Naunihalsingh Vs. Kishorilal Paliwal and ors. - Court Judgment

Bhutt, C.J.

1. This appeal under Section 116A of the Representation of the People Act, 1951, (hereinafter called the Act), has been filed by Naunihalsingh, an elector, whose petition challenging the election of Kishorilal Paliwal, respondent 1, and Nabha, respondent 2, to the Madhya Pradesh Legislative Assembly from Gadarwara Double Member Constituency, for the general and reserved seat respectively, was dismissed by the Election Tribunal, Hoshangabad. The returned candidates have filed a cross-objection for costs.

2. Kishorilal Paliwal and Nabha, respondents 1 and 2, were set up as candidates for the election by the Congress party for the general and reserved seat respectively of the Gadarwara Double Member Constituency. Niranjansingh, respondent 3, and Gokul, respondent 4, were likewise set up for election to the general and reserved seat respectively, by the Praja Socialist Party, Ramgulam, respondent 5, and Ramchand Paliwal, respondent 6, were independent candidates for the general seat. They secured the following number of votes:

1. Kishorilal Paliwal. ..19327. 2. Nabha. ...21885. 3. Niranjansingh. ...13632.4. Gokul. ...13496.5. Ramgulam. ...3684.6. Ramchand Paliwal. ...1044.

Accordingly, Kishorilal Paliwal, respondent 1, was declared as elected for the general seat and Nabha respondent 2, for the reserved seat.

3. The contesting candidates who were not elected, viz., respondents 3 to 6, were ordered by the Election Tribunal to be struck off the record as they were not necessary parties. However, they were joined in the appeal as respondents as they were shown as parties in the title of the order of the Election Tribunal. Out of them, respondents 4 to 6 were served but remained absent, and respondent 2, Niranjansingh, was ordered to be struck off the record as he could not be served.

4. Naunihalsingh, a voter in the Gadarwara constituency, challenged the election of the returned candidates on various allegations of corrupt practice. Against Nabha, respondent 2, his further case was that he was not a member of a scheduled caste and, therefore, could not contest the election for the reserved seat. All these points were controverted by the returned candidates, who also challenged the right of Naunihalsingh to file the election petition on the ground that he had not initially stated his number on the electoral roll and although he was allowed to state the number by the Election Tribunal, the amendment was unauthorised and did not invest him with a right to prosecute the election petition. This contention was disallowed by the election Tribunal. Before us, his right to maintain the election was not challenged.

5. The points that were urged before us are discussed below:

(1) Scheduled Caste: Nabha, respondent 2, is admittedly a Chamar. In the Constitution (Scheduled Castes) Order, 1950, as initially issued on 10th August 1950, Chamar, throughout the State of Madhya Pradesh, was notified as a scheduled caste in Part IV of the Schedule. This Order and the Constitution (Scheduled Tribes) Order, 1950, which were issued by the President under Clause (1) of Article 341 of the Constitution, were modified by him under Section 41 of the States Re-organisation Act, 1956, by the Scheduled Castes and Tribes List (Modification) Order, 1956.

In this Modification Order, any reference to a State or to a district or other territorial division, has to be construed as a reference to the State, district or other territorial division constituted as from 1st November, 1956. Chamar was mentioned in the Modification Order as a scheduled caste in the district of Hoshangabad in Clause (2) of Part VI of the First Schedule. On 1st November 1956, Narsimhapur, where Nabha, respondent 2, resides, was constituted into a separate district. It was accordingly contended that since the Hoshangabad district did not, on that date, include the territory comprised in the district of Narsimhapur, Nabha, respondent 2, could not be denied to be a member of a scheduled caste.

6. Clause (2) of Article 341 of the Constitution is as below:

'(2) Parliament may by law include in or exclude from the list of Scheduled Castes specified in a notification issued under Clause (1) any caste, race or tribe, or part of or group within any caste, race or tribe, but save as aforesaid a notification issued under the said clause shall not be varied by any subsequent notification.'

It would thus appear that without any law madeby Parliament, the original Scheduled Castes Order, specifying Chamar as a scheduled caste in the entire area of Madhya Pradesh, could not be varied by any subsequent notification. No such law, except the States Reorganisation Act, has been made by Parliament. Section 41 of the States Reorganisation Act is reproduced below:

'41. Modification of the Scheduled Castes and Scheduled Tribes Orders.

As soon as may be after the commencement of this Act, the President shall by order make such modifications in the Constitution (Scheduled Castes) Order, 1950, the Constitution (Scheduled Castes) (Part C States) Order, 1951, the Constitution (Scheduled Tribes) Order, 1950, and the Constitution (Scheduled Tribes) (Part C States) Order, 1951, as he thinks fit having regard to the territorial changes and formation of new States under the provisions of! Part II.'

This provision, therefore, extended only to making such modification in the original Scheduled Castes Order, as was compatible with the territorial changes and formation of new States. That power, therefore, did not authorise the President to exclude any person from the category of a scheduled caste, who enjoyed that status under the original Scheduled Castes Order. Accordingly, Nabha, respondent 2, who was a member of a scheduled caste under that Order, could not be deprived of his status by the subsequent notification.

7. It would appear From the changes made in the original Scheduled Tribes Order relating to Madhya Pradesh in Part VI, Schedule II, of the Modification Order, that Hoshangabad, Narsimhapur and Sohagpur were mentioned as tahsils of the Hoshangabad district. It is thus evident that Hoshangabad district mentioned in Part VI, Schedule I, of the Modification Order was inclusive of the territory now comprised in Narsimhapur district. It was, therefore, only an accidental omission or a clerical error that Narsimhapur district was not specifically mentioned in Part VI, Schedule I, of the Modification Order.

In Maxwell on Interpretation of Statutes, 10th Edn., pp. 250-252, it is laid down as a rule of construction that an omission which the context shows with reasonable certainty to have been unintended may be supplied, at least in enactments, which are construed beneficially, as distinguished from strictly, and that clerical errors may be read as amended. This is not to stretch the words used in the Modification Order, which, as held in Hira Devi v. Dist. Board Shahjahanpur, AIR 1952 SC 662, cannot lie done to fill in gaps or omissions in the provisions of any law. It is therefore, permissible to read Hoshangabad district in Part VI, Schedule I, of the Modification Order as comprising the quondam tahsil of Narsimhapur.

8. In the above view, it is not necessary to consider the validity of the corrigenda issued under S. R. O. 329, dated 28th January, 1957, which, although signed by the Deputy Secretary, was not expressed to be issued in the name of the President as required by Article 77(1) of the Constitution. It, however, appears to us that mere correction of a clerical mistake or omission in a notification is only a ministerial act, and not an executive action of the Government of India, and accordingly a corrigendum, which does not effect any changein the notification, need not be expressed in the name of the President.

Nor is it necessary to consider whether the acceptance of the nomination of Nabha, respondent 2, was improper within the meaning of section 100(1)(d)(i) of the Act. We may, however, observe, as held in Jhumuklal v. Ambikasao, First Appeal No. 58 of 1958 D/- 16-10-1958 (MP), that even a member of a scheduled caste may be returned to a general seat, if, after the reserved seat is filled, he happens to obtain the largest number of votes among the remaining candidates. It, therefore, follows that even though he may not be a member of a scheduled caste but has wrongly declared himself as such in the nomination paper, his right to contest the election for the general seat cannot be questioned.

Accordingly, his nomination cannot be said to be improperly accepted, although he may not be eligible to fill the reserved seat. In this connection, what Section 33(2) of the Act requires is that a candidate shall not be deemed to be qualified to fill a reserved seat unless his nomination paper contains a declaration by him specifying a particular caste of which he is a member, and the area in relation to which that caste is a scheduled caste. This only prohibits a person who is not a member of a scheduled caste, from filling the reserved seat, although he may declare himself to be such in the nomination paper, but that does not affect his qualification to fill the general seat.

This is the only effect of Sections 33(2) and 54(4) of the Act. Accordingly, the case does not fall within Section 100(1)(d)(i) of the Act, and even if it were held to be covered by that provision, it would not affect the election, as the result thereof, so far the returned candidates are concerned, is not proved to be materially affected thereby.

9. (2) Chetawani, Ex. P-12, and Savdhan, Ex. P-13:-- These two pamphlets are said to have been issued by the Congress candidates, or their agents and workers between 2 and 4 March 1957. Chetawani, Ex. P-12, is a pamphlet which purports to have been issued under the signature of Smt. Sucheta Kriplani, in support of the candidature of Maganlal Bagdi, a Congress candidate, as against H. V. Kamath, (P. W. 57), who was set up by the Praja Socialist Party for election to the Lok Sabha in the last general election. It was not disputed before us that the pamphlet Chetawani, Ex. P-12, was not issued by Smt. Sucheta Kriplani and contained a false allegation against H. V. Kamath that he had called Pandit Nehru 'Nalayak Pradhan' (incompetent Prime Minister).

It was also not contested that this false allegation was likely to influence the electors to vote against the candidates of the Praja Socialist Party. The same view was held by this Court in Maganlal Bagdi v. Hari Vishnu Kamath, P. A. No. 5 of 1958 D/- 25-4-1958: (AIR 1960 Madh Pra 362). However, what section 123(4) requires is that the statement of fact should be in relation to the personal character or conduct of a candidate, or in relation to his candidature. This pamphlet contains no statement of fact as against the personal character or conduct of the contesting candidates of the Praja Socialist Party.

As an appeal to the electors to vote for the candidates of the Congress party in general, there is no imputation against the candidature of the other candidates, in the sense the word candidature' was explained by this Court in Kanhaiyalal Tiwari v. S. S. Mushran, F. A. No. 29 of 1953 D/- 10-5-1958 (MP). Accordingly, the distribution of this pamphlet amongst the voters is not a corrupt practice as defined in Section 123(4) of the Act. As regards the other pamphlet Savdhan, Ex. P-13, it is a tirade against the Praja Socialist Party as such and does not contain any statement of fact as against the personal character or conduct of any of its candidates, or against their candidature: see F. A. No. 29 of 1958 D/- 10-5-1958 (MP) (supra). Accordingly, this pamphlet also does not contravene section 123(4) of the Act.

10. Evidence was let to show that these two pamphlets were distributed amongst the voters by Kishorilal Paliwal, respondent 1, and other Congress workers between 2 and 4 March 1957. This evidence was fully considered by the learned Member of the Election Tribunal and we concur with his conclusion that it is not sufficient to prove this allegation. (His Lordship considered in paras 11-27 the evidence on that point and also discussed the allegations relating to tongas and illegal gratification and proceeded:)

28. (5) Identity Cards: The case against the returned candidates was that they had issued identity cards to the voters to be taken by them within 100 yards of the Polling Station, and thus they were guilty of breach o Section 130 of the Act. This contention was given up before the Election Tribunal, hut it was urged that on the finding of fact given by it, the election of the returned candidates must in law be held to be affected.

29. The learned Member of the Election Tribunal found that the identity cards of the Congress candidates were carried by some of the voters to the Polling Station, and this was a breach of Section 130 of the Act and was punishable under Sub-section (2) thereof, hut it did not amount to non-compliance with the provisions of the Act or the rules made thereunder within the meaning of section 100(1)(d)(iv) ibid. The word 'non-compliance' denotes an omission to do what is directed to be done, and not doing of an act which is prohibited. There is also no proof of any material effect of the breach of Section 130 of the Act on the result of the election so far as the returned candidates are concerned, in the sense understood in Vashist Narain Sharma v. Dev Chandra, AIR 1954 SC 513. The breach of Section 130 of the Act, therefore, does not per so vitiate the election of the returned candidates.

30. (6) Election Expenses: It is not disputed that some letters of good wishes on the Republic Day were sent by Kishorilal Paliwal, respondent 1, to his friends and acquaintances, in which he had requested them to vote for him. These letters were got printed by him; see Ex. P-19, which cost him about Rs. 5 or Rs. 6. The expenditure was not shown by him in the account of the election expenses. It was urged that this amounted to contravention of Section 77(1) of the Act and constituted a corrupt practice within the meaning of Section 123(6) ibid, even though the total expenses did not exceed the limit prescribed in rule 135, Schedule III, of the Election and Election Petitions Rules, 1956.

31. The effect of the amended Sections 77 and 123(6) of the Act, which govern this case, was considered recently by this Court in K. C. Sharma v. Election Tribunal, AIR 1958 Madh Pra 236. The intention that an expenditure which is suppressed from the account of expenses by a returned candidate should not be deemed to be 'incurring or authorising an expenditure in contravention of Section 77, appears difficult to attribute to the Legislature, particularly when such a breach does not entail any disqualification under Section 7(c). However, as at present advised, we do not see sufficient grounds to disagree with the plain construction of the words used in these provisions, which was adopted in AIR 1.958 Madh Pra 236 (supra).

32. This exhausts the grounds urged before us and as they are not established, the appeal is liable to fail. We accordingly dismiss the appeal with costs. Hearing fee Rs. 200/-.

33. The discretion exercised by the learnedMember of the Election Tribunal cannot be saidto be improper. The cross-objection is accordingly dismissed without any order as to costs.