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Judgment
Chandrasekhara Sastry, J.—This is a petition under Article 226 of the Constitution of India praying to issue a writ of certiorari or other appropriate writ, direction or order calling for the concerned records leading to the order of the Election Tribunal, Rajahmundry, dated 28-10-57 passed in Election Petition No. 10/57 refusing to set aside the election of the 2nd respondent and quash the said proceedings.
General election to the Andhra Legislative Assembly for Guntur No. 1 Constituency was held on 18-2-55. Besides the petitioner, there were four more candidates viz. M. S. Tellakula Jalayya, D. V. Apparao, M. A. Khader and T. Amrutarao, who were duly nominated to contest the election. The petitioner represented the Praja Socialist Party. The 2nd respondent in the Writ Petition was set up by the United Congress Front. The 3rd respondent is a nominee of the Communist party. Respondents 4 and 5 belonging respectively to Muslim and Christian Communities contested the election as Independent candidates. The polling in this Constituency was held on 18-2-55 and the counting of the votes took place on 1-3-55 with the following result.
The 2nd respondent having secured the largest number of votes was duly declared elected on 1-3-55 and the said declaration was published in the Gazette of Andhra dated 7-3-55 under Sec. 67 of the Representation of the People Act (XLIII of 1951). The lodging of the return of election expenses by the 2nd respondent together with his declaration was published in the Gazette of Andhra dated 2-6-55 and the scrutiny of the said return was granted on 6-6-55. Then, the petitioner filed Election Petition No. 10/55 before the Election Tribunal under Secs. 80 and 81 of the Representation of the People Act (XLIII of 1951) praying that the election of the 2nd respondent in this writ petition Sri T. Jalayya, may be declared void.
Several grounds were urged before the Tribunal in support of the petition to set aside the election of the 2nd respondent. It was urged that the 2nd respondent by himself or through his agents committed the corrupt practice of bribery in the form of paying and promising to pay large sums of money to individuals and associations offering house sites and other kinds of gratification to a large number of voters to induce them to vote for him and also as a reward for having voted and for having procured votes for him. He entertained the electors with sweets and tea at various places. He induced the 4th respondent herein to stand for the election with a view to split the Muslim votes. It was also alleged in the petition that the 2nd respondent herein by himself and through his agents exercised undue influence and interfered with the free exercise of the electoral right of the electors. There was also an allegation about the publication of false statements relating to the personal character and conduct of the petitioner, which, according to the petitioner was reasonably calculated to prejudice the prospects of his election and that it actually resulted in a large number of electors being misled. It was also averred that the 2nd respondent and his agents procured vehicles for the conveyance of electors to the polling stations .
One other allegation on which great stress was laid before the Tribunal relates to the return of election expenses lodged by the 2nd respondent which, according to the petitioner, is false in material particulars and the said return was lodged beyond the time prescribed by the Act and the rules. The 3rd respondent in the writ Petition who got 11,998 votes, that is more votes than the petitioner, allowed the enquiry to proceed ex parte before the Tribunal. The 5th respondent also was ex parte. The 4th respondent, the Muslim Candidate denied the allegations made in the petition. Oral and documentary evidence was adduced before the Tribunal. By its order dated 28-10-57, the Tribunal after a consideration of the entire evidence oral and documentary and the probabilities dismissed the Election petition No. 10/55. It is to quash that order that this writ petition is filed. The 2nd respondent who was the successful candidate in the election, is the contesting respondent in this writ petition.
Before the Tribunal, several issues were framed. They are as follows :
Whether the voters in Sambasivaraopet, Locality No. 10, in Guntur Town mentioned in paragraph (1) part (1) of the list of particulars were influenced and made to vote for the 1st respondent?
Whether the 1st respondent donated Rs. 500 - for the construction of a temple at Sangadigunta and influenced the washermen voters mentioned in para 2 of the petition to vote for him?
Whether the washerman voters living in 16th locality in Guntur Town mentioned in paragraph 3 of the petitioner were influenced to vote for the 1st respondent by the following means :
i. by paying a sum of Rs. 800/- to their Association called Guntur Pattana Rajaka Sangham?
ii. by inducing the Chairman of the Guntur Municipality Sri Venkatarao to put up electric lights in that locality?
iii. by getting undue influence over President and Secretary of the said Rajaka Sangham who were employees of the Andhra Bank Ltd. through Sri Maddi Sudarsanam, who is a Director of Bank and also accredited agent of the 1st respondent in the election?
Whether the washerman voters in the 4th locality called Koritepadu were procured by the 1st respondent by promising to construct the Dhobykhana near Pitchikalagunta?
Whether the voters mentioned in sub-paragraph 7 were procured by the 1st respondent by bribing them in the shape of cash?
Whether the 1st respondent procured the vote of Dr. Chalapathirao and the votes of others by treating them with tea and other refreshments and also by promising him that a civil matter pending before the District Court, Guntur would be settled and whether the said Chalapathirao was an agent of the 1st respondent in the election?
Whether the 1st respondent and his agents Messrs. Sudarsanam, Venkatarao and Audinarayana Gupta procured the Vysya voters relating to Chowtra, Chalamayya Choultry and Dandayya Pantulu polling booths by systematically appealing to them to vote for the 1st respondent on grounds of caste and community, viz., that they are Vysyas?
Whether the 1st respondent and his agents Messrs. Sudarsanam, Venkatarao and Audinarayana Gupta procured the Vysya voters relating to Chowtra, Chalamayya Choultry and Dandaya Pantulu polling booths by systematically appealing to them through the national symbols like Ashoke Chakra and Indian National Flag?
Whether the 3rd respondent procured any Muslim voters by appealing to their community feelings and whether this has in any way materially affected the election of the petitioner?
Whether the pamphlets mentioned in part 3 of the list of particulars were published by the 1st respondent or his agents, whether the contents of these pamphlets are false to the knowledge of the 1st respondent or his agents and whether the publication and distribution of these pamphlets have prejudiced the prospects of the petitioner in the election?
Whether the 1st respondent hired and procured the vehicles mentioned in para 5 of the list of particulars for the conveyance of voters to the polling stations?
Whether the return of the election expenses shown by the 1st respondent is false in material particulars?
Whether the 1st respondent received the donations mentioned in paragraph 6 of the list of particulars and utilised the money for his election expenses?
Whether there was any delay in filing the election returns and whether vitiates the election of the 1st respondent?
Whether the result of the election is materially affected for all or any of the reasons mentioned in the petition?
Whether the election is void by reason of the alleged corrupt practices mentioned in the petition?
16 (a). Did the 1st respondent gift 4 bags of rice and pay Rs. 200/- as gratification of Shri Chalapathi Rao on behalf of Sapthahasangam situate in Gopalaswami Street of Old Guntur and thus procure the votes of the members of the said Sangham? Was any gratification paid to any body as reward for having voted for the 1st respondent.
16(b) Did the 1st respondent deposit Rs. 800/- with one Mittapalli Kotayya to procure the votes of Vadderas as mentioned in item (6) of Part I of the list of particulars?
To what relief ....
The Tribunal found all the issues against the petitioner. Election petition 10/55 was filed on 7-6-55. One of the points strongly urged before us by the learned counsel for the petitioner is that the Tribunal was not legally constituted and that therefore, the order of the "Tribunal is wholly void. It is necessary to set out a few facts to appreciate this contention.
The Election Tribunal was constituted by an order dated 23-7-1955 with Sri G. Nagi Reddy as the Chairman and Sri C. Narasimhacharyulu and Sri M. Sitaramaiah as the two other members. But subsequently, Sri G. Nagi Reddy resigned and by a Notification dated 25-4-56, Sri T. H. M. Sadasivayya was appointed as the Chairman in the place of Sri G. Nagi Reddy and the enquiry proceeded and several witnesses were examined. Then, the petitioner filed writ petition No. 566 of 1957 in this High Court under Art. 226 of the Constitution of India for issuing a writ of prohibition prohibiting the Election Tribunal from proceeding with the enquiry of the Election Petition No. 10/55 on its file, questioning the validity of the Constitution of the Tribunal. The said petition was heard by Subba Rao, Chief Justice and Jaganmohan Reddy, J., and was dismissed on 9-8-57. It was pointed out that the said writ petition was filed one year and four months after Sri T. H. M. Sadasivayya was appointed as the Chairman of the Tribunal. In dismissing the writ petition, it was observed that, if the petitioner has any grievance, he should ventilate them after the Election Petition was finally disposed of. It was also pointed out that it was really surprising that though the Election Petition was filed before July, 1955 and though two and half years passed, the petition was still pending without being disposed of. It was also observed that such an abnormal delay in disposing of the Election Petitions would make the proceedings a farce and a scandal. Subsequently, the enquiry was concluded and the Tribunal dismissed the Election Petition.
The point taken by the learned counsel for the petitioner is that u/s 86 of the Representation of the People Act (XLIII of 1951), the Chairman in this case, Sri T. H. M. Sadasivayya could not be appointed after the two members were appointed and that therefore the Tribunal was not legally constituted. According to the learned Counsel, under Sec. 86, clause (3), second proviso it is only a Chairman of the Tribunal that could be appointed before the other Members and that the other Members could not be appointed before the Chairman was appointed. He argued that a distinction was made, so far as the appointments of the persons constituting the Tribunal are concerned, between the Chairman and the Members and therefore the distinction is drawn between the Chairman and the Members under this section. According to the learned counsel, when Sri G. Nagi Reddy, who was originally appointed as Chairman, resigned, the entire Tribunal has to be abolished and a new Tribunal has to be constituted consisting of the Chairman and two other members, and the Election Commission had no jurisdiction to appoint Sri T. H. M. Sadasivayya only as the Chairman in the vacancy caused by the resignation of Sri G. Nagi Reddy. To appreciate this contention, it is necessary to refer to Sec. 86 of the Act. It is as follows:
If the petition is not dismissed u/s 85, the Election Commission shall appoint an Election Tribunal for the trial of the petition.
For the purpose of constituting such Tribunals the Election Commission shall obtain from the High Court of each State (other than Jammu and Kashmir)......
a) a list of persons who are or have been District Judges in the State and who are in the opinion of the High Court fit to be appointed as members of the Election Tribunals, and
b) a list of advocates of that High Court who have been in practice for a period of not less than ten years and who are in the opinion of the High Court fit to be appointed as such members, and shall maintain the lists by making such alterations therein as the High Court may from time to time direct.
Every Tribunal appointed under sub-section (1) shall consist of -
a) a Chairman who shall be either a person who is or has been a judge of a High Court, or a person selected by the Election Commission from the list maintained by it under clause (a) of subsection (2); and
b) two other members of whom one shall be selected by the Election Commission from the list maintained under clause (a) of sub-section (2) and the other shall be selected by it from the list maintained under clause (b) of that sub-section;
Provided that where the petition for the trial of which a Tribunal is to be appointed is in respect of an election to the Legislative Assembly or the Legislative Council of a State, no person who belongs to the judicial service of another State shall be selected for appointment as a member of the Tribunal except with the consent of the Government of the other State:
Provided further that nothing in this sub-section shall be deemed to prevent the appointment of a Chairman of the Tribunal before that of the other members.
If during the course of the trial, any member of a Tribunal is for any reason unable to perform his functions or has to relinquish his membership, the Election Commission shall appoint another member in accordance with the provisions of sub-section (3), and upon his joining the Tribunal the trial shall be continued as if he had been on the Tribunal from the commencement of the trial;
Provided that the Tribunal may, if it think fit recall and re-examine any of the witnesses already examined.
Reference to the Tribunal in this Part shall, as respects any matter to be done before the commencement of the trial, be deemed to be reference to the Chairman of the Tribunal.
In this section, the expressions ''District Judge'' and ''Judicial Service'' have the same meaning as in Article 236.
It is contended by the learned counsel for the petitioner that for the purpose of appointment, the Chairman is not a Member. In our view, this contention is not sound and is not warranted by the words and the language used in this section. Under sub-section (3) of section 86, every Tribunal shall consist of a Chairman, who shall be either a person who is or has been a judge of a High Court or a person selected by the Election Commission from the list maintained under Clause (a) of subsection (2) and two other members of whom one shall be selected by the Election Commission from the list maintained under Clause (a) of sub-section (2) and the other shall be selected by it from the list maintained under clause (b) of that sub-section. In our view, the use of the expression two other members in clause (b) of sub-section (3) implies that the Chairman is also a Member of the Tribunal even for the purposes of appointment. The use of the word "other" is very significant and does imply that the Chairman also is one of the Members of the Tribunal. Similarly, the same expression ''other members'' is used in the second proviso to clause (b) of sub-section (3) which states that "nothing in this sub-section shall be deemed to prevent the appointment of a Chairman of the Tribunal before that of the ''''other members".
Reference also may be made to section 104 of the Act in this connection. It is as follows:
If during the trial of an election petition there is a difference of opinion among the members of the Tribunal on any matter or if at the conclusion of such trial there is a difference of opinion among them on any question regarding the orders to be made u/s 98 or section 99, the opinion of the majority shall prevail, and the orders of the Tribunal shall be expressed in terms of the views of the minority.
This section provides that if there is a difference of opinion among the members of the Tribunal on any matter or if at the conclusion of such trial there is difference of opinion among them on any question regarding the orders to be made u/s 98 or 99, the opinion of the majority shall prevail. Unless the Chairman also is considered to be a member of the Tribunal, this section will be meaningless, because there are only two other members and there cannot be a majority. Therefore, we are clearly of the opinion that the Chairman of the Tribunal is also a member of the Tribunal u/s 86 of the Act. We are also of the opinion that second proviso to sub-section (3) of section 86 enables the appointment of a Chairman before that of the members and does not prevent the appointment of the members of the Tribunal before the Chairman is appointed.
It is also argued by the learned counsel for the petitioner that, when Sri G. Nagi Reddy, who was originally appointed as Chairman, resigned, the Election Commission has no jurisdiction and no power to appoint another person as Chairman in the vacancy so caused and that the Election Commission has to abolish the Tribunal as a whole and constitute a fresh Tribunal consisting of a Chairman and two other Members. But the learned Counsel for the 2nd respondent relies upon sub-section (4) of section 86 of the Act. It is as follows:
If during the course of the trial, any member of a Tribunal is for any reason unable to perform his functions or has to relinquish his membership, the Election Commission shall appoint another member in accordance with the provisions of sub-section (3) and upon his joining the Tribunal the trial shall be continued as if he had been on the Tribunal from the commencement of the trial:
Provided that the Tribunal may, if it thinks fit, recall and re-examine any of the witnesses already examined.
Firstly, it is contended by the learned Counsel for the petitioner that since the Chairman is not a Member within the meaning of this section, sub-sec. (4) does not apply to the filling up of a vacancy caused by the resignation of the Chairman. We cannot uphold this contention in the view we have taken above that the Chairman also is a member of the Tribunal. In our view, if a Chairman is unable to perform his functions for any reason (in this case by his resignation), it is open to the Election Commission to appoint another person as the Chairman as the word ''any member'' in sub-section (4) includes the Chairman also. We are supported in our view by the decision in Rawat Man Singh Vs. Roop Chand Sogani and Others, . This is a decision of a Division Bench of the High Court of Rajasthan consisting of Wanchoo, C. J. and Bapna J. There also, the validity of the constitution, of the Election Tribunal was questioned on the following grounds:
The Chairman was appointed after the appointment of members.
On the resignation of the first Chairman, the Tribunal was not re-constituted, but only a new Chairman was appointed.
The High Court pointed out that it is nowhere laid down in the Act that the appointment of the members or the Chairman should be made simultaneously or that the appointment of the Chairman should be made first and that the second proviso to sub-section (3) enables the appointment of a Chairman before that of the other members, but does not preclude the appointment of members if for any reason, the selection of the Chairman may be delayed. The contention that the constitution of the Tribunal was invalid, owing to the appointment of the Chairman after the appointment of the Members was rejected. It was also held that under sub-section (4) of section 86 ''member'' includes ''Chairman'' also for, in sub-section (3), the Tribunal is declared to consist of the Chairman and two other members and that the words ''two other members'' indicate that the Chairman is also one of the members constituting the Tribunal, and that the appointment of another person as Chairman in the vacancy caused by the resignation of the previous Chairman did not require any re-constitution of the Tribunal as a whole. We are in respectful agreement with the view expressed in the said decision.
It is further contended by the learned counsel for the petitioner that sub-section (4) can apply only if the vacancy occurred during the course of the ''trial'' and that in this case, all the witnesses were examined only after Sri T. H. M. Sadasivayya was appointed as Chairman. According to the learned counsel, the trial begins only after the examination of witnesses is started and that since in this case, Sri G. Nagi Reddy has resigned before the examination of the witnesses is started, the trial had not begun and that therefore sub-section (4) has no application to this case and that the Election Commission was bound to constitute a new Tribunal consisting of a Chairman and two other members. We are unable to agree with this contention for the reason that this question is already concluded by two decisions of the Supreme Court. The question is when does the trial of the Election Petition begin. In Chandrika Prasad Tripathi Vs. Siv Prasad Chanpuria and Others, it is held that the scheme of Chapter III clearly indicates that once an election petition is referred to an Election Tribunal for trial u/s 86, the Tribunal is possessed of the petition and all proceedings before it are proceedings in the trial of the said petition. Again in Om Prabha Jain Vs. Gian Chand and Another, it is held that the word ''trial'' clearly means the entire proceedings before the Tribunal from the reference to it by the Election Commission to the conclusion. Following those two decisions of the Supreme Court, we hold that in this case the vacancy of the office of the Chairman of the Tribunal occurred during the course of the trial of the Election Petition within the meaning of sub-section (4) of section 86 and it was competent for the Election Commission to appoint Sri T. H. M. Sadasivayya as the Chairman of the Tribunal. We may also point but that issues were framed by Sri G. Nagi Reddi himself on 9-2-1956. Framing of issues is part of the trial.
For the above reasons, we hold that the Tribunal, which passed the order sought to be quashed, has been validly constituted in accordance with the provisions of section 86 of the Act.
It is contended for the petitioner that the return of the election expenses was not lodged within the prescribed time. u/s 76 of the Act, a return of the election, expenses of the candidate shall be lodged with the Returning Officer within the prescribed time after every election and every such return shall be in such form and shall contain such particulars as may be prescribed and shall be accompanied by declaration in the prescribed form by the candidate and his election agent made on oath or solemn affirmation before a magistrate. Rule 112, clause (1) of the Representation of the People (Conduct of Elections and Election Petitions) Rules, 1951 prescribes that the returns of election expenses under Chapter VIII of Part V of the Act shall be lodged with the Returning Officer within forty five days from the date of the publication u/s 67 of the result of the election to which the expenses relate. In the present case, the 2nd respondent was declared by the Returning Officer duly elected on 1-3-55 and the declaration was published in the Gazette of Andhra on 7-3-1955 u/s 67 of the Act. The return of the election expenses in the prescribed form and the necessary declaration were lodged with the Returning Officer by the 2nd respondent on 19-4-55 itself together with 114 vouchers mentioned therein. This is clearly within the forty five days prescribed under Rule 112, cl. (1).
A memo, Ex. B. 38 was filed by the 2nd respondent before the Returning Officer on 20-4-1955 stating that the return was lodged with the Returning Officer on 19-4-1935 together with vouchers, but that vouchers were returned to him as being unnecessary and that again on 20-4-55, he represented the vouchers to the Returning Officer. This memo bears the initials of the Returning Officer under dated 21-4-55. As per the Gazette Notification, Ex. B. 39, it was stated by the Returning Officer that the return was lodged with him on 21-4-55. It is clear from the above dates that the last date for lodging the return of the election expenses was 21-4-55 and that it was in fact lodged even on 19-4-55. According to the learned counsel for the petitioner, the forty five days had to be counted including 7th March, 1955, the date on which the 2nd respondent was declared duly elected and that therefore the last date would be 20-4-55 and the declaration by the Returning Officer as per Ex. B. 39 that the return was lodged with him on 21-4-55 clearly shows that the return was lodged beyond the time prescribed. We are unable to agree with this contention. On the facts, it is abundantly clear that the return was lodged even on 19-4-55 and well within time. We reject this contention.
It is further contended that the return of the election expenses has to be submitted in the prescribed form, which is Form No. 26 and the the 2nd respondent did not comply with the requirements of this form read with R. 112, Cl. (2). Rule 112, clause (2) reads as follows;
Every such return shall be in form 26 and shall contain the particulars specified in paragraphs 1 and 2 of Schedule VI and shall be accompanied by the declaration referred to in sub-section 2 of sec. 76. The said declaration shall be in the forms contained in paragraph 3 of the said Schedule and shall be written on papers stamped with nonjudicial stamps of the value of two rupees each.
Form No. 26 prescribed a tabular form for entering all receipts of money and it prescribes that the receipts shall include all monies, securities and equivalents of money received from any person (including the candidate himself), club, society, or association in respect of any expenses, whether paid or remaining unpaid, incurred on account of , or in connection with, or incidental to the election and that the name of each such person etc., and the amount received shall be shown separately. In the return submitted by the 2nd respondent in this case, this tabular form was left blank without any entry. It is contended for the petitioner that this is a violation of Rule 112 and that therefore the election of the 2nd respondent is liable, to be set aside.
The case for the respondent is that he did not receive any moneys, etc., from any other person and that he himself met all the expenses incurred on account of or in connection with or incidental to his election, and that therefore it is not necessary for him to make any entry in the tabular form relating to receipts. The Tribunal found as a fact that the 2nd respondent did not receive any money from any others and that he himself met all the expenses in connection with the election. So, the only defect in the form is that the 2nd respondent has failed to enter in the tabular form his own name and the amounts spent by him for the expenses of the election. The question is whether the failure to enter the 2nd respondent''s name in this tabular form relating to receipts amounts to a non-compliance with Rule 112; clause (2).
Stress is laid by the learned Counsel for the petitioner in the expression "including candidate himself" noted in the parenthesis in the Form No. 26. In our view, that would arise only if the candidate received some amount, from others and he also contributes some amounts towards the election expenses. If the entire amount spent for the election is that of the candidate himself, it is not necessary to so state in the tabular form relating to receipts, because there is no question of the candidate receiving any money from himself. The question of receipt arises only if any amount is received from others or from other sources. Therefore, in our view the return of the election expenses is not defective in any respect, and that is not in contravention of Rule 112, clause (2).
Further, even assuming that the return submitted by the 2nd respondent is defective in the manner suggested by the petitioner, the election is not liable to be set aside u/s 100, clause (2) (c) of the Act. Under the said Clause, the Tribunal shall declare the election of the returned candidate to be void only if the result of the election has been materially affected by any mistake in the use of any prescribed form. In this case, the petitioner has not proved that the result of the election has been materially affected by this alleged mistake in the use of the prescribed form No. 26.
It is next argued for the petitioner that the 2nd respondent received two amounts of Rs. 2,000/- and Rs. 300/- for his election expenses which he has not disclosed in his return. On this question, the lower Court, after an elaborate discussion of the evidence, came to the conclusion that the 2nd respondent did not receive those amounts and did not expend them for his election expenses. These are findings of fact the petitioner has not shown any sufficient reason for interfering with these findings.
The next point argued by the learned counsel for the petitioner relates to the publication of certain pamphlets alleged to have been published by the 2nd respondent or his agents. This is covered by the 10th issue framed by the Tribunal. This argument is based on Exs. 54 and A-55, two pamphlets. It is argued that these pamphlets which were published by the 2nd respondent or his agents or with his connivance contained false statements relating to the personal character and conduct of the petitioner and which are calculated to prejudice the prospects of the petitioner''s election and which had actually resulted in a large number of electors being misled and abstaining from voting. According to the petitioner, it is alleged in the pamphlets that the petitioner is a traitor not only to Sri T. Prakasam, but also to the country. The 2nd respondent denied that he is responsible for the publication of these pamphlets. The Tribunal found in paragraph 129 of its judgment as follows:
It may be that the 1st respondent had no knowledge of the publication of these leaflets. But still as one of them was published by his recognised agent and the other by an organ of political party which had set him up as a candidate to contest the election, he cannot be permitted to dissociate himself with the publication of these pamphlets.
Therefore, the next question that arises for consideration is whether the statements of fact contained in these leaflets are false as a matter of fact which he either believes to be false or does not believe to be true and, secondly, whether these statements relate to the personal character and conduct of the petitioner and whether these statements are reasonably calculated to prejudice the prospects of the petitioner''s election. Section 123 enumerates the major corrupt practices for the purposes of the Act, clause 5 of the said section is as follows:
The publication by a candidate or his agent, or by any other person with the connivance of the candidate or his agent, of any statement of fact which is false and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature or withdrawal of any candidate, being a statement reasonably calculated to prejudice the prospects of that candidate''s election.
Under this clause, the petitioner has to further prove (1) that besides the publication of the pamphlets, any statement of fact contained therein is false; (2) that it refers to the personal character or conduct of the petitioner and (3) that it is a statement reasonably calculated to prejudice the prospects of the petitioner''s election. The statement complained of in the present case is as follows :-
Sri Prakasam became enraged and said in any angry tone, I am not responsible if Sri Narasimharao is using any name in that manner. He has not betrayed me but has also done injury to the country. I have, however, great confidence that the citizens of Guntur would see that he would have no place as a consequence of his act.
The pamphlet stated that Sri T. Prakasam made that statement. The question is whether the petitioner proved that Sri T. Prakasam did not make that statement. The Tribunal has found that the petitioner has not proved that the statement in the pamphlet that Sri T. Prakasam made this statement referred to in the pamphlet is false. The 2nd respondent himself did not state that the petitioner is a traitor to Sri T. Prakasam and to the country. In the pamphlet, it is merely stated that Sri T. Prakasam said so. It is not proved by the petitioner that the statement that Sri T. Prakasam stated so is false. Therefore, we are of the view that the petitioner failed to establish that the 2nd respondent is guilty of this corrupt practice. The Tribunal was also of the opinion that this statement did not relate to the personal character or conduct of the petitioner. It is strongly contended before us that to characterise a person as a traitor is an attack on the person''s personal character and conduct. The Tribunal was of the view that since the word ''traitor'' stated to have been used by Sri T. Prakasam was in relation to the petitioner''s behaviour as a politician, the said imputation did not relate to the petitioner''s personal character or conduct. It is not necessary for us to decide this question as we are satisfied and as we agree with the finding of the Tribunal that the petitioner failed to prove that Sri. T. Prakasam did not make the statement in question. We therefore disagree with this contention.
A perusal of the issues framed by the Tribunal shows that the said issues are all issues of fact and the Tribunal found all these issues against the petitioner. It is argued by the learned counsel for the petitioner that it is open to him to canvass the correctness of those findings because they are vitiated by errors. We cannot agree with this contention. The scope of the jurisdiction to interfere under Article 226 of the Constitution is well settled by the decision in T.C. Basappa Vs. T. Nagappa and Another, It is pointed out that certiorari may and is generally granted when a Court has acted without or in excess of its jurisdiction and that Writ of Certiorari may also issue where a Tribunal may be competent to enter upon an enquiry, but in making the enquiry it may act in flagrant disregard of the rules of procedure or where no particular procedure is prescribed, it may violate the principles of natural justice. It was further pointed out that an error in the decision or determination itself may also be amenable to a writ of certiorari, but it must be a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. It was held that the error must be a patent error which can be corrected by certiorari but not a mere wrong decision. Again in Hari Vishnu Kamath v. Ahmad Ishaque, 1955 SCJ 267 : ((S) Hari Vishnu Kamath Vs. Syed Ahmad Ishaque and Others, ) after referring to the case of T.C. Basappa Vs. T. Nagappa and Another, it is stated that a writ of certiorari could be issued to correct an error of law if it is manifest on the face of the record. It is therefore clear that it is not open to the petitioner to canvass the correctness of the findings of the fact arrived at by the Tribunal. This writ petition has to be decided on the basis of the findings of fact arrived at by the Tribunal.
It is also submitted by the learned counsel for the petitioner that the Tribunal is prejudiced against the petitioner and that the Judgment is biased. The reason suggested is the filing of the Writ petition No. 566/57 by the petitioner questioning the legality of the Constitution of the Tribunal and the observations of this High Court about the delay in the disposal of the Election Petition. Beyond repeating this allegation, we are not shown any reason in support of this allegation. We reject this contention.
In this writ petition, the petitioner filed C. M. P. 7690/60 praying for leave to convert the writ petition into a Special Appeal under Sec. 116-A of Act XLIII of 1951. Under the Representation of the People Act (XVIII of 1951) as originally enacted, there was no provision expressly or otherwise enabling the party aggrieved by the order of the Election Tribunal to refer an appeal, against the order of the Tribunal. The said Act was amended in the year 1956. By section 62 of the latter Act, section 116-A was introduced in Act XLIII of 1951 providing that
an appeal shall lie from every order made by a Tribunal u/s 98 or section 99 to the High Court of the State in which the Tribunal is situated.
It is to treat this writ petition as an appeal u/s 116-A that this petition has been filed by the petitioner. But, section 84 of Act 27 of 1956 states that:
Save as otherwise provided in this Act, nothing herein shall apply to any election which has been called before the commencement of this Act or to any election petition arising out of such election, whether such petition is pending at such commencement or is presented afterwards, and all such elections shall be held and petitions tried, and all matters in connection with such elections or petitions (including the Constitution of Election Tribunal) shall be regulated, in accordance with the provisions of the law in force immediately before such commencement.
It follows that section 116-A has no application to this case and no appeal lies against the order of the Tribunal in question, which is sought to be quashed by the writ petition. The learned counsel appearing for the petitioner did not seriously suggest that section 116-A applies to this case. Hence we heard the arguments in the writ petition No. 1083/58 itself as in our opinion it cannot be converted into an appeal u/s 116-A Therefore, C. M. P. No. 7690/60 is dismissed.
In the result, the writ petition fails and is dismissed with costs of the 2nd respondent Advocate''s fee Rs. 200/-.