1. These applications, preferred under Article 226 of the Constitution for the issue of writs of certiorari and prohibition, arose out of proceedings in Election Petition No. 86 of 1957, which had been filed by Sa Ganesan to avoid the election of the returned candidate, Muthiah Chettiar, from the Karaikudi Constituency of the Madras Legislative Assembly. It should be convenient to refer to-Muthiah Chettiar and Sa Ganesan respectively as the returned candidate and election petitioner in the rest of this judgment.
2. When the returned candidate had occasion at an earlier stage of the proceedings before the Election Tribunal to challenge the validity of another of the interlocutory orders of the Tribunal by applications preferred under Article 226 of the Constitution - the judgment of this Court has been reported in M.A. Muthiah Chettiar v. Sa Ganesan (1958) 1 M.L.J. 110, this Court observed at page 123:
...Issue I...raised the question of the jurisdiction of the Tribunal to continue the enquiry. Issues 2 to 7 were in a way linked up with issue I though, even if issue 1 were decided in favour of the respondent, the others had to be considered. These issues involved the consideration of no evidence, oral or documentary, and had to be determined on a construction of the petition read in the light of the provisions of the Act,
We therefore consider it proper that we should issue a direction to the Tribunal to decide issues 1 to 7 in the first instance before proceeding further with the trial in the sense of receiving oral or documentary evidence on the several issues framed.
3. It should be unnecessary to set out over again what preceded that order. The Election Tribunal recorded its findings on issues 1 to 7 in its order, dated 26th December, 1957. It was the validity of those findings that the returned candidate challenged in the two applications he preferred one for the issue of a writ of certiorari to set aside the order of the Election Tribunal and the other for the issue of a writ of prohibition.
4. Mr. Kumaramangalam, learned Counsel for the election petitioner, pointed out that the returned candidate had invoked again the jurisdiction of this Court under Article 226 of the Constitution to challenge the correctness of an interlocutory order of the Tribunal, and the learned Counsel urged that the Court should exercise its discretion and discharge the rule nisi as the errors, if any, committed by the Tribunal could be corrected in appeal, should one be necessary, under Section 116-A of the Representation of the People Act, 1951, as amended by Act XXVII of 1956. In dealing with a similar contention, this Court observed in M.A. Muthiah Chettiar v. Sa Ganesan (1958) 1 M.L.J. 110 at page 124:
...the power and jurisdiction of the Tribunal which is a creation of the Act are not plenary but limited and it has to function within the limits set to it.... We are satisfied that this order for amendment passed by the Tribunal was beyond its jurisdiction and was vitiated by apparent error in misunderstanding the decision of the Supreme Court in Bajpai's case (1957) S.C.J. 297. Turning to the order impugned in W.P. No. 668 of 1957, it was no doubt an interlocutory one, but Article 226 is couched in the widest terms and is not confined to final orders. There being no statutory or constitutional bar to the exercise of our powers, the question that we had to consider was whether in the exercise of our discretion we should interfere at this stage. The existence of a provision for an appeal was certainly a material fact to be taken note of but that is not determinative. We took into account the fact that the policy of the Act was to have an expeditious disposal of election petitions, and we considered that this would be frustrated if we did not set aside, what we were convinced was an erroneous order which, if it had continued to be in force, would have enlarged the enquiry by evidence which at a later stage would have to be discarded. It is the same process of reasoning that has led us to the conclusion that we should issue the direction we have indicated above in W.P. No. 611 of 1957 in regard to the manner in which the issues should be decided.
5. The stage at which a person claiming to be aggrieved by an order of the Election Tribunal seeks relief under Article 226 of the Constitution - the grant of which is no doubt discretionary - is not the real determining factor. The real question is, did the Tribunal exceed its jurisdiction when it ordered the further investigation of issues 1 to 7 on the basis of the averments in the election petition. The jurisdiction of the Tribunal, of course, is limited by the terms of the statute which created it to enforce the statutory rights, obligations and penalties, also created by it.
6. We shall explain the position taking the example of a charge of the commission of the corrupt practice of bribery, which could constitute one of the grounds for avoiding the election under Section 100(1) of the Representation of the People Act (hereinafter referred to as the Act). If there was no such charge at all, there were no averments in the election petition from which such a charge could be spelled out, but the Tribunal decided to investigate the truth of an allegation advanced at the stage of the trial, that the returned candidate had committed the corrupt practice of bribery, the Tribunal would have no jurisdiction to embark on such an investigation, and on that basis a writ of prohibition could issue to restrain the Tribunal from exercising a jurisdiction it had no right at all to assume. Similarly, if facts were alleged in an election petition, but the facts even if proved could never amount to a charge of the corrupt practice of bribery, despite even a categorical assertion in the election petition that these alleged acts constituted corrupt practice of bribery, the Tribunal would have no jurisdiction to investigate the truth of those facts. The position would be that to prove a charge of the commission of the corrupt practice of bribery the averments were non est in law, and that it was really a case of no averments at all. Sufficiency of averments to furnish a basis for a triable issue is, however, a wholly different problem. It is for the Tribunal to decide in the first instance whether the averments are sufficient to disclose a triable issue. It has then to decide whether those averments have been proved. The quantum of evidence or the sufficiency thereof is wholly for the Tribunal to determine in the first instance. Next the Tribunal will have to decide whether the proved facts established the charge of the commission of the corrupt practice of bribery. All these will be within the jurisdiction of the Tribunal.
7. What we have to verify is whether it was a case of no averment at all in the sense in which we have endeavoured to explain above, and whether the Tribunal had therefore no jurisdiction to enquire into any of the issues 1 to 7. To put it differently, unless we are satisfied that the Tribunal has clearly overstepped its jurisdiction when it decided to try issues 1 to 7 on the lines indicated by it, no interference under Article 226 of the Constitution would be justified.
8. After listening to the arguments of the learned Counsel on both sides on all the contentions they respectively put forward, we have come to the conclusion, that no such excess of jurisdiction has been established, and that there is no cause for any interference by us at this stage of the proceedings before the Election Tribunal, either by the issue of writ of certiorari or by the issue of a writ of prohibition. We do not desire to set out all the reasons in full, as we should normally have done, because we do not desire that anything we say at this stage should embarrass the parties or the learned Judge, who constitutes the Election Tribunal, in the trial of the election petition. No doubt at this stage the learned Judge had to confine himself to the sufficiency or otherwise of the averments as disclosed in the pleadings. But it may not stop there. If those facts which were alleged were proved, what inference should be drawn from those proved facts is yet a matter to be determined, and that is within the jurisdiction of the Tribunal. What legal consequences should follow such findings is again for the Tribunal to decide. We have no right at this stage to jeopardise in any way the exercise of that jurisdiction. It should be sufficient to record that on a perusal of the relevant paragraphs of the pleadings and the order of the Tribunal we are not satisfied that it was a case of no averments at all, or that there was no basis in the pleadings for raising issues 1 to 7 as triable issues. No doubt they are in the nature of jurisdictional issues. Nonetheless, what is in controversy now is only sufficiency of averments to justify the investigation of the truth of the facts alleged by the election petitioner and denied by the returned candidate. In judging the sufficiency or otherwise of the averments the approach of the Tribunal was, if we may say so, quite correct, and the test it applied was the one approved of by the Supreme Court in Harischandra Bajpai v. Triloki Singh (1957) S.C.J. 297.
It is no doubt true that pleadings should not be too strictly construed, and that regard should be had to the substance of the matter and not the form.... It should not be forgotten that charges of corrupt practices are quasi-criminal in character, and that the allegations relating thereto must be sufficiently clear and precise to bring home the charges to the candidates....
In the circumstances of this case, even if the decision of the Tribunal on any one of the points it decided was erroneous - we are certain y not expressing any opinion of ours that the decision on any of the points was erroneous - that may not justify interference at this stage in the exercise of the jurisdiction vested in this Court by Article 226 of the Constitution.
9. We shall, however, indicate our views on some of the arguments addressed to us.
10. Mr. Nambiar, learned Counsel for the returned candidate, was of course right when he pointed out that Section 100(1)(b) and Section 100(1)(d)(ii) of the Act each dealt with a distinct and separate ground for avoiding an election. In this case it was common ground that the returned candidate had no election agents. So we can leave out of account the reference to the election agent in the relevant statutory provisions. Corrupt practices are denned in Section 123 of the Act. But something more than the commission of a corrupt practice as defined by Section 123 of the Act is required to make it one of the grounds, either under Section 100(1)(b) or under Section 100(1)(d)(ii) of the Act. What Section 100(1)(b) of the Act requires is proof that the specified corrupt practice was committed by the returned candidate himself or by any person with the consent of a returned candidate. As Mr. Nambiar pointed out, all agents other than the election agent of a returned candidate would fall within the second category. The consent of the returned candidate has to be specifically proved even in such cases. On proof of what facts an inference of such consent could be drawn, is not further specified by Section 100(1)(b) of the Act. If the corrupt practice was committed by the returned candidate or by a person with the consent of the returned candidate, that would not fall within the scope of Section 100(1)(d)(ii) of the Act.
11. Section 100(1)(d)(ii) refers to corrupt practices commited by a person other than those enumerated in Section 100(1)(b). What Section 100 (1)(d)(ii) further requires, instead of the consent of the returned candidate, is proof (1) that the corrupt practice was committed in the interests of the returned candidate, and (2) that the result of the election of the returned candidate was materially affected by the commission of that corrupt practice. What facts should be proved to justify each of these inferences Section 100 (1)(d)(ii) does not specify.
12. Whether on the set of facts proved, the inference drawn should be that the corrupt practice was committed by the named person with the consent of the returned candidates (Section 100(1)(b)) or whether it was committed by the same named person in the interests of the returned candidate (Section 100(1)(d)(ii)) is for the Tribunal to decide. That what has to be proved has to be alleged first is a line of argument distinct from the further argument Mr. Nambiar advanced. If we understood him aright, he said in effect that if an election petitioner set out the relevant facts and ended up by saying that they amounted to the ground specified in Section 100(1)(b) or that specified in Section 100(1)(d)(ii) the Tribunal had no jurisdiction to investigate such a plea in the alternative; the statutory grounds were mutually exclusive, and such pleas in the alternative were mutually destructive. Ancillary to this was the further contention, that if what was alleged was the ground specified in Section 100(1)(b) it was not open to the Tribunal to convert that into the ground specified in Section 100(1)(d)(ii) although the facts alleged and proved might support the latter ground. Mr. Nambiar relied on the passage in Halsbury's "Laws of England", III edition, Vol. 14, at pages 258-259.
The Court has no jurisdiction...to convert an offence charged under one statutory provision into an offence against another related provision although the facts might support the latter offence.
13. The authority for this proposition was the decision in The Eastern Division of Manchester Case (1892) 4 O'M. and H. 120.
14. What the election petitioner alleged in this case in paragraph 22 of his election petition was:
The petitioner states...by reason of the corrupt practices set out in paras. 6 to 21 above read with schedules I to IV, the election of the respondent (returned candidate) is liable to be declared void. The result of the election has also been materially affected for the same reasons and on this ground also, the respondent's election is liable to be declared void. The petitioner therefore submits that the respondent's election is liable to be declared void under Section 100(1), (a), (b) and (d) of the Act.
15. In paragraphs 6 to 21 of the election petition there was no reference either to Section 100(1)(b) or to Section 100(1)(d)(ii) of the Act. References were all to one or other of the sub-sections of Section 123 which defined corrupt practices. Issues 2 to 4 as well as issue 5 also only referred to Section 123 and not to Section 100(1) of the Act.
16. The commission of corrupt practice with the particulars thereof will have to be alleged and proved. If it is further alleged and proved that it was committed with the consent of the returned candidate, it would fall under Section 100(1)(b). If it is alleged and proved that it was committed in the interests of the returned candidate and that that materially affected the result of the election, the case would fall under Section 100(1)(d)(ii). But the corrupt practice alleged remains the same, that denned by Section 123 of the Act. If the relevant facts are alleged, and there is a further averment in the election petition that they constitute a ground specified in Section 100(1)(b) or that specified in Section 100(1)(d)(ii) such an averment would be one of inference and would not be an averment of fact. An election petitioner is limited to proof of the necessary facts alleged. The inference to be drawn from the proved facts is for the Tribunal to decide, whatever might be the inference that the election petitioner desired the Tribunal to draw by what might turn out to be a wholly unnecessary averment of his inference. The statutory provisions which the learned Judges had to construe and apply to The Eastern Division of Manchester Case1, do not appear to have been in pari materia with Sections 123 and 100(1) of the Act. As we said, the charge of corrupt practice, the commission of which has to be proved first remains the same. The further question would be, whether that particular charge brought it under one or the other of the statutory provisions, Section 100(1)(b) or Section 100(1)(d)(ii) of the Act.
17. We are unable to accept the contention of Mr. Nambiar that the plea of the election petitioner in this case was not in the alternative. Nor can we accept the further argument, that the pleas are naturally destructive and that there is therefore nothing left for the Tribunal to investigate. The plea in paragraph 22, which we have extracted above with which the averments in the earlier paragraphs 6 to 21 have to be correlated, does not divest the Tribunal of the jurisdiction that the election petitioner invoked under the Act.
18. Mr. Nambiar did not press before us the extreme contention put forward before the Tribunal and rejected by it, that if one or more of the grounds specified in the election petition were bad in law, the whole petition failed, even if the averments with reference to the other grounds disclosed a basis for framing what we have termed triable issues. Issue 3 dealt with allegations of undue influence. Undue influence is defined by Section 123(2) of the Act which runs:
Undue influence, that is to say, any direct or indirect interference or attempt to interfere on the part of the candidate or his agent, or of any other person, with the free exercise of any electoral right;
(a) without prejudice to the generality of the provisions of this clause any such person as is; referred to therein who-
(i) threatens any candidate, or any elector, or any person in whom a candidate or an elector is interested, with injury of any kind including social ostracism and excommunication or expulsion from any caste or community;
(ii) induces or attempts to induce a candidate or an elector to believe that he, or any person in whom he is interested, will become or will be rendered an object of divine displeasure or spiritual censure, shall be deemed to interfere with the free exercise of the electoral right of such candidate or elector within the meaning of this clause.
19. We shall omit Clause (b) of the proviso. The electoral right which is referred to in Section 123(2) is defined by Section 79(d) of the Act:
'electoral right' means the right of a person to stand or not to stand as, or to withdraw from being, a candidate, or to vote or refrain from voting at an election.
20. The finding of the Tribunal was:
...I find on issue 3 that the averments contained in paragraph 12, 13(1)(a)(g) and (k), do constitute corrupt practice of undue influence under Section 123(2) of the Act.
21. We propose to say nothing at this stage about the corresctness of that view. It may also be possible to rest the decision on the ground, that a threat of an injury to a worker to prevail upon him to desist from working for a candidate would constitute a direct or indirect interference with the free exercise of the electoral right of the candidate to stand for election. As we see at present, we are not inclined to accept as correct the narrow interpretation placed by Mr. Nambiar on the statutory expression in Section 79(d) of the Act, the right of a person to stand as a candidate at an election, that that right has been exercised and exhausted when the nomination of the candidate is accepted. The candidate who has neither withdrawn his nomination nor retired from the contest continues to stand, that is, he continues to exercise his electoral; right to stand as a candidate at an election, because polling is an intergal part of the process of election. Part of that electoral right of the candidate to stand is his right to canvass votes directly by himself or indirectly through those who are prepared to work for him, of course, by all legitimate means open to them. But we wish to emphasise that it is wholly for the Tribunal to decide in the first instance in this case what constituted the electoral right of the candidate to stand. All we wish to explain at this stage is why we do not consider the conclusion of the Tribunal, we have extracted above, apart from the reasoning as a decision even prima facie erroneous.
22. Issue (5) ran:
Do the allegations in para. 17 and Schedule III-A amount to corrupt practice under Section 123(7) of the Act?
23. The averments in paragraph 17 have to be read with the further particulars mentioned in Schedule III-A. Schedule III-A set out the names of four village headmen. The allegation in paragraph 17 was that both Section 123(7) and Section 123(2) had been contravened. The Tribunal was apparently of the view that while the averments did not bring the charge within the scope of Section 123(7) it fell within the scope of Section 123(2) read with Section 100(1)(d)(ii) of the Act. We only wish to point out that Section 123(7)(f) does not in terms apply to village headman. Nothing was brought to our notice to show that village headman could be brought within the scope of Clause (g) of Section 123(7).
24. Despite the arguments addressed to us, we do not think that the decision of the Tribunal on issues 6 and 7 call for any comment at this stage. The Tribunal had jurisdiction to decide the sufficiency of the particulars furnished by the election petitioner. We have also refrained from examining at this stage the correctness of the view taken by the Tribunal in paragraph 18 of its order on what an agency implies.
25. The petitions fail. The rule nisi is discharged in each of the petitions and the petitions are dismissed with costs in one W.P. No. 11 of 1958. Counsel's fee Rs. 250.