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Sardar Partap Singh Kairon v. S. Kartar Singh Chadha And Others
Court Opinion Summary — Falshaw, J. (with Dua, J. concurring)
Factual and Procedural Background
In May 1955 a bye-election was held for the Hoshiarpur constituency of the Punjab Legislative Assembly. Five candidates filed nominations; two withdrew, leaving Amar Singh, Balbir Singh and Kartar Singh to contest poll day. Amar Singh topped the poll and was declared elected.
In July 1955 Balbir Singh, who placed second, filed an election petition challenging Amar Singh's election on multiple grounds, including allegations of corrupt practices. Some of those allegations named the present petitioners, Sardar Partap Singh Kairon (Chief Minister, Punjab) and Sardar Daljit Singh, M.P.
The petition was to be tried under the Representation of the People Act, 1951 (as it stood before amendment in 1956). An Election Tribunal composed of Mr. Kartar Singh Chadha (Chairman), Mr. D.D. Seth and Mr. Badri Parshad Puri (Members) heard the matter. The Tribunal considered provisions of sections 98 and 99 of the Act (quoted in the record) which govern the Tribunal's orders and the naming of persons guilty of corrupt or illegal practices.
At the conclusion of evidence produced by the parties, the Tribunal members issued separate orders. The Chairman found allegations against the two present petitioners and a third person (Hari Singh) not established and saw no necessity for issuing notices under section 99. Mr. D.D. Seth, however, concluded that certain charges against the petitioners required further consideration and ordered notices to be issued to the two petitioners; Mr. Badri Parshad Puri agreed with Mr. D.D. Seth. The majority decision — ordering issuance of notices to the petitioners under section 99 in respect of specific allegations — became the order of the Tribunal.
The two petitions now before the High Court (Civil Writ Nos. 1146 of 1957 and 166 of 1958) were filed under Articles 226 and 227 of the Constitution by Sardar Partap Singh Kairon and Sardar Daljit Singh, challenging those Tribunal orders. The petitions were filed in December 1957 and January 1958 respectively. A stay of proceedings before the Election Tribunal had been ordered on admission of the petitions. The High Court heard the matter and, after deliberation, dismissed both petitions with costs; counsel fee of Rs.100 in each case was awarded. Dua, J. agreed with Falshaw, J.
Legal Issues Presented
- Whether the Election Tribunal had jurisdiction to issue notices under section 99(1)(a)(ii) of the Representation of the People Act, 1951 to persons (not returned or contesting candidates) before the Tribunal had given a final finding that those persons were guilty of corrupt practices.
- Whether a prima facie case requiring further investigation is a sufficient basis for the Tribunal to issue notices under section 99, or whether the Tribunal must first decide the election petition and make a definite finding of guilt before issuing such notices.
- Whether the High Court should intervene during the pendency of an election petition and decide matters falling within the jurisdiction of the Election Tribunal (i.e., the propriety of High Court intervention under Article 226 during trial of an election petition).
Arguments of the Parties
Petitioners' Arguments
- The learned counsel for the petitioners argued that the Tribunal's order issuing notices under section 99 was without jurisdiction because there had been no finding by the Tribunal that the petitioners were guilty of corrupt practices.
- The petitioners relied on the decision of the Assam High Court in Amjad Ali v. B.C. Barua (A.I.R. 1958 Assam 17) to support the proposition that persons other than candidates should not be made parties or be issued notices under section 99 until after a final determination that they were guilty of corrupt practices.
The opinion does not contain a detailed account of any opposing (respondent) arguments in the High Court; respondent arguments are not set out in the text.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Amjad Ali v. B.C. Barua, A.I.R. 1958 Assam 17 | Held that persons other than returned or contesting candidates named in allegations of corrupt practices should not be impleaded as parties at the outset and that the question of issuing notice under the proviso to section 99 arises only after the conclusion of trial and a finding that they were guilty of corrupt practices. | The Court accepted the decision to the extent that such non-candidates are not to be impleaded at the outset and that the issue of notice under section 99 arises after the parties' evidence is concluded. However, the Court expressly disagreed with an interpretation that would require the Tribunal to decide the election petition finally (i.e., give a definite finding of guilt) before issuing such notices; the Court held such an interpretation to be incorrect. |
| Mohd. Ibrahim v. Election Tribunal, Lucknow, A.I.R. 1957 All. 292 | Referenced for the proposition that, in that case, a High Court under Article 226 had decided whether certain allegations, if believed, amounted to a corrupt practice during the pendency of an election petition. | The Court stated its respect for the views in that case but held that it is not generally appropriate for the High Court to intervene during the pendency of an election petition and decide matters which lie within the Election Tribunal's jurisdiction. The Court therefore declined to follow that practice as a general rule in this matter. |
Court's Reasoning and Analysis
The court's analysis focused on the meaning and proper application of sections 98 and 99 of the Representation of the People Act, 1951 (pre-1956 amendment). The key steps of the court's reasoning as expressed in the opinion are:
- Preliminary acceptance of a limited proposition from Amjad Ali: persons other than candidates named in allegations of corrupt practices should not be impleaded as parties at the outset; the need to issue notices under the proviso to section 99 arises only after the parties' evidence has been concluded.
- Rejection of an overbroad reading of Amjad Ali: the court refused to accept that notice under section 99 could only be issued after the Tribunal had finally decided the election petition and given a definitive finding that the persons concerned were guilty of corrupt practices. Falshaw, J. considered such an interpretation incorrect in principle.
- Interpretation of the legislative scheme (sections 98 and 99): the court viewed the proper sequence as (a) trial and evidence by the parties, (b) a review by the Tribunal at the conclusion of parties' evidence, and (c) if the material before the Tribunal indicates allegations against non-candidate persons which might affect the fate of the election petition, the Tribunal should issue notices under section 99's proviso and grant those persons the opportunity to cross-examine witnesses, call evidence, and be heard before making any final naming in the order which accompanies the decision under section 98.
- Policy and consistency considerations: the court emphasised that it would violate basic principles of natural justice to issue a final finding against persons who have not yet been given the opportunity to be heard. If a Tribunal were required to give definite findings in the main judgment before notice and hearing under section 99, inconsistent and conflicting decisions could result (i.e., an initial finding that allegations are proved, followed by a later reversal after the persons are heard).
- Restraint on High Court intervention: the court expressed the view that it would be improper for the High Court generally to usurp the function of the Election Tribunal by deciding issues that the Tribunal is constituted to decide during the pendency of the election petition. While acknowledging the Mohd. Ibrahim decision where the High Court intervened, Falshaw, J. stated that it is not a practice that should generally be followed by the High Court.
- Conclusion tied to institutional competence: because the Election Tribunal was constituted to decide the matters at issue and because the court did not wish to prejudice the Tribunal's eventual decision, the High Court declined to adjudicate the merits of the petitions and dismissed the writ petitions.
Holding and Implications
Holding: Petitions dismissed. Both Civil Writ Nos. 1146 of 1957 and 166 of 1958 were dismissed by Falshaw, J., with costs; Dua, J. agreed. Counsel's fee of Rs.100/- was awarded in each case.
Implications:
- The immediate, direct effect is that the High Court refused to set aside or interfere with the Election Tribunal's majority order directing the issuance of notices under section 99 in respect of the specific allegations against the petitioners; the petitions challenging those orders were dismissed.
- The Court declined, in the circumstances of this case, to entertain an argument that notices under section 99 may be issued only after a final adjudication finding persons guilty of corrupt practices; instead the Tribunal may, after review at the close of parties' evidence, issue notices and afford the affected persons the procedural protections in the proviso before any final naming under section 99 is made part of the order under section 98.
- The opinion records the Court's view that it would generally be inappropriate for the High Court to intervene during the pendency of an election petition to decide matters entrusted to the Election Tribunal; the Court therefore refrained from deciding those substantive questions on the merits in this proceeding.
- No broader or novel legal principle was announced by the Court as a new precedent in this opinion beyond the interpretative conclusions described above; the decision confines itself to the application of established procedure and to protecting the jurisdictional role of the Election Tribunal.
Falshaw, J.:— These two petitions (Civil Writ Nos. 1146 of 1957 and 166 of 1958) under Articles 226 and 227 of the Constitution have been filed in the following circumstances by Sardar Partap Singh Kairon, Chief Minister, Punjab, and Sardar Daljit Singh M.P
2. In May, 1955 a bye-election was held to fill a vacancy in the Punjab Legislative Assembly which had arisen in the Hoshiarpur constituency. Five candidates filed nomination papers of whom two withdrew in time and the contest on polling day was between Amar Singh, Balbir Singh and Kartar Singh. Amar Singh headed the poll and was duly declared elected.
3. In July 1955 Balbir Singh, who was second in the poll, filed an election petition challenging the election of Amar Singh on various grounds, including a number of allegations of corrupt practices in some of which the names of the present petitioners were involved.
4. The election petition, which was to be decided in accordance with the provisions of the Representation of the People Act of 1951, as it stood before it was amended in 1956, came before an Election Tribunal consisting of Mr. Kartar Singh Chadha Chairmam and Mr. D.D Seth and Mr. Badri Parshad Puri Members. The relevant provisions of the Act read—
“98. Decision of the Tribunal.—At the conclusion of the trial of an election petition the Tribunal shall make an order—
(a) dismissing the election petition; or
(b) declaring the election of the returned candidate to be void; or
(c) declaring the election of the returned candidate to be void and the petitioner or any other candidate to have been duly elected; or
(d) declaring the election to be wholly void.
99. Other orders to be made by the Tribunal:— (1) At the time of making an order under section 98 the Tribunal shall also make an order—
(a) Where any charge is made in the petition of any corrupt or illegal practice having been committed at the election, recording—
(i) a finding whether any corrupt or illegal practice has or has not been proved to have been committed by, or with the connivance of, any candidate or his agent at the election, and the nature of that corrupt or illegal practice; and
(ii) the names of all persons, if any who have been guilty of any corrupt or illegal practice and the nature of that practice, together with any such recommendations as the Tribunal may think proper to make for the exemption of any persons from any disqualifications which they may have incurred in this connection under sections 141 to 143; and
(b) fixing the total amount of costs payable, and specifying the persons by and to whom costs shall be paid:
Provided that no person shall be named in the order under sub-clause (ii) of clause (a) unless—
(a) he has been given notice to appear before the Tribunal and to show cause why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of cross-examining any witness who has already been examined by the Tribunal and has given evidence against him, of calling evidence in his defence and of being heard.
5. In the present case, since allegations of conduct said to amount to corrupt practices had been made against the present two petitioners as well as against other persons in addition to the successful candidate, the question arose, at the conclusion of the evidence produced by the parties, of applying the relevant portions of section 99, since if the finding was to be given in the main judgment on the election petition that allegations made against the persons other than successful candidate were established, they would have to be named under section 99(1)(a)(ii), and they could only be so named after compliance with the provisions contained in the proviso regarding the issue of notice and the opportunity of cross-examining witnesses and producing defence evidence on their own account.
6. In dealing with this matter the Chan man of the Tribunal in a lengthy order dated the 26th of October, 1947 has reviewed the whole of the evidence relating to the allegations made against the two present petitioners and a third man named Hari Singh and came to the conclusion that the allegations were not established and that therefore there was no necessity for issuing notice to any of them under section 99. In a somewhat briefer order of the same date Mr. D.D Seth came to the conclusion that while nothing was established against Hari Singh, one of the charges made against Sardar Partap Singh Kairon, and part of one of the other charges, required further consideration, as also did the charge levelled against Sardar Daljit Singh, and he therefore ordered the issue of notices to the two petitioners in respect of these allegations. The third member Mr. Badri Parshad Puri agreed in a brief order with Mr. D.D Seth. The decision of the majority, which became the order of the Tribunal, was thus for the issue of notices to the petitioners regarding these specific matters.
7. These are the orders which are challenged in the present petitions, which were filed early in December 1957, and January, 1958, and since stay of proceedings before the Election Tribunal was ordered on the admission of petitions it is unfortunate that they have taken nearly a year to come up for hearing, and that matters arising out of an election held in May, 1955 should be before this Court in October, 1958.
8. The first point raised by the learned counsel for petitioners was that the order for issuing notices to them under section 99 was without jurisdiction, since there was no finding by the Tribunal that they were guilty of corrupt practices, and that the Tribunal had no jurisdiction to issue notices merely on the ground that there was a prima facie case which required further investigation. In this connection he relied on a decision of the Assam High Court in Amjad Ali v. B.C Barua . A.I.R 1958 Assam 17.. In that case in an election petition the petitioner, in addition to praying for setting aside the election of the successful candidate, had applied for notice to be issued against certain persons to show cause why they should not be named in the order of the Tribunal as persons guilty of corrupt practices, and notices were issued to these persons alongwith other parties made respondents in the petition. In these circumstances it was held that the persons did not come under the category of ‘candidate’ returned or contesting and, as such, they could not be made a party to the petition for setting aside the election, within the meaning of section 82, and it was only after the conclusion of the trial that the question of issuing notice on such persons within the meaning of the proviso to section 99 arose, provided the Court held, on the materials produced, that they were found guilty of such corrupt practices.
9. I do not see any reason for differing from this decision so far as it holds that persons other than candidates named in allegations of corrupt practices made in an election petition are not to be impleaded as parties, at the outset and that it is only after the evidence of the parties is concluded that the question of issuing notice to them under section 99 can arise. If, however, the decision was intended to go further than this, and to hold that notice under section 99 could only be issued to the persons concerned after the Election Tribunal had decided the election petition, and had come to a definite conclusion that these persons had been guilty of corrupt practices, I cannot, with respect, agree with it.
10. What appears to me to be the intention of the law is that at the conclusion of the evidence of the parties the position has to be reviewed by the Tribunal. Obviously the fate of the election petition, and of the successful candidate, will depend not only on those allegations of corrupt practices which are made directly against himself or his recognised agents, but also on the allegations of corrupt practices made against other persons supposed to be acting on his behalf. Such persons, however, cannot be named under section 99(1)(a)(ii) unless and until they have been given notice and an opportunity to contest the matter and defend themselves in accordance with the terms of the proviso. It seems to me that it would be violating a fundamental principle of jurisprudence to hold that definite findings must be given against the persons who are later to be named under section 99 in the main judgment deciding the petition in one of the ways provided in section 98 before notice can be issued to them under the proviso to section 99. Such a course might lead to the absurd result that after finding allegations of corrupt practices to be proved and declaring the election of the successful candidate to be void under section 98, the Tribunal might, after issuing notice to the persons to be named under section 99, and alter the further cross-examination of the witnesses already produced and the examination of any witnesses produced by them in their defence, come to the conclusion that the allegations relating to them were not proved after all, and there would thus be conflicting decisions by the same Tribunal.
11. Apart from this it appears to me to be fundamenally wrong in principle that any Tribunal should only call on persons against whom allegations have been made to appear and allow them to be heard after a definite finding has already been given by the Tribunal that the charges are proved. It seems to me to be quite obvious that the intention of sections 98 and 99 is that the final order of the Tribunal deciding the election petition one way or another under section 98, and any orders passed under section 99 naming persons as guilty of corrupt practices in connection with the election must be passed simultaneously, and that if the decision to name particular individuals as guilty of corrupt practices under section 99 has any bearing on the fate of the election petition as such, then the findings even in the main election petition on those particular charges of corruption can only be given after the affected parties have been heard under section 99. There may possibly be cases in which the fate of the election petition may not depend on the naming or otherwise of persons as being guilty of corrupt practices, but even in such cases I should say that it would be better if the law were to be followed as stated above.
12. In these circumstances it seems to me that if we were to go into the grounds on which the present petitions are based on their merits, we would be usurping the functions of the Election Tribunal and taking upon ourselves to decide matters which as yet remain undecided, and for the decision of which the Tribunal has been specifically constituted. Admittedly the question whether certain allegations of fact, if believed, would amount to a corrupt practice or not was decided on a petition under Article 226 of the Constitution during the pendency of an election petition by Mootham, C.J and Mukherji, J. in Mohd. Ibrahim v. Election Tribunal, Lucknow . A.I.R 1957 All. 292., but, with due respect to the views of the learned Judges in that particular case, I do not think that it is a practice which should generally be followed in the High Court to intervene during the pendency of an election petition and take upon itself the task of deciding matters which lie within the jurisdiction of the Election Tribunal. In the circumstances I think it would be better for us not to say anything at all which could in any way be taken by the Tribunal either as prejudicing its decision in the main election petition or prejudicing its decision on the matters regarding which notice was ordered to be issued to the present petitioners. The result is that I would dismiss both the petitions with costs. Counsel's fee Rs. 100/- in each case.
13. Dua, J.:—I agree.
Petitions dismissed.
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