Sushila Balraj v. Andhendu Bhushan — 1964 DIGILAW 93 (SC)

JUDGMENT : Gajendragadkar, CJI. This appeal by special leave arises out of an election petition filed by the respondent Ardhendu Bhushan challenging the validity of the appellant's election on behalf of the Nagpur Constituency for the State Assembly of Maharashtra. The election in question was held on February 25, 1962. Besides the respondent, six other candidates had offered themselves for election. The counting of votes began on February 26, 1962 and the results were declared the next day. The appellant was declared elected by a margin of 158 votes over the respondent's. Thereafter, the respondent filed the present election petition on the 9th April, 1962. He alleged that the appellant had been guilty of corrupt practices and, therefore, claimed that her election should be declared void. In support of this claim, the respondent made several allegations. He also alleged that some ballot-papers had been improperly received; in some cases, minors were allowed to vote and there were cases of impersonation as well. At the time of the actual counting of the votes, several irregularities are alleged to have been committed and that, according to the respondent, vitiated the final declaration about the appellant's election. In this connection, the respondent averred that during the period that the counting of votes continued, electric lights had failed for about an hour and that introduced confusion in counting. On these allegations, the respondent urged that if a proper count was made, he would be entitled to a declaration that he was duly elected on behalf of the said constituency. Thus, the petition filed by the respondent claimed a declaration that the appellant's election was invalid and asked for a further declaration that he was duly and validly elected. 2. To this petition, the respondent impleaded the appellant and the other candidates who had offered their candidature at the said election. The appellant disputed all the allegations made by the respondent and urged that the election had been properly conducted, that she was not guilty of any corrupt practice, that the counting of votes had been properly made and no other irregularity had crept in that behalf. Two of the candidates who had been impleaded as respondents to the petition, Waman Narayan Chavan and Govind Gopal Bhamburkar supported the respondent's case in so far as it challenged the Validity of the appellant's election. Two of the candidates who had been impleaded as respondents to the petition, Waman Narayan Chavan and Govind Gopal Bhamburkar supported the respondent's case in so far as it challenged the Validity of the appellant's election. They, however, disputed the respondent's contention that he should be declared to be duly elected. The other candidates who had been impleaded did not support the respondent in respect of either of the claims made by him. In regard to the corrupt practices alleged by the respondent, they denied all knowledge. 3. It appears that the present petition had unfortunately a somewhat chequered career. The Election Commission before which the petition was filed by the respondent, first appointed Mr. Bhupali, the District Judge of Nagpur, as the Election Tribunal under section 86 of the Representation of the People Act, 1951 (No. 43 of 1951) (hereinafter called the Act). Under section 88 of the Act, the Election Commission fixed Nagpur as the place where the election petition had to be tried. This order was passed on June 5, 1962. Mr. Bhupali held the first hearing of the petition on June 16, 1962. Thereafter, Mr. Bhupali was transferred from Nagpur and, in consequence, the Election Commission appointed Mr. Hadole, the District Judge at Nagpur, to try this petition. The first hearing of the petition took place before Mr. Hadole on August 9, 1962. Later, Mr. Hadole for reasons which are not apparent on the record, resigned his commission, and so, the Election Commission appointed Mr. Hussain, District Judge, Bhandara, to fill the vacancy under section 86(4) of the Act. The notification in that behalf was issued on the 25th August, 1962. This notification notified Bhandara as the place where the trial of the petition was to take place. Before Mr. Hussain several hearings took place, and while the Election Petition was making progress, the respondent was detained by the State Government under the Defence of India Rules on November 7, 1962. On January 25, 1963, the case became ripe for settling the date for recording evidence, and February 18, 1963, was accordingly fixed in that behalf. Thereafter, the respondent asked for several adjournments and they were granted by the Tribunal in order to accommodate him and afford facilities for leading his evidence. This became necessary, because the respondent suffered from the handicap that he had been detained under the Defence of India Rules, 1962. Thereafter, the respondent asked for several adjournments and they were granted by the Tribunal in order to accommodate him and afford facilities for leading his evidence. This became necessary, because the respondent suffered from the handicap that he had been detained under the Defence of India Rules, 1962. Ultimately, when the case was finally fixed for hearing on the 23rd September, 1963, the respondent applied for another adjournment. The Tribunal, however, felt that it would be improper to allow another adjournment when on the earlier occasion, the Tribunal had fixed the date of hearing as 23rd September, 1963 on the distinct understanding that on that date the respondent would lead' his evidence. After the application for adjournment was thus rejected by the Tribunal, the respondent moved the Tribunal again on September 24, 1963 for reconsidering its decision and when that was rejected, the respondent did not proceed to give evidence, and, ultimately, the application had to be dismissed for non-prosecution on the same date. That is how the respondent's election petition came to be dismissed. 4. The respondent then appealed to the High Court of Judicature at Bombay, Nagpur Bench, and urged that the Election Tribunal was in error in refusing him an adjournment on the 23rd September, 1963. He also urged that the Election Tribunal was wrong in not allowing him inspection of ballot-papers for which he had made an application; and he argued that there was no jurisdiction in the Tribunal to dismiss his election petition for non-prosecution. Before the Appellate Court, the respondent also laid considerable emphasis on the fact that owing to his detention under the Defence of India Rules, it had become difficult for him to prosecute his petition, particularly because the hearing of the petition was fixed at Bhandara when the respondent was detained at Nagpur. It is plain from the judgment of the High Court that this last consideration considerably influenced the final decision of the High Court. 5. The High Court has held that there was no substance in the argument urged by the respondent that the Election Tribunal had no jurisdiction to dismiss his petition for non-prosecution. The High Court, however, took the view that the Tribunal should have allowed inspection of ballot-papers to the respondent and its failure to do so introduced an infirmity in the proceedings before the Tribunal. The High Court, however, took the view that the Tribunal should have allowed inspection of ballot-papers to the respondent and its failure to do so introduced an infirmity in the proceedings before the Tribunal. It also thought that the Election Commission was in error in rejecting the respondent's application for transfer of his case from Bhandara to Nagpur without hearing him, and that, according to the High Court, amounted to a contravention of section 89 of the Act and introduced another infirmity in the proceedings before the Tribunal. But, as we have just indicated what weighed with the High Court most was the consideration that prejudice had been caused to the respondent by compelling him to go to Bhandara for the purpose of prosecuting his election petition, particularly when he was under detention, and so, the High Court ultimately came to the conclusion that the Tribunal should have granted adjournment to the respondent and given him an adequate opportunity to lead his evidence. On these findings, the order passed by the Election Tribunal has been set aside by the High Court and the petition remanded to it for disposal in accordance with law. The High Court was aware that the hearing of the matter had already been delayed, and so, it has directed that after remand, the petition should be tried as expeditiously as possible and has, in that behalf, indicated some programme for the guidance of the Tribunal. It is against this order that the appellant has come to this Court by special leave. 6. The first point which we have to consider is whether it would be appropriate for this Court to interfere with the order passed by the High Court when that order is in the nature of discretionary order. It is true that the granting of an adjournment when a request in that behalf was made by the respondent before the Tribunal was primarily a matter for the Tribunal to consider and decide in its discretion, and, normally, the High Court should be very slow to interfere with such a discretionary order. It is true that the granting of an adjournment when a request in that behalf was made by the respondent before the Tribunal was primarily a matter for the Tribunal to consider and decide in its discretion, and, normally, the High Court should be very slow to interfere with such a discretionary order. The powers of the High Court in hearing appeals against the decisions of Election Tribunals under section 116-A of the Act are, no doubt, wide and it would be open to the High Court to interfere with the findings of fact recorded by the Tribunal and in a proper case, to reverse even the discretionary decisions of the Tribunal. But it is well settled that where discretion has been vested in the Tribunal or the trial Court and it does not appear that that discretion has been capriciously exercised, the Court of Appeal would not interfere with that discretionary order. Mr. Setalvad contends that the High Court was plainly in error in interfering with the order passed by the Tribunal when it rejected the respondent's application for adjournment on the 23rd September, 1963. On the other hand, Mr. Garg contends that since the High Court has interfered with the discretionary order of the Tribunal, that, in turn, is an exercise of the discretion vesting in the Appellate Court, and we should not interfere with the High Court's order. It would thus be seen that the question which falls to be decided assumes a two-fold character; was the High Court justified in interfering with the discretionary order of the Tribunal, and would this Court be justified in interfering with the High Court's discretionary order? If we had been satisfied that the criticism made by the High Court in interfering with the discretionary order passed by the Tribunal was reasonable, we would have certainly refused to interfere with the High Court's order even though we may have been inclined to take a different view in that matter; but, in the present case, we are satisfied that the High Court was plainly in error in assuming that the Tribunal had not exercised its discretion in a proper, reasonable and judicial manner. That is why we have come to the conclusion that it is necessary to reverse the order passed by the High Court in that behalf. 7. That is why we have come to the conclusion that it is necessary to reverse the order passed by the High Court in that behalf. 7. There is one point which it is necessary to examine before dealing with the merits of this argument any further. As we have already seen, during the time that the election petition was pending before the Tribunal, the respondent suffered from the handicap that he was under detention and naturally he was entitled to indulgence when he asked for adjournment and it was the duty of the Tribunal to afford him reasonable opportunity and satisfactory facilities to enable him to collect and lead his evidence. If it had appeared to the Tribunal that the detention of the respondent was ordered mala fide or deliberately in order to put obstacles in the way of his prosecuting his election petition, the Tribunal would have been justified in considering the question of granting adjournments to the respondent from that point of view. It it not likely that an order of detention would be passed against a defeated candidate mainly or solely for the purpose of obstructing the progress of his election petition. But, theoretically, it is possible that an order of detention may be passed to secure such an object at the instance of the party in power, and if such a situation arises, the Tribunal would be entitled and, in fact, in fairness, would be bound to give to the election petitioner fullest opportunities to collect and lead his evidence. In the present case, however, it has not been suggested that the detention of the respondent was actuated by any such motive. It is true that at a very late stage after his adjournment motion was rejected by the Tribunal on the 23rd September, 1963, the respondent did, in a vague and indefinite manner, allege mala fides in respect of his detention, but that contention has not been substantiated before the Tribunal, was not argued before the High Court, and has not been pressed before us. Therefore, we must deal with the question about the propriety of the order passed by the Tribunal when it rejected the respondent's adjournment motion on the footing that the detention of the respondent had noting to do with the election petition filed by him. 8. Therefore, we must deal with the question about the propriety of the order passed by the Tribunal when it rejected the respondent's adjournment motion on the footing that the detention of the respondent had noting to do with the election petition filed by him. 8. While considering this point, it is necessary to bear in mind that the scheme of the Act is, as it ought to be, that the election petitions must be tried expeditiously. If these petitions are allowed to be conducted in a leisurely way and go on interminably, the very object of permitting the remedy of challenging the validity of elections in good time would be defeated. That is why section 90(6) of the Act requires that every election petition shall be tried as expeditiously as possible and endeavour shall be made to conclude the trial within six months from the date of publication of the copy of the petition in the Official Gazette under sub-section (1) of section 86. A similar provision is made in regard to an appeal contemplated by section 116-A. Section 116-A(5) prescribes that every appeal shall be decided as expeditiously as possible and endeavour shall be made to determine it finally within three months from the date on which the memorandum of appeal is presented to the High Court. Dealing with election appeals filed in this Court, the same principal of expeditious disposal is observed by us. Therefore, when we consider the question about the propriety of the order passed by the Tribunal in rejecting the respondent's prayer for adjournment, this significant requirement of expeditious disposal prescribed by the statute cannot be ignored. 9. Let us then indicate broadly the circumstances under which the respondent's application for adjournment came to be rejected. We have already noticed that the election petition was filed by the respondent on the 9th April 1962. Now, on the 5th of September, 1962, the pleadings had been filed by all the parties and on the 15th September, 1962, draft issues were framed. Then the issues were finalised and explained to the parties on the 22nd December, 1962. Afterwards the respondent filed a list of witnesses on the 7th January, 1963. Now, on the 5th of September, 1962, the pleadings had been filed by all the parties and on the 15th September, 1962, draft issues were framed. Then the issues were finalised and explained to the parties on the 22nd December, 1962. Afterwards the respondent filed a list of witnesses on the 7th January, 1963. Thereafter, the proceedings were set down for hearing from time to time and as many as eight adjournments were granted to the respondent, because the Tribunal was satisfied that the respondent had to face some difficulty in prosecuting his petition owing to the fact that he was detained. Ultimately, the case was fixed for the 23rd September, 1963. Meanwhile, on one of the occasions when adjournment was granted to the respondent, he had been told that he should file a list of witnesses whom he proposed to examine topic-wise, and it had been stated on his behalf that his own evidence would take about three days and the evidence which would be given by his witnesses would last for about 15 days. That is why the Tribunal had clearly told the respondent that he would have to be ready to begin his evidence on the 23rd September, 1963; and yet, when the case was called out on that date, the respondent presented another application for adjournment. This application was rejected and an attempt made by the respondent to have the matter reconsidered the next day also failed. On the 23rd September, 1963 the respondent's learned Advocate told the Tribunal that he did not want to enter into the witness-box, or examine any witness. That led to the order of dismissal of the respondent's election petition. 10. On these facts, we find it difficult to accept the conclusion of the High Court that the Tribunal acted unfairly, unreasonably or capriciously in rejecting the respondent's prayer for adjournment on the 23rd September, 1963. The record of the proceeding shows that every time when the respondent asked for adjournment, the Tribunal has made an order sympathising with the difficulty experienced by the respondent and it granted adjournments solely with a view to give him as much accommodation as was reasonably possible. The series of eight adjournments which have been granted by the Tribunal clearly and unambiguously show that the Tribunal was fully conscious of the respondent's difficulties and did its utmost to show him all reasonable indulgence. The series of eight adjournments which have been granted by the Tribunal clearly and unambiguously show that the Tribunal was fully conscious of the respondent's difficulties and did its utmost to show him all reasonable indulgence. But when the respondent was not ready to step into the witness-box on the 23rd September, 1963, though it had been clearly understood on the previous occasion that the case would be peremptorily taken up on the 23rd September, 1963, the Tribunal came to the conclusion that the respondent was not acting fairly and the application made by him was, in substance, abuse of the process of the Court. However, much we may sympathise with the respondent when he pleaded that he was under a handicap in prosecuting the present petition because of his detention, we do not see how it can be reasonably said that the Tribunal should have gone on granting him adjournment after adjournment so long as the respondent was not able to lead his evidence. To adopt such a course would have been plainly unreasonable and substantially inconsistent with the statutory requirement that the election petitions must be tried expeditiously. Therefore, we are satisfied that the High Court was not justified in interfering with the order passed by the Tribunal when it refused to grant an adjournment to the respondent on the 23rd September, 1963. 11. That takes us to the question as to whether the High Court was right in holding that the Election Commission was in error in rejecting the respondent's petition for a transfer from Bhandara to Nagpur. It appears that when the respondent experienced difficulty in prosecuting his election petition at Bhandara, he applied to the Election Commission and prayed that his election petition should be ordered to be heard at Nagpur, or should be transferred to another Commission at Nagpur. The Election Commission dealt with this petition sympathetically; it first wrote to the respondent that he had advised the Election Tribunal at Bhandara to accede to the respondent's request as far as practicable and hold its sittings particularly during the stage of evidence and argument at Nagpur, but for administrative reasons, the Tribunal found it impossible to do so, when the respondent then pressed for the transfer of the election petition to Nagpur, the Election Commission pleaded its inability to accept that request. The High Court has taken the view that in rejecting the respondent's application for transfer, the Election Commission has committed an error of law in that it has not heard the respondent or its counsel before it passed its final order. We are satisfied that this conclusion of the High Court is not warranted by the provisions of section 89. Section 89 of the Act authorises the Election Commission at any stage to withdraw a petition pending before a Tribunal and transfer it for trial to another Tribunal, and it prescribes that in doing so, the Election Commission must give notice to the parties and record its reasons for making an order of transfer. It would be noticed that this section cannot apply to the request made by the respondent that the Tribunal appointed to try his petition should hold its sittings at Nagpur, that is not the same as transferring the petition from one Tribunal to another. Besides, section 89 comtemplates cases of transfer of election petition from one Tribunal to another for reasons on which such tranfers can be judicially justified, it is in that context that the section requires that the Commission should issue notice to the parties and record its reasons for ordering transfer. Having regard to the main prayer made by the respondent in his application to the Commission, it seems wholly inappropriate to uphold his plea that he had made an application for transfer and that it had been dismissed without hearing him. Therefore, we feel no difficulty in coming to the conclusion that the High Court was in error in commenting on the conduct of the Commission when it refused to grant the respondent's prayer either for the holding of the proceedings in the respondent's petition at Nagpur, or for transferring his petition to another Tribunal. 12. In this connection, the High Court should have taken into account the fact that the Election Tribunals are constituted under section 86(2), and should have enquired whether there was another Tribunal available at Nagpur at the relevant time. It may be that after Mr. Bhupali was transferred from Nagpur and Mr. Hadole was appointed the Election Tribunal, there may be no other Judge at Nagpur whom the Election Commission could have appointed as Election Tribunal. Election Tribunals are appointed from out of a panel prepared under section 86(2), and since Mr. It may be that after Mr. Bhupali was transferred from Nagpur and Mr. Hadole was appointed the Election Tribunal, there may be no other Judge at Nagpur whom the Election Commission could have appointed as Election Tribunal. Election Tribunals are appointed from out of a panel prepared under section 86(2), and since Mr. Hadole who was the District Judge at Nagpur, did not want to try this petition, the Commission was probably compelled to appoint Mr. Hussain as the Election Tribunal though he was working as the District Judge at Bhandara. But apart from this aspect of the matter we do not see how the rejection of the respondent's application to the Election Commission even if it was erroneous, can have any bearing at all on the question as to whether the Election Tribunal should have granted the respondent adjournment on the 23rd September, 1963. Incidentally, it may be relevant to add that Mr. Hussain had naturally to do his work as the District Judge at Bhandara in addition to his work as the Election Tribunal, and it is not surprising that though Mr. Hussain was inclined to accommodate the respondent as much as he could, he found it impossible to hold the sittings of the Tribunal at Nagpur. That is why we are not impressed by the reasons given by the High Court in dealing with this part of the respondent's contention. 13. There is one more point to which reference must be made. The High Court has taken the view that the Election Tribunal was in error in refusing inspection of the ballot papers to the respondent. It has referred to the three applications made by the respondent in that behalf Exhibits 34, 46 and 69 and it has observed that the refusal of the Election Tribunal to grant an inspection of the ballot papers to the respondent has caused him prejudice and has virtually denied him an opportunity of a fair trial. This view is clearly erroneous. There is no doubt that an Election Tribunal is entitled to order discovery and inspection of the documents including ballot papers. This view is clearly erroneous. There is no doubt that an Election Tribunal is entitled to order discovery and inspection of the documents including ballot papers. Section 92(a) of the Act expressly confers on the Election Tribunal power in that behalf; but it is not right, we think, to assume that the inspection of ballot papers can be ordered in favour of a party as soon as an application in that behalf is made by it. In a proper case where the interests of justice require, or where a case has been otherwise made out for such inspection, inspection can, and, no doubt, must be allowed. Such a power is also implicit in sections 100(I)(d)(iii), 101, 102 and Rule 93 of the Conduct of Election Rules, 1961. But an order for inspection cannot be made where allegations in support of such a claim are vague and the prayer for inspection appears to be actuated by a desire to fish out evidence in support of the pleas which the party wants to make. A claim for inspection must be set out precisely and must be supported by relevant averments on material facts, and when such a claim is made, the Election Tribunal must examine whether, prima facie, a case for inspection has been made out or not. In the present case, the High Court has not considered this aspect of the matter at all. It seems to have proceeded on the basis that a claim for inspection of ballot papers should be allowed as soon as the election petition makes some kind of allegations in that behalf and makes a prayer for such inspection. As has been recently held by this Court in Jabar Singh v. Genda Lal, 1964 Mh. LJ 617 (SC) (CA No. 1042 of 1963 decided on 20.12.1963 and Ram Sevak Yadav v. Hussain Kamil Kidwai and others, CA No. 1064 of 1963 decided on 17.01.1964 such an approach is not consistent with the relevant provisions of the Act. 14. That leaves only one question to be considered and that is whether the Tribunal was justified in dismissing the respondent's election petition for non-prosecution. On this point, the High Court has found against the respondent and Mr. Garg has not seriously challenged the correctness of the High Court's decision in that behalf. 14. That leaves only one question to be considered and that is whether the Tribunal was justified in dismissing the respondent's election petition for non-prosecution. On this point, the High Court has found against the respondent and Mr. Garg has not seriously challenged the correctness of the High Court's decision in that behalf. Section 109 of the Act deals with withdrawal of petitions after appointment of Tribunal and section 110(2) seems to contemplate that an application for withdrawal shall not be granted if, in the opinion of the Election Commission or of the Tribunal, as the case may be, such application has been induced by any bargain or consideration which ought not to be allowed. If the respondent was keen that his election petition should not be dismissed for non-prosecution, it might have been open to him to apply for its withdrawal and the Tribunal would then have dealt with his application on that basis in accordance with law. If, however, the respondent refused to give evidence and did not examine any witnesses, we do not see how the Tribunal could have adopted any other course than to dismiss his petition for non-prosecution. Such a power is implicit in the Tribunal. Even otherwise, on all the issues which were framed, the onus was on the respondent and in the absence of any evidence, the issues would have had to be answered against the respondent and that would have led to the same result. Mr. Garg no doubt faintly attempted to suggest that the Tribunal should have taken steps to call the witnesses mentioned by the respondent in his list of witnesses and costs in that behalf could have been incurred from the deposit made by the respondent under section 121 of the Act. Such a suggestion is clearly misconceived and ought to be characterised as fantastic. In fact, as we have already indicated Mr. Garg did not seriously press this point before us. 15. The result is, the appeal is allowed, the order passed by the High Court is set aside and the respondent's election petition is dismissed. There would be no order as to costs throughout. Petition allowed.