V K JOHN Vs. G VASANTHA PAI

JUDGEMENT

(1.) THE above appeal and petition arise out of an election petition filed by the contesting respondent G. Vasantha Pal (who will hereafter be referred to as the respondent) before the Election Commission, New Delhi. The respondent and three others including Dr. V. K. John, the appellant and the petitioner before us, were candidates for election to the Madras Legislative Council, from the Graduates constituency. Dr. John and one Dr. A. Srinivasan were declared elected to the two vacancies in the constituency. The respondent filed the election petition praving for the following three reliefs, viz, (a) declaring the election to be wholly void; (b) declaring the election of both the returned candidates as void; and (c) giving a finding that the first respondent (Dr. John) has been guilty of the corrupt practices specified in paragraphs 8, 9-a and 11 and illegal practice specified in paragraph 12 of the petition, and the second respondent (Dr. Srinivasan) has been guilty of the corrupt practices specified in paragraphs 8 and 11 of the petition. The illegal practice specified in paragraph 12 was that mentioned in Section 126 (3) of the Representation of the people Act, 1951 (XLIII of 1951), hereinafter referred to as the "act". Particulars of the Illegal practice were given in schedule D to the petition. Briefly they were that Dr. John got printed and circulated, circulars having reference to his election which did not bear on their face the name of the printer. Some of the allegations in the petition fell within Section 100, Sub-section (1) of the Act and were relevant to the relief of declaration that the election was wholly void. Other allegations related to each of the returned candidates and fell within Section 100. Sub-section (2) of the Act.

(2.) THE petition was strenuously contested by both the returned candidates. Though it was filed on the 21st July 1954. it was not finally disposed of till 13th april 1956 by an Election Tribunal at Madras constituted by the Election commissioner. Dr. John and Dr. Srinivasan at the outset of the enquiry took out two applications praying that the tribunal may be pleased to direct the striking out of prayers (b) and (c) and to direct the striking out of paragraphs 5 to 7, the latter part of paragraph 8 and paragraphs 9 to 16 of the petition. The main grounds on which these applications were taken out were: (1) that the petitioner (the respondent herein) was not entitled to claim more than one relief and (2) that the petition, in so far as It prayed-for the relief of having the election of the returned candidates set aside, was barred by time, as it had not been filed within the period of limitation prescribed by Rule 119 (a) of the Rules framed under the Act. The election tribunal rejected, both the petitions. To quash the order of the tribunal rejecting these petitions, the returned candidates filed two writ petitions Nos. 119 and 723 of 1954. These petitions were heard and disposed of by Rajagopala Aiyangar J. , who agreed with the election tribunal and dismissed them. There were two appeals from the decision of rajagopala Aiyangar J. The Division Bench which heard the appeals, to which one of us was a party, agreed with Rajagopala Aiyangar J. , that there was no substance in the first ground. It was held that the petitioner could seek alternative reliefs specified in Section 84 of the Act. The Bench however took a view different from that taken by Rajagopala aiyangar J. , on the question of limitation and held that the petition both against dr. John and Dr. Srinivasan, so far as relief (b) in paragraph 18 of the petition was concerned was out of time under Rule 119 (a ). It was further held that the petition, in so far as it Seeks a declaration that the election is wholly void was in time. The following passage in the Judgment of the Division Bench (reported in john v. Vasanta Pai, 1955-2 Mad LJ 629 at p. 635: ( (S) AIR 1950 Mad 85 at p. 88) (A) sets out the result of the conclusion arrived at by the Bench:

(3.) WHEN the matter went back to the Election Tribunal for trial, apparently on objection taken by Dr. John and Dr. Srinivasan, the Tribunal framed the following issue: