the representation of the People Act. Against this decision of the tribunal the respondent filed W. P. No. 476 of 1956 out of which this appeal arises. Before Rajagopala Aiyangar, J. , who deal with this petition, two main appoints were taken by the respondent, namely (1) that in view of the decision of the Division Bench mentioned above in W. A. No. 19 of 1956, the tribunal has no jurisdiction to deal with and grant the relief contained in paragraph 18 (c) of the election petition and (2) that on the merits the decision of the election tribunal was vitiated by a manifest error of law. The learned Judge held that the election Tribunal had no jurisdiction to enquire into the corrupt practice alleged against the respondent and in that view he found it unnecessary to deal with the other point relating to the merits. In the result the learned Judge set aside the order of the tribunal. It is against this order that the present appeal has been filed.

(3.) WE consider it sufficient to dispose of the appeal on the point on which the learned Judge, Rajagopala Aiyangar, J. , refrained from giving a finding. The tribunal held that the respondent was guilty of the corrupt practice set out in S. 123 (7) of the Representation of the People Act on the ground that the respondent had failed to include in his return of expenses amounts which the respondent should be deemed to have expended for three purposes, namely (1) to insert advertisement relating to the election in newspapers (2) printing of certain election manifestos and (3) the printing of copies of electoral rolls for purpose of canvassing. The tribunal found that none of these items of expenses was charged far from the respondent, that is to say, that the proprietors of the presses at which the several documents were printed did not charge the respondent for the printing or for the paper. This finding of course is a finding of fact, but on that finding the question of law arises whether in the circumstances the respondent could be held to be guilty of the corrupt practice set out in S. 123 (7) of the Representation of the People Act. Sec. 123 (7) runs thus :